Rejection of unconstitutionality claim against Isla San Lucas National Park Creation LawRechazo de acción contra Ley de Creación del Parque Nacional Isla San Lucas

Constitutional Chamber Date of Resolution: May 31, 2023 at 14:40 Type of matter: Unconstitutionality action Constitutional control: Dismissal judgment Judgment with Dissenting Vote Judgment with separate note Judgments from the same expediente Content of Interest:

Strategic Topics: Environmental, Political Constitution Type of content: Majority vote Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: ENVIRONMENT Subtopics: NOT APPLICABLE.

ENVIRONMENT. CREATION OF THE ISLA SAN LUCAS NATIONAL PARK Judgment: 012817-23 of May 31, 2023 Type of matter: Unconstitutionality action Challenged norm: Law for the Creation of the Isla San Lucas National Park. NO. 9892 of August 24, 2020. Published in La Gaceta 233 of 09/21/2020 Dispositive part: By majority, the unconstitutionality action is declared without merit. By majority, it is considered that the integration of the Board of Directors regulated in numeral 9 is not unconstitutional, provided that the last paragraph of the cited article is interpreted to mean that in those decisions referring to environmental matters and the historical-architectural heritage, this collegial body must previously consult the bodies cited therein, whose criteria—in their respective matters—will be binding on the Board of Directors. Magistrate Garro Vargas records a note. Magistrates Cruz Castro, Rueda Leal, and Garita Navarro dissent, declare the action with merit, and annul Law No. 9892 of August 24, 2020, called "Law for the Creation of the Isla San Lucas National Park," for violation 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 objectivization of environmental protection (principio de objetivación de la tutela ambiental), and Articles 50 and 89 of the Political Constitution.

Magistrate Cruz Castro provides additional reasons. Let this pronouncement be summarized in the Official Gazette La Gaceta and published in full in the Judicial Bulletin. Notify the Attorney General of the Republic, the plaintiffs, and the parties. Communicate to the President of the Legislative Assembly.

ANALYZED TOPICS SUSTAINABLE AND TOURISM DEVELOPMENT ON THE PROTECTION STATUS OF ISLA SAN LUCAS, ITS AREA, USES, AND TECHNICAL STUDIES.

ON THE ALLEGED REDUCTION OF THE SURFACE AREA OF THE PROTECTED WILD AREA AND CHANGE OF CATEGORY, WITHOUT TECHNICAL JUSTIFICATION.

ON THE QUESTIONING OF THE EXISTENCE OF A TOURISM USE ZONE ON ISLA SAN LUCAS AND ITS DELIMITATION.

ON THE PLAINTIFFS' QUESTIONING IN RELATION TO THE COMMERCIAL PURPOSES OF THE CHALLENGED LAW.

ON THE ALLEGED UNCONSTITUTIONALITY OF LAW NO. 9892, REGARDING THE INTEGRATION OF THE BOARD OF DIRECTORS THAT ADMINISTERS THE ISLA SAN LUCAS NATIONAL PARK.

ON THE ALLEGED UNCONSTITUTIONALITY OF LAW NO. 9892, REGARDING THE GRANTING OF CONCESSIONS.

ON THE ALLEGED UNCONSTITUTIONALITY OF LAW NO. 9892, REGARDING UNCERTAIN FINANCING.

Telf5439 ... See more Citations of Legislation and Doctrine Related Judgments Content of Interest:

Type of content: Majority vote Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 050- Environment Subtopics: NOT APPLICABLE.

ARTICLE 50 OF THE POLITICAL CONSTITUTION. “…this Chamber indicated that, for equitable access to development, the traditional idea that this only occurs in urban areas must be abandoned, when in rural areas other factors that make the place unique can be exploited, while of course ensuring those conditions are not threatened. It was warned that there is no doubt that the exploitation of natural resources implies economic diversity, and to that extent the environment requires protection to withstand the burdens of human intervention, making it necessary to ensure reasonable development in balance with the environment, so that the control that could be exercised would increase, depending on the impact it may have on it. Consequently, tourism development must not imply the destruction of public domain goods or the surroundings, because it even depends on their preservation to achieve the economic improvement of rural communities within the parameters of sustainability. Among the constitutional purposes of the State is also to develop policies that reduce social and economic gaps, adjusting its actions to the protection of environments, whether natural, rural, or mixed, based on the provisions of Article 50 of the Constitution…” CO05/24 ... See more Content of Interest:

Type of content: Majority vote Branch of Law: 1. POLITICAL CONSTITUTION WITH JURISPRUDENCE Topic: 089- Protection of natural beauties and historical and artistic heritage Subtopics: NOT APPLICABLE.

ARTICLE 89 OF THE POLITICAL CONSTITUTION. “… The Chamber recognized that the balance between one and the other is very delicate, but for this to occur, without degrading the environment, one must turn to science and technique to determine what burdens 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, widely recognized in international human rights instruments, deserves these considerations from this Constitutional Court. Thus, this Chamber concluded that rural development based on tourism aimed at natural and cultural heritage is constitutionally legitimate as long as it is sustainable. Hence, if science and technique suggest the imposition of certain limitations on the number of visitor groups, at certain times, etc., they could not be judged as unconstitutional, given that they respond to sustainability criteria, but without detracting from the different international provisions that safeguard the right to the enhancement of those goods belonging to national history, not only as national heritage assets but as assets of all humanity, and their restriction to populations is not legitimate…” CO05/24 ... See more Content of Interest:

Type of content: Majority vote Branch of Law: 2. PRINCIPLES WITH JURISPRUDENCE Topic: Environmental protection Subtopics: NOT APPLICABLE.

ENVIRONMENTAL PROTECTION. “…in the normative and institutional framework existing at that time, evidencing a need for inter-institutional collaboration, given the insufficiency of its own technical and material resources that it itself demonstrates; and that, in any case, this does not prevent considering that the 2012 Plan, updated in 2020, constituted a technical basis that did allow determining the state of the zone in question and projecting, eventually, greater and better environmental protection, which is consistent with the category granted by the law challenged here. Costa Rica has international obligations to protect not only the environmental resource but also the cultural architectural one, and it evidenced this in judgment No. 2010-13099, when referring to Executive Decree No. 34282-TUR-MINAE-C, relating to Isla San Lucas, referenced in Whereas Clause V. However, and despite the existence of the decree reviewed at that time, given the lack of budget, SINAC personnel and their specialization in cultural heritage protection, as well as the lack of resources, part of that heritage was destroyed, which our country is obligated to protect and conserve for present and future generations…” CO05/24 ... See more Content of Interest:

Type of content: Separate note Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: ENVIRONMENT Subtopics: NOT APPLICABLE.

ADDITIONAL REASONS OF MAGISTRATE CRUZ CASTRO.— The disregard of the constitutional principle of technical reasonableness (razonabilidad técnica), in environmental matters, is also a defect in the legislative procedure.

I have concurred with the dissenting vote in this action, where for the extensive reasons expressed therein, I have considered that Law No. 9892 of August 24, 2020, called "Law for the Creation of the Isla San Lucas National Park," is unconstitutional. Basically, this vote sustains considerations of that unconstitutionality, for violation 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 objectivization of environmental protection, and Articles 50 and 89 of the Political Constitution.

Now, in addition to what is indicated there, I have considered adding these additional reasons to state the following:

The principle of technical reasonableness, as a constitutional principle, requires the legislator to have a technical study prior to the approval of a law, in order to prove the proportionality between the chosen means and the proposed ends, and thereby prevent the law from being irrational, arbitrary, or capricious, and also to ensure that the selected means have a real and substantial relationship with their object (see Resolution No. 1992-1739, No. 2018-15966, No. 2021-11957, among others). This principle thus constitutes a constitutional parameter (see Resolution No. 2001-732). A parameter that entails considering the absence of a technical criterion as an essential defect in the legislative procedure (see Resolution No. 2012-13367 and No. 2017-11714, the latter when it indicates: "this Court has required in environmental matters the need for technical studies to reduce protected areas, and has concluded that this omission constitutes a defect of an essential nature in the legislative procedure.").

Thus, this Chamber has specified that in certain matters, that technical or scientific study is necessary and therefore has understood that having such technical support is part of the constitutional principle of technical reasonableness. Thus, this Chamber has said that "Technical studies are necessary when there is an express norm in this regard (for example, in environmental matters) or when the matter requires them, under penalty of transforming discretion into arbitrariness." (see Resolution No. 2018-00230 of 10:40 hours on January 19, 2018). Regarding the constitutional principle of objectivization of environmental protection or principle of linkage to science and technique, see Resolutions No. 2022-23307 of 13:40 hours on October 25, 2022, No. 2010-000075 of 15:01 hours on January 6, 2010, No. 2012-013367 of 11:33 hours on September 21, 2012, No. 2013-005964 of 15:05 hours on April 30, 2013, and No. 2018-007978 of 12:45 hours on May 18, 2018.

In this matter, Law No. 9892 of August 24, 2020 proceeded to change the management category of a territorial surface area of the protected wild area "Isla San Lucas" and to reduce its surface area. All of this, without having scientific studies that would guarantee that said change would not have a de-protective impact on the natural heritage (because it is a protected wild area) and cultural heritage (because it is declared cultural heritage) of Isla San Lucas. This requirement imposes a clear restriction on the exercise of political power, in this case, that of Parliament. It cannot adopt a decision in such a sensitive matter, such as the environment, without a prior technical study. In this case, political power submits, for higher interests, to scientific criteria. This restriction has been disregarded in this case, as in others in which this Chamber has elucidated environmental matters. The political decision, as important as it is, must submit to scientific criteria, in defense of higher interests.

Furthermore, the violation of the following environmental principles is evident: the preventive principle (when there is certainty of possible damage to the environment, the affecting activity must be prohibited, limited, or conditioned on compliance with certain requirements). In general, this principle applies when there are risks clearly defined and identified at least as probable; likewise, this principle is useful when there are no technical reports or administrative permits that guarantee the sustainability of an activity, but there are sufficient elements to foresee eventual negative impacts); the precautionary principle (when there is danger of serious and irreversible damage, the lack of absolute scientific certainty shall not be used as a reason to postpone the adoption of effective measures based on costs to prevent environmental degradation. The principle starts from a reasonable scientific uncertainty together with the threat of serious and irreversible environmental damage); the pro natura principle (in case of doubt or uncertainty, controversies must be resolved and norms must be interpreted in favor of the protection and conservation of the environment); and the principle of objectivization of environmental protection (or principle of linkage to science and technique, according to which decision-making in this matter must be accredited with technical studies, both in relation to acts and provisions of a general nature—both legal and regulatory—, from which the requirement of "linkage to science and technique" is derived, thereby conditioning the Administration's discretion in this matter. It has been defined as Principle 17 of the Rio Declaration on Environment and Development).

When faced with a situation that requires the application of the precautionary principle, the legislator must refrain from legislating to the detriment of or through norms that imply a regression of environmental protection. Therefore, the application of the precautionary principle implies that when there are indicators that a certain activity could plausibly cause serious and irreversible damage to the environment, the lack of complete certainty or scientific evidence in this regard does not exempt one from the obligation to prevent a violation of the environment. Moreover, in accordance with the theory of Drittwirkung der Grundrechte, this principle extends its guiding function to the conduct of both public and private legal subjects.

The foregoing therefore entails a violation of the constitutional principle of technical reasonableness, and with it, the legislator incurred a substantial procedural defect that renders the law unconstitutional, not only for substantive reasons as stated in the dissenting vote, but also in form, as I state in these additional reasons.

The tension between scientific reasons and conjunctural political interests is seen very clearly in environmental issues, because the aim is for interests foreign to the protection of the Earth to prevail, despite the scientific criteria that contradict such an aim. The delicate balances that sustain the environment and the health of Mother Earth require the wisdom of science, abstaining even when there is doubt of environmental harm. This wise rule is squeezed or postponed when political urgencies require it. It is a common story in the matter of protecting our common home.

Fernando Cruz Castro Telf5439 ... See more Content of Interest:

Type of content: Separate note Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: ENVIRONMENT Subtopics: NOT APPLICABLE.

Res: 2023-012817 NOTE OF MAGISTRATE GARRO VARGAS I deem it necessary to point out 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 some considerations regarding the exercise of constitutionality control and international instruments as a parameter for assessment. In this regard, where relevant and in summary, I have indicated the following:

“The function of controlling the conformity of laws and general provisions with treaties and conventions is not expressly provided for in the constitutional text but only in Article 73.d) LJC, but it is not contrary to it, as it guarantees the effectiveness of Article 7 CP. That function of controlling said conformity is a function distinct from the one exercised by the Chamber under Article 10 CP—constitutionality control—and from that established in Article 48 CP—jurisdictionally guaranteeing constitutional rights and those of a fundamental nature established in international instruments on human rights—.

When this Chamber exercises its function of constitutionality control, it is not appropriate for it to rely on treaties and use them in fact as if they were part of the constitutionality parameter. Such instruments, and only if they are duly ratified, can be established as a parameter of conformity of legal and infra-legal norms with themselves, by reason of the provisions of Article 7 CP and Article 73.d) LJC. This is consistent with a systematic interpretation of the Constitution and the LJC and with respect for the separation of powers, a foundational principle of every democratic State governed by the rule of law.” (The highlighting does not correspond to the original votes).

In the specific case, there is a reference to judgment No. 2010-13099 of 14:56 hrs. on August 4, 2010, in whose resolution I did not participate, and in said precedent, allusion is made to the “Global Code of Ethics for Tourism” adopted in 1999 by the General Assembly of the World Tourism Organization and later recognized by the United Nations General Assembly through Resolution No. A/RES/56/212.

I consider that the reference to said instrument is pertinent if it is understood that it is made solely for hermeneutical purposes and not because it is binding in itself.

Anamari Garro V. Magistrate ... See more Content of Interest:

Type of content: Dissenting vote Branch of Law: 3. CONSTITUTIONALITY CONTROL MATTERS Topic: ENVIRONMENT Subtopics: NOT APPLICABLE.

DISSENTING VOTE OF MAGISTRATES CRUZ CASTRO, RUEDA LEAL, AND GARITA NAVARRO, WITH DRAFTING BY THE SECOND.

In the sub lite, with the customary respect, we differ from the criterion of the majority of this Court; we declare the action with merit and annul Law No. 9892 of August 24, 2020, called ‘Law for the Creation of the Isla San Lucas National Park,’ for violation 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 objectivization of environmental protection, and Articles 50 and 89 of the Political Constitution, in accordance with what is developed below.

I.On protected wild areas and the right to a healthy and ecologically balanced environment. Regarding this right, in judgment No. 2022022070 of 9:20 hours on September 23, 2022, the Chamber stated:

“Concerning the nature of the grievances alleged in the sub lite, this Court has ruled on repeated occasions regarding the right to a healthy and ecologically balanced environment. For example, in judgment No. 2021024807 of 9:20 hours on November 5, 2021, this Chamber stated:

“On repeated occasions, this Chamber's jurisprudence has underscored that the right to a healthy and ecologically balanced environment is recognized both at the constitutional and conventional levels. Likewise, it has been indicated that the effective protection of this right requires that resources be used rationally, a context in which the State and the citizenry in general must act according to the principles governing environmental matters. In this vein, specialized doctrine has pointed out that the preventive principle demands that, when there is certainty of possible damage to the environment, the affecting activity must be prohibited, limited, or conditioned on compliance with certain requirements. In general, this principle applies when there are risks clearly defined and identified at least as probable; likewise, this principle is useful when there are no technical reports or administrative permits that guarantee the sustainability of an activity, but there are sufficient elements to foresee eventual negative impacts.

On the other hand, the precautionary principle states that, when there is danger of serious and irreversible damage, the lack of absolute scientific certainty shall not be used as a reason to postpone the adoption of effective measures based on costs to prevent environmental degradation. From the foregoing, it is noted that the principle starts from a reasonable scientific uncertainty together with the threat of serious and irreversible environmental damage. In general terms, a relevant difference between the preventive principle and the precautionary principle lies in the level of knowledge and certainty of the risks that an activity or work causes. While there is such certainty in the former, in the latter what is noted is a state of doubt resulting from scientific information or technical studies. Thus, the Costa Rican State is obligated to adopt measures that guarantee the defense and effective preservation of the environment in accordance with these principles.

Now, this objective obligation does not inescapably involve a subjective right of individuals to demand, through jurisdictional bodies, that a specific measure be taken, but it does entail that those that are suitable for protecting that right be adopted, in the face of openly negligent attitudes by authorities, or by natural and legal persons, in accordance with the recognized theory of the horizontal effectiveness of fundamental rights (Drittwirkung der Menschenrechte), among whose procedural manifestations is the amparo action against subjects of private law.

It is also important to highlight that the Inter-American Court of Human Rights, in Advisory Opinion OC-23/17 of November 15, 2017, developed matters relating to state obligations concerning 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 interrelation between environmental protection and the realization of other rights, insofar as environmental degradation affects the enjoyment and effective development of human rights. In this regard, it stated:

“47. This Court has recognized the existence of an undeniable relationship between the protection of the environment and the realization of other human rights, insofar as environmental degradation and the adverse effects of climate change affect the effective enjoyment of human rights. Likewise, the preamble of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (hereinafter ‘Protocol of San Salvador’), highlights the close relationship between the validity of economic, social and cultural rights—which includes the right to a healthy environment—and that of civil and political rights, and indicates that the different categories of rights constitute an indivisible whole that finds its basis in the recognition of the dignity of the human person, for which reason they require permanent protection and promotion in order to achieve their full validity, without the violation of some ever being justifiable in the interest of the realization of others (…)

49. For its part, the Inter-American Commission has highlighted that several fundamental rights require, as a necessary precondition for their exercise, a minimum environmental quality, and are profoundly affected by the degradation of natural resources. In the same sense, the OAS General Assembly has recognized the close relationship between environmental protection and human rights (supra para. 22) and highlighted that climate change produces adverse effects on the enjoyment of human rights. 50. In the European sphere, the European Court of Human Rights has recognized that severe environmental degradation can affect the individual's well-being and, as a consequence, generate violations of persons' 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 ‘general satisfactory environment favorable to development’ is closely related to economic and social rights to the extent that the environment affects the individual's quality of life and security (…) 52.

On the other hand, there is broad recognition in international law of the interdependent relationship between environmental protection, sustainable development, and human rights. This interrelation has been affirmed since the Stockholm Declaration on the Human Environment (hereinafter ‘Stockholm Declaration’), where it was 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 the improvement of the quality of life,’ affirming the need to balance development with the protection of the human environment. Subsequently, in the Rio Declaration on Environment and Development (hereinafter ‘Rio Declaration’), the States recognized that ‘[h]uman beings are at the centre of concerns for sustainable development’ and, at the same time, stressed that ‘[i]n order to achieve sustainable development, environmental protection shall constitute an integral part of the development process.’ Following up on the above, 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 the consideration that must be given to the possible relationship between the environment and human rights, including the right to development. 53. Furthermore, upon adopting the 2030 Agenda for Sustainable Development, the United Nations General Assembly recognized that the realization of human rights for all people depends on the achievement of the three dimensions of sustainable development: economic, social, and environmental. In the same vein, several instruments in the Inter-American sphere have referred to environmental protection and sustainable development, such as the Inter-American Democratic Charter which provides that ‘[t]he exercise of democracy facilitates the preservation and proper stewardship of the environment,’ and therefore ‘[i]t is essential that the states of the Hemisphere implement policies and strategies to protect the environment, including respect for the various treaties and conventions, to achieve 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 which entails a series of environmental obligations for States for the purpose of fulfilling their obligations to respect and guarantee these rights. Precisely, another consequence of the interdependence and indivisibility between human rights and environmental protection is that, in determining these state obligations, the Court may make use of the principles, rights, and obligations of international environmental law, which as part of the international corpus juris decisively contribute to setting the scope of the obligations derived from the American Convention in this matter (supra paras. 43 to 45) (…) 59.

The human right to a healthy environment has been understood as a right with both individual and collective connotations. In its collective dimension, the right to a healthy environment constitutes a universal interest, owed to both present and future generations. However, the right to a healthy environment also has an individual dimension, to the extent that its violation can have direct or indirect repercussions on persons due to its connection with other rights, such as the right to health, personal integrity, or life, among others.

The degradation of the environment can cause irreparable harm to human beings, and therefore a healthy environment is a fundamental right for the existence of humanity.".

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 March 23, 2021, during its 46th session, held:

"Recognizing also that sustainable development and the protection of the environment, including ecosystems, contribute to human well-being and to the enjoyment of human rights, in particular 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, and cultural rights.".

Also, recently, in resolution A/HRC/RES/48/13, adopted on October 8, 2021, that Council stated:

" (...) Recognizing that sustainable development, 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, to the highest attainable standard of physical and mental health, to an adequate standard of living, to adequate food, to housing, to safe drinking water and sanitation, and to participation in cultural life, for present and future generations (...)

Recognizing further 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 fundamental 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 (...)". (The highlighting does not correspond to the original).

In this way, the particular relevance of the fundamental right to a healthy and ecologically balanced environment is reflected, whose defense transcends the protection of this constitutional good in itself, since its preservation constitutes an essential factor for the effective safeguarding of other primordial goods of the human being (such as life, health, property, equality), so that if the former fails, the effective safeguarding of the latter is not achieved.

Beyond the foregoing, the Inter-American Court of Human Rights, in the above-referenced advisory opinion, recognized the right to a healthy environment as an autonomous right, susceptible to protection independently of any risk of harm to individual persons. In that sense, 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 the components of the environment, such as forests, rivers, seas and others, as legal interests in themselves, even in the absence of certainty or evidence of risk to individual persons. It is a matter of protecting nature and the environment not only because of their connection to a utility for human beings or because of the effects that their degradation could cause to other rights of persons, such as health, life or personal integrity, but because of their importance for the other living organisms with whom the planet is shared, who also deserve protection in themselves. In this sense, the Court notes a trend to recognize legal personhood and, consequently, rights to nature not only in judicial rulings but even in constitutional orders. 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.". (The highlighting does not correspond to the original).

This position was adopted in the judgment of February 6, 2020, concerning the case "Indigenous Communities members of the Lhaka Honhat Association (Our Land) vs. Argentina," in which, overcoming an anthropocentric approach, the Inter-American Court affirms that the right to a healthy environment, besides being fundamental for the very existence of human beings, constitutes an autonomous and universal right, so that the protection of various components of the environment (such as forests, seas, rivers and others) constitutes a legal interest in itself. In the words of the Inter-American Court: "It is a matter of protecting nature," not only because of its "utility" or "effects" with respect to human beings, "but because of its importance for the other living organisms with whom the planet is shared." Given the significance of this affirmation, it is appropriate to transcribe this section of the referenced decision:

"203. The Court has already referred to the content and scope of this right, considering various relevant norms, in its Advisory Opinion OC-23/17, to which it refers. It affirmed on that occasion that the right to a healthy environment 'constitutes a universal interest' and 'is a fundamental right for the existence of humanity,' 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 of risk to individual persons. It is a matter of protecting nature,' not only because of its 'utility' or 'effects' with respect to human beings, 'but because of its importance for the other living organisms with whom the planet is shared.' The foregoing does not preclude, of course, that other human rights may be violated as a consequence of environmental damage.". (The highlighting does not correspond to the original).

Based on the foregoing, this Chamber, as guarantor of fundamental rights, must ensure respect for conventional and constitutional obligations, which bind the State not only to recognize the rights enshrined therein, but also to impose the legal measures required for their safeguarding" (the highlighting is from the original).

In addition to the above, recently, the United Nations General Assembly adopted resolution no. A/RES/76/1-A/RES/76/300 of July 28, 2022, in which it 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, businesses and other relevant stakeholders to adopt policies, increase international cooperation, strengthen capacity-building and continue sharing 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, policy-making and representative organ of the United Nations Organization. Consequently, it constitutes a political commitment of universal character that must be valued as a source of soft law of the greatest relevance.

Precisely, resolution no. A/RES/76/1-A/RES/76/300 affirms that the right to a healthy and ecologically balanced environment has the nature of a human right. With this, it largely contributes to its positivization, resulting in its technical understanding as a "fundamental right." Likewise, it strengthens the notion that environmental protection is an "autonomous" human right, that is, that it stands on its own merits, so 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 hand, its object of protection transcends human beings, since it provides shelter to the various components of nature due to their importance for preserving the existence of living organisms in general, regardless of their utility for human beings.

It also reiterates and, through that avenue, strengthens the position that the right to a healthy and ecologically balanced environment is linked to other human rights, which implies that its transgression can lead to the violation of health, life, democratic sustainable development, to cite just a few examples. The foregoing confers a particularly relevant legal meaning to the right in question.

In addition, the UN General Assembly prescribes that the protection of the right to a healthy and ecologically balanced environment demands the full application of conventional environmental-related rights in accordance with the principles of international environmental law. From the above, its indispensable inclusion within the jurisdictional constitutional review by this Chamber is inferred.

Finally, in harmony with the recognized theory of the horizontal effectiveness of fundamental rights (Drittwirkung der Menschenrechte), resolution no. A/RES/76/1-A/RES/76/300 regulates that the obligation to safeguard the environment, beyond states, extends to international organizations, businesses and other stakeholders, a last term that includes human beings in general. It is precisely in that sense that the Ley de la Jurisdicción Constitucional contemplates the amparo against subjects of private law.

In sum, under the conceptual framework explained ut supra, this Constitutional Court, as guarantor of fundamental rights, must ensure compliance with the conventional and constitutional commitments that the Costa Rican State and society in general impose not only the obligation to recognize the rights, principles and values of environmental matters, but also that of implementing all those measures and actions that are required to ensure their effective protection" (the highlighting is from the original).

Likewise, protected wild areas have been conceptualized by the World Commission on Protected Areas of the International Union for Conservation of Nature (UICN) as a clearly defined geographical space, recognized, dedicated and managed, through legal means or other types of effective means to achieve the long-term conservation of nature and its ecosystem services and associated cultural values. This implies that the surface area of protected wild areas includes terrestrial zones, continental, marine and coastal waters, or a combination of these, which has been recognized as such and, therefore, enjoys legal protection in pursuit of its conservation. It should be noted that Costa Rica has been a member of the UICN since 1980 by virtue of actions taken by the Ministry of Energy and Mines and the Ministry of Foreign Affairs and Worship. Likewise, by means of Article 1 of Law No. 7350 of July 6, 1993, entitled 'Agreement with the International Union for Conservation of Nature and Natural Resources (U.I.C.N.) for the establishment of its Regional Office for Central America', the Government of Costa Rica recognized that body as having "full legal personality for purposes of Costa Rican law".

In Costa Rica, according to Article 58 of Law No. 7788 of April 30, 1998, 'Ley de Biodiversidad', protected wild areas are delimited geographical zones, constituted by lands, wetlands and portions of sea, which have been declared as such due to their special significance for ecosystems, the preservation of threatened species, their impact on reproduction and other needs, and their historical and cultural significance. Furthermore, such areas must be dedicated to the conservation and protection of biodiversity, soil, water resources, cultural resources and ecosystem services in general. Also, in accordance with that norm, the corresponding technical reports for establishing protected wild areas must contain the relevant recommendations and justifications "to determine the most appropriate management category to which the proposed area should be subjected".

Regarding protected areas, it is of importance to mention that the 'Convention on Biological Diversity and its Annexes' adopted in Rio de Janeiro in 1992, approved by Costa Rica through Law No. 7416 of June 30, 1994, regulates:

"ARTICLE 1. Objectives The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to those resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to those technologies, and by appropriate funding (...)

ARTICLE 2. Use of Terms For the purposes of this Convention:

"Protected area" means a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives (...)

ARTICLE 8. In-situ Conservation Each Contracting Party shall, as far as possible and as appropriate:

• a)Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity.
• b)Develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity.
• c)Regulate or manage biological resources important for the conservation of biological diversity, whether within or outside protected areas, with a view to ensuring their conservation and sustainable use.
• d)Promote the protection of ecosystems, 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 furthering protection of these areas.
• f)Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, 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 which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health.
• h)Prevent the introduction of, control or eradicate those exotic species which threaten ecosystems, habitats or species.
• i)Endeavour to provide the conditions needed for compatibility between present uses and the conservation of biological diversity and the sustainable use of its components.
• j)Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement 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)Develop or maintain 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 in-situ conservation outlined in subparagraphs a) to l) of this article, particularly to developing countries (...)

ARTICLE 10. Sustainable Use of 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.
• b)Adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity.
• c)Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.
• d)Support local populations to develop and implement remedial action 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 sustainable use of biological resources (...)

ARTICLE 12. Research and Training The Contracting Parties, taking into account the special needs of developing countries:

• a)Establish and maintain programmes for scientific and technical education and training in measures for the identification, conservation and sustainable use of biological diversity and its components and provide support for such education and training for the specific needs of developing countries.
• b)Promote and encourage research which contributes to the conservation and sustainable use of biological diversity, particularly in developing countries, inter alia, in accordance with decisions taken by the Conference of the Parties as a result of recommendations of the subsidiary body on scientific, technical and technological advice. And c) In keeping with the provisions of Articles 16, 18 and 20, promote and cooperate in the use of scientific advances in biological diversity research in developing methods for conservation and sustainable use of biological resources (...)

ARTICLE 14. Impact Assessment and Minimizing Adverse Impacts

1. 1Each Contracting Party, as far as possible and as appropriate:

• a)Introduce appropriate procedures requiring environmental impact assessment 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 for public participation in such procedures.
• b)Introduce appropriate arrangements to ensure that the environmental consequences of its programmes and policies that are likely to have significant adverse impacts on biological diversity are duly taken into account.
• c)Promote, on the basis of reciprocity, notification, exchange of information and consultation on activities under its jurisdiction or control which are likely to have significant adverse effects on the biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral arrangements, as appropriate.
• d)In the case of imminent or grave danger or damage to biological diversity originating under its jurisdiction or control in the area under jurisdiction of other States or in areas beyond the limits of national jurisdiction, notify immediately the potentially affected States of such danger or damage, as well as initiate measures to prevent or minimize such danger or damage. And e) Promote national arrangements for emergency measures related to activities or events, whether caused naturally or otherwise, which present a grave and imminent danger to biological diversity and encourage international cooperation to supplement such national efforts and, where appropriate and with the agreement of the States or relevant regional economic integration organizations concerned, establish joint contingency plans.

1. 2The Conference of the Parties shall examine, on the basis of studies to be carried out, the issue of liability and redress, including restoration and compensation, for damage to biological diversity, except where such liability is a purely internal matter" (the emphasis was added).

The sum of a country's protected areas, regardless of their management category or their management or governance system, is understood as the system of protected areas. Through this, the achievement of national conservation objectives is intended and, for such purposes, it possesses 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 or governance categories of protected wild areas have been created, which constitute an element of great relevance for fulfilling the specific management aims of each protected wild area, given that they assist in the organization to achieve conservation objectives. Precisely, the Office of the Attorney General of the Republic, in opinion no. C-016-2002 of January 15, 2002, clarifies that: "(...) even though a technical definition of zona protectora does not exist in our current legislation, the mere classification that Article 32 of Law No. 7554 makes of the management categories leads one necessarily to think that differences do exist among them, since, otherwise, it would have been sufficient to enunciate a single regime for protected wild areas. And it is logical that this is so, since each wild area has its own characteristics from the biological, edaphic, hydrological, etc. point of view, which make it deserving of a particular treatment regime defined by the assigned management category" (the highlighting was added).

In this way, the management categories have particular traits that differentiate them from one another, such as the specificities they possess from the biological, edaphic and hydrological point of view, as well as the diverse forms provided for administration, management, planning, uses and prohibitions, all of which is related both to the level of authorized human intervention and to the level of protection granted to the corresponding geographical space.

In turn, the management categories of protected wild areas, upon being considered as such, pursue certain objectives in common, for example: i) conserve biodiversity; ii) collaborate with regional conservation strategies; iii) maintain the diversity of linked habitats, species and ecosystems; iv) seek integrity and long-term maintenance, in order to achieve conservation objectives; v) maintain the imposed values; vi) respect the assigned management plan; and vii) have a specific management system.

In Costa Rica, Article 35 of Law No. 7554 of October 4, 1995, entitled 'Ley Orgánica del Ambiente' specifies the objectives of the creation, conservation, administration, development and monitoring of protected areas, which naturally comprises all the management categories of protected wild areas, namely: i) conserve natural environments representative of the different biogeographical regions and the most fragile ecosystems, to ensure the balance and continuity of evolutionary and ecological processes; ii) safeguard the genetic diversity of wild species on which evolutionary continuity depends, particularly those that are endemic, threatened or endangered; iii) ensure the sustainable use of ecosystems and their elements, promoting the active participation of neighboring communities; iv) promote scientific research, the study of ecosystems and their equilibrium, as well as the knowledge and technologies that allow the sustainable use of the country's natural resources and their conservation; v) protect and improve aquifer zones and watersheds, to reduce and prevent the negative impact that their poor management can cause; and vi) protect the natural and landscape environments of historical and architectural sites and centers, national monuments, archaeological sites and places of historical and artistic interest, of importance for culture and national identity.

For the achievement of such objectives, Executive Decree No. 34433 of March 11, 2008, 'Reglamento a la Ley de Biodiversidad' establishes that the "Plan general de manejo: It is the planning instrument that allows guiding the management of a protected wild area towards the fulfillment of its long-term conservation objectives. It is based on medium-term strategic lines of action and management objectives for the natural and cultural elements included within the area, as well as on the relationship of the latter with their socio-environmental surroundings. It is the basis for the development of other planning and regulatory instruments for Protected Wild Areas". The referred-to general management plan contemplates several management elements, which include: the mission, vision and conservation objectives of the protected wild area, an assessment of the wild area and the environment in which it is located, management programs, analysis of threats and risks, as well as the organization of the surface area in accordance with the characteristics of the ecosystem, species, prohibited and authorized activities.

Regarding the management or governance categories of protected wild areas, the UICN has mentioned the following: ia) strict nature reserve, ib) wilderness area, ii) national park, iii) natural monument or feature, iv) habitat/species management area, v) protected landscape/seascape, and vi) protected area with sustainable use of natural resources.

Strict nature reserves are understood as those "strictly protected areas set aside to protect biodiversity and also possibly geological/geomorphological features, where visitation, use and impacts are strictly controlled and limited to ensure protection of the conservation values. Such protected areas can serve as indispensable reference areas for scientific research and monitoring". Meanwhile, wilderness areas of category ib) are defined as "large unmodified or slightly modified areas, retaining their natural character and influence, without permanent or significant human habitation, which are protected and managed so as to preserve their natural condition".

The UICN conceptualizes national parks as "large natural or near natural areas set aside to protect large-scale ecological processes, along 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". Among the objectives assigned to this type of protected wild area are the protection of biodiversity and environmental processes, as well as the promotion of education and recreational use.

Category iii) natural monument or feature refers to protected areas that "are set aside to protect a specific natural monument, which can be a landform, sea mount, submarine cavern, geological feature such as a cave or even a living feature such as an ancient grove. They are generally quite small protected areas and often have high visitor value".

In turn, habitat/species management areas have as their objective: "the protection of particular habitats or species and their management reflects that priority.

Many Category IV protected areas will need regular active interventions to address the needs of specific species or to maintain habitats, but this is not a requirement of the category." In turn, the protected land-/seascape (paisaje terrestre/marino protegido) is "A protected area where the interaction between people and nature has produced a distinct character with significant ecological, biological, cultural and aesthetic values; and where safeguarding the integrity of that interaction is vital to protecting and maintaining the area, its nature conservation and other values." Finally, protected areas with sustainable use of natural resources (áreas protegidas con uso sostenible de los recursos naturales) "conserve ecosystems and habitats, together with associated cultural values and traditional natural resource management systems. They are generally large, with most of the area in a natural condition, where a proportion is under sustainable natural resource management, and where one of the main objectives of the area is considered to be low-level, non-industrial use of natural resources compatible with nature conservation." Properly in Costa Rica, Article 32 of the Ley Orgánica del Ambiente regulates the classification of management categories (categorías de manejo) of protected wilderness areas (áreas silvestres protegidas) in this manner: i) forest reserves (reservas forestales), ii) protective zones (zonas protectoras), iii) national parks (parques nacionales), iv) biological reserves (reservas biológicas), v) national wildlife refuges (refugios nacionales de vida silvestre), vi) wetlands (humedales) and vii) national monuments (monumentos nacionales). In furtherance of this, the Regulations to the Biodiversity Law set forth the conceptualizations of such categories.

Regarding the forest reserve (reserva forestal), it comprises geographic areas made up of forests or lands of forestry aptitude, the main purpose of which is the protection of forest genetic resources to ensure the long-term sustainable national production of forest resources, and those forest lands that by their nature are especially suitable for that purpose.

On the other hand, protective zones (zonas protectoras) refer to geographic areas made up of forests or lands of forestry aptitude, in which the main objective is the regulation of the hydrological regime, the protection of soil and of watersheds. In accordance with Article 52 of the Ley Orgánica del Ambiente, this management category has among its purposes "the preservation of aquifer recharge areas and water sources and the need to ensure the population's water supply for present and future generations." Additionally, in light of their characteristics, private property may exist in this management category, given that it is not necessary for the State to carry out its purchase or expropriation. Further, in the protective zone, owners are authorized to conduct a series of activities on their lands, including ecotourism, research, education, construction of public works, and the granting of concessions and permits, provided they are compatible with the general management plan (plan general de manejo) for that management category.

In turn, national parks (parques nacionales) are understood as geographic areas, terrestrial, marine, marine-coastal, freshwater, or a combination thereof, of national importance, established for the protection and conservation of natural beauties and biodiversity, as well as for public enjoyment. These areas feature 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.

On this point, Article 2 of the 'Convention on the Protection of the Flora, Fauna and Scenic Natural Beauties of the American Countries' defines national parks as those regions established for the protection and conservation of natural beauties and of flora and fauna of national importance, which the public may better enjoy when placed under official supervision. It also underscores that the riches existing in those protected wilderness areas cannot be exploited for commercial purposes, and that the States agree to prohibit "the hunting, killing and capture of fauna specimens and the destruction and collection of flora specimens in national parks, except when done by the park authorities or by order or under the supervision thereof or for duly authorized scientific investigations." In accordance with Article 8 of Law No. 6084 of August 24, 1977, the 'Ley del Servicio de Parques Nacionales', visitors are prohibited in that category of protected wilderness area from: i) felling trees and extracting plants or any other forest product; ii) hunting or capturing wild animals, as well as collecting or extracting any of their products or remains; iii) hunting turtles of any species and collecting or extracting their eggs or any type of product or remains; iv) scratching, marking, staining, or causing any type of damage or deterioration to plants, equipment, or installations; v) sport, artisanal, or industrial fishing, except as indicated in Article 10; vi) collecting or extracting corals, shells, rocks, or any other product or waste from the sea; vii) collecting or extracting rocks, minerals, fossils, or any other geological product; viii) carrying firearms, harpoons, and any other instrument that may be used for hunting; ix) introducing exotic animals or plants; x) grazing and watering livestock or raising bees; xi) causing any type of environmental pollution; xii) extracting stones, sand, gravel, or similar products; xiii) giving food or drink to animals; xiv) building electric or telephone transmission lines, aqueducts, or roads or railways; xv) conducting any type of commercial, agricultural, or industrial activity.

Likewise, Article 11 eiusdem proscribes the constitution of easements (servidumbres) in favor of landholdings, while, pursuant to 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 installations other than those of the Service.

Regarding sport and artisanal fishing in national parks, Article 10 eiusdem provides: "The Service may, upon affirmative opinion of the council, authorize sport and artisanal fishing in certain areas of national parks, when it is proven that they will not produce ecological alterations." Concerning fishing activity, Law No. 8436 of March 1, 2005, the 'Ley de Pesca y Acuicultura', stipulates that:

"Article 9 – Fishing activity for commercial purposes and sport fishing are prohibited in national parks, natural monuments, and biological reserves.

Fishing activity in the continental and insular parts, in forest reserves, protective zones, national wildlife refuges, and wetlands, shall be restricted in accordance with the management plans (planes de manejo) determined for each zone by the Ministerio de Ambiente y Energía (MINAE), within the scope of its powers. To create or expand protected zones covering marine areas, except those approved by the Legislative Assembly in accordance with current laws, the Ministry must consult INCOPESCA's opinion on the sustainable use of biological resources in these zones.

The opinion issued by INCOPESCA must be based on technical, social, economic, scientific, and ecological criteria, and be issued within a period of thirty calendar days, counted from the date the consultation is received.

Surveillance of fishing in the protected wilderness areas indicated in this article shall be the responsibility of the MINAE, which may coordinate operations with the Servicio Nacional de Guardacostas.

Vessels shall be allowed to remain in protected areas with a marine portion or without one, in cases of fortuitous event and force majeure, for as long as such situations persist.

The MINAE and INCOPESCA may jointly authorize the transit or anchoring of vessels in protected areas, when natural conditions strictly require it (…)

Article 13 – INCOPESCA shall exercise control over fishing and aquaculture activity carried out in marine and inland waters and shall provide technical assistance for aquaculture activity in continental and marine waters. In continental waters, the protection of aquatic resources shall correspond to MINAE. The latter shall encompass rivers and their mouths, lakes, lagoons, and reservoirs, including areas declared as forest reserves, protective zones, national parks, mangroves, wetlands, biological reserves, national wildlife refuges, and natural monuments, in compliance with current legislation and the provisions of ratified international treaties, especially RAMSAR.

MINAE and INCOPESCA are empowered to jointly establish and approve joint management plans for marine resources of wetlands for the rational utilization of aquatic resources, except in those within national parks and biological reserves (…)

Article 48 – Licenses to catch shrimp for commercial purposes in the Caribbean Sea shall be permitted in accordance with the technical and scientific criteria issued by the executing authority. No licenses shall be granted for catching in national parks and other protected areas." Pertaining to biological reserves (reservas biológicas), these are geographic areas with terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination thereof, and species of particular conservation interest. Among their main purposes, conservation, protection of biodiversity, and research are foreseen. Consequently, agricultural, tourist, commercial, and industrial activities are proscribed there.

Regarding national wildlife refuges (refugios nacionales de vida silvestre), they are conceived as geographic areas possessing terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination thereof. Among their main purposes are the conservation, research, increase, and management of wild flora and fauna, especially those that are endangered.

It is worth noting that this type of management category may be: i) State-owned (De propiedad estatal), thus they are public domain assets (bienes demaniales) and their administration corresponds exclusively to SINAC. Here, conservation, research, and management of wild flora and fauna prevail, especially those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. Furthermore, only research, training, and ecotourism activities are allowed. ii) Privately owned (De propiedad privada), the surface of which belongs to private parties and its administration corresponds to its owners under the supervision of SINAC. In privately owned refuges, the aim is the conservation, research, and management of wild flora and fauna, especially those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species.

Additionally, in this class of refuge, only productive activities as established by the Regulations to the Wildlife Conservation Law may be carried out. iii) Mixed ownership (De propiedad mixta), in which the geographic space belongs in part to the State and in part to private parties, such that administration is shared. This class of refuge has as its purposes the conservation, research, and management of wild flora and fauna, especially those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. Due to its mixed nature, on State-owned lands only the activities indicated for state-owned refuges may be carried out, while on privately owned lands it is viable to develop the activities foreseen for privately owned refuges.

Concerning wetlands (humedales), they are geographic areas that embrace ecosystems of national importance dependent on aquatic regimes, natural or artificial, permanent or temporary, lentic or lotic, fresh, brackish, or saline, including marine extensions up to the posterior limit of marine phanerogams or coral reefs or, in their absence, up to six meters in depth at low tide, the main function of which is the protection of those ecosystems to ensure the maintenance of their ecological functions and the provision of environmental goods and services (bienes y servicios ambientales). Additionally, according to Article 41 of the Ley Orgánica del Ambiente, wetlands and their conservation are matters of public interest, regardless of whether or not they are protected by laws governing the matter. For its part, Article 7 of the Wildlife Conservation Law contemplates among the functions of SINAC that of "Protecting, supervising and administering, with an ecosystem approach, wetlands, as well as determining their designation of national or international importance." In this type of protected wilderness area, it is possible to carry out education, research, ecotourism, water use, forest harvesting activities, among others.

Finally, national monuments (monumentos nacionales) are geographic areas that comprise one or more natural elements of national or cantonal importance, created by MINAE and administered by the respective municipalities. This management category includes natural places or objects that, due to their unique or exceptional character, their scenic beauty, or their scientific value, are deemed necessary to incorporate into a protection regime.

From the foregoing, it follows that the various management categories of protected wilderness areas share several objectives, among which conservation naturally stands out; however, they also have specificities that distinguish them and explain the reason for the classification, such as the particular purposes that each pursues (and that scientifically distinguish them from one another), as well as the regime of administration, planning, uses, and prohibitions they contemplate. Therefore, prior to defining the management category that corresponds to assign to a given geographic space that will become a protected wilderness area, it becomes fundamental to consider its particular characteristics and protection requirements, as well as the main management objectives of the various categories, in order to establish which of these is the most compatible with the zone intended to be affected. In other words, to establish the type of category to assign to a given area, it is essential to previously analyze the compatibility of the particular management objective with aspects such as the needs and dangers of the ecosystem, as well as the species of the geographic space in question.

Precisely, the IUCN World Commission on Protected Areas has enumerated some issues that require technical studies before assigning a certain management category to a geographic space, such as for example: i) studying the ecological needs of the ecosystem and the species; ii) determining the possible threats; iii) analyzing the objectives of the protected area and the international designations foreseen; iv) executing a review process of the management categories; v) avoiding negative consequences for the ecosystem and the species; vi) estimating both the seascape and the landscape; vii) considering the opinion of direct stakeholders; among others.

For its part, the Ley Orgánica del Ambiente contemplates these requirements for the creation of protected wilderness areas: i) conduct preliminary physiogeographic, biodiversity, and socioeconomic studies that justify it; ii) define the objectives and location of the area; iii) examine the technical feasibility and land tenure; iv) have the minimum financing to acquire the area, protect it, and manage it; v) prepare the maps; and vi) issue the corresponding decree or law.

Thus, for us it is fully accredited that the creation of protected wilderness areas and the assignment of the respective management plan does not respond to the free will of the State, but rather it is unavoidable to respect a series of requirements that include environmental scientific studies, the determination of objectives and minimum financing, socioeconomic, geographic, geological, and topographic analysis, among others. The foregoing is required in order to guarantee that the distinctive elements and specific objectives of a determined zone are the decisive factors for defining the type of administration, planning, uses, and prohibitions to be imposed in the corresponding geographic space.

In consonance with the position set forth and concerning the reduction of protected wilderness areas, this Court indicated in judgment No. 2019000673 of 12:00 hours on January 16, 2019:

"V.- Jurisprudence on the reduction of protected areas, the sufficiency of technical reports, and due compensation.- Regarding the reduction of protected zones, from the jurisprudence of this Chamber, the following is noted:

1. Constitutional requirements for the reduction of a protected wilderness area (legal reserve and technical studies): In support of Article 38 of the Ley Orgánica del Ambiente ("the surface area of protected wilderness areas, natural heritage of the State, whatever their management category, may only be reduced by Law of the Republic, after conducting the technical studies that justify this measure"), there has been a solid jurisprudential line, to the effect that for the reduction of a protected wilderness area, in any of its management categories (including national wildlife refuges), two essential requirements must be met: "by means of law and prior completion of sufficient technical studies that justify the measure." (Sala Constitucional, votes numbers 13367-2012 and 010158-2013. In similar vein, judgments numbers 7294-1998, 11155-2007, 1056-2009, 18702-2010, and 14772-2010, among others). As stated in the aforementioned 1998 ruling:

""(…) once a given area has been declared a protective zone by an act of the State, the latter cannot simply disaffect it in whole or in part, 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, of whatever rank, has declared a given area a protective zone does not imply the constitution of a petrified zone, in the sense that its area can in no way be reduced by a subsequent regulation. However, it must be borne in mind that the declaration and delimitation of a protective zone, in compliance with the provisions of Article 50 of the Constitution, implies a defense of the fundamental right to the environment and, therefore, the reduction of its area must not imply a detriment to that right, a situation that must be established in each specific case.

The fact that, through a subsequent law, the area of a protective zone, a forest reserve, a National Park, or any other site of environmental interest is reduced is not necessarily unconstitutional, provided that it is justified insofar as it does not imply a violation of the right to the environment. It could be that, due to various circumstances, a given site has lost, at least in part, the environmental interest that, at the time, prompted it, which, having conducted the relevant studies, would justify its modification or reduction, all in application of the principle of constitutional reasonableness…" (vote No. 7294-1998).

Specifically on the legal reserve in this matter, in vote No. 14772-2010 it was stated:

(…) the public purpose of a public domain asset cannot be modified without a legislative act, that is, the reduction of the area of a protected zone is under the guarantee provided by the principle of legal reserve. Although, in accordance with Article 36 of the Ley Orgánica del Ambiente, the Executive Branch is authorized to constitute Protected Wilderness Areas by meeting the requirements established in that provision, thus, Corcovado National Park was constituted through Executive Decrees No. 5357-A of October 24, 1975, and 1148-A of February 5, 1980, its modification may only be made in accordance with the provisions of Article 38 of the Ley Orgánica del Ambiente, prior technical and scientific studies, and by means of a legislative act. (highlighting not in the original).

Likewise, in judgment No. 1056-2009 it was indicated that reduction is only possible by law:

"when it comes to expanding the boundaries of protective zones of the State's forest heritage, it is possible to do so by regulation, but when it comes to their reduction, it can only be done by law, of course, always provided there is a prior opinion that justifies the measure." (Judgment of the Sala Constitucional No. 1056-2009) Which was applied when the Chamber declared unconstitutional the regulatory provision (Executive Decree No. 32753-MINAE) by which the Executive Branch reduced the territory of the Gandoca-Manzanillo Refuge, removing from the area and from the protection regime the urban zone of the Refuge.

Furthermore, with regard to the studies, they must be prior, sufficient, necessary, and individualized –as indicated in the following section-. This was stated in that same 1998 ruling:

"In accordance with the cited, mutatis mutandi, if for the creation of a protected wilderness area the Legislative Assembly, by means of a law, established compliance with specific requirements, in order to determine whether the affectation in question is justified, it is logical that, for its partial or total disaffectation, certain requirements must also be met –such as conducting technical environmental studies– to determine that the disaffectation does not transgress the content of Article 50 of the Constitution. In this sense, we can speak of levels of disaffectation. Thus, not every disaffectation of a protected zone is unconstitutional, insofar as it implies a detriment to the right to the environment or a threat thereto. Hence, to reduce any protected wilderness area, the Legislative Assembly must do so based on sufficient and necessary technical studies to determine that no damage will be caused to the environment or that it will not be endangered and, therefore, that the content of Article 50 of the Constitution is not violated.

The principle of reasonableness, in relation to the fundamental right to the environment, obliges that the provisions issued with respect to this matter be duly motivated by serious technical studies, even when there is no other legal provision that expressly establishes it. In the judgment of this Constitutional Court, the requirement contained in Article 38 of the Ley Orgánica del Ambiente No. 7554, to the effect that to reduce a protected wilderness area by formal law, the technical studies that justify the measure must first be carried out, is nothing other than the objectification of the principle of reasonableness in matters of environmental protection." (highlighting not in the original).

2. Technical study as a scientific and individualized analysis: The Chamber has referred to the sufficiency of the technical study, when through several rulings it has established that said study must be a scientific and individualized analysis. Thus, the following was stated:

"the requirement for technical studies is not a mere formality, but rather it is a material requirement, that is, it must be materially demonstrated, through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, propose recommendations aimed at lessening the negative impact on it, and demonstrate how such a measure implies a development that meets the needs of the present without endangering the ability of future generations to meet their own needs." (Vote No. 13367-2012. See also No. 10158-2013).

From which it follows that, the technical study required by Article 38 of the Ley Orgánica del Ambiente, which is the objectification of the constitutional principle of reasonableness in matters of environmental protection, requires a technical analysis that entails an individualized analysis, which must contain at a minimum the following measures:

· The degree of impact of the corresponding measure on the environment; · The recommendations aimed at lessening the negative impact on the environment; · The demonstration of how the measure taken implies a development that meets the needs of the present without endangering the ability of future generations to meet their own needs.

In summary, said prior study must demonstrate that the disaffectation is in accordance with the constitutional protection of the right to the environment, since as stated in vote No. 18702-2010 "it cannot be permitted that areas of this nature be titled in an indiscriminate manner, since this would go against the very environmental conservation policies that the State has pursued by virtue of the tasks mandated by the Political Constitution and the International Conventions it has signed." 3. Compensation measures: A protected area can only be reduced if it is done by law, if there are technical and scientific studies that rule out environmental damage, and if compensation for the suppressed area is provided with another of equal size. There is no doubt that all those provisions in which there is a reduction of protected areas without the support of technical studies or any compensation are unconstitutional" (vote Nos. 12887-2014, 2773-2014, 2012-13367, and 2009-1056).

VI.On the challenged regulations.- As can be seen, both the Law to Regulate the Creation and Development of the Las Tablillas Border Post, Law No. 8803, and its Regulations are challenged in their entirety, basically for two reasons: for not having the technical study to support the reduction of a protected area (in this case a national wildlife refuge), and for not establishing compensation measures. Each of these allegations is examined separately. REGARDING THE TECHNICAL STUDY: The plaintiff indicates that the challenged Law and its regulations are segregating and reducing several hectares of the National Wildlife Refuge of the border zone, without environmental studies existing that justified that action. He indicates that the deputies took a simple recommendation that can never be considered a serious, thorough, and broad study that would allow what was done. The Procuraduría General de la República in its report indicates that, already in the Legal Opinion of this Procuraduría No. O.J.-98-2009, issued on October 14, 2009, at the request of the Deputies, during the processing of the bill that culminated in Law No. 8803, it analyzed the technical study incorporated into the legislative file at that time, considering it insufficient to justify it: "…respectfully, it must be pointed out that said technical report does not meet the necessary requirements to support the bill under consultation.

Note that it makes a study of the 236 hectares initially proposed and concludes that the project is not viable from an environmental and social point of view. However, said study does not explain in any way why that negative impact does not occur on the 13 hectares proposed, or in other words, there is not, to date, a technical opinion that refers to the reasons why the segregation of the 12.3 hectares established in the consulted bill is viable…" The Minister of Ambiente y Energía indicates that there is no unconstitutionality. He adds that the challenged law was not intended to disaffect the public domain of the zone in question, but to authorize the use of a portion of the area for another public interest purpose, which is the installation of a border and customs post, on the understanding that these are State constructions and not private ones. Thus, on September 28, 2007, the technical report prepared by the Las Tablillas case commission, called "Request for reduction of the area of the Corredor Fronterizo National Refuge," was issued, proposing an area of 13 ha bordering the border line to be disaffected, given that the officials of the Arenal Huetar Norte Conservation Area considered the segregation of the indicated area of 236 ha unfeasible, with the report concluding that: "13 hectares would be a more viable proposal from the perspective of impact to the ecosystems present at the site and surroundings." Said report considered biophysical, socioeconomic, and security aspects.

It concludes that the cost-benefit balance of establishing posts that carry out control and regulation of migratory entry in said sector contributes to regulating entry through the public domain strip coinciding with the Protected Wilderness Area.

The Ministers of the Presidency and Foreign Trade indicate that folios 76 to 94 of the legislative file contain the technical report prepared in September 2007 by MINAE. The identified site meets the suitable conditions for the development of a Border Post project because it had already been impacted by human action, a fact confirmed by the absence of important or fragile ecosystems, the absence of primary or secondary forest cover (cobertura boscosa), or of wetlands or watercourses, but only of natural pastures and cleared land for cultivation or ready for planting. Furthermore, the area is technically strategic for the location of the Border Post due to its proximity to the boundary line and the existence of internal communication routes (roads) and a national highway connected to the road on the Nicaraguan side of the border. In this regard, this Chamber concludes that, indeed, the Procuraduría General de la República is correct in its report; there is no technical study that addresses the viability of this project, since the one that was carried out referred to a larger zone, concluding that it was not viable from an environmental and social standpoint.

Therefore, it was necessary to justify why the new proposal would not generate problems in the wetlands, in the species of the area, in the aquifers, and would not produce social problems, as was detected in the initial proposal. The technical study referred to by the Ministers is clearly insufficient, as it does not explain in any way the reason why that negative impact does not occur on the 13 hectares proposed, the degree of impact of the corresponding measure on the environment, the recommendations aimed at mitigating the negative impact on the environment, nor the demonstration of how the measure being taken implies a development that meets the needs of the present without endangering the ability of future generations to meet their own needs. On the other hand, while it may be true, as the Ministers state in their report, that the property is not leaving the public domain, it is true that it is being disaffected, environmentally speaking.

It may also be true, as the Ministers state in their report, that in addition to the environmental interest in the border zone, there may be other relevant interests such as immigration security and others. However, this is precisely what the technical report should have contained in its reasoning. It should be noted that, as the Ministers indicate, it may be true that certain environmental measures were being taken, but this does not vitiate the fact of the lack of a technical report that the law should have had, leaving those environmental measures without the required technical support. Thus, the alleged unconstitutionality of the challenged law—and by connection, its regulation—is evident, due to the lack of a sufficient technical report to support the reduction of the Refugio Nacional de Vida Silvestre of the border zone. ON COMPENSATION MEASURES: The plaintiff indicates that timely compensation measures for the ordered segregation were not established in the law.

The Procuraduría General de la República in its report indicates that an unconstitutionality for violation of this principle is not necessarily resolved by annulling the Law; if it is classified as an unconstitutionality by omission, it would suffice for the Constitutional Chamber to order in its judgment the addition to the Refuge of the portion or portions that compensate for the suppressed area, which could even be done by regulation. The Ministers of the Presidency and Foreign Trade indicate that the claim for demolition of the public infrastructure would cause the immediate lack of protection of order, peace, health, sustainable development, life, and human dignity. They also consider that there is no obligation of the State to compensate an area already deforested and impacted with another, since there was never a reduction of forest or an impact on the environment that would justify the compensation measure.

In this regard, this Chamber concludes that, indeed, the challenged norms are also silent regarding compensation measures. The segregation of approximately 13 hectares being evident, as indicated by Article 1 of the challenged law, and even though these do not leave the public domain, they did leave an environmental management category, which obliged the establishment of legal compensation measures, which were neither adopted nor guaranteed, as observed from a reading of the entire law. Thus, the alleged unconstitutionality of the challenged law—and by connection, its regulation—is evident, due to the lack of compensation measures for the reduction of the Refugio Nacional de Vida Silvestre of the border zone.

VII.In conclusion.- From the reiterated jurisprudence of this Chamber, it is established that any reduction of a protected wilderness area, in any of its management categories (including national wildlife refuges), must comply with three essential requirements: legal reserve (that is, it may only be done by law), prior completion of sufficient technical studies justifying the measure, and the establishment of compensation measures. In this case, it was demonstrated that the Law to regulate the creation and development of the Las Tablillas border post (Law No. 8803) and its Regulation proceeded to the segregation, and consequent reduction, of the Refugio Nacional de Vida Silvestre of the border zone. However, although it was done by means of a law, a sufficient prior study was not carried out that: justified the measure, established the degree of impact of the corresponding measure on the environment, the recommendations aimed at mitigating the negative impact on the environment, nor that demonstrated how the measure being taken implies a development that meets the needs of the present without endangering the ability of future generations to meet their own needs, or established in concrete and detail compensation measures. From all of which the unconstitutionality by omission is evident. Proceeding in this case to declare the action granted, with a dimensioning of this judgment, as indicated” (highlighting added).

In other words, the 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 are available beforehand; and iii) compensation measures are adopted.

It should be noted that there is also the possibility that the management category assigned to a specific geographic space ceases to be compatible with the assigned conservation objectives and that, because of this, it becomes necessary to modify the type of category, with a view to which, as the UICN maintains, a strict process must be followed, like the one initially used to create the protected wilderness area subject to this action and the corresponding management category. In this regard, Article 59 of the Biodiversity Law (No. 7788 of April 30, 1998) establishes that SINAC may recommend raising the category of protected wilderness areas, for which it must comply with the provisions of the Organic Law of the Environment.

Therefore, it is viable to make changes in the management category granted to a protected wilderness area, for which, when the aforementioned modification implies raising the management category, such increase can be effected by means of an executive decree or a law; however, if the intent is to generate a qualitative or quantitative decrease of the protected wilderness area, it is inexorable that the procedure be done by law and that the corresponding compensation be provided.

Now, it should be noted that, according to the Biodiversity Law, the ownership of protected wilderness areas may be state, municipal, private, or mixed. Furthermore, it is provided that, given the importance that protected wilderness areas have for the conservation and sustainable use of the country, both MINAE and public entities must encourage their creation, as well as monitor and assist in their management. -see Article 60 of that normative body-.

The transcendence of protected wilderness areas is of such magnitude that the legislator provided in Article 61 of the Biodiversity Law that MINAE together with the Ministry of Finance must include in the Republic's budgets the respective transfers to the trust or the financing mechanisms for protected areas in order to ensure, at least, the personnel and resources determined by SINAC as necessary for the operation and integrity of state-protected wilderness areas, as well as for the permanent protection of biological reserves, national parks, and other wilderness areas owned by the State.

In addition to the above, it is worth highlighting that Article 37 of the Organic Law of the Environment authorizes the Executive Branch to: i) include within the boundaries of protected wilderness areas all or part of privately owned properties that are necessary to fulfill the objectives provided in the legal system and the management plan; and ii) create legal easements (servidumbres) in order to guarantee ecological protection and compliance with the law. It is also provided that, in the case of state national parks, biological reserves, or national wildlife refuges, the lands will be acquired by purchase, expropriation, or both, upon prior compensation, since their conservation and management objectives are not compatible with private property.

In the case of forest reserves, protective zones, mixed wildlife refuges, and wetlands, the purchase or expropriation of lands is authorized, unless the owner voluntarily submits them to the forest regime. In addition, that provision clarifies that: “Privately owned properties affected according to the provisions of this article, because they are located in national parks, biological reserves, wildlife refuges, forest reserves, and protective zones, will be included within the state protected areas only from the moment they have been paid for or legally expropriated, except when they voluntarily submit to the Forest Regime. In the case of forest reserves, protective zones, and wildlife refuges, and in the event that payment or expropriation has not been carried out, and while it is carried out, the areas will be subject to an environmental management plan that includes the environmental impact assessment (evaluación de impacto ambiental, EIA) and subsequently, to the management, recovery, and restoration plan for the resources.” It should be noted that, with respect to protected marine areas, there is no private property regime, since the sea is a public domain asset, so that the State is responsible for the administration of the assets and resources of that zone and, consequently, it is necessary to regulate their use and exploitation.

In summary, protected wilderness areas can be classified into management categories, each of which pursues different conservation objectives based on their particular qualities. Consequently, in assigning a type of category to a specific geographic space, its connection to the achievement of the primary objectives of the corresponding category must prevail and in consideration of such qualities, for which purposes it becomes unavoidable to have the respective scientific studies, especially since although management categories promote conservation, the truth is that not all are compatible with the specific characteristics of each geographic space in particular.

II.On cultural heritage. In the first place, observe that Article 89 of the Magna Carta establishes: “Among the cultural purposes of the Republic are: protecting natural beauties, conserving and developing the historical and artistic heritage of the Nation, and supporting private initiative for scientific and artistic progress.” Secondly, it is underscored that the ‘Convention for the Protection of the World Cultural and Natural Heritage,’ approved by Law No. 5980 of November 16, 1976, establishes:

“Article 1.- For the purposes of this Convention, the following shall be considered as ‘Cultural Heritage’:

Monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, 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 man or the combined works of nature and man, 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 as ‘Natural Heritage’:

Natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view.

Geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation.

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, presentation and transmission to future generations of the cultural and natural heritage situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

Article 5.- To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavor, in so far as possible, and as appropriate for each country:

• a)to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes; b) to set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions; c) to develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage; d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and e) to foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.

Article 6.- 1.- Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property right provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.

1. 2The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage referred to in Article 11, paragraphs 2 and 4, if the States on whose territory it is situated so request.
2. 3Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on 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 co-operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage” (highlighting added).

This implies that the Costa Rican State committed itself to the protection of cultural and natural heritage; to this end, it must, among other things, carry out the necessary actions to “identify, protect, conserve, present and transmit to future generations the cultural and natural heritage.” In other words, the State must execute actions aimed at ensuring the protection and conservation of cultural and natural heritage, as well as its rehabilitation, all with the purpose of achieving its preservation.

For its part, by means of Law No. 6360 of September 5, 1979, the ‘Convention Defense Archaeological Art Heritage American Nations’ was approved, which regulates:

“ARTICLE 1 The purpose of this Convention is the identification, registration, protection and vigilance of the goods that make up the cultural heritage of the American nations, in order to: a) prevent the illegal export or import of cultural goods, and b) promote cooperation among the American States for the mutual knowledge and appreciation of their cultural goods.

ARTICLE 2 The cultural goods referred to in the preceding article are those included in the following categories:

• a)monuments, objects, fragments of dismembered buildings and archaeological material, belonging to American cultures prior to contacts with European culture, as well as human, fauna and flora remains, related to the same; b) monuments, buildings, artistic, utilitarian, ethnological objects, whole or dismembered, from the colonial era, as well as those corresponding to the 19th century; c) libraries and archives; incunabula, books and other publications, iconographies, maps and documents published up to the year 1850; d) all those goods of origin after 1850 that the States Parties have registered as cultural goods, provided they have notified such registration to the other Parties to the Treaty; e) all those cultural goods that any of the States Parties declare or expressly manifest to include within the scope of this Convention (…)

ARTICLE 7 The property regime of cultural goods and their possession and alienation within the territory of each State shall be regulated by its internal legislation. In order to prevent the illicit trade of such goods, the following measures shall be promoted:

• a)registration of collections and of the transfer of cultural goods subject to protection; b) registration of transactions carried out in establishments dedicated to the purchase and sale of said goods; c) prohibition of importing cultural goods from other States without the corresponding certificate and authorization.

ARTICLE 8 Each State is responsible for the identification, registration, protection, conservation and vigilance of its cultural heritage; to fulfill this function it undertakes to promote:

• a)the preparation of legislative and regulatory provisions necessary to effectively protect said heritage against destruction by abandonment or by inadequate conservation work; b) the creation of technical bodies specifically charged with the protection and vigilance of cultural goods; c) the creation and maintenance of an inventory and a register of cultural goods that allow them to be identified and located; d) the creation and development of museums, libraries, archives and other centers dedicated to the protection and conservation of cultural goods; e) the delimitation and protection of archaeological sites and sites of historical and artistic interest; f) the exploration, excavation, research and conservation of archaeological sites and objects by scientific institutions that carry them out in collaboration with the national body in charge of the archaeological heritage” (highlighting added).

The foregoing reflects that with the ‘Convention Defense Archaeological Art Heritage American Nations’ the Costa Rican State committed itself to adopting measures in order to guarantee the identification, registration, protection and vigilance of the goods that make up the cultural heritage.

In the case of Law No. 4711 of January 6, 1971, called ‘Conservation Cultural Goods Vulnerable Public Private Works,’ the Recommendation on the conservation of cultural property endangered by public or private works, subscribed in Paris on November 22, 1968, was approved and it was established that:

“1. For the purposes of this recommendation, the term ‘cultural property’ shall apply to:

a. Immovables, such as archaeological, historic or scientific sites, buildings or other constructions of historic, scientific, artistic or architectural value, religious or secular, including groups of traditional buildings, historic quarters in urban or built-up rural areas and the vestiges of past cultures having ethnological value. It shall apply to such immovables constituting ruins above ground as well as to archaeological or historic remains that are found beneath the surface of the earth. The term ‘cultural property’ also includes the setting of such property.

b. Movable cultural property of cultural importance, including that found within immovables or recovered from them, and that which is buried and may be found in places of archaeological or historic interest or elsewhere. (…)

2. General Principles 3. Measures for the conservation of cultural property should extend not only to specific monuments or sites but to the whole territory of the State.

4. Inventories should be drawn up for the protection of important cultural property, listed or not. Where such inventories do not exist, priority should be given, in establishing them, to the detailed and complete 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 in question in determining the measures necessary:

a. To conserve an entire archaeological site, monument or other types of immovable cultural property against the effects of public or private works:

b. To save cultural property when the area in which it is situated is to be transformed by public or private works and all or part of such property is to be preserved and removed.

6. The measures to be taken will vary according to the nature, size and situation of the cultural property, and according to the nature of the dangers threatening it.

7. The measures aimed at conserving or saving cultural property should be preventive and corrective.

8. Preventive and corrective measures should aim to protect or save cultural property endangered by public or private works which may damage or destroy it, for example:

a. Urban expansion and renewal works, in which although listed monuments are respected, less important structures are modified, thereby destroying the historical links and setting of the monuments in the historic quarters; b. Similar works in areas where groups of traditional cultural value may be in danger of destruction because there is no listed monument there:

c. Inappropriate modifications or repairs of historic buildings; d. The construction or modification of highways which constitute a serious danger to sites, monuments or groups of monuments of historic importance; e. The construction of dams for irrigation, electric power generation and flood prevention; f. The construction of pipelines and power transmission lines; g. Agricultural works such as deep ploughing, drainage and irrigation works, clearing and levelling of land and reforestation; h. Works required by industrial development and the technical progress of industrialized societies, such as the construction of airfields, mining and quarrying operations and the dredging and improvement of channels and ports, etc.

9. Member States should give priority to the measures necessary for the conservation in situ of cultural property endangered by public or private works, in order to maintain the historical continuity and links of such property. When economic or social circumstances require that cultural property be removed, abandoned or destroyed, the work of saving it should always include a careful study of the cultural property in question and the complete recording of relevant data.

10. The results of studies of scientific or historic interest carried out in connection with work aimed at saving cultural property, in particular when all or much of the immovable cultural property has been abandoned or destroyed, should be published or made available in some other manner for future researchers. (…)

13. To conserve or save cultural property endangered by public or private works, recourse should be had to means corresponding to the following specific measures, in accordance with the legal and organizational system of each State:

• a)Legislation, b) Financing, c) Administrative measures, d) Methods to conserve and save cultural property, e) Penalties, f) Repairs, g) Rewards, h) Advice, i) Educational programmes.

(…)

21. When preliminary studies on construction projects are carried out in a locality of recognized cultural interest, or where objects of archaeological or historical value are likely to be found, it would be well that several variants of such projects be drawn up at regional or urban scale before a decision is taken. The choice between these variants should be based on a comparative analysis of all the elements, in order to select the most advantageous solution, both from the economic point of view and as regards the conservation or saving of cultural property.

Methods of conservation and saving of cultural property:

22. Sufficiently in advance of the execution of public or private works which may endanger cultural property, thorough studies should be carried out to determine:

a. The measures to be taken to conserve important cultural property in situ; b. The amount of salvage work necessary, such as the selection of the archaeological sites where excavations are to be carried out, the buildings to be moved, etc.

23. Measures aimed at conserving or saving cultural property should be taken sufficiently in advance of public or private works. In areas of archaeological or cultural importance where there are important monuments, such as cities, towns, sites or quarters of historic value, which should be protected by the legislation of all countries, any new construction should be subject to preliminary compulsory archaeological excavations. If necessary, construction should be postponed to allow time for the measures designed to conserve or save the cultural property in question to be taken (…)” (highlighting added).

In turn, by means of Law No. 8560 of November 16, 2006, called ‘Convention for the Safeguarding of the Intangible Cultural Heritage,’ the scope of protection of cultural heritage was expanded by taking into consideration the intangible cultural heritage. In this regard, it was recorded:

“Article 2.- Definitions. For the purposes of this Convention, 1.

"Intangible cultural heritage" means the practices, representations, expressions, knowledge, and techniques—together with the instruments, objects, artifacts, and cultural spaces inherent to 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, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements 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 inter alia in the following domains:

• a)oral traditions and expressions, including language as a vehicle of the 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 jurisprudential level, this Court indicated in judgment no. 4350-97 of 14:54 hours on June 24, 1997:

“SECOND: ON ARCHAEOLOGICAL HERITAGE (sic) OR CULTURAL HERITAGE. Cultural property is the product and testimony of the different traditions and spiritual achievements of the past and constitutes the fundamental element of the personality of peoples; therefore, it is essential to conserve them, and this is a fundamental task of the State. The foregoing means that historical and artistic heritage is different from economic patrimonial property, because these are not production goods, but rather, archaeological heritage whose legal regime responds to a different order of ideas and purposes and to a different category of values which, therefore, cannot be examined with an economic policy criterion, because no doctrine of that kind is applicable to it. The notion of 'heritage' (patrimonio), certainly (sic), comprises any property that has a monetary value, as the Civil Code indicates, patrimonio is the total set of goods and rights of a person or, also, that all the goods that constitute the patrimonio of a person are liable for the payment of their debts.

It is obvious that archaeological or cultural property also has appreciable monetary value, whether for the material from which they are made, for their fine craftsmanship or beauty, or for the historical testimony they evidence, whether made of clay, stone, or metal. Some of these objects may be of scant physical value or of little significance (sic) as an artistic work, but even so, they are valuable for their origin and as elements for study to investigate the culture of peoples of 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 (sic) there. But these goods, before and now, constitute a common heritage (patrimonio) (sic) that past generations bequeathed to the present ones, and it is up to the latter to do so for future generations as a sample of knowledge of the human deeds that identify or characterize our past.

For all these reasons, archaeological objects from the aboriginal races that populated the continent in the pre-Columbian (sic) era, prior to or contemporary with the establishment (sic) of Hispanic culture, are valuable, and it is for that value that many people seek and acquire these pieces. For that very reason, the individual interest that each person may have in the possession or ownership of those objects does not override the public interest, both because of their historical value and because, within the culture of peoples, is the study of what the human groups that inhabited the same territory did, a study that is facilitated by making it possible for the greatest number of people to have access to those sources of knowledge; and nothing is more consistent with that public interest than for archaeological property to remain on national territory, in the possession of museums and under the ownership of the State or its institutions.

It must then be stressed (sic) that the most important thing is not the material value of the referred objects, but their historical, scientific, and cultural value. That interest is nothing more than a majority desire oriented towards obtaining the intended values; that is, of the majority of coinciding (sic) individual interests. It is an interest because it is oriented towards achieving a value, benefit, or utility resulting from that upon which such a majority coincidence falls. It is public because it is assigned to the entire community, as a result of that coinciding majority, because it is of or belongs to the people, to the community in general. Thus, it is public interest because it is not exclusive or particular to a few persons, but rather insofar as such a number of persons, components of a given community, participate or coincide in it that it can be identified as belonging to the entire group, including, with respect to those who, individually, may or may not share it.

That is to say, the values of a historical and cultural nature, as carriers of a message, contribute to identifying (sic) a specific historical moment, a real and tangible testimony of the evolution and transformation experienced by society and its natural environment over time, which constitute, before, today, and for the future, a common heritage (patrimonio común) as an expression of the majority of coinciding (sic) individual interests, that is, of a public interest.

THIRD: ON THE CONSTITUTIONAL LEGAL REGIME (sic) OF THE NATIONAL ARCHAEOLOGICAL HERITAGE (sic). Among the essential purposes of the State, the 1949 Constituent Assembly established, for the purpose of transmitting that material legacy, which constitutes the link that joins the present with the future, those premises in Article 89 of the Political Constitution. This makes it necessary to mention its antecedents, in which its approval spoke of historical (sic) or artistic heritage; in other words, of cultural heritage in general. Indeed, in the 1949 Constituent Assembly, the text of Article 89 of the Political Constitution that was approved originated in a motion by Licenciado Fernando Baudrit Solera and other Deputies, in the following terms:

'Among the cultural purposes of the Republic are: to conserve, develop, and nationalize the historical and artistic wealth, and to support private initiative for the scientific and artistic progress of the country.' From the proposed text, however, because it was objected to, the expression 'nationalize' was suppressed, and in its discussion, respect for the ownership of private collections became clear, as individual interests that had to be protected, because it was not intended to dispossess anyone of their legitimate (sic) belongings, but considering that if it were necessary or convenient to expropriate, the State could do so in accordance with the Constitution and the laws. In the respective record, among other interventions, the following (sic) appears:

'Lic. Baudrit Solera explained that the idea of consigning the possibility of nationalizing artistic or historical wealth was precisely for its conservation in the country, preventing it from being exported. Right now, it is necessary to issue a series of laws that prevent individuals (sic) from disposing of their artistic and historical wealth to sell it to foreign countries. That is why it was spoken of nationalizing the wealth, on the understanding that if it were necessary to expropriate, to do so in accordance with the Constitution and the laws. It was not thought to dispossess anyone. However, since he has no interest in keeping the term "nationalize", he accepts the suggestion of colleague Chacón (Licenciado Alvaro (sic) Chacón Jinesta) provided that the other signatories of the motion agree to the suppression, all the more so since if it is an obligation of the State to 'conserve', it will have the basis to expropriate, legally, the historical and artistic wealth, when it deems it convenient (sic).' For this reason, the proposed text was modified, and Article 89 of the Political Constitution was approved as follows:

'Among the cultural purposes of the Republic are: to protect natural beauties, to conserve and develop the historical (sic) and artistic heritage of the Nation, and to support private initiative for scientific and artistic progress.' Such a constitutional provision derives from the original constituent, who deemed that archaeological or cultural property—historical heritage—belonged to the State as a product of its archaeological heritage. And, regarding this article, the developed constitutional jurisprudence states:

'This Chamber has repeatedly stated in its jurisprudence the importance (sic) that living in a healthy and ecologically balanced environment holds for human development, as well as the protection (sic) by the State of the landscape, nature, and the country's historical heritage. Aspects contemplated in Articles now 50 and 89 of the Political Constitution. ... The case before us refers (sic) specifically to the provisions of Article 89, which literally provides:

"Among the cultural purposes of the Republic are: to protect natural beauties, to conserve and develop the historical (sic) and artistic heritage (sic) of the Nation, and to support private initiative for scientific and artistic (sic) progress." Archaeology and History are two intimately linked sciences, having as one of their objectives to clarify and reconstruct the events of the past. Historical reconstruction is based fundamentally on the interpretation of written documents, while Archaeology bases its studies on data obtained through the material objects left by human action in societies that have already disappeared, through their relationship with one another, the form of the find, and its connection with the environment. Every conserved object, every vestige of the life and activity of man in past societies, represents a testimony that makes possible total or partial knowledge (sic), as the case may be, of those testimonies, and, therefore, of forms of life that are already non-existent and unknown in the present, but whose knowledge is of singular importance, as they form part of the cultural identity of the society in which we live; of course, to the extent that they are an important testimony for the reconstruction (sic) and knowledge of the facts of the past.

The National Archaeological Heritage consists basically of immovable and movable property, product of indigenous cultures prior to or contemporary with the establishment of pre-Hispanic culture in the national territory, as well as human, flora, and fauna remains related to these cultures. From the foregoing arises the interest in the protection and conservation of those findings.' (See judgments No. 2706, 10:42 hours, March 26, 1995 and No. 0729, 09:15 hours, February 9, 1996).

FOURTH: ON THE LEGAL REGIME (sic) OF THE NATIONAL ARCHAEOLOGICAL HERITAGE. In the national sphere, fundamentally two regimes have been adopted to make possible, as does the international (sic) sphere, the protection, defense, and recovery of cultural property, as the product and testimony of the different traditions and spiritual achievements of the past, which thus constitute (sic) the substantial element of the personality of peoples that makes it indispensable to conserve them. In that interest—which in the international sphere is recognized in texts such as Convention 107 of the International Labor Conference, concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries, approved by Law No. 2330 of April 8, 1959, which in its Articles 4(a) and 18(2) obliges taking into consideration the cultural values and heritage of said populations; the Recommendation on the Conservation of Cultural Property (sic) Endangered by Public or Private Works, signed in Paris on November 22, 1968, approved by Law No. 4711 of January 6, 1971; the Convention for the Protection of Cultural and Natural Heritage, signed in Paris on November 23, 1972, approved by Law No. 5980 of November 16, 1976, and the Convention (sic) on the Defense of the Archaeological, Historical, and Artistic Heritage (sic) of the American Nations, also called (sic) the Convention of San Salvador, approved on June 16, 1976, at the sixth regular session of the General Assembly of the Organization of American States (O.A.S.), in Santiago de Chile, and which was ratified by Law No. 6360 of September 5, 1979, which in its Article 2 includes within cultural heritage or cultural property the monuments, buildings, fragments of buildings, objects, and archaeological material belonging (sic) to American cultures prior to contact with European culture; those of the colonial era and subsequent to it, property that according to Article 3 must be subject to maximum international protection and whose export and import are considered illicit, unless the State to which they belong authorizes their export for the purposes of promoting knowledge of national cultures—inspired many of our laws.

On the one hand, Law No. 7 of October 6, 1938, which, although it does not properly (sic) refer to 'archaeological heritage' or historical (and artistic) heritage, as does the current Constitution, established the following legal regime (sic):

1. It attributed to the State the ownership of all archaeological objects existing in the soil of Costa Rica, prior to the Spanish conquest, that is, corresponding to the pre-Columbian (sic) era, not yet included in private patrimonio.

2. It did not recognize in favor of the State the ownership of archaeological objects from the colonial period; and 3. It denied validity to the transfer of any archaeological property, corresponding to the pre-Columbian (sic) era or the colonial period, if those goods were not registered and inventoried in the Registry and authorization from the Museum was not obtained.

From these premises, two fundamental principles were derived:

1. All archaeological objects existing (sic) in the soil of Costa Rica prior to the Spanish conquest are the property of the State, as well as monuments of the same kind that may be found; and 2. Archaeological objects included in the private patrimonio at the time that Law was enacted are private property, thereby establishing the ownership regime for future finds and respecting previously acquired rights. On the other hand, Law No. 6703 of December 28, 1981, the subject of this action, was approved, which substantially modified the situation existing under the prior Law, which it repealed (in everything that opposes it), which recognizes, like the former, private property over archaeological objects included in the private patrimonio prior to the enactment of that Law. This law established the following legal regime:

1. Archaeological objects from the pre-Columbian (sic) era, found and transferred before the 1938 Law, are private property.

2. Goods from the same era, found before but transferred after the 1938 Law, were subject to authorization by the Museum.

3. Objects from the same pre-Columbian (sic) era, found after the 1938 Law, are the property of the State; and 4. Objects from the colonial era, regarding which the 1938 Law did not establish any right of ownership in favor of the State, were subjected to control and restrictions.

The foregoing, in other words, means that the State was attributed ownership of objects from the pre-Columbian (sic) era found after that Law—that of 1938; of those found before but transferred after, the acquirer has no legitimate title of acquisition, because the transfer was conditioned on the authorization of the Museo Nacional, and over these, the State has a preferential right to acquire them; those found afterwards belong to the State, regardless of whether, when in the possession of private individuals, they were registered or not with the Museum; and those from the colonial era, any transfer (sic) carried out before constitutes a legitimate title of acquisition (sic), as these are goods that were and continued to be private property under the validity of that Law, and insofar as it requires authorization to transfer archaeological objects, it refers only to transfers made from then on; but, regarding goods that were transferred afterwards, the acquirers of those goods cannot claim a legitimate title of acquisition, even less so if the find occurred subsequently. All these aspects ratify the condition of the heritage property (bienes patrimoniales) that are in the possession of private individuals as recognized by that first Law (…)

EIGHTH: CONCLUSIONS. In the sub-judice case, the essential ground on which the declaration of unconstitutionality of Articles 3, 8, 17, 20, 26, and 29 of the 'Ley de Patrimonio Nacional Arqueológico', No. 6703 of December 28, 1981, is requested is the fact that by imposing limitations (or deprivations or restrictions 'sic') on property that also redound to the detriment (sic) of freedom of commerce, its approval should have required a qualified affirmative vote of thirty-eight deputies, as mandated by the second paragraph of Article 45 of the Political Constitution, which did not occur, because according to the attendance record, the vote—which was nominal—counted thirty-one (31) affirmative votes and eight (8) negative votes. From the analysis of the considerations indicated regarding the grounds (sic) underlying 'archaeological heritage' as State property, it is necessary to conclude that such goods, although like any thing at some point they were susceptible to appropriation, the truth is that currently, as of 1949, by constitutional mandate, they are different from economic patrimonial property, because they constitute heritage property (bienes patrimoniales) that the State must protect, conserve, and develop under the terms of Article 89 of the Political Constitution, which recognizes, as is also stated, private initiative for scientific and artistic progress.

Thus, as has also been said, the limitations referred to in the second paragraph of Article 45 of the Constitution are those deriving from the '... principle of social solidarity, with which our constitution is imbued, (which) allows the burden borne by all in favor of all, or even by a few in favor of many, but with the requirement that the natural use of the immovable property is not affected to the limit of its value as a means of production, or of its market value. That is, the attributes of property may be limited as long as the owner reserves for himself the possibility (sic) of normally exploiting the property, excluding of course the part or function affected by the limitation imposed by the State. Outside of those parameters, if social welfare demands sacrifices (sic) of some, or of some only, they must be compensated (sic).' (...) 'The limitation on property will withstand constitutional analysis depending on the affectation of the essential attributes of property, which are those that allow the natural use of the thing, within the current (sic) socio-economic reality.' (...) 'The damage may be general, rendering a large part of the farm useless or affecting the best part of the property.

It could also be a limitation that makes the use of the thing impossible, because the State imposes authorization or approval (sic) requirements so complex that they imply de facto the impossibility of usufructing the property. In these cases of special severity, the limitation produces three identifiable effects: a—it produces special damage because it affects a determined number of farms; b—It is abnormal, insofar as the affectation is so serious in relation to the full enjoyment of the right and operates unequally against other owners outside the affected zone; and c—the damage is economically assessable. Consequently, if the limitation is of such a degree that it detracts the property from its economic value and removes it from the commerce of real estate, the State must compensate the harm caused.' (See judgment No. 7418, 09:57 hours, December 16, 1994).

Therefore, cultural property, more than property of social interest intended to satisfy demands and requirements inherent to public needs, that is, for the attainment of general welfare, is property that forms part of the 'national archaeological heritage' (patrimonio nacional arqueológico), whose ownership by the State, as representative of the entire community, is unobjectionable. From this it follows that it is not possible to deprive anyone of what belongs to the State, and consequently, the Ley de Patrimonio Nacional Arqueológico, No. 6703 of December 28, 1981, by providing that archaeological heritage property (bienes patrimoniales) (sic) is the property of the State (Article 3), prohibiting its commerce and export (Article 8), and obligating its possessors to lend them to the Registro Público Nacional Arqueológico for registration (Article 17), does not create limitations—deprivations or restrictions—on private property that require a qualified vote as claimed.

That said, the foregoing does not mean a detriment to acquired patrimonial rights or consolidated legal situations, as was recognized both by the prior law and by the current legal regime to which reference has been made and which was ratified by the cited pronouncement of the Corte Plena acting as Constitutional Court. For that very reason, the authorization referred to in the second paragraph of Article 45 of the Constitution is not for imposing all kinds of limitations on property, but only those of 'social interest,' but it is clear that within these we cannot include cultural property or archaeological heritage property, which have a different origin and fulfill a different mission. This is said, finally, without prejudice to our understanding, even if it is not the hypothesis discussed in this action, that even cultural property (belonging to historical heritage) legitimately in the possession of private persons may be expropriated if the legal provisions governing the matter are duly complied with.

As a consequence of what has been said, there is no incompatibility of Articles 3, 8, and 17 of the Ley de Patrimonio Nacional Arqueológico, in the terms interpreted by the Corte Plena in its extraordinary session No. 19 at nine o'clock on March twenty-fifth, nineteen hundred and eighty-three, the record of which was approved in the session of the following April fourth, with the Political Constitution and the other constitutional norms and principles invoked. Nor are Articles 20, 26, and 29 unconstitutional, since, as indicated, they develop and stem from the validity of those other challenged norms. Thus, all those norms do not become illegitimate either as alleged to be unconstitutional, because their approval was done without the qualified vote mandated by the cited Article 45 of the Constitution. Consequently, it is appropriate to dismiss the action of unconstitutionality on those points” (bold added).

Subsequently, in judgment no. 2002005245 of 15:20 hours on May 29, 2002, it was specified:

“VI.- Archaeological property in the constitutional system. Article 89 of the Political Constitution establishes that among the cultural purposes of the Republic are:

'… to protect natural beauties, to conserve and develop the historical and artistic heritage of the Nation, and to support private initiative for scientific and artistic progress.' The protection of historical heritage is thus framed within the broader scope of the State's duty to preserve the common culture that turns its people into a Nation. The Diccionario de la Real Academia Española de la Lengua, as relevant, defines culture as:

'… the set of ways of life and customs, knowledge, and degree of artistic, scientific, or industrial development, in an era or social group' (Twenty-Second Edition. Volume I. 2001) Archaeological heritage is a species of the broader genus constituted by cultural heritage, a precision that has important practical implications insofar as the State's role in the promotion and guarantee of archaeological property must always be part of an integral policy of protection and promotion of autochthonous cultural production. In order for the rights derived from the constitutional norm in question to be effectively verified, it is required of the public authorities not only to create the necessary normative framework, but also to act concretely, through suitable protection mechanisms that start from the inescapable premise that a Nation that despises its historical heritage, destroying it or failing to avoid by all lawful means its loss or deterioration, is destined to fail as a society, since it is precisely the vision of the past that allows understanding the present and planning for the future.

Archaeological heritage—in the Costa Rican case—has commonly been defined as the set of immovable and movable property, product of indigenous cultures prior to or contemporary with the establishment of Hispanic culture in the national territory, as well as human, flora, and fauna remains related to these cultures, constituting one of the principal means to effectuate the exact knowledge of the historical origins of our societies, insofar as it allows understanding the germ of our current forms of thought and cultural expression, besides providing data of great utility for other fields of knowledge, such as ecology, pharmacotherapy, zoology, etc. Regarding the intrinsic importance of archaeological heritage within the social system, this Chamber pronounced itself in the following terms:

'Archaeology and History are two intimately linked sciences, having as one of their objectives to clarify and reconstruct the events of the past. Historical reconstruction is based fundamentally on the interpretation of written documents, while Archaeology bases its studies on data obtained through the material objects left by human action in societies that have already disappeared, through their relationship with one another, the form of the find, and its connection with the environment. Every conserved object, every vestige of the life and activity of man in past societies, represents a testimony that makes possible total or partial knowledge, as the case may be, of those testimonies, and, therefore, of forms of life that are already non-existent and unknown in the present, but whose knowledge is of singular importance, as they form part of the cultural identity of the society in which we live; of course, to the extent that they are an important testimony for the reconstruction and knowledge of the facts of the past.' (Judgment number 729-96 of nine hours fifteen minutes on February ninth, nineteen hundred and ninety-six) It is not that knowledge of the past holds a particular interest for reasons of mere historiographical curiosity, but that its study allows approaching a global understanding of current social and cultural phenomena.

The protection of archaeological property must then be understood as a form of safeguarding culture in general, as a good that transcends the ownership of any individual, constituting a value of national importance, whose recognition and effective defense forms part of the set of interests guaranteed in Articles 50 and 74 of the Political Constitution.

VII.Archaeological heritage in International Law. Costa Rica, as a subject of International Law, has signed and ratified various instruments aimed at protecting archaeological heritage. Thus, we may cite the following: A) The Convention for the Protection of Cultural Property in the Event of Armed Conflict (Convención de La Haya), of May fourteenth, nineteen hundred and fifty-four, and its Regulations, which recognize the importance of archaeological heritage, obligating States involved in a warlike conflict to respect that of those they occupy, placing their cultural property in safe custody, away from the conflict zone. B) The Recommendation defining the international principles to be applied to archaeological excavations, of December fifth, nineteen hundred and fifty-six, obligates the States Parties to subject the archaeological excavations (sic) carried out in their territories to strict supervision and prior authorization from a competent authority (principle 5).

• C)The International Charter on the Conservation and Restoration of Monuments and Sites, which recognizes the inseparability of a monument and the history it bears witness to, as well as the prohibition on moving a monument except for its conservation (article 7); the obligation to protect such sites (14); and the need to preserve the identity of the monument, essentially avoiding altering its appearance or nature (15). D) The Convention on the Defense of the Archaeological, Historical, and Artistic Heritage of the American Nations (Convention of San Salvador), approved by Law No. 6360 of September 5, 1979, which includes within cultural property archaeological material belonging to cultures prior to the American cultures that predate contact with European culture (article 2); recognizes the State's ownership of such objects (6); provides that each State undertakes to promote the exploration, excavation, investigation, and conservation of places and objects by specialized bodies in association with the public institutions responsible for protecting the archaeological heritage (8).
• E)The Recommendation on the Conservation of Cultural Property Endangered by Public or Private Works, signed on November 22, 1968, approved by Law No. 4711 of January 6, 1971, establishes in its recitals that contemporary civilization and its future evolution rest upon the tradition 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 testimony of the different traditions and spiritual achievements of the past, and thus constitutes the fundamental element of the personality of peoples, for which reason it determines the need to extend the protection of cultural heritage (patrimonio cultural) to the entire territory of the State, and not only to formally declared sites (article 3); measures must be both preventive and corrective (7) against any type of work, public or private, capable of deteriorating them (8); it further provides that detailed studies must be carried out sufficiently in advance to determine the measures to be adopted in situ, as well as the magnitude of the necessary rescue work (22).
• F)The Convention Concerning the Protection of the World Cultural and Natural Heritage, signed on November 21, 1972, approved by Law No. 5980 of November 16, 1976, orders States Parties to identify, protect, conserve, rehabilitate, and transmit to future generations the cultural heritage (article 4). G) The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, signed on September 19, 1970, approved by Law No. 7526 of July 10, 1995, which includes within the concept of cultural heritage those of ethnological, archaeological, and natural value (article 5).

It is unnecessary to clarify that all the instruments cited in the preceding paragraph constitute a source of law in Costa Rica, capable of being directly applied by this Constitutional Chamber for the resolution of this matter, as dictated by Article 48 of the Constitution. In the case of those approved by the Legislative Assembly, by express provision of Article 7 of the Political Constitution. As for those that do not enjoy such status, because they constitute at least sources of interpretation of the approved instruments. Nor does this Chamber recognize the existence of mere recommendations in the field of human rights, for if States decide to self-limit, recognizing the existence of certain human rights, even when they appear designated by the name of "recommendations." The foregoing leads to the understanding that the Recommendation defining the international principles to be applied to archaeological excavations, the International Charter on the Conservation and Restoration of Monuments and Sites, and the Recommendation on the Conservation of Cultural Property Endangered by Public or Private Works are—in the terms stated above—acts fully endowed with normativity in the Costa Rican constitutional order, without being capable of being considered mere enumerations of objectives and goals to be achieved.

VIII.The legal regulation of archaeological heritage (patrimonio arqueológico). In addition to the constitutional norms that protect the archaeological heritage and the commitments assumed in that same regard by Costa Rica before the international community, various internal norms have been issued concerning the matter that is the subject of this action. A) Law No. 7 of October 6, 1938, grants archaeological property the status of public domain (article 1), in addition to ordering the immediate communication of the discovery of objects to public authorities, which shall take the necessary measures for their protection (article 17). B) Law 6793 of December 28, 1981, the National Archaeological Heritage Law, which, in addition to reiterating the provisions of Law No. 7, creates the Comisión Arqueológica Nacional, a body empowered to authorize excavations by previously registered scientists and to supervise them (articles 12 and 15); confers upon the Museo Nacional the competence to define the manner in which property shall be rescued in the event of discovery by a third party (article 13).

• C)The Mining Code, Law No. 6797 of October 4, 1982, whose article 102 section h) requires the performance of environmental impact assessment (evaluación de impacto ambiental) studies regarding the effects on the archaeological and cultural wealth of the country for the performance of mining activities. D) Law No. 7555 of October 4, 1975, the Historical-Architectural Heritage of Costa Rica Law, which defines an archaeological site (sitio arqueológico) as one that contains objects important from a historical, aesthetic, ethnological, anthropological, or environmental point of view (article 6); numeral 7, for its part, establishes the procedure for the incorporation of property into the historical-architectural heritage (patrimonio histórico-arquitectónico) by Decree, which implies the prohibition on demolishing the building.

IX.The importance of archaeological property (bienes arqueológicos). Archaeological property, understood as those objects that allow the researcher to access historical knowledge, possess an intrinsic importance, as they constitute an ideal instrument, difficult to replace, for acquiring that knowledge, in which the environment surrounding them also acquires special relevance. For the effective guardianship of archaeological property, the State must actively participate in all procedures aimed at its detection, rescue (when appropriate), study, registration, and conservation. Only in this way will the duties deriving from the constitutional mandate, as well as those assumed through the signing of the cited international instruments and the enactment of the mentioned laws, be fully complied with. Notwithstanding this marked importance, the guardianship of archaeological property has been affected by the confluence of various factors, such as collecting, the trade in objects, and their indiscriminate destruction due in part to the construction of buildings in areas where archaeological sites exist.

This confluence of interests, by reason of the State's constitutional obligation to ensure the protection of the archaeological heritage, necessitates the establishment of legislative and administrative mechanisms aimed at guaranteeing the protection of the archaeological legacy, in the face of the need for economic development. This prevalence was already recognized by the full Court when, exercising functions of constitutional review, it held:

"It is obvious that archaeological property also has appreciable monetary value, whether for the material from which they are made (gold, for example), or for their fine craftsmanship and beauty, even if of clay or stone. Some of these objects may be of scant physical value or of little artistic significance; yet even so they are valuable for their origin and as elements of study for investigating the culture of the peoples of other eras, of their beliefs and customs, or of the nature of the environment in which they lived, according to the traces or representations that may be found there. For all this, archaeological objects from the aboriginal races that populated the continent in the pre-Columbian era or prior or contemporary with the establishment of Hispanic culture are valuable; and for that value many acquire these pieces, some for spiritual enjoyment or scientific interest and others perhaps for profit.

But over the individual interest that each one may have in the possession or ownership of these objects, the public interest predominates, both for the historical value of such property, and because, within the culture of peoples, is the study of what the human groups that inhabited the same territory did, a study made easier by enabling, right here, the greatest number of people to have access to these sources of knowledge; and nothing is more consistent with that public interest, than that archaeological property remain in national territory, in the possession of museums and under the ownership of the State or its institutions, as part of the historical heritage that the Political Charter calls 'of the Nation', in Article 89. It must therefore be emphasized that the most important thing is not the material value of the referred objects, but their historical and cultural value, and that in no way could the economic doctrine on productive goods and freedom of enterprise be applicable to these objects." (Resolution of 1:00 p.m. on May 12, 1989) It is then clear that the relevance of archaeological property is not exhausted in venal aspects.

Quite the contrary, its greatest importance lies in the data it can offer for adequately understanding the origins of national identity, in addition to the vast information it offers for other no less important fields of scientific knowledge. Thus even property with few aesthetic qualities, of daily use, or even in a poor state of conservation can be of great importance for archaeological knowledge. Moreover, the protection of the archaeological heritage is also a matter of global relevance. The Preliminary Report on the Legal Means for the Protection and Conservation of the Historical and Artistic Heritage of the American Countries of the Organization of American States established in this regard:

"There is no exclusively local interest on the part of states in protecting and conserving the objectified testimonies of the art and culture of past eras found in their respective territories; that interest is shared by the entire international community, which justifiably considers that those constitute a cultural heritage that belongs to all humanity and, therefore, deserve to be the object of its concern and protection.

In this way, the protection and conservation of cultural heritage currently transcends the sphere of national jurisdictions to be complemented, juridically through international instruments, and materially through the solidary cooperation of the countries that make up the international community to make effective such a duty of protection and conservation" The preservation of the archaeological heritage of a people is not seen, then, as a matter of mere local interest, but as a significant contribution to the preservation of world culture.

X.The archaeological heritage as a public domain asset (bien de dominio público). It is evident that archaeological property, in accordance with the terms of the cited norms, forms part of the public heritage, of the so-called public domain assets (bienes demaniales), the title to which rests with the Nation, insofar as they are affected to fulfill a purpose of general interest. The use and possession of public domain assets always form part of a special regime, characterized by the fact that such objects must only be employed in such a way that they do not contradict their purpose, in some (sic) cases only by the Administration; in others also by private individuals, but strictly adhering to the limitations that their public character implies. This Chamber has defined public domain assets in the following terms:

"…The public domain is comprised of assets that manifest, by the express will of the legislature, a special destiny of serving the community, the public interest. They are the so-called public domain assets, demanial assets, public goods or things, which do not belong individually to private parties and which are destined for a public use and subject to a special regime, outside the commerce of men. That is, affected by their own nature and vocation. Consequently, these assets belong to the State in the broadest sense of the concept, they are affected to the service they provide, which is invariably essential by virtue of an express norm. Characteristic notes of these assets are that they are inalienable, imprescriptible, unattachable, cannot be mortgaged or be susceptible to encumbrance in terms of Civil Law, and administrative action replaces interdicts to recover ownership. As they are outside of commerce, these assets cannot be the object of possession, although a right of use may be acquired, though not a right of ownership.

The permit for use is a unilateral legal act issued by the Administration, in the exercise of its functions, and what is placed in the hands of the private individual is the useful domain of the asset, the State always reserving the direct domain over the thing…" (Judgment No. 2306-91 of 2:45 p.m. on November 6, 1991) Previously, the full Court, exercising constitutional review, determined:

"Well, then, if before the 1938 Law the archaeological heritage was not duly legislated, it is very much in order that the legislature addressed the matter in that Law and in that of 1981, to prevent what had occurred under the former regime. XIX.— Those two laws recognize individual ownership of archaeological property that was in private hands; but at the same time provided that, henceforth, property that was the object of discovery would belong to the State. No acquired right was harmed, as private ownership existing up to that time was maintained… No special norm in the Constitution is needed for specific prohibitions to be established in ordinary laws, if they had support in Article 28, as are those that exclude discovery as a legitimate title for acquiring private ownership of archaeological property… XX.— Article 89 reflects the public interest that the Constitution protects in numeral 28 second paragraph, for there it is stated that 'Among the cultural purposes of the Republic are:...to conserve and develop the historical and artistic heritage of the Nation.' With this, the existence of a heritage different from that of assets of an economic nature was recognized, and at the same time the duty to seek its conservation was established.

The cultural and historical public order allows this rule to be interpreted broadly, and to rely on it to reaffirm the state ownership of archaeological property that would be discovered in the future, as provided by the 1938 Law. These assets, before and now, constitute 'a common heritage that past generations bequeathed to future ones'… XXI.— From all the foregoing it follows: a) That the regime of ownership instituted in article 1 of the 1938 Law is legitimate, for it has support in articles 28 and 89 and does not conflict with article 45 of the Political Charter 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 are applicable to archaeological objects discovered after Law No. 7 of 1938, since those assets belong to the State, in accordance with article 1 of that 1938 Law, which is not unconstitutional." (Resolution of 1:00 p.m. on May 12, 1989)

XI.The preventive principle in archaeological matters. The importance of archaeological property and its character as public domain assets creates a series of obligations incumbent upon the State directed toward their effective guardianship, a common element of the rights of the so-called third generation. In matters of such relevance and delicate protection, it cannot be conceived that administrative authorities intervene once the damage has been caused, since the harm may be irreversible and of very great proportions. In the case of archaeological property, there is a single possibility: its effective protection or its irremediable loss. In order to gauge the moment and the actions that the State must undertake for the protection of the archaeological heritage, some important considerations must be made that were outlined in the preceding recitals. Archaeological property, individually considered, while it is true that it may constitute key elements for understanding the historical–cultural past of the country, its relevance may be diminished if they are not considered integrally with respect to the context in which they were found.

Archaeological investigation cannot therefore be limited to the study of objects that have been totally or partially destroyed, or to property removed from their context without the prior performance of exhaustive field analyses aimed at their understanding within the environment where they were found, since in such cases a task that by constitutional imperative (articles 50, 74, and 89) ought to be conceived as one of scientific rigor could become little more than a simple task of collecting and artistic contemplation, in contravention of the fundamental order" (the emphasis was incorporated).

From the transcribed precedent, the importance of the preventive principle in archaeological matters is evident. This implies the protection of objects or places considered of cultural relevance, which demands the performance of pertinent scientific studies, in order to guarantee their protection and preservation. Mutatis mutandis, taking into account that cultural heritage comprises various types of heritage (such as the archaeological one – see Judgment No. 2002005425 of 4:20 p.m. on May 29, 2002), the foregoing position becomes fully applicable in the case of the historical heritage related to San Lucas Island.

In turn, in Judgment No. 2003003656 of 2:43 p.m. on May 7, 2003, this Constitutional Chamber referred to cultural heritage in these terms:

"C.— ON CONSTITUTIONAL GUARDIANSHIP OF CULTURAL HERITAGE. ARTICLES 50 AND 89 OF THE POLITICAL CONSTITUTION.

XVI. DELIMITATION OF THE SCOPE OF APPLICATION AND JURIDICAL-CONSTITUTIONAL BASIS

The importance of protecting cultural heritage, at the national, regional, and international levels, is not in dispute, precisely because of the significance that this patrimony represents for the necessary maintenance and strengthening of the identity of peoples (population and/or nation), that is, in the historical, social, geographical, and cultural spheres. It is known to all that understanding the past—connection to one's roots—implies understanding the present time and establishes the possibilities for the future material and psycho-social development of individuals and human groups. It is the recognition of a value, understood as the incorporation of an economic potential, or value that is realized in function of a transcendent end (spiritual, cultural, or artistic value). It is for the foregoing that the concept of historical-architectural heritage has evolved, and with it the criteria for its protection, so that it is no longer justified by a "romantic" ideal, but as a condition of identity of peoples, as an integral part of their history and culture, addressing reasons of social-economic and urbanistic-environmental or urbanistic-ecological development, and having a more human foundation.

It is thus that protection by the States becomes necessary, which permits effective and efficient action, on the basis of a scientific construction coherent with reality, both in the sphere of territorial and architectural theories, and in the legal sphere, insofar as it interacts with other disciplines and fields of knowledge, such as History, Anthropology, Architecture, and the Theory of Restoration, and Law, among others; and which takes into consideration the country's own circumstances, such as its degree of underdevelopment and economic dependence. It is thus that the protection of this heritage must be actively integrated into the country's social and economic resources, so that it does not constitute a burden for the State, nor for the population (owners, possessors, or holders of any real right over the property incorporated into this special guardianship regime), in such a way that it is configured as yet another resource that generates social welfare.

XVII.The protection of cultural heritage is framed within Urbanistic Law, which lately has come to be understood within the broader framework of Environmental Law, which finds its juridical-constitutional basis in articles 50 and 89 of the Political Constitution, insofar as they textually provide:

"The State shall seek the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth.

Every person has the right to a healthy and ecologically balanced environment. By this they are empowered to denounce acts that infringe that right and to claim reparation for the damage caused.

The State shall guarantee, defend, and preserve that right. The law shall determine the corresponding responsibilities and sanctions" (article 50); and "Among the cultural purposes of the Republic are: to protect natural beauties, to conserve and develop the historical and artistic heritage of the Nation, and to support private initiative for scientific and artistic progress" (article 89).

This latter norm gives directives for public authorities to promote the protection of the environment, understood in an integral manner, that is, not understood in its traditional sense limited to the sphere of natural resources, what is commonly known as "green", insofar as it has been understood to comprise natural resources (forests, water, air, minerals, flora and fauna, etc.), but also in relation to the living environment, which comprises not only scenic beauties of nature, such as the landscape, but also everything concerning cities and urban and rural conglomerations, that is, the concept of the urban. It can well be affirmed that these are two complementary aspects of one reality, like the two sides of a single coin: the natural environment and the urban environment. It is thus that a more human environment is sought, that is, an environment that is not only healthy and ecologically balanced, but also serves as a symbolic referent and giver of national, regional, or local identity.

Thus, the fundamental right to a healthy and ecologically balanced environment—extensively developed by constitutional jurisprudence—shall comprise both its natural parts and its artificial parts, the latter understood as the human habitat, what is built by man, that is, the urban, such that they are kept free of all pollution, both for the effects and repercussions it can have on the health of persons and other living beings, and for the intrinsic value of the environment. By pollutant element must be understood "[...] every element, compound or substance, its association or composition, chemical or biological derivative, as well as any type of energy, radiation, vibration, or noise that, incorporated in a certain quantity into the environment for a more or less prolonged period, may negatively affect or be harmful to life, health, or the well-being of man or of flora and fauna, or cause a deterioration in the quality of the air, water, soil, 'natural beauties,' or resources in general, which, in synthesis, make up the quality of life" (Judgment No. 3705-93, of 3:00 p.m. on July 30, 1993).

It is thus that the protection of cultural heritage, and specifically, historical-architectural heritage, constitutes a necessary precept when a better quality of life is sought—a determining element in the conception of the environment—and its effective guardianship; hence, its regulation is circumscribed within Environmental Law.

XVIII.It is from articles 50 and 89 of the Constitution that an obligation is generated for the State to protect the environment in which the life of the nation's population unfolds, and which encompasses these two spheres: the natural and the urban; such that the guardianship of cultural heritage, and more specifically, of historical-architectural heritage, is placed within urbanistic regulations. It is in light of the foregoing considerations that it can well be affirmed that the conservation of cultural heritage contributes to maintaining the environmental equilibrium necessary in urban development, by requiring, for its effective guardianship, respect for urban scale, structure, and dimensioning, regulating the capacity of physical loads, questioning urban functions and services, which results in better environmental quality; in addition to contributing to maintaining the characteristic image or perceptive concurrence of the city, which gives it identity or formal cohesion.

XIX. NORMATIVE DEVELOPMENT OF ENVIRONMENTAL PROTECTION

Both facets of the environment, whether the natural environment or the urban environment, are subject to protection and guardianship by the State, as derived from the obligations imposed in the transcribed constitutional norms, and which is developed in regulations of various categories, such as in international treaties, among which the following can 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 Protection of Priority Wild 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 on Environment and Development, ratified by Law number 7226; in the natural environmental field; the Convention for the Protection of Cultural Property in the Event of Armed Conflict, its Regulations and Protocol, approved 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, approved at the UNESCO General Conference in 1956; the Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites, approved at the UNESCO General Conference in 1962; the International Charter for the Conservation and Restoration of Monuments and Sites, approved by the International Council on Monuments and Sites (ICOMOS) in 1965; the Norms of Quito, approved at the Meeting of Latin American Presidents in 1967; the Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, approved at the UNESCO General Conference in 1968, 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, approved at the UNESCO General Conference in 1970, ratified by Law number 7526; the Convention concerning the Protection of the World Cultural and Natural Heritage, approved at the UNESCO General Conference in 1972, ratified by Law number 5980; the Convention on Defense of the Archaeological, Historical and Artistic Heritage of the American Nations, approved by the General Assembly of the Organization of American States (OAS) in 1976, ratified by Law number 6360; the Recommendation concerning the Safeguarding and Contemporary Role of Historic Areas, approved at the UNESCO General Conference in 1976; the Recommendation concerning the International Exchange of Cultural Property, approved at the UNESCO General Conference in 1976; the Recommendation for the Protection of Movable Cultural Property, approved at the UNESCO General Conference in 1978; the ICOMOS International Charter for the Conservation of Historic Towns, approved in 1987; and the Recommendation on the Safeguarding of Traditional Culture and Folklore, approved at the UNESCO General Conference in 1989.

In our country, various laws on environmental matters have been enacted, such as the Organic Law of the Ministry of Environment and Energy, number 7152; the Organic Law of the Environment, number 7554; the Biodiversity Law; the Forestry Law (Ley Forestal), number 7575, and its Regulations; the Wildlife Conservation Law, number 2790, and its Regulations, Executive Decree number 26.133-MINAE; the Water Law, number 276; the Maritime-Terrestrial Zone Law, number 6043; and the General Health Law, number 5395; and on the matter of cultural heritage protection, the following: the Archaeological Heritage Protection Law, number 6730 and the Historical-Architectural Heritage Law, number 7555. Within the set of regulatory rules, in environmental matters one can cite the Special Regulation governing the extraction of materials from public domain riverbeds, Executive Decree number 21.910-MIRENEM; the Executive Decree number 30.480-MINAE, which establishes the principles governing national policy on water management; the Regulation on Procedures of SETENA, Executive Decree number 25.705-MINAE; the Principles, Criteria and Indicators for Forest Management and Certification in Costa Rica, Executive Decree number 27.388-MINAE; On Regental Functions, Executive Decree number 26.870-MINAE, in addition to the executive decrees that declare or create protected zones; as well as the Regulations of the National Archaeological Commission, Executive Decree number 19.016-C, in the case of cultural heritage, and all those decrees by which properties and their buildings are incorporated into the historical-architectural heritage.

XX. CONCEPTUALIZATION OF THE GUARDIANSHIP OF CULTURAL HERITAGE AS A FUNDAMENTAL RIGHT

The process of cultural development of society and the exchange of cultural goods and expressions motivate the emergence of a context of rights and obligations linked to social, political and economic situations in the world, such as the growing sociocultural needs of the population, the ever-increasing importance of culture as an essential element of nationality (national identity), the problems of the survival of traditional, artisanal and folk cultures, and the importance of the values and expressions of cultural heritage as a fundamental factor of national integration, which demonstrates the need for adequate regulation that involves the interests at stake. Under this context arises the guardianship or protection of cultural heritage by the State, since it is framed within the configuration of the Social State of Law, with all its implications, by virtue of which it is conceptualized as a true fundamental right, which derives from the right to culture; and therefore it is enforceable against the public authorities responsible for this guardianship, which translates into the enforceability of effective and concrete actions by the Administration that protect cultural heritage.

This right is based on the essential dignity of the human person, and on the need to integrate this element with the development of the community; so that it comprises, not only the right of the person to their personal self-realization, but also the right of the community—population—to shape its cultural identity, since it constitutes an essential element that contributes to this important task, for which reason it also has implications for the cultural sovereignty of States, specifically with regard to the safeguarding of the country's cultural personality and the requirement for international cooperation that may and should be provided in this respect. It is a third-generation right, which is based on the principle of solidarity), for which reason it is classified in the category of social rights, which has evident transcendence insofar as it impacts life in society, because by virtue of it, a right of every individual is configured—as a requirement of their essential dignity—to participate in the heritage and cultural activity of the community to which they belong; and it generates the duty—responsibility—for public authorities to promote adequate means of effective participation to guarantee access to and exercise of this right, to the extent that the resources available to them allow it.

In this way, culture constitutes the most significant element of consciousness for the safeguarding of the essential heritage that defines national identity at various levels, and which comprises the protection of folklore, the stimulation of intellectuals and artists, the promotion of international exchange, the protection of cultural heritage, the promotion of the development of the arts, artistic education, and the promotion of books. It is thus that every person has the right to culture, in the same way as to education, to work, and to freedom of expression, fundamental rights with which it is directly related. In this sense, there are innumerable resolutions and declarations of an international nature that formally recognize the right to culture. Thus, in resolution IX approved by the Inter-American Conference on Problems of War and Peace (held in Mexico from February 21 to March 8, 1945), in section 13 of which the States of America expressly recognize:

"Among the rights of man figure, in the first place, the equality of opportunity to enjoy all the spiritual and material goods that our civilization offers, through the lawful exercise of his activity, industry and ingenuity." The American Declaration of the Rights and Duties of Man (approved at the Ninth International American Conference, on May 5, 1948, in Bogotá, Colombia) recognizes the right to the benefits of culture:

"Every person has the right to participate in the cultural life of the community, to enjoy the arts, and to benefit from the results of intellectual progress, especially scientific discoveries.

He likewise has the right to the protection of the moral and material interests accruing to him by reason of the inventions, literary, scientific or artistic works of which he is the author." The considerations of the Preamble of this Declaration are interesting, insofar as it contains certain statements linked to culture, and which allow for a better interpretation of that provision:

"All men are born free and equal in dignity and rights and, being endowed by nature with reason and conscience, they should conduct themselves fraternally one to 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 end of human existence and its highest category" (fourth paragraph); "It is the duty of man to exercise, maintain and stimulate by all means within his reach culture, because culture is the highest social and historical expression of the spirit" (fifth paragraph).

The 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, of opinion, and of expression and dissemination of thought by any medium." In connection with this right, the right recognized in Article 15 to rest and to its use is related. For its part, the Universal Declaration of Human Rights (approved on December 10, 1948) recognizes the right to culture in its 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 as an indispensable prerequisite to guarantee the right to culture, the right to education is situated. Cultural rights motivated the approval of the International Covenant on Economic, Social and Cultural Rights, by the United Nations in 1966—ratified by Law number 4229, of December 11, 1966—. In addition to the recognition of 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 he 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, the development and the diffusion 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 to be derived from the encouragement and development of international cooperation and international relations in scientific and cultural fields." The Charter of the Organization of American States (OAS)—of 1967—, in its Article 48 ratifies the previous principles:

"The Member States [...] shall ensure the enjoyment of cultural goods by the entire population, and shall promote the use of all means of dissemination for the fulfillment of these purposes." This norm is referred to in Article 26 of the American Convention on Human Rights, ratified by Law number 4543, of February 23, 1970, insofar as it provides:

"Progressive Development The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural norms set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires, to the extent of available resources." These international instruments have centered their efforts on three fundamental aspects: the development and encouragement of culture, international cultural cooperation, and the right to culture, which acquire full coerciveness upon deriving from human rights treaties duly ratified by our country.

XXI. DEFINITION OF THE OBJECT OF PROTECTION

THE "CULTURAL GOOD (BIEN CULTURAL)" AS THE PROTECTED LEGAL INTEREST. The denomination and conception of the objects that the historical heritage protects has evolved in legal science, so that it is now extended to various categories of goods, that is: real estate of cultural interest—among which are included, monuments, natural beauties, sites—; movable property not incorporated or affected by executive decree to the cultural heritage of the Nation, but which have a singular relevance, especially based on the international regulations that will be analyzed below, archaeological objects—which are in the public domain—; ethnographic heritage, scientific, technical, industrial anthropological, and bibliographic heritage; with which, protection also covers customs, folklore, rites, beliefs, festivals and gastronomy. All these goods have been grouped under the denomination "cultural good (bien cultural)".

This new conception, much broader of the reality protected by the legal system, is born in Italy, and is based on the ultimate reason that motivates the protection and guardianship of the good, that is, the cultural value immanent in these goods, that is, to the extent that it brings us closer to the history of civilization, to the diverse ways of living, to the thought and feeling of persons in time and space. The cultural value can have many manifestations, such as the historical, artistic, scientific, archaeological, paleontological, ethnographic or technical reference that are present in goods of different kinds. An interest worthy of conservation is required in its individuality or in connection with other goods, which is the case of the protection of urban ensembles, macro-ensembles or itinerant ensembles. The essence of the protection is constituted by the intrinsic interest or value of the good, insofar as it is representative of the history, art, science or industry of a people, and that therefore contributes to the identity of the nation.

XXII. ON THE INTERNATIONAL REGULATIONS ON THE MATTER

Regarding the development of the protection of cultural goods, as derived from the right to culture, it is important to mention the great production of norms of an international nature that the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Organization of American States (OAS), have approved with the purpose of ensuring among the States Parties, the effective guardianship and protection of world and national cultural heritage, which comprises, according to that noted above, the historical-architectural heritage, movable goods, natural heritage, archaeology and folklore. This is a series of Conventions and Recommendations on the matter that constitute regulations and a source of law in Costa Rica, susceptible to being directly applied by this Constitutional Chamber for the resolution of this matter. In cases where they have been ratified by our country, they are normative bodies incorporated into our legal system, with a value superior to that of law, by express provision of Article 7 of the Political Constitution.

And in cases where they have not undergone the procedure provided for their due incorporation, they are a source of law, in the terms provided for in Article 48 of the Constitution. In this regard, it must be taken into account that the majority of these Conventions and Recommendations were approved by a specialized agency of the United Nations, that is, the United Nations Educational, Scientific and Cultural Organization (UNESCO), whose work is coordinated by the Economic and Social Council of the United Nations, and of which Costa Rica is a Party, and as such, they are framed within the norms of the Charter of the United Nations, bearing in mind that one of the objectives of the creation of this organization 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 for fundamental freedoms for all without distinction as to race, sex, language, or religion;" (Article 1.3 of the Charter of the United Nations); for which, the General Assembly is empowered to promote studies and recommendations for the attainment of this end (Article 13.1.b of the Charter). In Articles 55, 57.1, 57.2 and 58 in relation to 63, the linkage of the specialized agencies with the Organization is recognized, and especially, Article 64.1, as it textually provides:

"1. The Economic and Social Council may take appropriate steps to obtain regular reports from the specialized agencies. It may make arrangements with the Members of the United Nations and with the specialized agencies to obtain reports on the steps taken to give effect to its own recommendations and to recommendations on matters falling within its competence made by the General Assembly." Likewise, it must be taken into account that in Articles 5 and 7.2.c of the Vienna Convention on the Law of Treaties (ratified by Law number 7615, of July 16, 1996) the normative value of instruments adopted within the scope of international organizations is recognized. Regarding the Conventions, Charters or Recommendations approved by the International Council on Monuments and Sites (ICOMOS), it must be taken into account that it is a branch of UNESCO, so the binding nature and coerciveness of its provisions derives from the international organization to which it is subordinate.

Finally, in relation to the Norms of Quito, it must be pointed out that their binding nature derives from the provisions of 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, insofar as they were agreed upon at the meeting of Latin American Presidents in 1967, while the President of the Republic exercises their role of co-conductor of international policy (judgment number 6624-94, of nine o'clock on November 11, 1994). In such a way, that for this Chamber these are not simple recommendations on human rights matters, because if the States voluntarily decide to self-limit or assume a series of obligations and commitments to make a fundamental right effective, these constitute a normative source of Constitutional law, since they are acts endowed with full normativity in the Costa Rican constitutional order, without being able to be considered simple enumerations and goals to be achieved.

XXIII.In light of the foregoing considerations, from the international regulations on the matter the following binding and interpretive principles can be derived in order to guarantee an effective guardianship of the cultural heritage of the nation:

a.- from the Convention for the Protection of Cultural Property in the Event of Armed Conflict, its Regulations and Protocol, approved at the International Conference of States convened by UNESCO, on May 14, 1954, and signed by Costa Rica on March 3, 1996: an international obligation is constituted to respect cultural heritage—comprised of movable goods, real estate, architectural, art or history monuments, religious or secular, archaeological fields, historical ensembles, as well as scientific collections, books, archives or reproductions—, whatever their origin or legal belonging in times of war (enemy countries); in times of peace, each country must promote the due protection of these goods; theft, pillage, illicit appropriation or vandalism is prohibited, and the implementation of preventive measures to avoid these situations is sought; the commitment of the States Parties to send UNESCO reports every 4 years on the measures implemented; recognizes the importance of archaeological heritage; b.- from the Recommendation on International Principles Applicable to Archaeological Excavations: approved at the UNESCO General Conference, in New Delhi, on December 6, 1956: obliges the States Parties to subject archaeological excavations carried out in their territories to strict supervision and prior authorization from the competent authorities, and the subjection to technical principles for carrying out excavations; c.- from 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 1965; it is the text of greatest resonance and international significance, in force and recognized internationally, whose definition of monument, comprises both the isolated artistic creation and the urban or rural site that bears witness to a particular civilization, a representative phase of evolution or process, or a historical event, as well as the great and modest works that have acquired cultural significance over time; recognizes the inseparability of the monument from the history it testifies to; establishes that the protection and conservation of the monument also implies that of a framework to scale, that is, the protection of the environment; prohibits new constructions, demolitions or reforms that could alter the relationships of volumes, colors, styles of the buildings incorporated into the cultural heritage; establishes the principle that restoration is of an exceptional nature, with the aim of conserving and revealing the aesthetic and historical values of the moment, and its respect for ancient elements and authentic parts, and to this effect, a differentiation is made between conservation and restoration; establishes the obligation to protect urban sites and ensembles, and the need to preserve the identity of the monument, avoiding essentially altering its appearance or nature; establishes the need to make inventories and catalogs; the need to maintain buildings on their site, rooted to the ground; and that of conserving the original furniture of the property; d.- from the Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites: approved at the UNESCO General Conference in the 12th session, in Paris, on December 12, 1962: attempts to ensure the preservation of original natural and rural sites, the urban landscape and other sites created or not by man and their restoration; establishes the scientific and aesthetic importance of natural sites and urban landscapes, insofar as they form part of a heritage, which is a primary factor in the general conditions of the life of peoples; the need to implement preventive control measures over activities and operations that could affect them, such as special provisions in urban and regional development plans and zoning schedules; the need to establish and maintain natural reserves and parks, as well as the acquisition of land for the community; the need for specialized services, with broad powers that are responsible for preservation measures; and puts emphasis on educational activities in order to raise awareness among the population regarding the importance of this protection; e.- from the Norms of Quito: approved at the Meeting of Latin American Presidents in 1967: 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, under the formula of promoting tourism; concludes that the guardianship of the State must extend to the urban context of the monument, to the natural environment that surrounds it and to the cultural goods it contains; that is, everything related to the protection of the environment; establishes the importance of protecting movable goods and other valuable objects of the heritage; and the urgency of the problem, which requires international cooperation due to the significant importance of the recovery of cultural heritage, insofar as it represents an economic value susceptible to being an instrument of progress (principle of "enhancement (puesta en valor)"); f.- from the Recommendation concerning the Protection at the National Level of the Cultural and Natural Heritage: Approved at the UNESCO General Conference in the 17th session, in Paris, on November 16, 1968: attempts to induce States to protect all components of cultural and natural heritages; includes identification, study, conservation, restoration, physical appearance and integration within contemporary society, for which the maintenance of up-to-date inventories is required, and the preparation of appropriate maps and documentation; establishes the obligation of the States Parties to design conservation and preservation programs for the national cultural heritage, to conserve its traditional appearance, and to restore areas of cultural heritage damaged by man, under the charge of specialized services, assisted by consultative bodies; g.- from the Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works: approved by the UNESCO General Conference in the 15a.

session, in Paris, on November twentieth, nineteen sixty-eight: it establishes the guideline that the preservation of cultural heritage must harmonize with the advancement of socio-economic technology; it reiterates the need to compile inventories of cultural property, in which priority must be given to those endangered by public or private works, for their use in research and study; the importance of implementing precautionary measures, so as to facilitate and permit specialized assistance in order to prevent negative repercussions on the works that may affect protected property; it advocates for the conservation "in situ," that is, in their original location, of cultural property; however, if socio-economic conditions require transfer—such as abandonment or possible destruction—their relocation must be carried out, by means of adequate scientific studies; it establishes the principle that the preservation of the property must come from special budgets, or from the public or private works that cause the damage (a principle inherent to Environmental Law: "the polluter pays"); 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 General Conference of UNESCO, at the 16th session, in Paris, on November fourteenth, nineteen seventy; ratified by Costa Rica through Law number 7526, of July fifth, nineteen ninety-five: it includes within the concept of cultural heritage all those goods of ethnological, archaeological, natural, artistic, and technical value; it recognizes that the export of illicitly owned cultural property constitutes one of the main causes of the impoverishment of cultural heritage, thereby committing the States Parties to combat these practices, through the promotion of international cooperation and the creation of necessary protection services: such as the enactment of respective regulations, the establishment and maintenance of inventories and catalogues, the promotion and development of specialized scientific and technical institutions—such as museums, libraries, archives, workshops, laboratories—necessary to ensure the conservation and valorization of cultural property, the control of archaeological excavations, the "in situ" conservation of cultural property, the reservation of certain areas for research, the promotion of educational initiatives, appropriate publicity in cases of disappearance of cultural heritage, the establishment of impediments, both for the exit of goods lacking the proper certificate and for the importation of stolen cultural property, and the taking of necessary measures for their seizure and restitution; i.- the Convention concerning the Protection of the World Cultural and Natural Heritage: approved within the framework of the General Conference of UNESCO, at the 17th session, in Paris, on November 23rd, nineteen seventy-two; ratified by Law number 5980, of October twenty-sixth, nineteen seventy-six: whose object of protection is cultural heritage, which comprises monuments—monumental architectural works, works of sculpture or painting, elements or structures of an archaeological nature, cave inscriptions and groups of elements—as well as groups of buildings—groups of constructions, isolated or together—and sites, which have outstanding universal value from the point of view of science, art, or history; natural heritage; it recognizes the duty of the international community to cooperate in the protection of cultural property, for which it establishes the legal framework and institutionalizes practices regarding international cooperation for the protection of the cultural heritage of Humanity, which includes natural heritage, which shall be carried out through a trust fund with various sources of funding (the obligatory and voluntary contributions of the States Parties, contribution from UNESCO, contributions from international organizations, as well as from public and private institutions, upon justified request from the States); all States Parties recognize that the responsibility for the conservation of heritage of universal value located within their jurisdiction (territory) corresponds primarily to each of them, for which they commit to taking the necessary measures; it reiterates the requirement to prepare inventories of properties in their territory; and that the assistance of States is also manifested in the form of studies, services of specialized personnel, training of professionals, equipment, favorable loans, and non-reimbursable grants; and it establishes educational and informational programs on the value of heritage, the threats it faces, and the activities involved in applying the Convention; j.- the Convention on the Defense of the Archaeological, Historical and Artistic Heritage of the American Nations (Convention of San Salvador), approved at the sixth regular period of ordinary sessions of the General Assembly of the Organization of American States (OAS), in Santiago, Chile, on June sixteenth, nineteen seventy-six; ratified by Law number 6360, of August twentieth, nineteen seventy-nine: whose object is cultural heritage in its various categories: namely monuments, objects, fragments of dismembered buildings, archaeological material, buildings, artistic, utilitarian, ethnological objects, libraries, archives, books, maps, and documents).

The purposes of this convention are the identification, registration, protection, and vigilance of the property that makes up the cultural heritage of the American nations, the prevention of the illicit import and export of cultural property, and the promotion of international cooperation for the mutual knowledge and appreciation of their cultural property. Thus, it is promoted that each State Party establish the pertinent internal regulation, which must promote the following minimum measures: the registration of public and private collections and of the transfer of cultural property subject to protection, the registration of transactions of establishments dedicated to the purchase and sale of 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 registers of the cultural property of the nation, the control of archaeological excavations, as well as international cooperation for the recovery and restitution of stolen property, and for the promotion of mutual knowledge and appreciation of cultural values—exchange and exhibition of cultural property and information—are promoted; k.- the Recommendation concerning the Safeguarding and Contemporary Role of Historic Areas: approved within the framework of the General Conference of UNESCO, at the 19th session in Nairobi, on November twenty-sixth, nineteen seventy-six: it invites countries to adopt a general safeguarding policy for the preservation of archaeological, paleontological, urban, rural constructions of historical, archaeological, architectural, historical, aesthetic, or sociocultural value within their territories, for which they must establish: a specific system of protection of cultural heritage (historic areas, groups of buildings) at a legal, technical, economic, and social level, which must influence national, regional, and local planning, guide urban planning, and be realized in the formulation of objectives and programs; the designation of a body or specialized institution responsible for carrying out this work; the implementation of inventories of the property to be protected (such as buildings—public or private—, open spaces, as well as their vegetation), with analytical summaries complementing each one, as they constitute an irreplaceable universal heritage; the obligation of safeguarding and integration into collective life or economic-social revitalization of historic areas, for both governments and their citizens: that is, that commerce, crafts, the development of cultural activities, residential use, and tourism be fostered within them (principle of "enhancement"); the integral protection of cultural heritage, and especially of historic areas, thereby extending it to all the elements that compose it, which includes both the buildings, the spatial structure and the surrounding areas, as well as human activities, however modest they may be (setting); the effective guardianship of cultural heritage translates into the prevention of all types of physical deterioration, especially those resulting from inappropriate use, the addition of parasitic structures, and abusive or insensitive transformations that harm its authenticity, as well as those caused by any form of pollution; the principle is reiterated that restoration is of an exceptional nature, which, if carried out, must be based on scientific principles; state aid in the conservation of this heritage, which translates into planning and design, specialized technical assistance, the granting of donations, tax advantages, subsidies or soft loans adequate for these purposes to private owners and their users, which are subordinated to the respect of certain conditions imposed by reason of public interest, such as guaranteeing the integrity of the buildings, the possibility of visiting the properties, having access to parks, gardens or sites, taking photographs, carrying out inspections, etc.; the promotion of the creation of non-profit foundations and associations as consultative bodies on the matter; the promotion of systematic research and study in order to train specialists and artisans, in aspects of urbanism and land-use planning, the alteration of materials, the application of modern techniques to conservation work, and the craft techniques indispensable for the safeguarding of this heritage, as well as education (school, post-school, and university) to raise awareness among the general citizenry of the importance of this guardianship; and the commitment to international cooperation in this matter, both regarding other States, and international, intergovernmental, and private organizations, and in particular with the UNESCO Documentation Center (ICOMOS and ICOM); l.- the Recommendation on the International Exchange of Cultural Property: approved within the framework of the General Conference of UNESCO at the 19th session, in Nairobi, on November twenty-sixth, nineteen seventy-six: it begins from the consideration that all cultural property forms part of the common cultural heritage of Humanity, and that each State has a responsibility in this regard, not only for the benefit of its nationals, but also for the international community, for which the circulation of these goods among cultural institutions of different countries is promoted, in order to enrich the international cultural heritage and promote its better utilization; for which States commit to implementing legal measures to eliminate tariff and customs barriers, in order to facilitate the disinterested bilateral or multilateral exchange of cultural property; the creation or implementation of registers of exchange demands and offers available for exchange; it establishes the operating principles of this type of exchange (insurance, economic aid, determination of the legal status of these goods, assistance from specialized organizations); the need for international cooperation to carry out this task; and the necessary mechanisms to combat the illicit trafficking of cultural property; m.- the Recommendation for the Protection of Movable Cultural Property: approved at the General Conference of UNESCO, at its 20th meeting, in Paris, on November twenty-eighth, nineteen seventy-eight: it obliges States to intensify prevention and risk management measures to which movable cultural property, of archaeological, artistic, scientific or technical, craft value, of anthropological and ethnological interest—such as manuscripts, handicrafts, books, documents of special interest, maps, furniture, tapestries, carpets, costumes, musical instruments, zoological, botanical or geological specimens—may be subjected, in order to guarantee effective protection of these goods and reduce the cost of covering the corresponding risks; the principle is established that the protection and prevention of risks are much more important than indemnification in the case of deterioration or loss of the property, since the essential purpose is to preserve the cultural heritage and not to replace irreplaceable objects with sums of money; the need for the systematic establishment of inventories and catalogues relating to movable cultural property, in which their identifying characteristics and specifications are recorded—with the greatest precision and using current methods; stimulating museums and similar institutions, public and private, to reinforce risk prevention through the adoption of practical security systems and devices (insurance of goods, storage, exhibition, and transport conditions); the granting of credits and economic facilities, as well as incentives and/or tax benefits, for these purposes; the necessary training and specialization of the personnel of these institutions; the establishment of an official body responsible for advising and organizing museums; fostering the education and information of the population in this regard, to raise awareness about the importance and value of cultural property and the need for its protection; the adoption of sanctions (criminal, civil, administrative); as well as the promotion of international cooperation (coordination) to combat damages, thefts, kidnappings, and other illicit acts that endanger cultural property; n.- the ICOMOS International Charter for the Conservation of Historic Towns and Urban Areas: approved in Washington, in nineteen eighty-seven: it defines the principles and objectives, methods and instruments of action proper to maintaining the quality of life of historic cities, so as to harmonize individual and social life with the objective of perpetuating the ensemble of property that constitutes the memory of humanity; the protection of large and small cities, districts with their setting is promoted, which, in addition to their historical value, manifest values proper to traditional urban civilizations, or are threatened by degradation, destruction or destructuring; it establishes the principle of careful planning, forming part of a coherent economic development policy, carried out by a multidisciplinary team of professionals so that the rescue of cities and districts is effective; the values to be preserved are the historical character of the city and the ensemble of material and spiritual elements that express its image; the main objective of protective action is the improvement of the habitat, understood as the urban environment; the plan for permanent maintenance of infrastructure begins with the implementation of preventive or precautionary measures, to subsequently establish the special protection plan; preservation admits contemporary elements provided they do not harm the harmony of the ensemble and that they contribute to its enrichment; the principle is established of regulating traffic within historic cities and districts, and the absolute prohibition of building highways within them; and finally, the need to implement preventive measures against natural catastrophes and potential dangers, such as noise, pollution, contamination, waste, traffic, etc.; o.- the Recommendation on the Safeguarding of Traditional Culture and Folklore: approved at the General Conference of UNESCO, at the 25th session, in Paris, on November fifteenth, nineteen eighty-nine: it starts from the principle that traditional and popular culture forms part of the universal heritage of humanity, as a powerful means of bringing existing peoples and social groups closer together and of cultural identity, and as an expression of living culture, and that States must play a decisive role in the safeguarding and dissemination of traditional and popular culture, regarding the taking of actions for its promotion and furtherance; a reason for which, among other things, language, literature, music, dance, games, mythology, rites, customs, crafts, architecture, and other arts are protected. It establishes the need to promote a general scheme for the classification, identification, and registration, both of institutions and of traditional and popular culture.

XXIV. DEFINITION OF HISTORICAL-ARCHITECTURAL HERITAGE

In light of the foregoing considerations, the historical-architectural heritage is framed within the classification of cultural property, and therefore it is configured as a special type of property, characterized by a specific regime of state intervention aimed at the conservation of the object. This character is given by the very nature and objective circumstances of the property. It comprises the set of cultural property of an architectural nature, whether isolated buildings or groups of them, natural sites or infrastructure works, urban or rural, privately or state-owned, that come from the past, or are the product of novel techniques, by which they are the result of the collective experience of a given society, community, or ethnic group; and for this reason, providers of group, popular, or national identity. Its determination is associated with relevant historical or cultural conjunctures, or with socio-cultural patterns of importance to the community, region, or country.

Likewise, they present a contribution to technical, constructive, and/or functional development in architecture, and for this reason, they possess an architectural, historical, or artistic value of significance. They may also present formal characteristics of a typological, stylistic, and urbanistic nature that contribute to the distinctive traditional character of the immediate environment. For this reason, the determination of historical-architectural heritage—as such—is an undefined concept for legal science, and implies the conjunction of the various interests at play, that is, the need for a value judgment based on the contribution of non-legal disciplines that are of a technical nature, such as archaeology, architecture, science, technology, history, or art—in order to determine the cultural value (artistic, scientific, etc. proper to that property). In this way, the Administration does not act in a discretionary manner, but rather involves a value-objective process.

It is important to highlight that the determination of the historical-architectural property comprises both the delimitation of the property, and the setting that is necessary for its due protection and enhancement, and that precisely justify its protection; as well as also comprising the geographical area to which it belongs, that is, that of the natural site that forms its setting (an integral conception of the environment).

XXV.For the purposes of the study, the quote from the French writer Victor Hugo is significant, setting aside all 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 former has no right to destroy it." Thus, in these goods, the enjoyment of the collective interest is compromised, and it is the maximum expression of the social function of property, we legal scholars add. In this sense, the definition of architectural heritage is framed, insofar as it is a material construction, and therefore, with an evident material value, current or potential, of the land and of what is built; to which a value or additional price of an immaterial order is granted, which is the cultural value of the building, derived from its historical and artistic attributes, and from the symbolic force of the social imaginary and collective memory; of difficult or impossible pecuniary determination. By reason of the foregoing, the Historical-Architectural Heritage Law, number 7555 expressly declares of public interest "[...] the investigation, conservation, restoration, rehabilitation, and maintenance of the historical-architectural heritage" (second paragraph of Article 2 of the Law); which denotes the importance and significance that the legislator gives to cultural heritage, which is a recognition of the duties derived from the constitutional norms cited above, that is, in Articles 50 and 89.

XXVI. ON THE PROTECTION OF THE SETTING

In this aspect, the elements that can be considered consubstantial to the buildings, and that form part of them or of their adornment, and that in the event of being separated, would constitute a perfect whole easily applicable to other constructions or to uses different from the original, even if their separation does not visibly harm the historical-artistic merit of the property to which they are attached, are also significant. Likewise, protection—in most legislations—extends to the setting, the latest necessary achievement in the regulatory evolution of this sector, which is defined as the space that, without being a bearer of cultural value in itself, exerts a direct influence on the conservation and enjoyment of the areas that do possess it; that is, from the monument one moves to the group of buildings, and from there to the setting, which consists of a broader space into which they are inserted.

It is a space of prevention or reserve, in order to defend and conserve the environment proper to monuments and historic areas, and which in French legislation has been called the "surroundings of the monument" (ambiente del monumento). Thus, the legal protection and the administrative action deployed over these areas are based on the adequate conservation of the cultural spaces they serve. The importance of the cultural value of the setting is such that its non-protection breaks the cultural value of the monument. It is for this reason that urban planning ordinances issued to safeguard the cultural property are not only valid and legitimate, but above all necessary, such as those relating to the unification of the colors of facades, the architectural style that can be used, the height of constructions, and others; and that are the competence of the municipalities—exclusive urban competence, based on constitutional jurisprudence (in this sense, see among others rulings numbers 2153-93; of nine hours twenty-one minutes on May twenty-first, nineteen ninety-three; 5305-93, of ten hours, six minutes on October twenty-second, nineteen ninety-three; 6706-93, of fifteen hours twenty-one minutes on December twenty-first, nineteen ninety-three; 3494-94, of July twelfth, nineteen ninety-four; 4205-96, cited above and number 5445-99, of fourteen hours thirty minutes on July fourteenth, nineteen ninety-nine)—which must act in coordination with the Ministry of Culture, Youth and Sports on this matter.

It is thus that the techniques at the service of land-use planning and urban planning have the duty to proceed from their own scope to adopt as many measures as are necessary to preserve the space in which the monuments, sites, groups of buildings, or historic centers are located. An example of this protection is constituted by Article 7 of Law 5160, of December twenty-first, nineteen seventy-two, which establishes a protection of the setting in relation to the National Theater:

"The facades of the buildings constructed on the block where the National Theater is located must have the approval of the Urbanism Department of the National Institute of Housing and Urbanism and the Board of Directors of the National Theater." (It will be determined subsequently which are the bodies or public institutions responsible for the guardianship of this right, as it implies both urban planning competencies, which constitutional jurisprudence has indicated are of a local nature—primarily and exclusively—, therefore corresponding to the municipalities; and by reason of the subject matter, insofar as by legal provision the Ministry of Culture, Youth and Sports is attributed the development and promotion of the country's culture, thereby establishing itself as the national advisory body on this matter).

XXVII.In relation to this point, the mention of French legislation (the French Historical Monuments Law—Loi sur les monuments historiques, du 31 décembre de 1913) and Spanish legislation (Law 16, of June 25, 1985) is illustrative, in which regulations are established for constructions located near buildings of a historical, artistic, or archaeological nature in which the obligation to harmonize with them is required. Specifically, in the case of the French regulation, buildings aligned or situated in the field of view of a classified building, located within a perimeter not exceeding five hundred meters, are generally protected, a distance which may be extended—if necessary—by executive decree (subsection c) of Article 1°). From the foregoing, the necessary integration of cultural heritage into the broader space that surrounds them is clear, which was embodied in the UNESCO Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites—of 1962—, in the ICOMOS International Charter on the Conservation and Restoration of Monuments and Sites—of 1964—, in the conclusions of the meeting of Latin American Presidents, known as the Norms of Quito—of 1967—, in the UNESCO Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage—of 1972—, in the ICOMOS International Charter for the Conservation of Historic Towns and Urban Areas—of 1987—, and in the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore—of 1989—, all of them international regulations in which the setting was defined, both by the immediate adjoining buildings, and by those adjoining or distant, provided that an alteration to these could affect the values proper to the property in question, its contemplation, appreciation, or study; and it encompasses the subsoil, the built or unbuilt space that gives environmental support to the property. It is linked to the monument in such a way that its preservation is indissoluble from the treatment given to those, which is what justifies its treatment.

XXVIII. ON THE REGIME OF DE-AFFECTATION OF CULTURAL HERITAGE

It is of the utmost importance to clarify that even though incorporation into the historical-architectural heritage of the Nation, and consequently, its affectation or endowment with a public function, in this case, its destination for the contemplation and enrichment of the cultural heritage of the nation, is carried out—generally—by executive decree of the Ministry of Culture, Youth and Sports, since nothing prevents it from being carried out by Law of the Republic; its de-affectation cannot come from a regulation of a regulatory rank; so that, as an integral part of the environment, as explained previously, it requires being done through a law to that effect, following a technical and objective study in this regard, in which it is verified that the building in question has lost the cultural value that justified its affectation, that is, the historical, artistic, scientific, or archaeological value, under the terms provided in Article 38 of the Organic Environmental Law. The foregoing clarification is made so that the authorities and officials of the Ministry of Culture, Youth and Sports take note of it, in their respective capacities.

XXIX. ON THE OWNERSHIP OF HISTORICAL-ARCHITECTURAL HERITAGE

In this regard, it is important to highlight that—like the environmental regime, a subject with which it has great parallelism, as noted previously—it encompasses both property owned by the State, which, by the mere declaration of incorporation (affectation) acquire the characteristics inherent to public domain assets, insofar as they are destined for a specific public service or function, in this case the contemplation of the building, because the objective of the protection, conservation, and preservation of this type of property is to ensure the greatest access of people to the contemplation and enjoyment of this type of property, which are the heritage of the collective capacity of a people (culture), and which, due to their special public domain nature, are imprescriptible, inalienable, and unseizable; as well as property owned by private individuals, where the declaration of incorporation into the national heritage in no way implies the transfer of its ownership to the State (which did occur under the repealed legislation, Law number 5397), but rather, while ownership remains with a private individual, it confirms that the particular building has a historical-architectural interest that justifies its maintenance and conservation for the benefit of the national community.

It is thus that in this type of property, the essential content of the right to property is respected, under the terms provided in Article 45 of the Political Constitution, in such a way that they can be mortgaged, transferred, acquired by usucapion, as well as alienated or have their domain transferred, with the sole caveat that in all cases, the affectation to the cultural heritage regime is transferred, which translates into the obligation for the possessor or owner to maintain and conserve the building or construction located on the property. These are assets with a "sui generis" legal regime, normally dual, since their material support is susceptible to public or private tenure, as provided in the Historical-Architectural Heritage Law of Costa Rica, number 7555, of September twenty-seventh, nineteen ninety-five, which in Article 2, first paragraph, textually states:

"Historical-Architectural Heritage Publicly or privately owned property with cultural or historical significance, declared as such by the Ministry of Culture, Youth and Sports in accordance with this law, forms part of the country's historical-architectural heritage." The foregoing implies that the center of gravity of this protection lies not in the ownership regime, but in the condition of being assets with a spiritual value of significance, destined for collective enjoyment, which their holders must make possible, without prejudice to other uses and utilities compatible with the property. Also important is the consideration that it is absolutely and materially impossible, even for developed countries, to expropriate the entirety of the cultural heritage so that the State assumes the responsibility of maintaining and conserving this type of property, first, due to the lack of public economic resources to carry out this project, and second, because this would generate the phenomenon known as the "museumification" of cultural heritage, which violates one of the basic principles of the guardianship of these assets, which is precisely the "enhancement of the property (puesta en valor del bien)," and which translates into the incorporation of the historical-architectural property into economic and social activity, as will be explained in the following Recitals.

XXX. THE PROTECTION REGIME OF THE HISTORICAL-ARCHITECTURAL HERITAGE

As noted previously, property incorporated into the nation's cultural heritage that is state-owned acquires the characteristics inherent to public domain assets, also called dominical assets, that is, they are affected to a public function, in this case, the contemplation of the particular building, since the objective of the protection, conservation, and preservation of this type of property is to ensure the greatest access of people to the contemplation and enjoyment of this type of property, since they are the heritage of the collective capacity of a people (culture)—, and because of their special public domain nature, they are imprescriptible, inalienable, and unseizable, under the terms provided in Articles 261 to 263 of the Civil Code, whose legal nature was previously synthesized by this Court, in judgment number 2306-91, of fourteen hours and forty minutes on November sixth, nineteen ninety-one:

"The public domain is comprised of assets that manifest, by the express will of the legislator, a special destiny to serve the community, the public interest. They are called dominical assets, public domain assets, public goods or things, which do not belong individually to private parties and are destined for a public use and subject to a special regime, outside the commerce of men. That is, affected by their nature and vocation. Consequently, these assets belong to the State in the broadest sense of the concept, they are affected to the service they provide, which is invariably essential by virtue of an express norm. Characteristic notes of these assets are that they are inalienable, imprescriptible, unseizable, they cannot be mortgaged nor be subject to encumbrance in terms of Civil Law, and administrative action replaces interdicts to recover domain. As they are outside commerce, these assets cannot be the object of possession, although one can acquire a right to exploitation, though not a right to property.

The use permit is a unilateral legal act dictated by the Administration, in the exercise of its functions, and what is placed in the hands of the private individual is the useful domain of the asset, with the State always reserving the direct domain over the thing. The precariousness of any right or use permit is consubstantial to the figure and alludes to the possibility that the administration may revoke it at any time, whether due to the State's need to fully occupy the asset, for the construction of a public work, as well as for reasons of safety, hygiene, aesthetics, all this to the extent that if a conflict of interest arises between the purpose of the asset and the granted permit, the natural use of the public thing must prevail. Consequently, the national regime of public domain assets, [...] places them outside the commerce of men, and therefore the permits granted will always be on a precarious basis and revocable by the Administration, unilaterally, when reasons of necessity or general interest so dictate." For its part, regarding property owned by private individuals that is incorporated into the cultural heritage, this special regime of guardianship translates into a series of limitations of social interest on that property, permitted under the terms of Article 45 of the Political Constitution, that is, the essential content of the right to property is maintained, in such a way that they can be mortgaged, transferred, acquired by usucapion, as well as alienated or have their domain transferred, and their economic and social utility exploited, with the sole caveat that in all cases, the affectation to the cultural heritage regime is transferred, because this regime must be recorded in the Public Property Registry, and which translates into a series of obligations for the possessor or owner aimed at guaranteeing the maintenance and conservation of these assets.

This implies, first, the absolute prohibition of the partial, much less total, demolition of the construction, as well as the obligation of its conservation and maintenance, and if necessary, its restoration, in order to facilitate the best exhibition or contemplation of the building to the general population, which constitutes the main objective of this legal guardianship, as noted previously. Of course, this maintenance entails the prohibition of carrying out works, internal or external, that directly affect the structure, style, or contemplation of the building, or its surroundings, without prior authorization from the competent body, that is, the Ministry of Culture, Youth and Sports, as well as the prohibition of placing commercial or advertising signs, signals, or symbols on the facades of buildings incorporated into the guardianship regime that hinder their contemplation, without prior authorization from those authorities.

The owner or possessor is also obliged to permit or facilitate the inspection of the property by the competent authorities—specialized personnel of the Ministry of Culture, Youth and Sports. Finally, it must be noted that the utilization of these assets is subordinated to not endangering the values that advise their conservation. It is Article 9 of Law 7555 that establishes the obligations entailed for the owners, possessors, or holders of real rights over the assets upon incorporation as cultural heritage, namely:

• a)To conserve, preserve, and adequately maintain the assets.
• b)To report on their condition and use to the Ministry of Culture, Youth and Sports, when it requires.
• c)To permit the placement of signposting elements in the declaration of the asset.
• e)To permit the inspection visits that accredited officials of the Ministry will periodically carry out, and collaborate with them, to the extent of their possibilities, to determine the condition of the property and the manner in which they are attending to its protection and conservation.
• f)To include, in the ordinary annual budget, the necessary items to fulfill the obligations prescribed in this law, when the holder of the right is a public entity.
• g)To comply with the prohibition of placing advertising plaques and signs of any kind that, due to their dimension, placement, or message content, hinder or disturb its contemplation.
• h)To obtain the authorization of the Ministry of Culture, Youth and Sports before repairing, constructing, restoring, rehabilitating, or executing any other class of works that affect the buildings or their appearance.
• i)To suspend the processing of permits for parceling, buildings, or demolition. If the realization of the requested works does not harm the historical or architectural value of the asset and if the Ministry of Culture, upon a prior report from the Commission, informs the authority processing the permits accordingly, these may be granted." These obligations (charges or duties) imposed on the property shall be constitutional insofar as they fulfill the conditions that legitimize the limitations on private property, explained in Recital IX.- of this judgment. That is, firstly, that they be established by a law approved by a qualified majority, that is, with the endorsement of two-thirds of the totality of the deputies of the Legislative Assembly (thirty-eight votes), as is the case of the Historical-Architectural Heritage Law—a point that will be analyzed in detail later. Secondly, the limitations imposed must be general, that is, affect a generality of persons, which implies not only its addressee but also the factual premise of its application.

Thirdly, they must respect the natural use of the property (bien inmueble), so that it remains as a producible identity or with economic value, in such a way that the owner can exercise the essential attributes of property; that is, that they allow the owner to normally exploit the asset, excluding, of course, the part or function affected by the limitation imposed by the State (judgments number 979-91, 5893-95, 2345-96, and 4605-96, all cited supra). For this reason, besides being useful, the charge must be necessary, reasonable, or opportune, and must imply the existence of an imperative social need that sustains it, and therefore, be exceptional in nature; therefore, they must be called upon to satisfy an imperative public interest. The reasonableness of the limitation translates into its adequacy to the end and the interest (value) that justifies it. As a corollary of the foregoing, charges or duties imposed for the guardianship of the cultural heritage that affect the essential attributes of property shall be unconstitutional and therefore compensable, which are those that permit the natural use of the thing within the current socio-economic reality, and that make the nature of the asset disappear or make the use of the thing impossible, by preventing the "commercial use of the property" or its "economic and social value," because they would constitute true de facto expropriations, consequently violating the constitutional precept of Article 45.

Likewise, charges that are imposed that are of a singular or concrete nature shall be unconstitutional, as they are akin to true expropriations. In any case, the legislation that protects the cultural heritage must be interpreted in the sense most favorable to facilitate and make effective the conservation of cultural assets; however, this does not preclude that the charges suffered by the holders due to the condition of a historical asset must always be adjustable and suitable to the relevance of that public purpose at stake and the respect of the fundamental rights involved. In any case, it must be borne in mind that the limitations bearing on property of historical-architectural interest have the mission of ensuring their conservation, to enhance and promote the ends of art, history, and national culture; whose origin stems from the need to establish a just social balance between individual and collective interests.

XXXI. THE RESPONSIBILITY OF THE STATE IN THE GUARDIANSHIP OF CULTURAL HERITAGE

OBLIGATION OF THE ADMINISTRATION TO PARTICIPATE, PROMOTE, AND COOPERATE IN THE GUARDIANSHIP FUNCTION OF CULTURAL HERITAGE (COMPENSATION AND INCENTIVES REGIME). Within this special guardianship regime, the role played by the State authorities is of fundamental importance, in their capacity as guarantors of the conservation and enrichment of the cultural heritage, in order to facilitate the access of all citizens to the assets comprised by it. It is thus that state action is justified in the fact that the historical-architectural heritage, like all types of cultural heritage, is by its very nature dual, that is, individual and social at the same time. It is thus that this fundamental right of the third generation that it is, and which is shaped within the framework of a Social State of Law, implies that its respect by the State is not limited to the obligation of not affecting the right or not interfering in the private sphere of the individual—a conception typical of the liberal orientation—but translates into the adoption of concrete actions and provisions by the public authorities.

Faced with this reality, the position of the State cannot be—nor has it been—indifference, since the public powers must respond to new needs through institutional and administrative expressions, among which cultural legislation must obviously be cited. Therefore, protecting cultural heritage against illicit export and spoliation, as well as facilitating its recovery when it has been illegally exported, promoting dissemination for the knowledge of this type of property, as well as the promotion and fostering of international cooperation and exchange of information and cultural, technical, and scientific goods; and fostering economic aid and advice so that the private individual can fulfill the obligations imposed by the incorporation of their property into the cultural heritage regime, constitute obligatory actions for the public powers. Likewise, it must prevent any action or omission that endangers the values of the assets that make up the heritage, or disturbs the fulfillment of the social function recognized in this type of property, which translates into regulation regarding the placement of commercial and advertising signs, the adoption of security systems in institutions where cultural assets are exhibited (insurance policies), the training of personnel, both of museums and of the public administrative entities in charge of the guardianship of this right, the granting of economic facilities, such as soft loans and tax exemptions, for example.

In this vein, it is important to mention the system of incentives (or compensations) set forth in the Historical-Architectural Heritage Law of Costa Rica, number 7555, of September twenty-seventh, nineteen ninety-five, in which a series of incentives are expressly established for the owners or possessors of assets incorporated into the cultural heritage (Chapter III., Articles 13 to 17); such as the exemption from the payment of real estate tax and the payment of sumptuary construction taxes, as well as the stamps required for construction permits (Article 14); the authorization for public institutions to make donations and investments destined for works and acquisitions by the State (Article 15); and it establishes the obligation for the Ministry of Culture, Youth and Sports to manage soft credit lines for private individuals or public or private entities, in order to finance works of conservation, restoration, maintenance, and rehabilitation on assets declared of historical-architectural interest (Article 17).

In this respect, it must be borne in mind that through subparagraph k) of Article 22 of the Tax Simplification Law, number 8114, of April fourth, two thousand one, Articles 13 and 22 of Law 7555 were repealed, which recognized an exemption from income tax regarding "[...] deductible expenses for the purposes of income tax, donations and investments destined for the purposes of this law, as well as the improvements that the owner, possessor, or holder of real rights carries out on an property declared of historical-architectural interest, provided they have been previously authorized by the Ministry of Culture, Youth and Sports"; and "u) the improvements carried out by the owner, possessor, or holder of real rights of an property declared of historical-architectural interest, as well as the amounts of donations or investments destined for the purposes of this law, upon a favorable report from the Ministry of Culture, Youth and Sports." The Chamber warns that although with a minimum content, this compensation regime is framed within the requirements established in the International Conventions and Recommendations on the matter—previously outlined—; however, it deems that they are not sufficient or adequate to provide effective guardianship and protection of the Nation's cultural heritage.

In other legislations (such as the French or Spanish cases), tax exemptions are total, recognizing not only that of the territorial tax, but also that relating to municipal services, and of course, that of income tax. State aid also translates into the allocation of a series of important resources for the proper conservation and maintenance of these assets, such as specialist advisory services, or the effective granting of favorable credits to carry out the pertinent works. It will be the responsibility of the legislators to provide the necessary mechanisms and instruments so that this compensation and incentives regime is sufficiently adequate to achieve a true balance in relation to the charges and limitations imposed on the owners and possessors of assets incorporated into the historical-architectural heritage, who are obliged to make an asset of their property available for the benefit of the Nation as a whole, so that it is not only fair but necessary for society (the State) to recognize a series of benefits in their favor, in compensation for the "sacrifice" imposed on them; and with this, to reverse the lack of protection in which the cultural heritage of our country is maintained, which produces the practically instantaneous demolition of constructions and buildings that one seeks to incorporate into the historical-architectural heritage, as pointed out by architect Roberto Villalobos Ardón, in the Seminar on Property, Environment, and Urbanism, held in nineteen ninety-five:

"A colleague told me at some point, that there was no easier, more effective, more direct, faster, more expeditious, less complicated way to get rid of an old building, read heritage, than to declare it heritage. The impossibility of the State to indemnify the owner leads to its practically immediate deterioration, and I have encountered cases in which within two years, something that was more or less standing ends up demolished, a house in Curridabat, Escazú, Santo Domingo, etc. ..."

XXXII.Likewise, proper planning in this matter is obligatory for the State, that is, the establishment of adequate protection policies in the National Urban Development Plan, in which the specific objectives and tasks are defined, as well as the provision and forecasting of the necessary resources to carry them out. In this sense, the Ministry of Culture, Youth and Sports constitutes the body in charge of this matter, as the advisory body responsible, first and foremost, for the conservation and maintenance of the country's historical-architectural heritage, under the terms provided in Article 3 of Law number 7555, and as "the highest authority on the matter" that it is, it is obliged to "[...] provide the necessary advice to the owners, possessors, or holders of real rights over the assets that form that heritage, so that the purposes of this law are fulfilled."

In any case, the competence held by local governments regarding urban planning must not be forgotten, which obviously includes the protection and guardianship of cultural heritage, but not as the responsible institution, but as a collaborator of the Ministry of Culture, Youth and Sports. In this sense, what is indicated in judgments number 55445-99, of fourteen hours and thirty minutes on July fourteenth, nineteen ninety-nine, and in number 2001-05737, of fourteen hours and forty-one minutes on June twenty-seventh, two thousand one, regarding the duty of coordination imposed on municipalities with institutions having competence assigned at the national level, in this case, from local governments to the Ministry of Culture, Youth and Sports, which has a special task assigned in the protection and preservation of cultural heritage. To avoid the supposed conflict of prevalence between the national interest versus the local one, the obligation of coordination between the various public agencies is born, so that the superior interest of the Nation prevails.

The foregoing implies that local governments must implement in the regulatory plans the necessary measures to contribute to the protection of these assets, as occurs in European countries—such as in the case of Spain and France—, so that they make the pertinent regulation effective regarding the placement of commercial signs and advertisements, as well as traffic management, or the maintenance of public ornamentation and hygiene in the respective cantons, in order to preserve an ecologically balanced, healthier, and more participatory urban environment, which translates into tasks such as garbage collection, traffic control, the ornamentation and maintenance of parks, or the promotion of cultural and educational programs; all of which, of course, with the advice of the responsible personnel of the Ministry of Culture, Youth and Sports.

XXXIII.THE CONSTITUTIONAL PRINCIPLE OF "THE ENHANCEMENT (PUESTA EN VALOR)" OF THE MONUMENT, WHICH FRAMES THE PROTECTION OF THE HISTORICAL-ARCHITECTURAL HERITAGE. This principle is essential and inherent to the guardianship of the historical-architectural heritage, which began to take shape in the UNESCO Recommendation concerning the protection of beauties and character of places and landscapes (1962) and in the ICOMOS International Charter on the conservation and restoration of monuments and historic-artistic sites (1965), but whose development as such occurred starting with the Norms of Quito (in 1967), precisely by addressing the particular conditions of the Latin American continent, characterized by an underdeveloped economy and culture, by virtue of which it was—and is—necessary and obligatory to frame any action for the conservation of cultural heritage within this reality, so that it is consistent with it.

This principle was subsequently included in the UNESCO Convention concerning the safeguarding of historic ensembles in contemporary life (1976) and in the ICOMOS International Charter for the protection of historic cities (1987). It is the response to the phenomenon known as the "museumification" of cultural heritage, by which it is intended that these assets pass to the exclusive domain of the State for their conservation and maintenance, which would generate their extraction from the daily affairs of society. On the contrary, the application of this principle translates into the fact that the guardianship of cultural heritage must foster its proper economic and social utility, but in a way that does not put its cultural value at risk; that is, it seeks to promote the utility of these buildings, in such a way that their participation and permanence in the economic and social activity of society is permitted, but at the same time, maintaining and conserving their spiritual value (artistic, architectural, historical, technical, archaeological, etc.) that motivated and justifies the special guardianship regime.

It is thus that the principle is established that monuments are destined to fulfill a social function, that is, to contribute to national culture and identity; that is, it seeks to revalue the monumental heritage based on public interest and for the benefit of the nation, without thereby affecting the rights of the private individuals involved (right to property or freedom of commerce, for example), since it seeks to erect these buildings as instruments of progress and development, first, for their owner, and second, as a multiplier effect for the country's economic development. With this, it seeks to incorporate into an economic potential a current value, to put an unexploited wealth into productivity through the process of revaluation, which, far from diminishing its purely historical or artistic significance, enhances it, moving it from the exclusive domain of erudite minorities to the knowledge and enjoyment of popular majorities.

It is based on the premise that monuments are part of the economic resources of nations, and of course, of their owners or holders of some real right, which is why efforts must be mobilized to seek their best exploitation, as an indirect means of promoting the country's development; that is, as a facilitator of tourism, commerce, or even for residential use. In many countries, through the application of this principle, popular housing programs have been established. In any case, the utilization given to this type of buildings must comprise activities that maintain the cultural value of the asset, that is, that do not endanger the asset as such. Enhancement (puesta en valor) is equivalent to inhabiting the building under objective and harmonious environmental conditions that, without distorting its nature, highlight its characteristics and allow its optimal use; therefore, it implies a systematic, eminently technical action, aimed at using each and every one of those assets according to their nature, highlighting and exalting their characteristics and merits, until they are placed in conditions to fully fulfill the new function to which they are destined; that is, the social function they fulfill, at an urban planning objective level and at a meta-functional level.

In this way, conservation and development are not contradictory but are intimately linked, and the latter presupposes the former, as heritage brings great tourist benefits, or serves as an excellent option for housing programs, allowing for significant constructive savings (of up to 35% of the total value of a new work), and produces a better distribution of labor and capital, thereby contributing to the social and economic regeneration of that sector. Likewise, enhancement (puesta en valor) exerts a beneficial reflexive action on the urban perimeter, since the diversity of monuments and buildings of marked cultural, historical, artistic, and architectural interest located in cities form part of the urban landscape, that is, of the environment—according to the integral definition explained previously—, so that they exert a multiplier effect on the rest of the area, which is revalued as a whole and as a consequence of the plan for enhancement and urban improvement (urban planning).

It is clarified that this principle is not exclusive to historic districts (conjuntos históricos), but applies to all historical-architectural heritage; however, as an example of its application, it is clearer in these, such as the city of Colonial Havana, or Old San Juan in Puerto Rico, or Antigua Guatemala, places where the daily economic and social activity of an urban center has been fostered, where commercial, artisanal, tourist, and also residential activities take place; with the sole difference that the buildings that make up these centers are subject to a special regime, by which their demolition, total or partial destruction, is prevented, and their owners are obligated to their conservation and maintenance, as well as to submission to traffic management regulations—which are much stricter and more controlled—and to public ornamentation regulations, among which are included those relating to the placement of signs and advertising billboards” (emphasis not in the original).

More recently, in resolution No. 2017016787 of 9:20 a.m. on October 20, 2017, this Court resolved:

“VII.- On the protection of cultural heritage (patrimonio cultural). As this Court has pointed out, 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 personality of peoples, so it is essential to preserve them. This is a fundamental task of the State, which derives from Articles 50 and 89 of the Political Constitution and from other international instruments. Initially, said protection was limited to a concept of heritage materialized in some property. The Chamber, in judgment No. 1997-4350 of 2:54 p.m. on July 24, 1997, stated the following:

“The notion of ‘heritage’ (patrimonio), certainly, encompasses any property that has a monetary value, as the Civil Code states, heritage is the total set of property and rights of a person or, also, that all property that constitutes a person’s heritage is liable for the payment of their debts. It is obvious that archaeological or cultural property also has appreciable monetary value, whether because of the material they are made of, their fine craftsmanship or beauty, or the historical testimony they evidence, whether made of clay, stone, or metal. Some of those objects may be of little physical value or of little significance as an artistic work, but even so they are valuable for their origin and as elements of study to investigate the culture of peoples of other eras, their beliefs and customs, or the nature of the environment in which they lived, depending on the traces or representations that can be found there.

But, those goods, before and now, constitute a common heritage (patrimonio común) that past generations bequeathed to the present ones, and it is up to the latter to pass it on to future generations as a sample of knowledge of the human events that identify or characterize a past of ours. For all of that, archaeological objects coming from the aboriginal races that populated the continent in the pre-Columbian era, prior to or contemporary with the establishment of Hispanic culture, are valuable, and because of that value many people seek out and acquire those pieces.” However, from that moment, another important element to be protected was perceived: the knowledge (conocimientos) and techniques (técnicas) used to build or produce said tangible heritage (patrimonio material):

“For that very reason, the individual interest that each person may have in the possession or ownership of those objects is not above the public interest, both because of their historical value and because, within the culture of peoples, there is the study of what the human groups that inhabited the same territory did, a study that is facilitated by making it possible for the greatest number of people to have access to those sources of knowledge, and nothing is more consistent with that public interest than that archaeological property remain in national territory, in the possession of museums and under the ownership of the State or its institutions. It must therefore be underlined that the most important thing is not the material value of the referred objects, but rather their historical, scientific, and cultural value.” (judgment No. 1997-4350) Thus, by highlighting the historical importance that such representations hold, reference was made, for example, to the testimonies that formed part of that cultural legacy as an integral part of the cultural identity (identidad cultural) of society:

“Archaeology and History are two intimately linked sciences, having as one of their objectives to clarify and reconstruct the events of the past. Historical reconstruction is based fundamentally on the interpretation of written documents, while Archaeology bases its studies on the data it obtains through the material objects left by human action in societies that have now disappeared, through the relationship between them, the form of the find, and their connection with the environment. Every preserved object, every vestige of the life and activity of man in past societies, represents a testimony that makes total or partial knowledge possible, as the case may be, of those testimonies, and, therefore, of ways of life that are now nonexistent and unknown in the present, but whose knowledge is of singular importance, since they form part of the cultural identity of the society in which one lives; of course, to the extent that they are an important testimony for the reconstruction and knowledge of past events.

The National Archaeological Heritage (Patrimonio Arqueológico Nacional) consists basically of immovable and movable property (inmuebles y muebles), products of indigenous cultures prior to or contemporary with the establishment of pre-Hispanic culture in national territory, as well as human, flora, and fauna remains related to these cultures. From the foregoing arises the interest in the protection and conservation of those finds.” (judgments No. 1995-2706 and 1996-0729).

The Chamber emphasized that the interest in safeguarding this heritage responded to a majority will aimed at obtaining the intended values; that is, of the majority of coinciding individual interests. It was described as an interest because it is oriented toward the achievement of a value, benefit, or utility resulting from that upon which such majority coincidence falls. Furthermore, it has a connotation of public interest (interés público), since it is assigned to the entire community, as a result of that coinciding majority, because it is of or belongs to the people, to a community in general. So it is not exclusive or particular to a few persons, but rather insofar as such a number of persons, components of a given community, participate in or coincide in it, that it may come to be identified as referents of the entire group, even with respect to those who, individually, may or may not share it.

Heritage was considered, from then on, as composed of values of a historical and cultural character, bearers of a message, that contribute to identifying a specific historical moment, real and tangible testimony of the evolution and transformation experienced by society and its natural environment through time, which constitute before, today, and for the future, common heritage as an expression of the majority of coinciding individual interests, that is, of a public interest. However, its conception remained tied to a material concept. Traditionally, ‘cultural heritage’ was considered to be: monuments, works of architecture, monumental sculpture or painting; inscriptions, caves, and groups of elements of an archaeological character, that had exceptional universal value from the point of view of history, art, or science, as well as places constructed by nature. This traditional conception also came 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, ‘cultural heritage’ shall be considered to be:

- monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, 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 man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view.” Currently, the concept of cultural heritage has been broadened 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. The ‘intangible cultural heritage’ (patrimonio cultural inmaterial) means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts 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, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements 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 inter alia in the following domains:

• a)oral traditions and expressions, including language as a vehicle of the 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 Law No. 8560 of November 16, 2006, and published in La Gaceta No. 237 of December 11, 2006. With the introduction of the concept of intangible cultural heritage, new spectrums of protection were opened up that are safeguarded by our Political Constitution in numeral 89, in relation to the provisions of Article 7. Hence the importance of safeguarding said heritage against the theft, looting, transport, trafficking, and/or illicit commercialization that some countries are suffering, among them Costa Rica and Ecuador. In fact, our country has already approved another agreement in a similar sense with Peru, called the ‘Agreement on the Protection and Restitution of Cultural Property between the Republic of Peru and the Republic of Costa Rica,’ which was analyzed by this Court in judgment No. 2015-7175 of 2:30 p.m. on May 19, 2015, as indicated below:

“IV.- On the Bill submitted for consultation. According to the statement of purpose of the legislative file under study, this bill aims not only to strengthen the existing cultural ties with the Contracting Parties, but also to address the problem occurring in both countries in relation to the theft and illicit export of objects belonging to cultural heritage. This initiative is inspired by the multilateral legal principles that both States have adopted in this regard in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage, and the 1976 Convention of San Salvador on the Defense of the Archaeological, Historical and Artistic Heritage of the American Nations. By virtue of the foregoing, the Agreement establishes rules prohibiting the entry into their respective territories of cultural property originating from the other Party that has been the object of illicit appropriation or export (Article 1).

To this end, numeral 2 of the Agreement defines what shall be understood by both States as cultural property. Likewise, provision is made for the exchange of information to give notice and identify such property when there is suspicion of its illegitimate removal (Article 4), measures are authorized that permit the recovery of said property (Article 3), for the purpose of achieving its protection and conservation; and finally, it facilitates the return of such property, exempting it from the payment of customs duties and other corresponding taxes. Such objectives are consistent with the international commitments previously undertaken by our country and with the provisions of numeral 89 of the Political Constitution, regarding which this Court has pronounced in the following sense:

“SECOND: ON THE ARCHAEOLOGICAL HERITAGE OR CULTURAL HERITAGE. Cultural property is the product and testimony of the different traditions and spiritual achievements of the past and constitutes the fundamental element of the personality of peoples, so it is essential to preserve them, and this is a fundamental task of the State. The foregoing means that historical and artistic heritage is different from economic patrimonial property, because it is not a matter of production goods, but rather of archaeological heritage (patrimonio arqueológico) whose legal regime responds to another order of ideas and purposes and to a different category of values that, therefore, cannot be examined with an economic policy criterion, because no doctrine of that kind is applicable to it. The notion of ‘heritage,’ certainly, encompasses any property that has a monetary value, as the Civil Code states, heritage is the total set of property and rights of a person or, also, that all property that constitutes a person’s heritage is liable for the payment of their debts.

It is obvious that archaeological or cultural property also has appreciable monetary value, whether because of the material they are made of, their fine craftsmanship or beauty, or the historical testimony they evidence, whether made of clay, stone, or metal. Some of those objects may be of little physical value or of little significance as an artistic work, but even so they are valuable for their origin and as elements of study to investigate the culture of peoples of other eras, their beliefs and customs, or the nature of the environment in which they lived, depending on the traces or representations that can be found there. But, those goods, before and now, constitute a common heritage that past generations bequeathed to the present ones, and it is up to the latter to pass it on to future generations as a sample of knowledge of the human events that identify or characterize a past of ours.

For all of that, archaeological objects coming from the aboriginal races that populated the continent in the pre-Columbian era, prior to or contemporary with the establishment of Hispanic culture, are valuable, and because of that value many people seek out and acquire those pieces. For that very reason, the individual interest that each person may have in the possession or ownership of those objects is not above the public interest, both because of their historical value and because, within the culture of peoples, there is the study of what the human groups that inhabited the same territory did, a study that is facilitated by making it possible for the greatest number of people to have access to those sources of knowledge, and nothing is more consistent with that public interest than that archaeological property remain in national territory, in the possession of museums and under the ownership of the State or its institutions.

It must therefore be underlined that the most important thing is not the material value of the referred objects, but rather their historical, scientific, and cultural value. That interest is nothing more than a majority will aimed at obtaining the intended values; that is, of the majority of coinciding individual interests. It is an interest because it is oriented toward the achievement of a value, benefit, or utility resulting from that upon which such majority coincidence falls. It is public because it is assigned to the entire community, as a result of that coinciding majority, because it is of or belongs to the people, to the community in general. So that, it is a public interest, because it is not exclusive or particular to a few persons, but rather insofar as such a number of persons, components of a given community, participate in or coincide in it, that it may come to be identified as of the entire group, even with respect to those who, individually, may or may not share it.

That is, the values of a historical and cultural character, as bearers of a message, contribute to identifying a specific historical moment, real and tangible testimony of the evolution and transformation experienced by society and its natural environment through time, which constitute before, today, and for the future, common heritage as an expression of the majority of coinciding individual interests, that is, of a public interest.” (judgment No. 1997-4350) Consequently, far from the approval of this Agreement constituting a violation of the Law of the Constitution, it strengthens our constitutional guarantee of protection of cultural heritage, and promotes the respective international cooperation for both State Parties in that purpose…

V.In conclusion and under the stated terms, the Chamber finds no objections of a constitutional nature, in form or substance, to the bill processed in legislative file 18.138.”

Said precedent refers to a positive legal text very similar to the agreement under study.” At the legal level, Law No. 7555 of October 4, 1995, ‘Historical-Architectural Heritage of Costa Rica’ (Patrimonio Histórico-Arquitectónico de Costa Rica), states:

“ARTICLE 2.- Historical-architectural heritage. The immovable property of public or private ownership with cultural or historical significance, declared as such by the Ministry of Culture, Youth and Sports in accordance with this law, forms part of the historical-architectural heritage of the country.

The research, conservation, restoration, rehabilitation, and maintenance of the historical-architectural heritage are declared to be of public interest.

ARTICLE 3.- Advisory services. The State has the duty to conserve the historical-architectural heritage of the country. The Ministry of Culture, Youth and Sports is the highest authority in this matter and shall provide the necessary advisory services to the owners, possessors, or holders of rights in rem over the property that forms that heritage, so that the purposes of this law are fulfilled (…)

ARTICLE 5.- National Commission on Historical-Architectural Heritage. The National Commission on Historical-Architectural Heritage is created, which shall advise the Ministry in the compliance with this law. It shall be composed as follows:

• a)The Minister of Culture, Youth and Sports or their representative, who shall preside over it.
• b)The highest-ranking official in the Center for Research and Conservation of Cultural Heritage (Centro de Investigación y Conservación de Patrimonio Cultural).
• c)A representative of the College of Architects (Colegio de Arquitectos), appointed by its Board of Directors.
• d)The President of the Academy of Geography and History.
• e)The President of the Costa Rican Association of the International Council of Monuments and Sites.
• f)A representative of the Office of the Attorney General (Procuraduría General de la República).
• g)A representative of the Ombudsman’s Office (Defensoría de los Habitantes), with voice but without vote.

The obligation of the latter two shall be to safeguard the interests of private individuals affected by the application of this law. The members of the Commission referred to in subsections a), b), d), and e) shall serve their functions while they hold the office that brought them to it; those referred to in subsections c), f), and g) shall be appointed for four years. In case of resignation or death, the substitute shall be appointed for a full term (…)

ARTICLE 8.- Executive Decree. The Executive Decree that incorporates a specific property into the historical-architectural heritage shall cover the following points:

• a)The registration information of the immovable property in the Property Registry and the clear and precise description of the buildings it contains, in particular those that gave rise to the declaration.
• b)A detailed and substantiated analysis of the historical or architectural reasons supporting the declaration.
• c)Recommendation to initiate expropriation proceedings for immovable properties in accordance with the respective law, when for the material protection or for the better cultural or visual use of the property, the encumbrance of other adjacent or neighboring immovable properties is required (…)” (boldface has been added).

Likewise, numeral 35 of the Organic Law of the Environment (Ley Orgánica del Ambiente) states: “The creation, conservation, administration, development, and surveillance of protected areas (áreas protegidas) shall have as objectives: (…) f) To protect the natural and landscape environments of historic and architectural sites and centers, of national monuments, of archaeological sites, and of places of historical and artistic interest, of importance for the culture and national identity.” This implies that the management of cultural resources permits human intervention for the maintenance, custody, preservation, and property located in their environment, as well as the actions deployed to favor their rescue and preservation. In turn, numerals 71 and 72 eiusdem prescribe:

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

The Executive Branch shall dictate the appropriate measures and shall promote their implementation through the agencies, public entities, and municipalities, to prevent this type of pollution.

Article 72.- Landscape conservation. The competent authority shall promote the participation of public and private sectors in landscape conservation. When it is necessary to affect the landscape in order to carry out a work, the resulting landscape must be at least of equal quality to the previous one.” Consequently, in relation to cultural heritage, not only are aims of conservation, preservation, and development pursued, but also, as was recorded in pronouncement No. 2010013099 of 2:56 p.m. on August 4, 2010, “also the principle of sustainability in the use and development of the property of the artistic, archaeological, and cultural heritage, to enrich their environment by improving their scenic beauty, and to provide access and security to the property and persons, as advised by technical and scientific standards in the respective matters.” In this way, in accordance with constitutional jurisprudence, the protection of cultural heritage is imposed as a constitutional obligation by virtue of Articles 50 and 89 of the Magna Carta, without prejudice to the national and international legal order governing the matter.

Now, the preservation of cultural heritage that, in addition, is located in a protected wilderness area (área silvestre protegida) implies that, before the adoption of any legislative decision that affects either it or its environment, there must be technical studies supporting its preservation. The foregoing is essential for the purposes of studying the interaction between cultural heritage, the environment, and the human being, as well as determining whether it is possible to achieve an adequate balance among such elements.

III.On the alleged unconstitutionality of Law No. 9892 of August 24, 2020, for changing, without prior scientific studies, the management category of a territorial surface of the protected wilderness area ‘Isla San Lucas.’

Prior to resolving what corresponds in law, it is worth highlighting that, through Law No. 5469 of April 25, 1974, Isla San Lucas was transferred to the Municipality of Puntarenas for the purpose of designating it as a tourist center. Subsequently, through Law No. 6043 of March 2, 1977, called the ‘Law on the Maritime-Terrestrial Zone’ (Ley sobre la Zona Marítimo Terrestre), it was regulated that the referred island “shall conserve its current legal situation under the administration of the Municipality of Puntarenas.” On another note, through Executive Decree No. 24520 of July 27, 1995, the buildings of the San Lucas Penitentiary were declared of historical-architectural interest. For its part, through Executive Decree No. 29277-MINAE of January 11, 2001, the Isla San Lucas National Wildlife Refuge (Refugio Nacional de Vida Silvestre Isla San Lucas) was created.

Subsequently, through Executive Decree No. 30714-C of September 26, 2002, the buildings on that island were incorporated into the historical-architectural heritage of Costa Rica, upon considering: “1º-That on the Isla de San Lucas, evidence is recorded of pre-Hispanic occupation from the Sapoa-Ometepe period (800-1500 A.D.) and buildings that testify to its use as a penal center in the 1930s, which confers upon it the designation of Isla de San Lucas Historic Site (Sitio Histórico Isla de San Lucas). 2º-That the archaeological sites located on the Island reflect the knowledge of navigation, extraction, and use of resources linked to marine and coastal environments. 3º-That there are few archaeological sites on the islands of the Gulf of Nicoya, and as these are non-renewable and finite, they must be protected. 4º-That the former penitentiary is an architectural complex (conjunto arquitectónico) characterized by a physical structure, recognizable as representative of the social historical reality of the 1930s and 1940s. 5º-That in the architectural complex of the Island, the technique of reinforced concrete and the rationalist influence were employed in a cultural sphere of marked historicist influence. 6º-That it is the duty of the State to safeguard the Cultural Heritage of the country.” Now, Law No. 9892, challenged in the sub iudice, states:

“ARTICLE 1-Creation. The Isla San Lucas National Park is created, which, in addition to its condition as a protected wilderness area, shall be historical-architectural heritage and a zone of sustainable tourism use, in the specific areas determined in this law (…).” Given the foregoing, it is worth reiterating what was indicated ut supra in relation to protected wilderness areas, which constitute delimited geographical spaces, made up of lands, wetlands, and portions of sea, that represent special significance for their ecosystems, the existence of threatened species, the impact on reproduction and other needs, and for their historical and cultural significance. Such protected wilderness 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 system of protected areas is composed of various management or administration categories. Certainly, these pursue common purposes, such as those provided for in numeral 35 of the Organic Law of the Environment; however, they also have characteristics of distinctive relevance. On this subject, in the above-cited opinion No. C-016-2002 of January 15, 2002, the PGR explained: “(…) even though there does not exist in our current legislation a technical definition of protective zone (zona protectora), the mere classification that Article 32 of Law No. 7554 makes of the management categories necessarily leads one to think that there are indeed differences among them, since, otherwise, it would have sufficed to set forth a single regime for protected wilderness areas.

And it is logical that this be so, since each wilderness area has its own characteristics from the biological, edaphic, hydrological, etc., point of view, which make it deserving of a particular treatment regime defined by the assigned management category" (highlighting supplied).

Thus, it is evident that while protected wilderness areas enjoy a particular safeguard "because they represent special significance for their ecosystems, the existence of threatened species, the repercussion on reproduction and other needs, and for their historical and cultural significance" (Article 58 of the Biodiversity Law), each of the different management categories has its distinctive qualities, which inexorably imposes the requirement of having scientific studies for the purpose of supporting the decision of what type of management category is the most appropriate for each area, as the aforementioned rule provides: "During the process of fulfilling requirements to establish state protected wilderness areas, the respective technical reports must include the pertinent recommendations and justifications to determine the most appropriate management category to which the proposed area must be subjected" (bold text added).

In that sense, the IUCN was emphatic in pointing out to this Court that: "The assignment of the management category of a protected wilderness area must be the product of an analysis that considers the objectives for the creation of the area, the natural, cultural and other values of the area, the current condition of these values, the uses that could be contemplated, among others. Said assessment must be carried out jointly with the interest groups, authorities and local communities." In the sub examine, with Law No. 9892, a portion of San Lucas Island went from 'national wildlife refuge' -as defined in Executive Decree No. 29277-MINAE of January 11, 2001- to 'national park'. Note that, according to numeral 32 of the Organic Environmental Law, both 'national wildlife refuge' and 'national park' represent different management categories in relation to a more general type of geographical zone called 'protected wilderness area', so that, precisely, because they are different management categories, their corresponding lands demand differentiated regulatory needs.

That is, the protected wilderness area is subdivided into several management categories, each of which has specific geographical zones, whose particular qualities precisely justify and compel the various necessary measures adapted to such characteristics for the purpose of safeguarding the environment effectively and efficiently. Such categorization and, of course, its eventual alteration are not arbitrary nor do they respond to whims, but are based on prior, duly supported scientific studies, which is in accordance with numerals 38 of the Organic Environmental Law, 58 and 59 of the Biodiversity Law, 71 and 72 of the regulations to this latter regulatory body, 2 of the 'Convention on the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America', 10 and 14 of the 'Convention on Biological Diversity and its Annexes', as well as with the principles of progressivity and non-regression in environmental matters, the precautionary, preventive, and objectification of environmental protection principles, as well as the logical-legal principle of non-contradiction.

In the sense explained, Law No. 7317 of October 30, 1992, called 'Wildlife Conservation Law', 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, especially those that are in danger of extinction. For the purpose of classifying them, there are three classes of national wildlife refuges:

• a)State-owned refuges.
• b)Mixed-ownership refuges.
• c)Private refuges.

The natural resources included within the national wildlife refuges fall under the exclusive competence and management of the National System of Conservation Areas () of the Ministry of Environment and Energy (*), as determined in this Law and its Regulations (...)

Individuals or legal entities wishing to carry out development activities or projects and exploitation of natural resources, included in refuges of type b and c, will require authorization from the National System of Conservation Areas (*). Said authorization must be granted with conservation criteria and strict "sustainability" in the protection of natural resources and will be analyzed through the submission of an impact evaluation of the action to be developed, following the technical-scientific methodology applied in this regard. This evaluation will be paid for by the interested party and will be elaborated by competent professionals in the field of natural resources (...)

In state-owned and mixed refuges, only activities defined in the management plan (plan de manejo) elaborated for the protected area will be permitted, after prior submission of the corresponding environmental impact assessments (...)" Article 83.- The extraction of wildlife (*), continental and insular, is prohibited in national wildlife refuges, with the exception of management and extraction for nurseries or breeding farms (zoocriaderos), after prior completion of the corresponding scientific-technical studies.

The National System of Conservation Areas (*) shall have the powers and duties established by Law No. 6043, regarding the National Wildlife Refuges that include areas of the maritime-terrestrial zone (...)" (emphasis added).

In turn, in the Regulations to the Biodiversity Law, such a management category of protected wilderness area is defined as follows:

"e) National Wildlife Refuges: Geographical areas that possess terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination of these. Their main purposes will be the conservation, research, increase, and management of wild flora and fauna, especially those that are in danger of extinction. For the purposes of classifying them, there are three classes of national wildlife refuges:

e.1) State-owned refuges. These are those in which the areas declared as such belong entirely to the State and are public domain. Their administration will correspond exclusively to SINAC. Their main objectives are: the conservation, research, and management of wild flora and fauna, especially those species that have been officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. Because they are the natural patrimony of the State, only research, training, and ecotourism activities may be carried out.

e.2) Private refuges. These are those in which the areas declared as such belong entirely to private individuals. Their administration will correspond to the property owners and will be supervised by SINAC. Their main objectives are: the conservation, research, and management of wild flora and fauna, especially those species that are officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. On the lands of private refuges, only productive activities may be carried out in accordance with what is stipulated in the Regulations of 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 those in which the areas declared as such belong partly to the State and partly to private individuals. Their main objectives are: the conservation, research, and management of wild flora and fauna, especially those species that are officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. Their administration will be shared between the private owners and SINAC, so that on lands that are State property, only the activities previously indicated for state-owned refuges, indicated in subsection i), may be carried out, while on private lands, the activities indicated for private refuges indicated in subsection ii) may be carried out, respecting the respective criteria and requirements.

Regarding the dimensions and characteristics permitted for the different types of activities and projects to be developed within private refuges and in the private portion of mixed-ownership refuges, refer to the Regulations of the Wildlife Conservation Law." For its part, in judgment No. 1999002988 of 11:57 a.m. on April 23, 1999, this Constitutional Court stated regarding national wildlife refuges the following:

"Said sites have the primary purpose of protecting flora and fauna species in extinction and possess, among other values, great scientific value, hence the interest in conserving them. Their conservation is intended to guarantee the perpetuity of wildlife species, their populations and habitats, and to provide an opportunity to carry out scientific, educational, and recreational activities, when these do not detract from the objectives of each refuge. Within the National Wildlife Refuges, the biota can be very varied depending on the diversity of natural associations existing within the refuge, according to the variety of local geographical conditions, which means appreciating the differences that come from a diversity in geological, edaphic, topographical conditions and animal and human activity, hence the need for legal protection of these areas and the other constituent parts of the agrarian forest property" (highlighting added).

In addition to the above, the National System of Conservation Areas has clarified that the national wildlife refuge is equivalent to category IV of conservation established by the IUCN, namely, the habitat/species management area (área de manejo de hábitat/especies), whose main purpose is the protection of specific habitats or species, thus it seeks their maintenance, conservation, and restoration. This type of management category is generally used in geographical zones that have suffered significant modifications and that, therefore, need protection, which can occur with or without human intervention. Furthermore, it has been indicated that in the aforementioned category, human uses, such as scientific research, are possible; however, this cannot constitute its main purpose, as the measures adopted must primarily tend toward the protection of habitats and species.

On the other hand, according to numeral 1 of the 'Convention on the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America', national park must be understood as: "The regions established for the protection and conservation of natural scenic beauties and of the flora and fauna of national importance, from which the public may better enjoy by being placed under official surveillance (...)". Likewise, it provides that:

"ARTICLE 3 The Contracting Governments agree that the boundaries of national parks shall not be altered, nor any part thereof alienated, except by action of the competent legislative authority. The riches existing in them shall not be exploited for commercial purposes.

The Contracting Governments agree to prohibit hunting, killing, and capture of specimens of fauna and the destruction and collection of specimens of flora in national parks, except when done by the park authorities or by order or under the supervision of the same, or for duly authorized scientific investigations.

The Contracting Governments further agree to provide the national parks with facilities for public solace and education, in accordance with the purposes pursued by this Convention (...)" (highlighting added).

Additionally, as indicated ut supra, the Regulations to the Biodiversity Law conceptualize national parks as "Geographical areas, terrestrial, marine, marine-coastal, freshwater, or a combination of these, of national importance, established for the protection and conservation of natural beauties and biodiversity, as well as for public enjoyment. These areas present one or several ecosystems in which 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, for the IUCN, as recorded in the preceding whereas clause (considerando), national parks correspond to category II of management and refer to large natural or near-natural areas established to protect large-scale ecological processes, along with the complement of species and ecosystems characteristic of the area, which also provide the foundation for environmentally and culturally compatible spiritual, scientific, educational, recreational, and visitor opportunities. This type of management category has as its primary purpose the protection of natural biodiversity, ecological structure, and environmental processes, as well as the promotion of education and recreational use.

Additionally, the IUCN has specified differentiations between national parks -category II- and habitat/species management areas -category IV- (known in the country as national wildlife refuges) by indicating that: "The management objective of category IV protected areas is the conservation of specific species or habitats, and consequently they pay less attention to other elements of the ecosystem, while the objective of category II protected areas is to conserve complete functional ecosystems. Categories II and IV can closely resemble each other in some circumstances and the distinction is based in part on the question of objectives – for ex., whether the objective is to protect the entire ecosystem as much as possible (category II) or whether it focuses on protecting a few key species or habitats (category IV)" (Guidelines for Applying Protected Area Management Categories, IUCN, 2018; bold text incorporated).

On the other hand, in relation to the challenged regulatory body, the PGR issued legal opinion No. OJ-082-2020:

"Under the provisions of Article 18 of the Forest Law (Ley Forestal), Article 11 of its Regulations (Executive Decree No. 25721 of October 17, 1996) establishes that, in protected wilderness areas, except in national parks and biological reserves, ecotourism activities may be authorized, only in the areas designated for this purpose by SINAC, and that, SINAC may authorize the performance of permitted activities through the granting of use permits and the charging of the respective fee.

According to that same rule, ecotourism activities such as trails or rustic paths, camping areas, lookouts, canopy, hanging bridges, rappelling, rest areas, lunch areas, kayaking, canoeing, recreational cycling, and fishing may be developed; research activities such as lookouts for wild species observation or for control and protection, trails, installation of camera traps, and collection of biodiversity samples; and, training activities, such as demonstration tours, ecological classrooms, and environmental education programs; and other related and duly authorized activities, which are compatible with the environment.

For its part, in accordance with these limitations, Article 82 of the Wildlife Conservation Law establishes that development projects and exploitation of natural resources may not be carried out in state wildlife refuges, which is reiterated in Article 70 of the Regulations to the Biodiversity Law (Decree No. 34433 of March 11, 2008) which provides that, in these refuges, only training, research, and ecotourism activities may be carried out.

Regarding the activities that may be developed in national parks and biological reserves, Article 58 of the Biodiversity Law establishes that the prohibitions in this regard are those established by the Law for the Creation of the National Parks Service (No. 6084 of August 24, 1977). Said law, in Articles 8, 10, and 12, provides that in these spaces it is prohibited to carry out any type of commercial, agricultural, or industrial activity, that fishing activity is limited to artisanal and sport fishing when it is proven not to cause ecological alterations, and that no concessions of any type may be granted for the exploitation of products, nor may permits be granted to establish other facilities, other than those of the National Parks Service.

In this regard, what is provided in Article 3 of the Convention for the Protection of Flora, Fauna and Natural Scenic Beauties of the Countries of America (approved by Law No. 3763 of October 19, 1966) is relevant, in that the riches existing in national parks may not be exploited for commercial purposes.

Based on these latter provisions, it has been indicated that National Parks and Biological Reserves are wilderness areas of absolute conservation. (Constitutional Chamber, vote No. 16975-2008 of 2:53 p.m. on November 12, 2008. Also, see our pronouncements Nos. C-228-1998 of November 3, 1998, C-297-2004 of October 19, 2004, OJ-236-2003 of November 17, 2003, OJ-093-2004 of July 19, 2004, OJ-069-2008 of August 12, 2008, and OJ-027-2018 of February 28, 2018).

On the other hand, in accordance with Article 39 of the Biodiversity Law, in protected wilderness areas, the National Council of Conservation Areas is empowered to approve contracts or concessions for non-essential services and activities, such as parking lots, sanitary services, administration of physical facilities, food services, stores, construction and administration of trails, visitor management, and others defined by the Regional Council of the respective Conservation Area. These concessions may not include the exercise of MINAE's own responsibilities, such as the definition and monitoring of strategies, plans, and budgets of the Conservation Areas; nor the authorization of private buildings.

In principle, all protected wilderness areas must be administered and used in accordance with the above provisions. And, although these regulations and use limitations are set forth in legal and regulatory norms, it must be borne in mind that 'from their declaration, the intention is to endow these geographical zones with a conservationist and protectionist vocation necessary to fulfill their function.' (Constitutional Chamber, votes Nos. 21258-2010 of 2:00 p.m. on December 22, 2010, 16938-2011 of 2:37 p.m. on December 7, 2011, and 2752-2014 of 9:15 a.m. on February 28, 2014. Highlighting is not from the original). And that, by virtue of this, protected wilderness areas are framed 'within a planning context whose purpose is to preserve the natural resource.' (Constitutional Chamber, vote No. 16938-2011 already cited).

Consequently, the modification of the norms referring to a protected wilderness area in which use conditions and regulations on its administration are established, different from the regime applicable to the generality of these protected spaces, could imply a worsening in the level of protection of the area and, consequently, the violation of constitutional principles.

In that sense, on other occasions, we have indicated that:

'From said article [Article 18 of the Forest Law (Ley Forestal)] it follows that currently, the uses legally permitted in the natural patrimony of the State are reduced to research, training, and ecotourism activities, which must also be approved by the Ministry of Environment, Energy, and Telecommunications. Said restrictions do not have constitutional rank, so it is clear that they could be modified by a norm of the same nature, as occurs with the project intended to be approved, since there is no principle of «immutability of the legal system.» However, it must be reiterated that in the case of reducing protection guarantees, such as authorizing other activities that are not currently permitted, it is essential that there be technical criteria that justify it, because otherwise, the decision would become arbitrary and violative of the Constitution, specifically the right to enjoy a healthy and ecologically balanced environment. Along the same lines, any activity that is authorized to be carried out in the refuge cannot be incompatible with the environmental protection that its creation seeks to guarantee, since its raison d'être would be denatured.

Thus, to expand the range of permitted activities in the Ostional Wildlife Refuge, not only must there be technical studies that justify it, but also, the activities to be carried out cannot be incompatible with the environmental vocation of the lands nor put the spawning of turtles in the place at risk. Only by complying with these requirements could it be achieved that the collective interest and the social problem intended to be protected does not occur at the expense of the environment, as a superior legal interest.' (Legal opinion No. OJ-014-2010 of March 26, 2010. In a similar sense, see opinions Nos. OJ-033-2011 of June 13, 2011, OJ-156-2014 of November 17, 2014, OJ-084-2015 of August 6, 2015, OJ-088-2018 of September 18, 2018) (...)

(...) if what is desired is to expand this enabling normative framework, the legislator must ensure that the activities or developments to be enabled are in accordance with the provisions of the Constitutional Chamber, that is, that they will be compatible with environmental protection, and that they are in tune with the carrying capacity of the place, which, in any case, as that jurisdictional body provided, must be ensured sustainably in accordance with science and technique.

Therefore, although the project indicates that commercial, transportation, sports, artistic, or cultural activities would be enabled that encourage tourist attraction and visitation to the island, and that in the tourist zone permits will be granted to carry out works and services of all kinds, the truth is that the authorization of these activities must depend on what is technically determined as viable in the corresponding planning instrument of the protected wilderness area or in the corresponding environmental impact assessments. Otherwise, the general enabling set forth in the legal initiative would lack scientific and technical support that backs the non-affectation of the natural and historical-architectural patrimony of the island, as the Constitutional Chamber expressly required.

Another aspect that must be assessed is the advisability of transforming the current wildlife refuge into a National Park, as the project proposes, since, as already stated, national parks, together with biological reserves, are considered absolute conservation spaces, and, consequently, the activities to be developed in them are more limited.

Indeed, as noted, the Convention for the Protection of Flora, Fauna and Natural Scenic Beauties of the Countries of America provides that the riches existing in national parks may not be exploited for commercial purposes, and this could represent an obstacle to the activities projected to be developed on the island (...)

(...) the proposed delimitation of the protected wilderness area must be reviewed, since it seems that the 210 hectares of marine area and islets, which were added to the Wildlife Refuge by Decree 34282 and which the Constitutional Chamber maintained as part of the protected area in vote No. 13099-2010, would not be included.

The foregoing could imply, at least, a serious conflict in the application of regulations, because if the project is approved as it is, it could be understood that San Lucas Island and the surrounding marine area of six meters in depth would be a national park, and that the rest of the area not contemplated would maintain its nature as a wildlife refuge, to which the provisions of the Decree of its creation would continue to apply.

Another possible interpretation, which would carry with it the unconstitutionality of the norm, would be that the approval of the law, by not contemplating the indicated space, implies the reduction of the protected wilderness area without having the technical studies required for this purpose. (In this regard, see the votes of the Constitutional Chamber Nos. 1056-2009 of 2:59 p.m. on January 28, 2009, 13367-2012 of 11:33 a.m. on September 21, 2012, 12887-2014 of 2:30 p.m. on August 8, 2014, 673-2019 of 12:00 p.m. on January 16, 2019, among others)" (highlighting added).

Now then, it is reiterated that, despite the fact that both national wildlife refuges and national parks constitute management categories of protected wilderness areas, it is no less true that they harbor distinctive and unique characteristics, since each one pursues specific management objectives with its own conservation goals. Indeed, each category is distinguished by a determined degree of protection in accordance with its particular biological, edaphic, hydrological, physiographic, ecological, climatic factors, among others, which at the same time defines the permissible level of human intervention.

In conclusion, the fact that protected wilderness areas have diverse management categories implies that each of these has different characteristics from the biological, edaphic, hydrological, physiographic, ecological, climatic point of view, among others, and, therefore, diverse conservation objectives, which compels regulatory norms and administrative provisions specific to each category; otherwise, not only from the environmental point of view but also from the logical-legal one, the classification between different management categories made in ordinal 32 of the Organic Environmental Law would be superfluous. Stated differently, even though the protected wilderness area responds as a whole to a series of objectives -see Article 35 eiusdem-, it is no less true that each of the specific management categories pursues different conservation purposes according to its own qualities, which entails specific forms of administration, management, planning, uses, and prohibitions.

Note that environmental protection must not occur in isolation, but must be carried out within a system, so that other involved constitutional goods are taken into consideration. In that sense, it must be considered that San Lucas Island also has particular protection in relation to the cultural heritage it safeguards, which was already the subject of analysis by this Court in the aforementioned judgment No. 2010013099 of 2:56 p.m. on August 4, 2010:

"VII.- On the protection of cultural heritage.- This Chamber has the function of being the guarantor of constitutional supremacy, of the fundamental rights and freedoms contained in the Political Constitution, and of human rights and those instruments of a fundamental nature applicable in the Republic. In accordance with what was set forth in the preceding whereas clause (considerando), the legal problem addressed by the unconstitutionality actions is not exhausted with the prior declaration of unconstitutionality, because it entails other fundamental rights that must be protected. In the judicial inspection of June 4, 2010, this Constitutional Court, as well as the parties and the coadjuvants appearing in the process, verified the visible lack of maintenance of the buildings located on San Lucas Island due to the passage of the decades and the need to take actions to stop the advanced deterioration that the infrastructure existing there (and the wooden structures that existed in the place) has suffered, and the imperative need to stop their imminent disappearance.

On the other hand, the historical testimony of archaeological sites of cultures that lived on the island, and whose protection is owed not only regarding the historical function that had been assigned to it as a penitentiary center. The Chamber on this topic reiterates what was resolved in judgment No. 2003-03656, in which it established that:

"C.- ON THE 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 that this heritage represents for the necessary maintenance and strengthening of the identity of peoples (population and/or nation), whether in the historical, social, geographical, or cultural spheres. Everyone knows that understanding the past—a link to one's roots—implies understanding the present time and establishes the possibilities for the future material and psycho-social development of individuals and human groups. It is about the recognition of a value, understood as the incorporation of an economic potential, or a value realized in pursuit of a transcendent purpose (spiritual, cultural, or artistic value). It is for this reason that the concept of historical-architectural heritage has evolved, and with it 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, as an integral part of their history and culture, based on reasons of social-economic and urban-environmental or urban-ecological development, and which has a more human foundation.

Thus, protection by States becomes necessary, enabling effective and efficient action based on a scientific construction coherent with reality, both in the field of territorial and architectural theories and in the legal field, as it interacts with other disciplines and knowledge, such as History, Anthropology, Architecture, Restoration Theory, and Law, among others; and which takes into account the country's own circumstances, such as the degree of underdevelopment and economic dependence. Thus, the protection of this heritage must be actively integrated into the country's social and economic resources, so that it does not constitute a burden for the State, nor for the population (owners, possessors, or holders of any real right over the assets incorporated into this special protective regime), in such a way that it becomes yet another resource that generates social well-being.

XVII.The protection of cultural heritage falls within Urban Planning Law, which has lately come to be understood within the broader framework of Environmental Law, which finds its legal-constitutional basis in Articles 50 and 89 of the Political Constitution, inasmuch as they textually provide:

"The State shall procure the greatest well-being for all inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth.

Every person has the right to a healthy and ecologically balanced environment. Therefore, they are entitled to denounce acts that infringe upon that right and to claim reparation for the damage caused.

The State shall guarantee, defend, and preserve that right. The law shall determine the corresponding responsibilities and sanctions" (Article 50); and "Among the cultural purposes of the Republic are: to protect natural beauties, to conserve and develop the historical and artistic heritage of the Nation, and to support private initiative for scientific and artistic progress" (Article 89).

This latter norm provides guidelines for public authorities to promote the protection of the environment, understood in an integral manner, that is, not understood in its traditional sense limited to the scope of natural resources—what is 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 environment in which one lives, which includes not only the scenic beauties of nature, such as the landscape, but also everything related to cities and urban and rural conglomerates, that is, the concept of the urban. It can well be affirmed that these are two complementary aspects of a single reality, like two sides of the same coin: the natural environment and the urban environment. Thus, a more human environment is sought, that is, an environment that is not only healthy and ecologically balanced but also serves as a symbolic referent and giver of national, regional, or local identity.

Thus, the fundamental right to a healthy and ecologically balanced environment—extensively developed by constitutional case law—shall encompass both its natural parts and its artificial parts, the latter being understood as the human habitat, that which is built by man, that is, the urban, in such a way that they remain free from all contamination, both due to the effects and repercussions this may have on the health of persons and other living beings, and due to the intrinsic value of the environment." In light of the foregoing, this Court must analyze the specific case, given that both rights, the natural environmental and the urban environmental, must be balanced when Cultural Heritage is present, since these are also constitutional values that cannot be legitimately excluded from the rights of access and enjoyment of all individuals, nationals and foreigners, which is known as its enhancement (puesta en valor).

But this Court holds that the aspiration for human development should be demystified as something that can only be achieved in an urban environment. Faced with this situation, this Court would be facing a dilemma: although Executive Decree 34282-TUR-MINAE-C contains provisions that clearly conflict with Article 50 of the Political Constitution, and this is so declared in this judgment, there are others that do find their basis in national and international legislation, which cannot be eliminated because they precisely find their support in norms 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, it is not appropriate to sacrifice the protection of National and Cultural Heritage.

VIII.Continuation: Protection of National and Cultural Heritage. Applicable International Legislation. The importance of this action lies precisely in determining to what degree the protection and conservation of National and Cultural Heritage must be guaranteed, and how it must be reconciled with the right to a healthy and ecologically balanced environment. For these purposes, this Court deems it necessary to transcribe the international legislation that refers 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 with the "Convention for the Conservation of Biodiversity and Protection of Priority Wilderness Areas in Central America":

"Article 19.- National strategies shall be developed to execute the plans for the Systems of Protected Wilderness Areas, guaranteeing basic economic functions for local, regional, and global development, and the strengthening of institutional presence in the mentioned areas, for which national and international financing shall be managed for their effective execution." "Article 22.- Environmentally compatible development practices shall be promoted through all possible means in the areas surrounding the protected areas, not only to support the conservation of biological resources but to contribute to sustainable rural development." "Article 28.- Actions to stimulate ecotourism in the region are supported, as a mechanism by which the economic potential of Protected Areas is valued; part of their financing is guaranteed; and it contributes to improving the quality of life of the populations adjacent to such regions.

To this end, migratory and infrastructure facilities shall be implemented to favor ecotourism in border areas." Article 37 of this Convention establishes that the interpretation of the Convention must not affect the rights and obligations of the Central American States derived from the existence of prior international conventions related to the conservation of biological resources and protected areas. When the Treaty refers to concepts such as "local, regional, and global development," "sustainable rural development," and "stimulating ecotourism," it is not only referring to the commitment to the protection of wilderness areas, but also to human development. This Constitutional Court reiterates that, in no way, can these be interpreted as a departure from the constitutional criteria that must unfold from the doctrine of Articles 50 and 89 of the Political Constitution, that the only true development is that which is compatible when it is founded on environmental sustainability.

The foregoing implies, of course, preventing legislation or measures of another nature that States might adopt from leading to setbacks in environmental guarantees and other guarantees established by the Convention, but it is clear that it admits the development of environmentally sustainable activities.

The Convention concerning the Protection of the World Cultural and Natural Heritage, approved by Law No. 5980, establishes that:

"Article 1 For the purposes of this Convention, the following shall be considered as '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 man or the combined works of nature and man, 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 as 'natural heritage':

- natural features consisting of physical and biological formations…

- geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation.

- 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, presentation and transmission to future generations of the cultural and natural heritage situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain." "Article 5 To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavor, in so far as possible, and as appropriate for each country:

• a)to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes; b) to set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions; c) …
• d)to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and e)…" "Article 6 1. Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property right provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.

2. The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11 if the States on whose territory it is situated so request.

3. Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on 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 mentioned in paragraphs 2 and 4 of Article 11 shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists." This Court 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, obligations which our country must not only honor, but also commits to exercising positive or affirmative measures such as "identifying, protecting, conserving, rehabilitating and transmitting to future generations the cultural and natural heritage." As obligations to act, the State must primarily adopt measures that involve efforts in the localization and location of assets regulated under the protection of the Treaty, which means that the State must not only seek cultural and natural heritage within its territory for the future nomination of possible assets, but that its commitment must translate into actions that involve the protection and conservation of the same, as well as the rehabilitation of areas containing assets that form part of that State's cultural and natural heritage.

For this Court, the obligation established in Article 4 of the Convention is not exhausted by the formal declaration of sites under a specific legal regime (national or international), but rather implies an assertive 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; therefore, the putting into operation of cultural assets is possible through their rehabilitation, that is, their enhancement (puesta en valor) as a source of financial resources. Article 5 of the Convention demands adequate legal, scientific, technical, administrative, and financial measures to achieve the objectives of Article 4, so by identifying, protecting, and conserving, as well as revalorizing and rehabilitating the heritage, the Convention uses the affirmations "more actively" and the need for "adequate administrative and financial measures," all of which, in the opinion of this Court, denotes a requirement of effectiveness, which would allow translating these obligations into concrete actions such as inter-institutional coordination and budgetary measures.

The foregoing, then, must be understood to mean that it is not patently limited to the adoption of mere legal measures, but rather to concerting assertive measures by the States individually. Finally, if the assets referred to in Articles 1 and 2 of the Convention are declared world heritage and constitute the obligation of the States Parties to "co-operate" in their protection, according to Article 6, this implies prohibiting all measures that are to their detriment, or even omissions that have the same result, so that it is not lawful, in light of the Convention, to take intentional measures to damage, directly or indirectly, the cultural and natural heritage, which, in our view, irradiates the primordial obligations of the States, reiterated in paragraph 2 of Article 6 when it reaffirms the obligation to identify, protect, conserve, and revalorize that heritage which is internationally regulated through paragraphs 2 and 4 of Article 11 of the Convention concerning the Protection of the World Cultural and Natural Heritage.

This Court understands that the obligation extends beyond what is provided in Article 11, such that assets not yet under the regulations of the mentioned paragraphs must always be conserved and protected by the States for their potential value, as assets that do not yet qualify, but are not thereby excluded from the World Heritage List in the future, as the criteria of the World Heritage Committee advance. Not inferring a primary obligation of the States to identify and locate cultural and natural assets in their territories would be a contradiction to the foundation of the Convention when it affirms noting "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 also considering that "the deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world," in addition to considering that protection is in many cases incomplete.

As can be seen, the legal coverage of international instruments is the same for natural and cultural heritage; consequently, anything that falls outside these standards will be illegitimate, which includes neglect that aggravates the conditions of cultural assets. In accordance with the foregoing, it falls to this Court to analyze whether it is also a legitimate purpose of States to promote development through policies that allow the exploitation of archaeological sites, and natural, cultural, or mixed heritage, so that they are enhanced (puestos en valor), as is intended with Executive Decree 34282-TUR-MINAET-C.

The Convention for the Conservation of Biodiversity and 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." Precisely in Article 25 of this international agreement, within the normative framework, it expresses the interest in integrating different 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 Convention for the Protection of the World Natural and Cultural Heritage of UNESCO, and indicates that all guarantees must be provided for their internal compliance. In this sense, there must be concrete effects of international regulations in the domestic order.

Thus, the crux of the discussion in this action should not be based solely on the issue of natural heritage conservation on Isla San Lucas (understood as ecological and environmental aspects only). This Court has verified that the passage of decades has allowed the regeneration of the secondary forest, so that in this respect, the declaration as a Protected Wilderness Area obtained the protection from the Ministry of Environment, Energy, and Telecommunications necessary for the recovery of spaces that were previously used for livestock, for example. But the palpable lack of maintenance of the historic center, its progressive deterioration, and the threat to the historical and cultural assets existing on Isla San Lucas must not be taken lightly. With the Executive Power's aim to develop ecotourism in the region, as a measure to provide protection to the cultural heritage, a new field of discussion opens that would consequently allow reaffirming concepts and assets that are equally protected internationally and are incorporated into the obligation contained in Article 89 of the Political Constitution, when it lists among the cultural purposes, the protection of natural beauties, and the conservation and development of the Nation's historical and artistic heritage.

Precisely, the Convention on the Defense of the Archaeological, Historical, and Artistic Heritage of the American Nations (Convention of San Salvador), approved by Law 6360, applies equally to the case, given that Executive Decree No. 30.714 of the Ministry of Culture issues the administrative act that protects the archaeological sites related to the Sapoa-Ometepe culture (800-1500 AD), even though it does not cite it as a legal basis. In this same sense, the Treaty establishes that:

"Article 1 The purpose of this Convention is the identification, registration, protection, and vigilance of the assets that make up the cultural heritage of the American nations, in order to: a) prevent the illegal 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 are those included in the following categories:

a. monuments, objects, fragments of detached buildings, and archaeological material belonging to American cultures prior to contact with European culture, as well as human, faunal, and floral remains related to them; b. monuments, buildings, objects of an artistic, utilitarian, ethnological nature, whole or dismembered, from the colonial era, as well as those corresponding to the 19th century; …

e. all cultural property that any of the States Parties expressly declare or manifest to include within the scope of this Convention." In this sense, this Court considers that the Convention also covers the provisions of Executive Decree 34828-TUR-MINAET-C, insofar as it seeks to safeguard the assets protected by the Convention. Therefore, the Convention likewise demands efforts from the State to identify, register, protect, and watch over the assets described in Article 2, in which case it would concern not only the aforementioned archaeological sites, but also the buildings from the era corresponding to the 19th century, meaning the protection would fall on the entire complex and the penitentiary on Isla San Lucas, which began on February 28, 1873. In conclusion, this Court is convinced that the protection of cultural, historical, and architectural assets allows the possibility of developing and accessing them so that they fulfill a socially vital function, namely transmitting the values of the past and present of a Nation, subject only to restrictions that do not conform to the principles of reasonableness and proportionality, or that are not based on technique and science; the contrary must be considered an infringement of the Political Constitution (…)

IX.On the implications of sustainable development and tourism. - The cornerstone of development lies in environmental sustainability, which aims 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 core idea of the principles of environmental law lies in the rational use of natural resources, with the protection of the environment to ensure sustainability for present and future generations. Every economic or productive activity that intervenes in or uses the environment must respond to the philosophy of sustainable development according to the impact it has on it; in this sense, when the Executive Power bases itself on this type of objective for economic and social development, this Court considers that rural tourism as such must respond to those values that protect sustainable development, because it could not be the exception, and it is constitutionally relevant to control the repercussions it may generate on the environment.

An example of this is the Certification for Tourism Sustainability issued by the Costa Rican Tourism Institute as a highly important component, which denotes progress in protecting the right to a healthy and ecologically balanced environment while simultaneously promoting economic diversity; this measure generates incentives for companies engaged in the tourism exploitation of natural and cultural resources. On the other hand, Law No. 8724, which is the Law for the Promotion of Rural Community Tourism, seeks to benefit families and communities by using their localities as tourist destinations, and among its norms is subsection a) of Article 2, which states: "To 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 sense, the Global Code of Ethics for Tourism, adopted by resolution A/RES/406(XIII) of the thirteenth General Assembly of the UNWTO in Santiago, Chile, on September 27 to October 1, 1999, and adopted by the United Nations General Assembly in resolution A/RES/56/212 of December 21, 2001, establishes that:

"Article 3.

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

2. All forms of tourism development that are conducive to saving rare and precious natural resources, in particular water and energy, and to avoiding, as far as possible, waste production, should be given priority and encouraged by national, regional and local public authorities.

…

4. Tourism infrastructure should be designed and tourism activities programmed in such a way as to protect the natural heritage composed of ecosystems and biodiversity and to preserve endangered species of wild fauna and flora. Stakeholders in tourism development, and especially professionals, should agree to the imposition of limitations or constraints on their activities when these are exercised in particularly sensitive areas: desert, polar or high mountain regions, coastal areas, tropical forests or wetlands, which are suitable for the creation of nature reserves or protected areas.

5. Nature tourism and ecotourism are recognized as being particularly conducive to enriching and enhancing the standing of tourism, provided they respect the natural heritage and local populations and are in keeping with the carrying capacity of the sites." For equitable access to development, one must abandon the traditional idea that development only occurs in urban areas, when in the rural environment other factors that make the place unique can be exploited, while ensuring, of course, that these conditions are not threatened. There is no doubt that the exploitation of natural resources implies economic diversity; to that extent, the environment requires protection to withstand the burdens of human intervention, so it is necessary to ensure reasonable development in balance with the environment, such that the control that could be exercised would increase according to the impact it may have on it.

Consequently, tourism development must not imply the destruction of public domain assets 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 constitutional purposes of the State is to develop policies that reduce social and economic gaps, adjusted, of course, to the environments, whether natural, rural, or mixed, all of which stems from what is prescribed by Article 50 of the Constitution. Having 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 should not mean that individuals must abandon their customs and traditional ways of life to migrate to cities, but rather an adjustment of them to current needs and advances.

In this sense, in the Court's view, the true challenge for humanity is to generate progress and—why not—happiness (material and spiritual) without threatening the resources available in the environment; the contrary would simply translate into social inequalities that prevent advancing toward a new stage of human development.

The Chamber recognizes that the balance is very delicate between one and the other, but for it to occur without degrading the environment, science and technique must be used to determine the loads 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, widely recognized in international human rights instruments, merits these considerations from this Constitutional Court. This Chamber considers that rural development, based on tourism focused on natural and cultural heritage, is constitutionally legitimate as long as it is sustainable. Hence, if science and technique suggest the imposition of certain limitations on the numbers of visitor groups, at certain times, etc., they could not be judged as unconstitutional, since they respond to sustainability criteria, but without detracting from the various international provisions that safeguard the right to the enhancement of those assets that belong to national history, not only as assets of the national heritage but of all humanity, and their restriction to the populations is not legitimate.

X.On the protection of the environment and landscapes of the natural and cultural heritage.- This Constitutional Court has derived from Articles 7, 48, 50, and 89 of the Constitution, and the International Treaties mentioned, environmental rights and principles, but at the same time, recognizes the State's need to contribute with policies to promote economic diversity, as well as the conservation and protection of cultural and natural assets, because without one or the other, it could not be understood that equitable human progress exists for all social sectors. The protection of the environment, economic diversification, and quality of life are legitimate objectives of the State, having to implement development policies in urban and rural areas. But the type of progress in a rural environment must depart from a centralist development model, which assumes that it can only occur in urban areas, when it must exploit particularities and other specific needs.

Now, rural development based on tourism must be founded on other particular axes: one of them is what doctrine indicates as the conservation of the values inherent to rural spaces. This principle lies in the fact that rural spaces require sustainable conservation. In this sense, the forest, the sea, the mountain, the volcanoes, the mangroves, wetlands, etc., provide different types of development scenarios as interests may exist. In itself, each one constitutes a scenic appreciation value subject to constitutional protection. But the task of targeting and stimulating this type of rural development policies are matters that correspond to the Legislator and the Executive Branch in their constitutional functions. This Chamber must emphasize that the conservation of the particular characteristics of rural environments or the natural or landscape environment is a value contained in Article 89 of the Constitution that requires protection and must be directed at protecting the environment that enhances its worth, not only as a rural space but also as a tourist destination so that positive effects are felt in the (sic) neighboring communities. In this sense, Article 35 of the Organic Law of the Environment establishes that:

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

a…

…

• f)Protect the natural and landscape environments of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest of importance for the national culture and identity." The Political Constitution indicates as objectives of legal relevance not only the protection but also the conservation and development of the historical and artistic heritage of the Nation. In the dictionary of the Real Academia Española, protect has the following meanings: 1.- To shelter, favor, defend.; and 2.- To safeguard a person, animal, or thing from harm or danger, putting something over it, surrounding it, etc. For its part, conserve means: 1. To maintain something or care for its permanence; 2. To keep someone alive and unharmed; 3. To continue the practice of customs, virtues, and similar things; 4. To carefully guard something, among other meanings.

And develop, in the applicable meaning, is to increase, to give increment to something of a physical, intellectual, or moral nature. In line with the above, the Law authorizes as legitimate objectives the creation, conservation, administration, development, and surveillance of protected areas with historical, architectural, and archaeological sites or centers, which implies that in the management of cultural resources, human intervention is permitted for the maintenance, guarding, preservation, and care of the assets located in their environment, while development favors the rescue and enhancement of sites of interest that may exist in the place and its surroundings. Assets of cultural interest require protection and conservationist measures in the environment in which they are located, so that they can be distinguished as a tourist resource, otherwise the State's omission would imply an unlawful abandonment from a constitutional point of view and in light of the international treaties in force in the Republic.

Added to the above, conserving implies the idea of ensuring protection and permanence, within the context of the values and customs inherent to urban and rural spaces, for which sustainability criteria and practices must be admitted. The administration and development of the asset must be protected, as well as enhance the asset according to the characteristics in its environment, so if it is infrastructure created by man, it will imply technical management, which requires maintenance and investment measures to ensure its development when being enhanced, as well as its conservation. In the case of Isla San Lucas, subsection f) of numeral 38 of the Organic Law of the Environment applies insofar as there are not only elements of the natural heritage, since as a site with historical and archaeological buildings, they are important for the national culture and identity. Consequently, it is important to cite the Global Code of Ethics for Tourism, as it states that:

"Article 4 Tourism, a factor for the use and enrichment of the cultural heritage of humanity 1. Tourism resources belong to the common heritage of humanity. The communities in whose territory they are located have particular rights and obligations regarding them.

2. Tourism policies and activities shall be carried out with respect for the artistic, archaeological, and cultural heritage, which must be protected and transmitted to future generations. Particular attention shall be given to the protection and rehabilitation of monuments, sanctuaries, and museums, as well as places of historical or archaeological interest, which must be widely open to tourist visitation. Public access to privately owned cultural assets and monuments shall be encouraged with full respect for the rights of their owners, as well as to religious buildings without prejudice to the needs of worship.

3. Resources derived from the visitation of sites and monuments of cultural interest should be preferentially assigned, at least in part, to the maintenance, protection, improvement, and enrichment of that heritage.

4. Tourism activity shall be organized in such a way as to allow the survival and flourishing of traditional cultural and artisanal production, as well as folklore, and not lead to its standardization and impoverishment. (the bold highlighting is not from the original).

Costa Rican legislation regulates the possible administration of these historical sites sparsely, but from isolated norms, protection of natural and landscape environments is derived, which admits human intervention, but with the aim of improving sites, not their destruction or abandonment. The Law of Historical-Architectural Heritage of Costa Rica, Law No. 7555 establishes that:

"Article 9. Obligations and Rights The declaration of real estate as a monument, building, or historical site entails the obligation on the part of the owners, possessors, or holders of real rights over the assets thus declared:

a. To conserve, preserve, and adequately maintain the assets.

...

• j)[…] The State and the respective municipality shall have the right to expropriate the assets; they may exercise it for the benefit of other public entities. This right encompasses assets that threaten environmental harmony or pose a risk to conserving those that have been declared of historical-architectural interest.

The Executive Branch and the respective municipality shall be obligated to prevent the total or partial demolition of a protected building. Guarantee that the use of the protected assets will not alter their conservation and will also be congruent with the inherent characteristics of the property. In any case, that use must not conflict with morality, good customs, or public order." (the bold highlighting is not from the original) For the Chamber, it is also important to point out that Articles 71 and 72 of the Organic Law of the Environment clearly delimit the foregoing:

"Article 71.- Visual contamination. Actions, works, or installations that exceed, to the temporary or permanent detriment of the landscape, the maximum limits admissible by established technical standards or those issued in the future shall be considered visual contamination.

Article 72.- Landscape conservation. The competent authority shall promote the participation of public and private sectors in landscape conservation.

When it is necessary to affect the landscape to carry out a work, the resulting landscape must be at least of equal quality to the previous one." From the foregoing, not only the purposes of conservation, preservation, and development are extracted, but also the principle of sustainability in the use and development of assets of the artistic, archaeological, and cultural heritage, to enrich their environment by improving their scenic beauty, and provide access and security to assets and people, as advised by technical and scientific standards in the respective matters. On the other hand, coupled with the need for rehabilitation, restoration, maintenance, and control of activities, are, in the end, the social and economic benefits of many sectors that will depend on this activity" (the underlining in the last paragraph is added).

In view of the above, it is worth reiterating that numeral 89 of the Political Constitution establishes as cultural purposes, among others, the protection, conservation, and development of the historical heritage of the State. Furthermore, the 'Convention for the Protection of the World Cultural and Natural Heritage' prescribes in its ordinal 5 subsection c), as part of the obligations of the States Parties, "To develop studies and scientific and technical research and perfect the methods of intervention that allow a State to face the dangers that threaten its cultural and natural heritage; d) To adopt the appropriate legal, scientific, technical, administrative, and financial measures to identify, protect, conserve, revalue, and rehabilitate that heritage". Additionally, numeral 6 of the same contemplates that States Parties may not deliberately adopt measures that could cause damage directly or indirectly to the cultural and natural heritage.

In addition to the above, note that, even though this Constitutional Court has recognized that the safeguarding of cultural heritage encompasses the possibility of access, for the purpose of guaranteeing the transmission of the values of the past and the present, it is no less true that this must occur in accordance with the principle of reasonableness and proportionality.

On this topic, it is worth reiterating that, in judgment No. 2003003656 of 14:43 hours on May 7, 2003, this Chamber developed the constitutional principle of the enhancement (puesta en valor) of cultural heritage, stating that:

"the application of this principle translates into the fact that the protection of cultural heritage must promote its due economic and social utility, but in such a way that it does not put its cultural value at risk; that is, it attempts to promote the utility of these buildings, in such a way as to allow their participation and permanence in the economic and social activity of society, but at the same time, maintaining and conserving their spiritual value (artistic, architectural, historical, technical, archaeological, etc.) that motivated and justifies the special protection regime. This is how the principle is established that monuments are destined to fulfill a social function, that is, to contribute to the national culture and identity; that is, the attempt is to revalue the monumental heritage in function of the public interest and for the benefit of the nation, without thereby affecting the rights of the individuals involved in them (right of property or freedom of commerce, for example), since the attempt is to erect these buildings as instruments of progress and development, firstly, of their owner, and secondly, as a multiplying effect of the country's economic development.

With this, the attempt is to incorporate into an economic potential, a current value, to put an unexploited wealth into productivity through the revaluation process, which, far from diminishing its purely historical or artistic significance, increases it, passing it from the exclusive domain of erudite minorities to the knowledge and enjoyment of the popular majorities. It is based on the premise that monuments are part of the economic resources of nations, and of course, of their owners or holders of some real right, which is why efforts must be mobilized in the sense of procuring their better use, as an indirect means to promote the country's development; that is, as a facilitating element for tourism, commerce, or even for residential use. In many countries, through the application of this principle, popular housing programs have been established. In any case, the use given to this type of building must include activities that maintain the cultural value of the asset, that is, that do not endanger the asset as such.

Enhancement (Puesta en valor) is equivalent to inhabiting the building in objective and harmonious environmental conditions that, without distorting its nature, highlight its characteristics and allow its optimal use; therefore, it implies a systematic action, eminently technical, aimed at using each and every one of these assets according to their nature, highlighting and exalting their characteristics and merits, until placing them in conditions to fully fulfill the new function to which they are destined; that is, the social function they fulfill, at the urban planning objective level and at the meta-functional level. Thus, conservation and development are not contradictory, but are intimately linked, and the second presupposes the first, as heritage brings great tourist benefits, or as an excellent option for housing programs, which allows a significant construction economy (of up to 35% of the total value of a new work), and produces a better distribution of labor and capital, thereby contributing to the social and economic regeneration of that sector.

Likewise, enhancement (puesta en valor) exercises a beneficial reflective action on the urban perimeter, since the diversity of monuments and buildings of marked cultural, historical, artistic, and architectural interest located in cities form part of the urban landscape, that is, of the environment -according to the integral meaning explained previously-, so that they exert a multiplying effect on the rest of the area that is revalued as a whole and as a consequence of the valorization and urban sanitation plan (urban planning). It is clarified that this principle is not exclusive to historical ensembles, but to all historical-architectural heritage; however, as an example of its application, it is clearer in these (sic), such as the city of Colonial Havana, or Old San Juan, in Puerto Rico, or Antigua Guatemala, places where everyday economic and social activity of an urban center has been promoted, where commercial, artisanal, tourist activities, and also residential, are carried out; with the only difference that the buildings that make up these centers are subject to a special regime, by which their demolition, total or partial destruction, is prevented, and their owners are obliged to their conservation and maintenance, as well as submission to traffic management regulations -which are much stricter and controlled- and ornamentation, among which those relating to the placement of signs and advertising notices are included" (the highlighting is not from the original).

In other words, the safeguarding of the historical-architectural heritage brings with it, on one hand, the protection of cultural value and, on the other, the promotion of its economic and social utility. In this sense, although this type of heritage stands out for its cultural importance, it is also considered a facilitating means for economic development, for example, through commerce or tourism. However, the main purpose is the conservation and preservation of cultural heritage, which is why the activities or uses in it must not endanger it, which can only be prevented if prior technical studies exist that enable its protection. The foregoing is exemplified by what was stated in the aforementioned judgment No. 2003003656, where it is emphasized that in the recommendation relating to the safeguarding of historical ensembles and their function in contemporary life, approved within the framework of the UNESCO General Conference, "the principle is reiterated that restoration is of an exceptional nature, which, if carried out, must be based on scientific principles." Thus, the preservation of the cultural heritage located on Isla San Lucas implies that, prior to the adoption of any legislative decision involving it and its environment, technical studies must be available to support its preservation.

The foregoing is essential for the purpose of studying the interaction between cultural heritage (in this case of a historical-architectural type), the environment, and human beings, as well as determining whether it is possible to achieve an adequate balance between such elements. Specifically, the technical studies must determine the type of intervention that can be carried out in the place, for the purpose of: i) guaranteeing the protection, conservation, revaluation, and rehabilitation of the aforementioned heritage; and ii) verifying that the measures to be applied will not cause direct or indirect damage to such heritage.

In this regard, in the cited judgment No. 2010013099, this Court stated: "if science and technique suggest the imposition of certain limitations on the numbers of visitor groups, at certain times, etc., they could not be judged as unconstitutional, since they respond to sustainability criteria, but without detracting from the various international provisions that safeguard the right to the enhancement of those assets that belong to national history, not only as assets of the national heritage but of all humanity, and their restriction to the populations is not legitimate," as well as: "Assets of cultural interest require protection and conservationist measures in the environment in which they are located, so that they can be distinguished as a tourist resource, otherwise the State's omission would imply an unlawful abandonment from a constitutional point of view and in light of the international treaties in force in the Republic.

Added to the above, conserving implies the idea of ensuring protection and permanence, within the context of the values and customs inherent to urban and rural spaces, for which sustainability criteria and practices must be admitted. The administration and development of the asset must be protected, as well as enhance the asset according to the characteristics in its environment, so if it is infrastructure created by man, it will imply technical management, which requires maintenance and investment measures to ensure its development when being enhanced, as well as its conservation" (emphasis is added).

In line with the foregoing, from the jurisprudence recorded in section II of this dissenting vote, the transcendence of the precautionary principle in cultural heritage matters is evidenced - judgment No. 2002005245 of 15:20 hours on May 29, 2002 - and the importance that the protection given by the State to that heritage be provided "on the basis of a scientific construction coherent with reality, both in the field of territorial and architectural theories, and in the legal field, as it interacts with other disciplines and knowledge, such as History, Anthropology, Architecture, and Restoration Theory, and Law, among others; and that takes into consideration the country's own circumstances, such as the degree of underdevelopment and economic dependence" - judgment No. 2003003656 of 14:43 hours on May 7, 2003 -.

Hand in hand with the above, it is recalled that, in the aforementioned Law No. 4711, which approved the recommendation on the conservation of cultural assets that the execution of public or private works may endanger, signed in Paris on November 22, 1968, it was indicated that: "With sufficient advance notice of the execution of public or private works that may endanger cultural assets, detailed studies should be carried out to determine: a. The measures to be taken to conserve the important cultural assets in situ; b. The magnitude of the necessary salvage works, such as the selection of the archaeological sites where excavations are to be carried out, the buildings to be moved, the movable cultural assets to be saved (sic), etc." Concerning the sub iudice, it must be highlighted that, with the issuance of Law No. 9892, a portion of Isla San Lucas ceased to be a national wildlife refuge and became a national park, that is, it was granted a higher management category.

Hence, in principle, when an increase in management category occurs, a reinforcement of environmental defense is generated, which implies that prior technical studies are not necessarily required to justify such a decision; however, for this, there must be no doubt whatsoever that, in effect, it constitutes an increase in the level of protection; otherwise, technical studies become essential to guarantee that the proposed change, in practice, does not rather signify a degradation.

In this case, we are dealing with a particular situation, because Isla San Lucas not only constitutes a protected wild area (área silvestre protegida) but has also been declared cultural heritage. Such a confluence of circumstances entails that, given the particular characteristics - environmental and cultural - of the island, it becomes necessary to have technical studies that analyze the implications of the interrelation proposed in the law between cultural heritage, the environment, and human beings, and, moreover, determine if the referred change constitutes an adequate balance between such elements.

This Constitutional Court has recognized that on Isla San Lucas, a double special protection converges in relation to the right to a healthy and ecologically balanced environment and the right to access and enjoyment of cultural heritage. This implies that, in the sub examine, such rights must be guaranteed in a harmonious manner, so that the protection of one does not entail the injury of the other. In this regard, it is reiterated that, in judgment No. 2003003656, this Chamber highlighted that: "the conservation of cultural heritage contributes to maintaining the environmental balance necessary in urban development, by requiring, for its effective protection, respect for the urban scale, structure, and dimensioning, regulating the capacity of physical loads, questioning urban functions and services, which results in a better environmental quality; in addition to contributing to maintaining the proper image or perceptual concurrence of the city, which gives it identity or formal cohesion." Hence, in accordance with the principle of objectification of environmental protection (objetivación de la tutela ambiental), for a change in the management category of a protected wild area (which also has declared cultural heritage zones) to be constitutionally valid, there must be duly supported scientific backing that justifies the modification and protects the environment and cultural heritage against direct or indirect impacts.

Specifically, numeral 35 of the Organic Law of the Environment states: "The creation, conservation, administration, development, and surveillance of protected areas shall have the following objectives: (…) f) Protect the natural and landscape environments of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest, of importance for the national culture and identity." Now, such scientific studies, for the purposes of their legal validity as a requirement for the variation of the management category under analysis, must be prior, sufficient, individualized, and duly supported in order to reasonably determine that no damage will be caused nor will the environment or cultural heritage be endangered, therefore, they must examine at a minimum: i) the degree of impact of the corresponding measure on the environment and cultural heritage; ii) the recommendations aimed at mitigating the negative impact on the environment and cultural heritage; and iii) the demonstration of how the adopted measure implies a development that meets the requirements of the present without endangering the capacity of future generations to meet their own needs - see judgment No. 2019000673 of 12:00 hours on January 16, 2019 -.

The foregoing is in line with the principle of objectification of environmental protection (objetivación de la tutela ambiental), on which this Court has indicated:

"Regarding the environment, the object of the fundamental right stated, our Magna Carta also requires it to be 'healthy'. The 'healthy' requirement leads us to 'regenerative capacity' and 'succession capacity' to guarantee life. From both requirements: 'healthy' and 'balanced' arises the need for sustainable and supportable development; quality of life and environmental quality depend on it. Now, with the concepts of 'environment', 'healthy', 'ecologically balanced', the constitutional norm introduced science and technique into environmental decisions, whether legislative or administrative, in such a way that, in the terms of ordinals 16 of the General Law of Public Administration and 38 of the Organic Law of the Environment, state actions in environmental matters must be based on and cannot contradict the unequivocal rules of science and technique in order to achieve the full and universal enjoyment of a healthy and ecologically balanced environment and, furthermore, a 'greater well-being for all the inhabitants of the country'.

Regarding the submission of legislative and administrative decisions to the unequivocal rules of science and technique, the Chamber has called it the principle of objectification of environmental protection: 'The objectification of environmental protection (objetivación de la tutela ambiental) (...) is a principle that in no way can be confused with the previous one [precautionary principle or "principle of prudent avoidance"], as, derived from the provisions of Articles 16 and 160 of the General Law of Public Administration, it translates into the need to accredit technical studies for decision-making in this matter, both in relation to acts and provisions of a general nature – both legal and regulatory –, from which the requirement of linkage to science and technique is derived, thereby conditioning the discretionary power of the Administration in this matter. So that, in attention to the results derived from those technical studies – such as environmental impact studies (estudios de impacto ambiental)–, if an objective technical criterion is evidenced denoting the probability of evident damage to the environment, natural resources, or people's health, it becomes mandatory to reject the proposed project, work, or activity; and in case of a "reasonable doubt" it becomes mandatory to make decisions in favor of the environment (pro-natura principle), which may translate into the adoption of both compensatory and precautionary measures, in order to adequately protect the environment.' (Constitutional Chamber Judgments Nos. 21258-10, 17126-06, 14293-05)" (the highlighting was added). (Resolution No.

2012-13367 of 11:33 a.m. on September 21, 2012).\n\nThis criterion is observed in many pronouncements of this Chamber, for example, in judgment no. 2011016938 of 2:37 p.m. on December 7, 2011:\n\n"IV.- PROTECTED WILD AREAS. A protected area is 'a defined geographic area, terrestrial or coastal-marine, which is designated, regulated and managed to fulfill certain conservation objectives, that is, to produce a series of specific goods and services (in situ conservation)' (see article 9 of the Convention for the Conservation of Biodiversity and Protection of Priority Wild Areas in Central America, approved by Law No. 7433 of September 14, 1994). Likewise, domestic legislation defines 'official conservation areas for wild flora and fauna' as 'wild areas protected under any management category, water resource protection areas, and any other land forming part of the State's forest heritage (patrimonio forestal del Estado)' (see article 2 of the Wildlife Conservation Law, No. 7317 of October 30, 1992).

In turn, the legislature has defined protected wild areas as follows:\n\n'ARTICLE 58.-\n\nProtected wild areas (Áreas silvestres protegidas). Protected wild areas are delimited geographic zones, constituted by lands, wetlands (humedales), and portions of sea. They have been declared as such because they represent special significance for their ecosystems, the existence of threatened species, their impact on reproduction and other needs, and for their historical and cultural significance. These areas shall be dedicated to conservation and protecting biodiversity, soil, water resources (recurso hídrico), cultural resources, and ecosystem services in general.\n\nThe objectives, classification, requirements, and mechanisms for establishing or reducing these areas are determined in the Organic Environmental Law, No. 7554, of October 4, 1995. The prohibitions affecting natural and legal persons within national parks and biological reserves are determined in the Law Creating the National Parks Service, No. 6084, of August 24, 1977.\n\nDuring the process of complying with requirements for establishing state protected wild areas, the respective technical reports shall include the pertinent recommendations and justifications for determining the most appropriate management category to which the proposed area must be subjected.

In any case, the establishment of areas and categories shall take into great account the rights previously acquired by indigenous or peasant populations and other natural or legal persons, underlying or adjacent to them' (see Biodiversity Law, No. 7788 of April 30, 1998).\n\nIn the same way, formal law provides a series of objectives and requirements for the formation of protected wild areas:\n\n'ARTICLE 35.- Objectives\n\nThe creation, conservation, administration, development, and monitoring of protected areas shall have the following objectives:\n\na) To conserve representative natural environments of the different biogeographic regions and the most fragile ecosystems, to ensure the balance and continuity of evolutionary and ecological processes.\n\nb) To safeguard the genetic diversity of wild species on which evolutionary continuity depends, particularly those that are endemic, threatened, or in danger of extinction.\n\nc) To ensure the sustainable use of ecosystems and their elements, fostering the active participation of neighboring communities.\n\nd) To promote scientific research, the study of ecosystems and their balance, as well as knowledge and technologies that allow the sustainable use of the country's natural resources and their conservation.\n\ne) To protect and improve aquifer zones and watersheds (cuencas hidrográficas), to reduce and avoid the negative impact that poor management may cause.\n\nf) To protect the natural and landscape settings of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest, important for culture and national identity.\n\nARTICLE 36.- Requirements for creating new areas\n\nTo create protected wild areas owned by the State, whatever the management category established, the following must be complied with beforehand:\n\na) Preliminary physiogeographic, biological diversity, and socioeconomic studies that justify it.\n\nb) Definition of objectives and location of the area.\n\nc) Technical feasibility and land tenure (tenencia de la tierra) study.\n\nd) Minimum financing to acquire, protect, and manage the area.\n\ne) Preparation of maps.\n\nf) Issuance of the respective law or decree' (see Organic Environmental Law, No. 7554 of October 4, 1995).\n\nFrom the foregoing citations and the analysis of the normative instruments indicated by the petitioner, it follows that the declaration of a protected wild area requires a series of requirements and studies; the mere declaration of will by the Administration is insufficient (…)\n\nFurthermore, from the examination of the norms of the internal environmental legal order, both those proper to the Legislative Branch and those of international law approved by it (sic), including regulations of those laws, it can be observed that a protected wild area has special legal effectiveness, insofar as it responds to clearly defined special reasons, is supported by scientific and technical studies, is grounded in specific normative instruments, implies a series of obligations for the Administration, and is framed within a planning context that has the purpose of preserving the natural resource.

In this regard, see a representative sample of legal norms that demonstrate the foregoing:\n\n'2.- National Reserves shall be understood as: The regions established for the conservation and utilization, under official supervision, of natural riches, in which flora and fauna shall be given all protection that is compatible with the purposes for which these reserves are created' (see Convention for the Protection of Flora, Fauna, and Natural Scenic Beauties of the Countries of America, approved by Law No. 3763 of October 19, 1966).\n\n'Article 3.- The contracting parties shall elaborate and apply their management plans in such a way as to favor the conservation of wetlands (zonas húmedas) inscribed on the 'List' and, whenever possible, the rational exploitation of wetlands (humedales) in their territory' (see Convention on International Wetlands as Habitat for Waterfowl, approved by Law No. 7224 of April 9, 1991).\n\n'Wildlife management areas: Wild areas that provide some degree of management and protection to wildlife' (see Wildlife Conservation Law, No. 7317 of October 30, 1992).\n\n'ARTICLE 4 COMMITMENTS\n\n1.- All Parties, taking into account their common but differentiated responsibilities and the specific nature of their national and regional development priorities, objectives, and circumstances, shall: […]\n\ne) Cooperate in preparations for adaptation to the impacts of climate change; develop and elaborate appropriate and integrated plans for the management of coastal zones, water resources (recursos hídricos), and agriculture, and for the protection and rehabilitation of zones, particularly in Africa, affected by drought and desertification, as well as by floods' (see United Nations Framework Convention on Climate Change, approved by Law No. 7414 of June 13, 1994).\n\n'ARTICLE 8.

In situ conservation\n\nEach Contracting Party, as far as possible and as appropriate,\n\na) Shall establish a system of protected areas or areas where special measures must be taken to conserve biological diversity' (see Convention on Biological Diversity and Annexes [Rio de Janeiro, 1992], approved by Law No. 7416 of June 30, 1994).\n\n'ARTICLE 19.- National strategies shall be developed to execute the plans of Protected Wild Area Systems (Sistemas de Áreas Silvestres Protegidas), being guarantors of basic economic functions for local, regional, and global development, and of strengthening institutional presence in the mentioned areas, for which national and international financing shall be managed for its effective execution' (see Convention for the Conservation of Biodiversity and Protection of Priority Wild Areas in Central America, approved by Law No. 7433 of September 14, 1994).\n\n'ARTICLE 42.- Delimitation of protected zones\n\nThe Ministry of Environment and Energy (MINAE), in coordination with competent institutions, may delimit protection zones for certain marine, coastal, and wetland areas, which shall be subject to management and planning plans, in order to prevent and combat the contamination or degradation of these ecosystems' (see Organic Environmental Law, No. 7554 of October 4, 1995).\n\n'i) Protected wild area: A space, whatever its management category, structured by the Executive Branch to conserve and protect it, taking into consideration its geographic, biotic, social, and economic parameters that justify the public interest' (see article 3 of the Forestry Law (Ley Forestal), No. 7575 of February 13, 1996).\n\n'ARTICLE 61.-\n\nProtection of protected wild areas.

The State shall give priority attention to the protection and consolidation of state protected wild areas located in Conservation Areas (Áreas de Conservación). For these purposes, the Ministry of Environment and Energy (MINAE), in coordination with the Ministry of Finance, shall include in the budgets of the Republic the respective transfers to the trust (fideicomiso) or financial mechanisms for protected areas to ensure, at minimum, the personnel and necessary resources determined by the National System of Conservation Areas (SINAC) for the operation and integrity of state-owned protected wild areas and the permanent protection of national parks, biological reserves, and other state-owned protected wild areas' (see Biodiversity Law, No. 7788 of April 30, 1998).\n\n'35. Management plan (Plan de manejo) in a wild area: A set of technical and scientific norms that regulate the activities to be carried out in the wild area and its surroundings' (see article 2 of the Fishing and Aquaculture Law, No. 8436 of March 1, 2005).\n\n'p) General management plan (Plan general de manejo): It is the planning instrument that allows guiding the management of a protected wild area toward the fulfillment of its long-term conservation objectives.

It is based on medium-term strategic action lines and management objectives for the natural and cultural elements included within the area, as well as the relationship of the latter with its socio-environmental surroundings. It is the basis for the development of other planning and regulatory instruments for Protected Wild Areas' (see article 3 of the Regulation to the Biodiversity Law, Executive Decree (Decreto Ejecutivo) No. 34433 of March 11, 2008; the underlining in the foregoing texts is not from the originals).\n\nGiven the information contained in all those norms, the response given in this matter by the Minister of Environment, Energy, and Telecommunications (folio 87) is not admissible, when he states that 'the legislation is clear, the Maritime-Terrestrial Zone Law establishes that mangroves form part of the Public Zone of the ZMT, moreover, since 1977 all mangroves of the national territory have been declared Forest Reserves, therefore, the mangroves of Golfo Dulce are declared Protected Wild Areas.' Specifically, the assertion that all mangroves (which are public zone) are declared protected wild areas is not acceptable.

This is because, as follows from the regulation that has been set forth, a series of requirements and scientific, technical, legal, administrative, and budgetary elements are required to create those areas (…)' (the emphasis was supplied).\n\nEven recently, unanimously, this Court issued judgment no. 2022022606 of 1:10 p.m. on September 28, 2022, in which it declared the unconstitutionality of law no. 9348 of February 8, 2016, called 'Ostional National Wildlife Refuge Law,' due to the lack of technical support:\n\n'-The challenged law, in its various norms, disaffects and reduces the degree of protection of the Ostional Wildlife Refuge (Refugio de Vida Silvestre Ostional): As the petitioner points out, the legislature established several provisions that imply a disaffectation of the area to be protected and reduce the degree of protection that had been conferred upon it. The foregoing, without it having been justified in a technical study, as this Court has repeatedly indicated.

Article 5, for example, changed its legal nature from a purely public refuge to a mixed one, establishing that, from that moment on, it would no longer be composed only of state-owned lands, but also of privately owned lands that have been registered in the respective registry, and although the norm warns that this will occur provided that both forms of property are subjected to uses compatible with their conservation and environmental protection objectives, under an integral conservation approach, the truth is that subsequent articles authorize activities for which there is no prior technical study that has determined that, through these, the purpose for which it was constituted will not be affected. Article 8 challenged here provides that, in 'the demanial areas of the Refuge, concessions may be granted to current occupants,' with the exception of those located within a fifteen-meter protection area around the estuaries and mangroves of the Refuge; forests, forest lands (terrenos forestales), wetland ecosystems, the fifty meters of the public zone of the maritime-terrestrial zone counted from the ordinary high-tide line, areas exposed during low tide, islets, rocks, and other small areas and natural formations that protrude from the sea.

That numeral indicates that the Conservation Area (Área de Conservación) may grant concessions when the study conducted for the specific case technically determines that they are not incompatible with the objectives and scopes established in the general management plan (Plan general de manejo), for the following potentially compatible uses 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) Infrastructure for scientific or cultural research and training. f) Facilities for communal services and social welfare. g) Research and operation of community projects.' And article 12 even establishes a payment of fees for the exercise of those activities. That is, with those provisions, the refuge not only loses part of its territory by changing its nature and establishing that there will be privately owned lands within it, but also, without a prior technical study verifying the potential environmental impacts, as the precautionary principle would require, various activities are authorized that differ from those established by the Forestry Law (Ley Forestal) for this type of mixed-nature refuge (for example: the agricultural, residential, and commercial use contemplated in the challenged article 8).

Ordinal 9 of the same law also innovates, authorizing land-use (uso de suelo) permits to public institutions to provide public services that are outside the scope of protection, without there being a prior technical study that similarly justifies why not only are certain protection areas disaffected, but the degree of environmental protection of these has also been reduced, since previously all those activities were not permitted, and now they are authorized in the law, without previously accrediting that they will not cause environmental damage. In a similar sense, numeral 10 of this law opens the possibility for the Tempisque Conservation Area (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 development of community projects. Moreover, in these two numerals, the areas that are excluded for the granting of concessions, as the Attorney General's Office correctly asserts in its report, are not excluded.

Indeed, wetlands, forest areas (área de bosque), forest lands (forestales) or those with that status, and other areas excepted in articles 8 and 11 of the law are not safeguarded from the public zone, which violates numerals 50 and 89 of the Fundamental Charter. Certainly, the challenged law establishes in ordinal 11 that a General Management Plan must be issued prior to the granting of concessions in the Refuge, determining that the uses are oriented toward the Refuge's conservation objectives, with the technical environmental limitations and potentialities of each zone or subzone; however, given the particularities of this case, where it is reiterated that greater normative protection already existed and not only part of its territory was disaffected, with purposes even diverse from environmental protection, but also the degree of protection it had with respect to some areas was diminished, in order to resolve an occupation problem within this area, which is foreign to its purpose, the origin of the legal reform required being supported by a technical study that justified such changes and compensated the existing environmental protection, as this Court had already indicated, with respect to this same refuge, when ruling through legislative consultation on bill no. 18.148, 'Community Coastal Territories Law,' in judgment no. 2013-10158 of 3:46 p.m. on July 24, 2013.

Nevertheless, it is once again absent.\n\n-Absence of technical support: In legislative file No. 18939 that gave rise to Law No. 9348, it is not apparent that the requirement of technical support was complied with, in the terms already indicated by this Chamber in the aforementioned vote 2013-010158. Clearly, from the statement of motives of the bill, it is inferred that, at that time, they did not have the supporting technical reports, when it states: 'The technical studies referred to by the Constitutional Chamber are highly advanced… They will be presented to the legislative stream in due course.' Although the Minister of Environment indicates in his report that there will be a General Management Plan, as a prior requirement for the granting of concessions, and that there will also be a specific study in each case, this does not substitute the PRIOR technical studies that must exist as a basis for the bill that essentially entails the reduction of the Ostional Wildlife Refuge.

This is because such studies are not a mere formality, nor can they be substituted by subsequent or specific studies; rather, allowing land uses, beyond those related to the conservation of a Wildlife Refuge, is to denature the refuge's reason for being, to reduce in any case the refuge's area, and thereby violate the right to the environment. Regarding what was indicated by the coadjuvant that the technical report for the law is the one prepared by Dr. Allan Astorga, called 'Strategic Environmental Assessment Report for the Ostional Management Plan,' it must be indicated that this Chamber was able to observe said report, and it is concluded that this is clearly not the report that technically justifies the law, basically for three reasons: the date of the report, the justification, and its content. Said report dates from 2009, the bill was presented in 2013 and was provided to the legislative file in June 2015.

A base technical report for a bill must be submitted attached to the bill. Furthermore, note that when this Chamber heard the matter in consultation, in the 2013 vote, nothing was said at that time about this 2009 technical report as the basis for the bill. Moreover, the justification for said report is unrelated to the bill, since what is indicated is that: It is a base study for the preparation of the Management Plan of the Refuge ('The objective of the study is to develop a zoning of Environmental Fragility Indices (EFA) for the Ostional National Wildlife Refuge… with the purpose of establishing a technical basis for the Management Plan of this set of important ecosystems.'). Finally, its content does not refer to what a technical report supporting a bill that reduces the level of protection of a wildlife refuge should refer to, since it does not indicate specifically why it is reduced, how it is reduced, or what compensatory measures are established.\n\n-Environmental demaniality (demanialidad ambiental) implies a special protection regime: The declaration of demaniality for environmental reasons implies a special sphere of protection, to the extent that it configures a special domain regime, regulated by intense public law norms that seek to safeguard compliance with a purpose of protecting the right to a healthy and ecologically balanced environment.

In light of those constitutive reasons and for the sake of the benefits underlying its teleological dimension, any determination of total or partial disaffectation, or of recomposition of its legal nature, demands and imposes the due technical analyses that weigh the environmental variable in decision-making, as a derivation of the principles of non-regression, progressivity of the environment, precautionary, preventive, and pro-natura. The special constitutional protection of the environment imposes an exhaustive study of the reasons supporting such determinations, in the context of the various levels that make up ecosystems, as well as the relationships of the environment with the anthropological surroundings and, within this, the social and economic incidences, among others. Thus, the absence of such technical rigor in the variation of the nature of the environmental public domain disregards and violates, even by risk, the substantial content of that right.

The same must be noted regarding the permissibility of carrying out human activities within those territorial spaces, without due consideration of the impact that those may produce on the environment, for which it is necessary to consider the primary use regime of the good, the typology of convergent ecosystems in that area, and the existence or not of special use regimes imposed by legal norms. Indeed, the variation of use of a good to which an environmental protection regime has traditionally been conferred requires technical assessments regarding the consequences that those new anthropic incursions will produce in the ecosystem, as well as whether they are congruent with the environment, within a context of environmental sustainability. This implies weighing permitted conduct, corrective actions and procedures, mitigation measures, compensatory actions, among another series of considerations that are absent from this file.

Such deficiency, as has been stated, implies substantial injuries that this Chamber cannot overlook if it is understood that public heritage, from a conceptual standpoint, refers to the set of goods that by law (or superior norm) are affected to a public use and purpose. While their use regime is not totally incompatible with private exploitation by third parties, subject to prior express administrative authorization, which must be expressly regulated by legal source, when it concerns an environmental public domain (demanio ambiental), the assessment of this framework of permitted activities requires a meticulous, cautious, technical analysis, considering the conditions and characteristics proper to the environment, as a protected legal good and its undeniable significance for the realm of contemporary human rights and future generations. It is this purpose of protection that imposes the type of special, technical considerations that have been referred to, in an effort to fulfill the constitutional obligation to safeguard the right to a healthy and ecologically balanced environment (…)' (the highlighting was incorporated).\n\nThus, it is evident that this specialized Chamber has reiterated in multiple pronouncements the importance of the principle of objectification of environmental protection, with the purpose of ensuring that environmental decisions are supported by scientific studies, thereby conditioning or restricting the Administration's discretion in such matters.

In this regard, in relation to the natural and urban environment, it is detailed in the aforementioned judgment no. 2003003656 of 2:43 p.m. on May 7, 2003: 'This last norm provides guidelines for public authorities to promote environmental protection, understood in an integral manner, that is, not understood in its traditional sense limited to the sphere of natural resources, what is commonly known as "the green," insofar as it has been understood to comprise natural resources (forests, water, air, minerals, flora and fauna, etc.), but also in relation to the living environment, which comprises not only the scenic beauties of nature, such as landscape, but also everything relating to cities and urban and rural conglomerates, that is, the concept of the urban. It can well be stated that they are two complementary aspects of one reality, like two sides of the same coin: the natural environment and the urban environment.

It is thus that a more human environment is sought, that is, an environment that is not only healthy and ecologically balanced, but also serves as a symbolic reference and giver of national, regional, or local identity. Thus, the fundamental right to a healthy and ecologically balanced environment - widely developed by constitutional jurisprudence - shall comprise both its natural parts and its artificial parts, the latter understood as the human habitat, that which is built by man, that is, the urban, so that they remain free from all contamination, both for the effects and repercussions it may have on the health of people and other living beings, and for the intrinsic value of the environment' (the highlighting was added).\n\nBased on the foregoing, it is concluded that, in the sub examine, with the enactment of law no. 9892, a portion of the protected wild area 'Isla San Lucas' passed from the management category 'national wildlife refuge' to 'national park'; however, it does not appear from the record that, prior to such an alteration and given the particular nature of Isla San Lucas, Parliament had relied on prior, duly supported scientific studies that from a technical and objective standpoint justified the legislative decision.

Especially since, as indicated ut supra, there is cultural heritage on the island that may be affected due to the change in management category that took place.\n\nNote that, with the law challenged here, a modification was produced in the regime of the protected wild area of Isla San Lucas that entails a differentiated zoning (a new aspect with respect to the previous protection regime). That is, it is not simply a change in the area's name, but rather, in accordance with article 1 of law no. 9892, specific conditions are added: 'in addition to its condition as a protected wild area, it shall be a historical-architectural heritage (patrimonio histórico - arquitectónico) site and a sustainable tourism use zone, in the specific areas determined in this law.' As can be observed, Isla San Lucas now has differentiated management zones; however, no technical study is found demonstrating that there will not be any environmental impact that would necessitate equivalent compensation.

Nor is any technical basis observed to support the differences in management of Isla San Lucas with respect to the general regime for protected wild areas. All of the foregoing, in reality, constitutes a deterioration in the level of environmental protection of the island, since there are no technical criteria that justify the reduction carried out in the wildlife refuge or the zoning proposed in the new national park. Precisely, the technical support for the subdivision (fraccionamiento) ordered is not observed, demonstrating that no damage was generated or will be caused to the entirety of the ecosystem or to the integral protection of the island.\n\nIt is necessary to point out that national wildlife refuges (refugios nacionales de vida silvestre) focus on the conservation, research, increase, and management of wild flora and fauna, especially those that are in the process of extinction. According to the IUCN, this management category focuses on the protection of specific habitats or species, that is, its management is focused on specific, more reduced habitats or species.

Furthermore, in the case of state-owned national wildlife refuges (refugios nacionales de vida silvestre estatales)—such as Isla San Lucas—only those activities defined in the corresponding management plan may be carried out, following examination of the pertinent environmental impact assessments (evaluaciones de impacto ambiental) and, in accordance with Article 70 of the Regulation to the Biodiversity Law, “only research, training, and ecotourism activities may be conducted.” On this matter, Executive Decree No. 32633 of March 10, 2005, ‘Regulation to the Wildlife Conservation Law for Fishing and National Wildlife Refuges’ (Reglamento a la Ley de Conservación de la Vida Silvestre para Pesca y Refugios Nacionales de Vida Silvestre), 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 within the boundaries of Mixed-Ownership Refuges and Private-Ownership Refuges, in accordance with the sustainable development principles set forth in the management plans, the following activities:

• a)Agricultural and livestock use.
• b)Residential use.
• c)Recreational tourist housing.
• d)Tourism developments, including hotels, cabins, lodges, or others carrying out similar activities.
• e)Commercial use (restaurants, stores, 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 deems pertinent and compatible with conservation and sustainable development policies.” For their part, national parks (parques nacionales) possess other types of 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 set aside to protect large-scale ecological processes, along with the complement of species and ecosystems characteristic of the area, which also provide a foundation for spiritually, scientifically, educationally, recreationally, and visitor-compatible environmental and cultural opportunities.” In that sense, as indicated ut supra, the ‘Convention for the Protection of the Flora, Fauna, and Scenic Natural 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) establishes that national parks are placed under official supervision—Article 1—that the boundaries of this protected wild area management category cannot be altered except through the legislative authority, and that the Contracting Governments must provide facilities “for the public’s enjoyment and education, in accordance with the purposes pursued by this Convention”—Article 3.

Additionally, although national parks seek the protection and conservation of natural beauties and biodiversity, it is no less true that public enjoyment is also promoted and the restricted granting of certain concessions and permits is allowed, under the terms set forth in Article 12 of the National Parks Service Law. Furthermore, in this management category, the exploitation of existing resources for commercial purposes is prohibited.

Likewise, Article 8 of the National Parks Service Law contains a series of prohibitions for visitors to national parks, namely:

“ARTICLE 8.—Within national parks, visitors are prohibited from:

• 1)Felling trees and extracting plants or any other type of forest products.
• 2)Hunting or capturing wild animals, collecting or extracting any of their products or remains.
• 3)Hunting marine turtles of any species; collecting or extracting their eggs or any other product 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 in the case provided for in Article Ten.
• 6)Collecting or extracting corals, shells, rocks, or any other product or waste from the sea.
• 7)Collecting or extracting rocks, minerals, fossils, or any other geological product.
• 8)Carrying firearms, harpoons, and any other instrument that could be used for hunting.
• 9)Introducing exotic animals or plants.
• 10)Grazing and watering livestock or keeping bees.
• 11)Causing any type of environmental pollution.
• 12)Extracting stones, sand, gravel, or similar products.
• 13)Feeding or giving drink to animals.
• 14)Building electric or telephone transmission lines, aqueducts, highways, or railways.
• 15)Carrying out any type of commercial, agricultural, or industrial activity.” On the other hand, in June 2020, SINAC issued the General Management Plan for the Isla San Lucas National Wildlife Refuge, which referenced, among other things: i) general characteristics of the refuge; ii) a socio-economic-environmental-cultural diagnosis; and iii) a strategic framework for the management of the protected wild area. Now, although the referenced plan conducted an updated analysis of the strengths, weaknesses, threats, and opportunities faced on Isla San Lucas, it is no less true that this study was carried out in order to establish the management of the Isla San Lucas National Wildlife Refuge, but not to determine the appropriateness, or lack thereof, of a portion of its surface area (which includes a cultural heritage zone) becoming a national park with a ‘tourist zone’ under differentiated management. That is to say, there are no technical studies on record that support the law’s scope in those terms.

In that sense, for example, the aforementioned plan established the focal management elements, which “consist of a process of selecting a reduced number of biodiversity resources that will be a priority for the management of the Isla San Lucas National Wildlife Refuge. The focal management elements guide the Refuge administration in the allocation and prioritization of resources.” Thus, the focal management elements considered in the General Management Plan for the Isla San Lucas National Wildlife Refuge—namely, i) remnant tropical dry forest; ii) marine-coastal resource; iii) the infrastructure of the former Penitentiary, declared Architectural Heritage; and iv) the archaeological sites—are those that guide resource allocation in that protected wild area.

This is of importance because it reflects that the study in question focused on the characteristics and conservation purposes of a specific management area, namely, the Isla San Lucas National Wildlife Refuge, and not on the technical and environmental feasibility of a sector of its geographic space being managed under another management category, with its differentiating specificities, such as a national park, nor did it examine the implications that this modification generates for the island’s cultural heritage.

Indeed, it is noteworthy that the referenced General Management Plan for the Isla San Lucas National Wildlife Refuge stated:

“6. Management category of the Protected Wild Area (ASP) The category assigned to this ASP fully conforms to its geographic, ecological, environmental, and social conditions. The current regulations, both International and National (Executive Decree 34433, Gaceta 68 of April 8, 2008), indicate that National Wildlife Refuges: Geographic areas that possess terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination thereof. Their main purposes shall be the conservation, research, increase, and management of wild flora and fauna, especially those that are endangered. For classification purposes, there are three classes of national wildlife refuges: e.1) State-owned refuges. Those in which the areas declared as such belong entirely to the State and are public domain. Their administration shall correspond exclusively to SINAC. Their main objectives are: the conservation, research, and management of wild flora and fauna, especially those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species.

As they are the natural heritage of the State, only research, training, and ecotourism activities may be carried out. e.2) Privately-owned refuges. Those in which the areas declared as such belong entirely to private individuals. Their administration shall correspond to the property owners and shall be supervised by SINAC. Their main objectives are: the conservation, research, and management of wild flora and fauna, especially those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. On the lands of privately-owned refuges, only productive activities may be carried out in accordance with the provisions of the Regulation 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. Those in which the areas declared as such belong in part to the State and in part to private individuals.

Their main objectives are: the conservation, research, and management of wild flora and fauna, especially those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. Their administration shall be shared between the private owners and SINAC, such that on lands owned by the State, only the activities previously indicated for state-owned refuges, indicated in subsection i), may be carried out, while on privately-owned lands, the activities indicated for privately-owned refuges, indicated in subsection ii), may be carried out, respecting the respective criteria and requirements.

Having analyzed the current regulations, the ASP’s creation objectives, geographic and ecological context, zoning, sustainable development opportunities, and socio-economic context, it can be concluded that the wild area declared as a national refuge is properly categorized” (emphasis added).

Therefore, the June 2020 General Management Plan for the Isla San Lucas National Wildlife Refuge is not an adequate technical study to underpin the appropriateness of changing the category of a surface area of the aforementioned refuge to a national park, because it does not satisfy the criteria established for scientific studies to validate a management category change, namely, that they be prior, sufficient, individualized, and duly supported in order to determine reasonably that no harm will be caused nor the environment, and, in this particular case, the cultural heritage, endangered.

In relation to the sub lite, the IUCN stated to this Court that: “in the case of the San Lucas National Park, the category change denotes 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 justifications for the category change and for the insertion of tourism activities within the site. As can be seen in the table below, the permitted uses in a Wildlife Refuge and a National Park differ in that the refuge allows direct management and use activities of biodiversity, construction of public works, and tourism and recreational infrastructure. These activities are not permitted in the national park (…)”.

Having reached this point, given that the foregoing bears on the precautionary principle or in dubio pro natura, it is appropriate to clarify its notion. First, in judgment No. 2004002473 of 8:32 a.m. on March 12, 2004, it was conceptualized as follows:

“IV.- PRECAUTIONARY PRINCIPLE OF ENVIRONMENTAL LAW. One of the guiding principles of Environmental Law is the precautionary principle or prudent avoidance. This principle is set forth in the United Nations Conference on Environment and Development or Rio Declaration, which literally states: “Principle 15.- In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” In the domestic legal system, the Biodiversity Law (No. 7788 of April 30, 1998), in its Article 11, sets forth the following principles as hermeneutic parameters: “1.- Preventive criterion: It is recognized that it is vitally important to anticipate, prevent, and attack the causes of biodiversity loss or its threats. 2.- Precautionary criterion or indubio pro natura: Where there is danger or threat of serious or imminent harm to the elements of biodiversity and to the knowledge associated with them, the absence of scientific certainty shall not be used as a reason for postponing the adoption of effective protection measures.” In this Chamber’s Ruling No. 1250-99 of 11:24 a.m. on February 19, 1999 (reiterated in Rulings Nos. 9773-00 of 9:44 a.m. on November 3, 2000, 1711-01 of 4:32 p.m. on February 27, 2001, and 6322-03 of 2:14 p.m. on July 3, 2003), this Court held the following: “(...) Prevention seeks to anticipate negative effects and ensure the protection, conservation, and adequate management of resources.

Consequently, the guiding principle of prevention is based on the need to take and assume all precautionary measures to avoid containing the possible impact on the environment or people’s health. Thus, in the event that there is a risk of serious or irreversible damage—or any doubt in that regard—a precautionary measure must be adopted and even the activity in question postponed. This is because in environmental matters, a posteriori coercion is ineffective, since once the socially harmful biological consequences have already been produced, repression may have a moral significance, but will hardly compensate the damage caused to the environment.” Subsequently, in Ruling No. 3480-03 of 2:02 p.m. on May 2, 2003, this Court indicated that “Properly understood, the precautionary principle refers to the adoption of measures not in the face of ignorance of risk-generating facts, but in the face of a lack of certainty that such facts will actually produce harmful effects on the environment.” For cases such as the one under study, the precautionary principle or indubio pro natura supposes that when there are no studies or reports conducted in accordance with the univocal and exactly applied rules of science and technique that allow reaching a state of absolute certainty about the innocuousness of the activity intended to be developed on the environment, or these are contradictory among themselves, the entities and bodies of the central and decentralized administration must refrain from authorizing, approving, or permitting any new or modification application, suspend those underway until the uncertain state is cleared, and, concurrently, adopt all measures aimed at its protection and preservation in order to guarantee the right to a healthy and ecologically balanced environment.

In essence, sound environmental management entails protecting the resource before its degradation.” This criterion has been reiterated in multiple pronouncements; for example, in judgment No. 2019012579 of 1:20 p.m. on July 5, 2019:

“… the precautionary principle or in dubio pro natura supposes that when there are no studies or reports conducted in accordance with the univocal and exactly applied rules of science and technique that allow reaching a state of absolute certainty about the innocuousness of the activity intended to be developed on the environment, public entities and bodies must refrain from authorizing, approving, or permitting any new or modification application, suspend those underway until the uncertain state is cleared, and, concurrently, adopt all measures aimed at its protection and preservation in order to guarantee the right to a healthy and ecologically balanced environment (…).” (See in the same sense, judgments Nos. 2019012549 of 1:20 p.m. on July 5, 2019, and 2012016866 of 2:30 p.m. on December 4, 2012, among many others).

Now, upon better consideration, the undersigned justices deem it unavoidable to clarify the notion of the precautionary principle or in dubio pro natura in several respects.

First, the preventive principle must not be confused with the precautionary principle, since they possess particularities that differentiate them from one another, which was reflected in judgment No. 2021024807 of 9:20 a.m. on November 5, 2021, in which this Chamber detailed: “In this line of thought, specialized doctrine has indicated that the preventive principle demands that, when there is certainty of possible harm to the environment, the affecting activity must be prohibited, limited, or conditioned upon compliance with certain requirements. In general, this principle applies when there are clearly defined risks identified at least as probable; likewise, this principle is useful when there are no technical reports or administrative permits that guarantee the sustainability of an activity, but there are sufficient elements to foresee eventual negative impacts. On the other hand, the precautionary principle states that, where there is danger of serious and irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

From the foregoing, it is noted that the principle is based on reasonable scientific uncertainty together with the threat of serious and irreversible environmental harm. In general terms, a relevant difference between the preventive principle and the precautionary principle lies in the level of knowledge and certainty about the risks that an activity or work may cause. Whereas in the former such certainty exists, in the latter what is observed is a state of doubt resulting from scientific information or technical studies (…)” (emphasis supplied).

Second, the precautionary principle must be understood precisely as contemplated by Principle XV of the Rio Declaration on Environment and Development: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” That is, it is not about the requirement to have scientific studies to reach ‘absolute certainty’ of an activity’s innocuousness toward the environment (in principle, total safety is hardly attainable), but rather that, even if the danger of serious or irreversible harm to the environment is not fully assured, such uncertainty shall never justify or excuse postponing the execution of effective measures to prevent environmental degradation. In this regard, note, on the one hand, that it is not just any threat—it must plausibly involve a serious danger—and, on the other, that the measure demands an effective and efficient use of the resources employed.

In the sense set forth, even though the precautionary principle is linked to a certain level of scientific uncertainty, this does not imply that it can be used unrestrictedly under the argument that any activity could cause harm to the environment, which would denature its purpose, but rather it is necessary to have some degree of identification of the dangers of serious or irreversible harm that could be generated, the determination of which varies according to the particularities of the specific case. Thus, when faced with a situation that requires the application of the precautionary principle, public entities and bodies must refrain from authorizing, approving, or permitting any new or modification application that reasonably entails a serious risk; they are even obligated to suspend activities that were underway, and concurrently they must efficiently adopt all measures required for the preservation of a healthy and ecologically balanced environment.

The referenced principle is likewise set forth in a hard law legal source, since Principle 3 of the United Nations Framework Convention on Climate Change—ratified by Costa Rica through Law No. 7414 of June 13, 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 are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To this end, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise 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 August 23, 2006—, in which it reads:

“ARTICLE 1 Objective Bearing in mind the precautionary approach as set forth 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 (…)”.

Similarly, this principle is contemplated in another international human rights law instrument, such as the Convention on Biological Diversity, ratified by 34 OAS Member States, including Costa Rica, through Law No. 7416 of June 30, 1994, in whose preamble it is established: “(…) Noting that it is vital to anticipate, prevent and attack the causes of significant reduction or loss of biological diversity at source. Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat (…)”.

In line with the referenced regulations in force in the country, the Inter-American Court of Human Rights also referred to the precautionary principle in Advisory Opinion OC-23/17 of November 15, 2017:

“180. (…) Therefore, this Court understands that, States must act in accordance with the precautionary principle, for purposes of protecting the right to life and to personal integrity, in cases where there are plausible indicators that an activity could cause serious and irreversible damage to the environment, even in the absence of scientific certainty. Therefore, States must act with due caution to prevent possible damage. Indeed, in the context of protecting the rights to life and to personal integrity, the Court considers that States must act in accordance with the precautionary principle, and therefore, even in the absence of scientific certainty, they must adopt measures that are “effective” to prevent serious or irreversible damage” (emphasis added).

Subsequent to that resolution and through a judgment, in Indigenous Communities Members of the Lhaka Honhat Association (Our Land) v. Argentina, the IACHR Court ruled on February 6, 2020, as follows: “the right to a healthy environment ‘must be considered included among the rights […] protected by Article 26 of the American Convention,’ given the obligation of States to achieve the ‘integral development’ of their peoples, arising from Articles 30, 31, 33, and 34 of the Charter.” Of high significance, it must be underscored that, in this ruling, the IACHR Court refers to Advisory Opinion No. OC-23/17 for the purpose of developing the content and scope of that right, whereby the legal considerations of the latter have logically come to attain the legal binding force proper to a judgment. In that sense, the international jurisdictional body reiterates “that the right to a healthy environment ‘constitutes a universal interest’ and ‘is a fundamental right for the existence of humanity,’ 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 about the risk to individual persons.

It is about protecting nature,’ not only for its ‘utility’ or ‘effects’ with respect to human beings, ‘but for its importance for the other living organisms with whom the planet is shared.’ The foregoing does not prevent, of course, other human rights from being violated as a consequence of environmental damage.” Precisely, in developing the conceptualization of the right to the environment, the IACHR Court clearly details State obligations in the face of possible damage to the environment, such as the duty of prevention, the precautionary principle, the obligation of cooperation, and access to information.

In sum, the application of the precautionary principle implies that when there are indicators that a certain activity could plausibly cause serious and irreversible damage to the environment, the lack of absolute scientific certainty or evidence in that regard does not exempt from the obligation to adopt all those 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 and private legal subjects.

Having clarified the foregoing, and in consideration of the particularities of Isla San Lucas, it is reiterated that the management category change that took effect with the law challenged here inexorably entails environmental and cultural implications, so the requirement of duly supported scientific criteria is essential. In other words, for the modification of the management category given to Isla San Lucas (which is not only a protected wild area but is also considered cultural heritage) to be logical and constitutionally appropriate, there must be sufficient technical and scientific justification, especially since each management category has biological, edaphic, hydrological, physiographic, ecological, climatic, and, in general, environmentally relevant characteristics, which confer upon it a specificity with distinctive relevance.

In consideration of the foregoing, in the sub lite there is no scientific, objective, and reasonable support on record that justifies the change of management category of a portion of the terrestrial surface of the ‘Isla San Lucas’ protected wild area, much less one that examines the environmental and cultural consequences of such a decision. This is contrary to the precautionary and preventive principles—in environmental and cultural heritage matters—and the principle of objectification of environmental protection.

On the other hand, it is worth citing judgment No. 2013010540 of 3:50 p.m. on August 7, 2013, in which this Chamber stated:

“6.4.- Violation of Article 89 of the Political Constitution. This constitutional norm provides, in relevant part: ‘Among the cultural purposes of the Republic are: to protect natural beauties...’ Regarding this norm, INCOPESCA asserts that it bears no relationship whatsoever to shrimp fishing by means of trawl nets on marine floors. The petitioners, for their part, consider that marine scenic beauty is being destroyed and turned into murky waters by the onslaught of the trawl net.

The Chamber agrees with this latter assessment. Natural beauty is not limited to the environment that our eyes appreciate, much less to the external face of the earth. Natural beauty is not reduced to an aesthetic concept.

As the Chamber has rightly highlighted through a material and evolutionary interpretation in its case law, the concept of natural beauties (bellezas naturales) used by the framers of the 1949 Constitution is encompassed within the required protection of the right to a healthy and ecologically balanced environment:

“XIII.— (…) The term ‘natural beauties’ (bellezas naturales) was the one employed at the time the Constitution was promulgated (November 7, 1949), which today has developed into a specialty of law; environmental law recognizes the need to preserve the surroundings not as a merely cultural end, but as a vital necessity of every human being. In this sense, the concept of the right to a healthy environment surpasses the recreational or cultural interests that are also important aspects of life in society, but rather constitutes a capital requirement for life itself (…) (Judgment 9193-2000 of 16:28 hours on October 17, 2000).

The concept of natural beauties is closely related to the concept of natural heritage (patrimonio natural). It is no accident that the provision refers to historical and artistic heritage, such that the provision regulates three types of heritage essential for preserving the identity of a Nation and its physical, cultural, and social subsistence. Included within the concept of natural beauties are hydrobiological resources. The protection of natural beauties includes ensuring the preservation of the environment and ecosystems, because if the latter are destroyed or severely damaged, the former are irremediably harmed. The concept of natural beauties is closely linked to a model of sustainable development, respectful of natural riches and of our natural heritage. The purpose of the provision is to protect, conserve, and develop those three forms of heritage and to subject private initiative to that constitutional purpose.

By virtue of the foregoing, contrary to what INCOPESCA maintains in its report, the deterioration of marine ecosystems caused by trawl net fishing, and as long as devices for the reduction of bycatch (Bycatch Reduction Devices) that significantly reduce bycatch are not available (not all have the same effectiveness, and those that save turtles are not sufficient), directly violates the natural heritage protected in Article 69 through the concept of natural beauties” (emphasis added).

The foregoing implies in the case at bar (sub iudice) that, given the absence of the aforementioned scientific studies, the change of management category in a portion of the surface of San Lucas Island also infringes Article 89 of the Magna Carta, since that modification affects a protected wilderness area (área silvestre protegida), whose constitutional protection coverage extends to the obligation to safeguard natural beauties, even against threats and applying the principle of in dubio pro natura, as well as to preserve cultural heritage (patrimonio cultural), in accordance with constitutional case law, a term that encompasses various types of heritage, such as historical and architectural heritage.

Based on the foregoing, in the case at bar, the undersigned judges consider that the absence of prior environmental scientific studies before changing the management category in a part of the protected wilderness area ‘Isla San Lucas’ violates the precautionary, preventive—in environmental and cultural heritage matters—and objectivization of environmental protection principles, as well as injures the fundamental rights set forth in Articles 50 and 89 of the Political Constitution.

IV.Regarding the alleged unconstitutionality of Law No. 9892 of August 24, 2020 for reducing the surface area of the protected wilderness area ‘Isla San Lucas’ without prior scientific studies.

Of importance for the resolution of this grievance is that, mediante Executive Decree (decreto ejecutivo) No. 34282-TUR-MINAE-C of January 25, 2008 ‘Rectifies, delimits, and expands the boundaries of the Isla San Lucas National Wildlife Refuge and declares the sustainable tourism development of the island of national interest and high priority,’ the boundaries of the San Lucas National Wildlife Refuge were modified. In this regard, Article 1 regulated:

“Article 1.—Modify Article 1 of Executive Decree No. 33327-MINAE, published in La Gaceta No. 172 of September 17, 2006, to read as follows:

Article 1.—Rectify, delimit, and expand the boundaries of the Isla San Lucas National Wildlife Refuge, State property, declared under Executive Decree No. 29277-MINAE published in La Gaceta No. 30 of Monday, February 12, 2001, and its modification Executive Decree No. 32349-MINAE published in La Gaceta No. 92 of Friday, May 13, 2005, so that henceforth they read as follows: A. The terrestrial portion comprised of Isla San Lucas, located in the Golfo de Nicoya, IGN cartographic sheet named 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 extension of 462 ha. The boundaries of the insular terrestrial portion are rectified, excluding the area comprised by the following Costa Rica Lambert North coordinates (…) In the water sector in front of Playa Cocos, the boundaries are rectified, excluding the area comprised by the following Costa Rica Lambert North coordinates: (…) In the water sector in front of Playa Cocos, the boundaries are rectified, excluding the area comprised by the following Costa Rica Lambert North coordinates: (…) Add to the Isla San Lucas National Wildlife Refuge a portion of water described by the following Costa Rica Lambert North coordinates: B. A marine-coastal area comprised of the waters around Isla San Lucas up to a depth of 6 m (…)” (bold added).

Indeed, with respect to this regulatory body and the addition it makes, in Judgment No. 2010013099 of 14:46 hours on August 4, 2010, this Chamber clarified that:

“(…) the Executive Branch may not reduce these (sic) areas without observing the legislative and technical procedure, for which reason the Chamber partially grants the claim to annul Article 1 only 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,” the foregoing due to violation of the provisions of Articles 11, 50, and 89 of the Constitution, and not as to the addition of the marine sector and islets, since that is permitted for the Executive Branch to agree to by Executive Decree” (emphasis added). Therefore, in the aforementioned pronouncement it was ordered: “(…) The action is partially GRANTED. Consequently, Article 1 of Executive Decree No. 34282-TUR-MINAET-C (sic) of January 25, 2008, published in Alcance 10 to La Gaceta No. 28 of February 8, 2008, is annulled as unconstitutional insofar as it modifies only subsection A. of Article 1 of Executive Decree No. 33327-MINAE, except for the addition of the water portion added to the Isla San Lucas National Wildlife Refuge and subsection B, which remain in force (…)”.

In this way, the boundaries of the Isla San Lucas National Wildlife Refuge were expanded by means of Article 1 cited ut supra with respect to the water portion and the addition of a “marine-coastal area comprised of the waters around Isla San Lucas up to a depth of 6 m,” which remained intact in the transcribed decision.

In the matter at hand (sub lite), the challenged Law No. 9892 states:

“ARTICLE 3- Boundaries. The Isla San Lucas National Park shall be comprised of a terrestrial portion and a marine coastal area.

The terrestrial portion shall be comprised of the insular part of Isla San Lucas, located in the Golfo de Nicoya, cartographic sheet of the Instituto Geográfico Nacional named Golfo, Edition 3-IGNCR, at north latitude 9º 55' 55" - 9 57' 20" and west longitude 84º 53' 23", with an extension of four hundred sixty-two hectares (462 ha).

The marine coastal area shall be composed of the waters around the island, with a depth of up to three meters (3 m). Inserted within the two preceding areas, there shall exist a differentiated management space dedicated to sustainable tourism activity, the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be called Tourist Zone (…)” (highlighting added).

Having set forth the foregoing, with the issuance of the aforementioned law, it is undeniable that a portion of Isla San Lucas changed from the management category of ‘national wildlife refuge’ to that of ‘national park’. In this regard, as indicated ut supra, it is feasible for a geographical space, generally of great extension, to be declared a protected wilderness area and for different management plan categories to coexist on its surface, the determination of which inexorably requires prior scientific studies.

Now, while Article 1 of Law No. 9892 created the Isla San Lucas National Park, it is no less true that it did not eliminate the Isla San Lucas National Wildlife Refuge, given that Executive Decrees No. 29277-MINAE of January 11, 2001, and 34282-TUR-MINAE-C of January 25, 2008, remain in force, which implies that in that geographical zone (the entire protected wilderness area) two different management categories coexist. Consequently, contrary to what the plaintiffs allege, in the instant case (sub examine) it is not apparent that a part of the marine coastal area of the island and the Pan de Azúcar islet have been left without any protection, since those surfaces continue to be a protected wilderness area with the category of national wildlife refuge.

Despite the foregoing, the truth is that at this point the legal development of the preceding section again applies. Thus, in light of the precautionary, preventive—in environmental and cultural heritage matters—and objectivization of environmental protection principles, prior to the declaration, modification, or change of management category of the protected wilderness area ‘Isla San Lucas,’ scientific studies are required for the purpose of verifying that the measure to be adopted will not cause direct or indirect damages to the detriment of a healthy balance between the environment and cultural heritage.

Precisely, in the case at bar, the minimum scientific-environmental support to ground the designation of the new boundaries of the Isla San Lucas National Wildlife Refuge is lacking, boundaries which, it bears repeating, were drastically reduced. Nor are there scientific studies that justify the reason why one portion of the island’s surface remains under the management category of national wildlife refuge while the other changed to national park. This is even more serious because, as indicated ut supra, i) that decision generates environmental implications in a protected wilderness area, especially since the specifications (biological, edaphic, hydrological, physiographic, ecological, climatic, and others of similar nature) of the management categories at issue demand different regulations and measures for each of them; and ii) negative implications could be caused regarding the cultural heritage of the island.

Ergo, Article 3 of Law No. 9892 is also unconstitutional for violating the precautionary, preventive—in environmental and cultural heritage matters—and objectivization of environmental protection principles, as well as the fundamental rights set forth in Articles 50 and 89 of the Political Constitution, given the absence of scientific studies justifying the reduction of the boundaries of the Isla San Lucas National Wildlife Refuge.

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 wilderness area, despite lacking prior technical studies.

First, what is regulated in Law No. 9892 must be underlined:

“ARTICLE 1-Creation. The Isla San Lucas National Park is created, which, in addition to its condition as a protected wilderness area, shall be historical - architectural heritage and a zone of sustainable tourism use, in the specific areas determined in this law.

ARTICLE 2- National interest. The sustainable tourism development of the island is declared of national interest and high priority in the terms of this law, as well as the conservation and restoration of the buildings of the former Isla San Lucas penitentiary. The dependencies of the public Administration and of the private sector, within the respective legal framework, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the island.

ARTICLE 3- Boundaries. The Isla San Lucas National Park shall be comprised of a terrestrial portion and a marine coastal area.

The terrestrial portion shall be comprised of the insular part of Isla San Lucas, located in the Golfo de Nicoya, cartographic sheet of the Instituto Geográfico Nacional named Golfo, Edition 3-IGNCR, at north latitude 9º 55' 55" - 9 57' 20" and west longitude 84º 53' 23", with an extension of four hundred sixty-two hectares (462 ha).

The marine coastal area shall be composed of the waters around the island, with a depth of up to three meters (3 m). Inserted within the two preceding areas, there shall exist a differentiated management space dedicated to sustainable tourism activity, the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be called Tourist Zone.

ARTICLE 4- Purposes. The purposes of the Isla San Lucas National Park are the following:

• a)The preservation of the 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, for the attention of national and foreign visitors.
• d)The enjoyment, recreation, and generation of facilities and amenities for inclusive tourism visitation (…)

ARTICLE 6- Tourist Zone. The areas corresponding to the buildings of the former San Lucas penitentiary, including the pier, as well as the marine and terrestrial access area to the island, the parcels, the trails, and the beach zones indicated, shall be subject to the condition of Tourist Zone. Said areas are specified in the following coordinates:

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

Area of the polygon called “Buildings Area”: 265664.59 1 m2, equivalent to 26ha5664, equivalent to 0.27km2 b) Playa El Coco recreation area: comprised by the following coordinates in the CRTM05 projection: (…)

Area of the polygon called “Playa El Coco recreation area”: 76401.99, equivalent to 7ha6401, equivalent to 0.08km2 c) Sector called Trail Area: comprised by the following coordinates in the CRTM05 projection (…)

Area of the polygon called “Trail Area”: 314277.731 m2, equivalent to 31 ha4277, equivalent to 0.31 km2 d) Area called Water Sector: comprised by the following coordinates in the CRTM05 projection (…)

Area of the polygon called “Water Sector” 746209.m2, equivalent to 74ha6209, equivalent to 0.75 km2.

ARTICLE 7-Scope and restrictions. The Isla San Lucas National Park shall be governed by a master plan elaborated based on technical criteria.

For the fulfillment of the purposes established in this law, concessions and permits for activities and installations other than park services may be granted in the tourist zone. Lodging services and games of chance shall not be permitted in this zone.

In any case, the participation of local organizations in the granting of concessions shall be promoted.

Any conflict of jurisdictions shall be resolved by the Minister of Environment and Energy (…)

ARTICLE 9- Duties and powers. The Board of Directors of the Isla San Lucas National Park shall have the following powers:

• a)Define the 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 the guidelines for protection, restoration, and administration of the historical buildings, developing installations and services intended for the rest and recreation of visitors, the habilitation and accessibility of land and sea routes, port constructions, and, in general, the provision of all basic services.
• d)Define the environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that incentivize tourism attraction and visitation to the island.
• e)Approve the strategic objectives for the marketing and promotion necessary to make the Isla San Lucas National Park known, both within and outside the country.
• f)Grant approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourist Zone.

In the case of works related to areas declared heritage, coordination shall be made with the Ministry of Culture.

• g)Approve the master plan of 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, modify, or revoke any trust related to the Isla San Lucas National Park, as well as all types of contracts and agreements with entities and persons, public or private. It shall determine the entrance fees to the national park, as well as approve the contracts for the various reservation and purchase systems.
• j)Approve the use of public works concession with public service and mutual benefit contracting with non-profit entities.
• k)Carry out any other type of action necessary to ensure the smooth running of the Isla San Lucas National Park and the achievement of its purposes.

In matters of conservation and preservation of historical-architectural heritage, the criterion of the Centro de Investigación y Conservación del Patrimonio Cultural of the Ministry of Culture 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. At the request of the Board of Directors, said entities shall provide their criteria in the most expeditious manner possible (…)

ARTICLE 14-Trust Administrative Commission and its functions. The Trust Administrative Commission shall appoint from its bosom a president, a vice president, and a secretary. All members of this commission shall work ad honorem.

Among the functions of this commission are the following:

• a)Fulfill all those tasks or duties entrusted by the settlor, established in the trust agreement.
• b)Coordinate with the Board of Directors of the Isla San Lucas National Park and follow its general guidelines, for the correct operation and fulfillment of the trust.
• c)Approve the manuals corresponding to administration, management, surveillance, and others related to the trust.
• d)To know and approve, annually, the ordinary and extraordinary budgets of the trust.
• e)Instruct the trustee on the actions required and that fall within the scope of the trust.
• f)Meet at least once a month in ordinary session and, extraordinarily, whenever convened by the Presidency of the Board or the trustee’s representative.
• g)Approve the agreements and contracts for the provision of recreational and/or commercial services, as well as essential and non-essential services, to achieve the greatest use of the Tourist Zone and enjoyment of visitors.
• h)The functions attributed to it by the trust agreement relating to internal control, surveillance, procurement, personnel, and others necessary for the administration of the national park.
• i)Any other function that arises from the trust agreement, its manuals, or others directly related (…)

ARTICLE 16- Infrastructure development. The Isla San Lucas National Park may develop all the infrastructure necessary to facilitate sustainable tourism, including the provision of water, electricity, telecommunications, hygiene and sanitation, piers, docks, food services, and access, information, and communication routes in various formats, as well as that which it deems pertinent for the benefit of visitors and to ensure the enjoyment and appreciation of the historical, architectural, and natural wealth of the park.

In the construction of piers, docks, and other maritime facilities, the Instituto Costarricense de Puertos del Pacífico (INCOP), 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; likewise, these institutions are empowered to build and maintain the works indicated in this provision” (highlighting added).

• A)As to the declaration of national interest and high priority of sustainable tourism development on San Lucas Island, as well as the development of infrastructure to facilitate it, including piers and docks.

It is worth noting that, previously, matters relating to tourism on San Lucas Island were regulated in the aforementioned Law No. 5469, which established:

“Article 2.— The Municipality shall use the Island as a tourist center, for which it is authorized to contract the necessary infrastructure works (…)

Article 4.— On the Island and for the purposes of this law, hotels and all those activities that are typical of a well-organized tourist operation may function.” Subsequently, Executive Decree No. 34282 ‘Rectifies, delimits, and expands the boundaries of the Isla San Lucas National Wildlife Refuge and declares the sustainable tourism development of the island of national interest and high priority,’ provided:

“Article 2.—Declare the sustainable tourism development of the island of national interest and high priority in the terms of this decree, as well as the conservation and restoration of the buildings of the former penal colony on Isla San Lucas. The dependencies of the Public Administration and of the Private Sector, within the respective legal framework, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the Island (…)

Article 4.—The following is prohibited in the Municipal Administration Area:

• 1)The supply of fuels and their derivatives in order to avoid environmental contamination.
• 2)The use of water for tourism activities against the technical standards issued by the Department of Waters of MINAE in collaboration with the Instituto Costarricense de Acueductos y Alcantarillados, if required, so as to preserve the ecological flow necessary for the maintenance of the island’s ecosystem.
• 3)The use of Cultural Heritage against the technical standards issued by the Ministry of Culture, Youth, and Sports.
• 4)Fishing and hunting.
• 5)Other limitations established by the Permanent Commission in accordance with the pertinent technical studies.

Article 5.—For the development of tourism activities in the municipal administration area and the preservation of the island’s cultural heritage, the ICT shall prepare a Master Plan for Sustainable Tourism Development, which shall include an analysis of the environmental impact 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 Master Plan for Sustainable Tourism Development shall contain at least the following elements:

• a)Zoning study, by which land uses are defined.
• b)Zoning regulations (ordinances and regulations) that define and establish the criteria and standards for land use, construction and use of buildings, facilities, public services, buffer zones, among others, necessary for limited and sustainable tourism development and for the protection of the Island’s cultural heritage.
• c)Strategy plan for project execution, which establishes the programs, projects, and activities, both by private initiative and public investment, in the interest of sustainable development and protection of cultural heritage.

The Master Plan for Sustainable Tourism Development shall be submitted to the Secretaría Técnica Nacional Ambiental of MINAE and to the Ministry of Culture, Youth, and Sports for their approval, in accordance with the requirements and procedures established by the legal system.

The municipal administration area shall be regulated by the cited Master Plan for Sustainable Tourism Development, and the Refuge Management Plan shall not be applicable to it, except for the pertinent general legal rules. MINAE shall adjust its Management Plan in accordance with the new dimensions of the refuge and the Master Plan for Sustainable Tourism Development (…)”.

Precisely, in Judgment No. 2010013099 of 14:56 hours on August 4, 2010, this Chamber resolved an unconstitutionality action against such decree in this vein:

“IX.- On the implications of sustainable development and tourism.— The cornerstone of development is environmental sustainability; its 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 core idea of the principles of environmental law lies in the rational use of natural resources, with environmental protection to ensure sustainability for present and future generations. All economic or productive activity that intervenes in or uses the environment must respond to the philosophy of sustainable development according to the impact it has on it; in that sense, by basing itself on these types of objectives for economic and social development, this Chamber considers that rural tourism as such must respond to those values that protect sustainable development, because it could not be the exception, and it is constitutionally relevant to control the repercussions it may generate on the environment.

An example of this is the Certification for Tourism Sustainability issued by the Instituto Costarricense de Turismo as a component of utmost importance, which denotes progress in protecting the right to a healthy and ecologically balanced environment while simultaneously promoting economic diversity; this measure generates incentives in favor of companies dedicated to the tourism exploitation of natural and cultural resources. On the other hand, Law No. 8724, which is the Law for the Promotion of Rural Community Tourism, seeks to provide benefits to families and communities by using their localities as tourist destinations, and among its provisions is 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 sense, the Global Code of Ethics for Tourism, adopted by resolution A/RES/406(XIII) of the thirteenth General Assembly of the UNWTO in Santiago, Chile, on December 27 to October 1, 1999, and adopted by the United Nations General Assembly in resolution A/RES/56/212 of December 21, 2001, establishes that:

‘Article 3.

Tourism, a factor of sustainable development 1. All the stakeholders in tourism development have the duty to safeguard the environment and natural resources, with a view to achieving 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 incentivize all forms of tourism development that permit saving scarce and valuable natural resources, in particular water and energy, and avoiding as much as possible the production of waste.

(…)

4. Tourism infrastructure shall be designed and tourism activities programmed in such a way as to protect the natural heritage composed of ecosystems and biological diversity, and to preserve endangered species of wild fauna and flora. Stakeholders in tourism development, and particularly professionals in the sector, must accept that limitations be imposed on their activities when these (sic) are carried out in particularly vulnerable areas: desert, polar, or high mountain regions, coastlines, tropical forests, or wetlands that are suitable for the creation of natural parks or protected reserves.

5.

"Nature tourism and ecotourism are recognized as particularly enriching and valorizing forms of tourism, provided they respect the natural heritage and the local population and adapt to the carrying capacity of the tourist sites." For equitable access to development, the traditional idea that it only occurs in urban areas must be abandoned, when in the rural environment other factors that make the place unique can be exploited, while of course ensuring that these conditions are not threatened. There is no doubt that the exploitation of natural resources implies economic diversity; to that extent, the environment requires protection to withstand the burdens of human intervention, so it is necessary to ensure reasonable development in balance with the environment, such that the control that could be exercised would increase according to the impact it may have on it. Consequently, tourism development must not imply the destruction of public domain assets or the surroundings, because it depends on their preservation to achieve the economic improvement of rural communities within the parameters of sustainability.

Among the constitutional purposes of the State is that of developing policies that reduce social and economic gaps, adjusted of course to the environments, whether natural, rural, or mixed, all of which arises from the provisions of Article 50 of the Constitution. Having access to development, in terms of job 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 mean for individuals abandoning their customs and traditional ways of life to migrate to the cities, but rather an adjustment of these to current needs and advances. In this sense, in the opinion of this Chamber, the true challenge for human beings is to generate progress and—why not—happiness (material and spiritual) without threatening the available resources in the environment; otherwise, it would simply translate into social inequalities that impede progress toward a new stage of human development.

This Chamber recognizes that the balance between one and the other is very delicate, but for it to occur, without deteriorating the environment, science and technique must be used to determine which burdens certain natural environments and their resources can withstand, without violating the rights of present and future generations. For all of these reasons, the conflict between environmental protection and other rights derived from it, widely recognized in international human rights instruments, merits these considerations from this Constitutional Chamber. This Chamber considers that rural development, based on tourism directed at the natural and cultural heritage, is constitutionally legitimate as long as it is sustainable. Hence, if science and technique suggest the imposition of certain limitations on the numbers of visitor groups, at certain times, etc., these could not be judged as unconstitutional, given that they respond to sustainability criteria, but without detracting from the different international provisions that safeguard the right to the valorization of those assets that belong to the national history, not only as assets of the national heritage, but of all humanity, and their restriction to the populations is not legitimate (…)

A type of rural tourism with low ecological impact that respects environmental regulations is compatible with Constitutional Law, containing the international obligations widely developed in this Chamber's precedents (to which this Chamber refers), and with Article 89 of the Political Constitution by establishing cultural objectives, among them: protecting natural beauty, conserving and developing the historical heritage, the value of which is enhanced by the access that the population may have to it. Therefore, no incompatibilities are demonstrated between the protection of the environment and the conservation of cultural assets made available to humanity, with a project that must be developed integrally with the environment, which must be comprehensive of all its components, not exclusive (…)

The development of infrastructure must be compatible with the principles of environmental sustainability, its protection, and conservation; on the contrary, they would be constitutionally questionable if works were carried out that did not take into account the protection regimes in force on the Island, such as the construction of large-scale infrastructure works, given that the validity of the regime as a protected area would imply a substantial land-use change (cambio de uso del suelo), and not because of the human works that existed long before the declaration of the Island as a Protected Wild Area and of historical-architectural heritage. Hence, this Chamber does not consider that Articles 2, 3, 4, 6, and 7 of Executive Decree 34282-TUR-MINAET-C (sic) present defects of constitutionality, but understood with the following nuances. The declaration of national interest and high priority of sustainable tourism development, as stated in Article 2, must be understood as constitutional as long as the conservation and restoration of the buildings of the former prison and those constructed on the occasion of its existence are circumscribed to the tasks of conservation, protection, and improvement of their environment.

The same must occur with the archaeological sites and the cemetery located at Playa Cocos, without prejudice, of course, to the archaeological and scientific studies which they must be subject to. Regarding the infrastructure intended for tourist use, it must be strictly limited to the areas of the historical complex and the road leading to Playa Cocos and to this beach; the facilities that must be built will be strictly those necessary to meet the basic needs of visitors and tourism development agents, without the foregoing implying that it can extend beyond developments incompatible with a "green" philosophy, or that are not in tune with the carrying capacity of the place, all of which must be ensured in a sustainable manner according to science and technique. This Court recognizes that it is a true challenge to achieve the conservation and recovery of the Island's buildings, as well as their valorization, 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 offer limited services of nature tourism and ecotourism, as long as they respond to sustainability criteria; otherwise, it would entail a conflict of constitutional relevance with Articles 50 and 89.

Regarding subsections a) and b) of Article 5, they must be understood as constitutional to the extent that what is intended in the Master Plan is adjusted to what has been indicated by this Chamber, especially insofar as the zoning studies and zoning regulations are not based on a reduction of the protected wild area by 5.5% of the area" (highlighting added).

In this way, this Chamber ruled on tourist activity on Isla San Lucas in this judgment, where the constitutionality of Executive Decree No. 34282 was analyzed, which declared the sustainable tourism development of the Isla San Lucas National Wildlife Refuge to be of national interest and high priority, in accordance with a Master Plan for Sustainable Development. In this regard, it was ordered that such a plan must include an environmental impact assessment (evaluación de impacto ambiental, EIA) and the technical standards required to achieve the objectives of economic, social, and environmental development, which had to be submitted to the National Environmental Technical Secretariat (SETENA) and the Ministry of Culture, Youth, and Sports for their approval. On this point, this Chamber established that tourism directed at the natural and cultural heritage was constitutionally valid as long as it was sustainable, for which it was mandatory to have scientific studies determining the feasibility of the tourist activity.

Precisely, for the development of sustainable tourism activities and the infrastructure required for such purposes in the Isla San Lucas National Park to be harmonious with the right to a healthy and ecologically balanced environment, it is essential to have scientific studies under the terms set forth ut supra so that they conform to the principle of objectification of environmental protection. Such studies must be prior, sufficient, and individualized, in such a way that they reasonably guarantee that no damage will be caused nor will the environment be endangered.

Regarding this matter, in the instant case, there is no evidence that before the declaration of national interest and high priority of sustainable tourism development in the Isla San Lucas National Park, as well as the authorization of infrastructure development to facilitate it (including the construction of docks and landing stages), there was support in scientific studies for the purpose of determining whether such activities were in accordance with the purposes of that protected wild area, especially considering that national parks constitute categories of absolute protection.

It should also be noted that, even though Article 7 of Law No. 9892 provides for the existence of a master plan by stating that: "The Isla San Lucas National Park shall be governed by a master plan drawn up based on technical criteria (…)", it is not seen that this includes an environmental impact assessment (evaluación de impacto ambiental, EIA) for the purpose of specifying whether the activities to be developed in the aforementioned national park may harm the environment or not. In addition to the above, according to Article 9 eiusdem, that master plan must be approved by the Board of Directors of the Isla San Lucas National Park, whose composition lacks members of technical appointment related to environmental matters—on this, we will refer in section VI of this dissenting vote—and which, although it must respect the technical criterion issued by SINAC on biodiversity conservation issues, is not obligated to request such a criterion under the terms established in Article 9 of the challenged law.

Recall that in the Isla San Lucas National Wildlife Refuge, according to Executive Decree No. 34282, the Costa Rican Tourism Institute (ICT) must draft a Master Plan for Sustainable Tourism Development, which includes an environmental impact assessment (evaluación de impacto ambiental, EIA) and the technical standards to achieve the objectives of economic, social, and environmental development, as well as the protection of cultural heritage, which must be submitted to both the National Environmental Technical Secretariat (SETENA) and the Ministry of Culture, Youth, and Sports for their approval.

Having clarified this, we verify the violation of the principles of progressivity and non-regression in environmental matters, since the surface area of Isla San Lucas, which went from a wildlife refuge to a national park by virtue of the challenged modification, was previously governed by the Master Plan for Sustainable Tourism Development of the Isla San Lucas National Wildlife Refuge, in which, as indicated ut supra, an environmental impact assessment (evaluación de impacto ambiental, EIA) is indeed required and whose approval falls upon the National Environmental Technical Secretariat (SETENA)—a technical body in environmental matters—and the Ministry of Culture, Youth, and Sports. With the challenged regulation, this geographic space, upon becoming part of the Isla San Lucas National Park, is only governed by a master plan, regarding which there is no express obligation to carry out environmental impact assessments (evaluación de impacto ambiental, EIA) nor for its approval to be subject to a technical body in environmental matters. This worsening in the degree of environmental progression violates the principles of progressivity and non-regression in environmental matters.

In addition to the above, in the sub examine, the injury to the precautionary principle is confirmed, since, by virtue of the change in management category in a part of the ‘Isla San Lucas’ protected wild area, a general authorization arises for more intensive tourism activities to be deployed in that area and, thereby, the danger of serious damage to the environment increases, as explained below. For example, Article 7 of Law No. 9892 contains a general authorization for concessions and permits to be granted in the tourist zone of the Isla San Lucas National Park for activities and facilities other than park services and lodging and gambling services. Additionally, Article 9 eiusdem provides that the Park's Board of Directors has among other powers: "d) Define environmentally sustainable tourism activities, whether commercial, transport, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island (…) f) Grant the approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourist Zone (…)".

In this way, Law No. 9892 provides a general enabling authorization for the development of tourism activities of various types, including commercial, sports, artistic, cultural, and transport activities, which could generate serious or irreversible damage to the environment and cultural heritage, despite which a precautionary measure as elementary and basic as a prior scientific study was omitted, through which there would be at least data such as the tourist carrying capacities that this wild area can withstand according to its characteristics and conservation purposes, so as to prevent damage to the environment and cultural heritage. This, despite the fact that this Constitutional Chamber has highlighted the importance of scientific criteria in determining the feasibility or not of tourism activities that may violate the right to a healthy and ecologically balanced environment. In that sense, recall that the aforementioned Judgment No. 2010013099 of 2:56 p.m. on August 4, 2010, ruled that: "This Chamber considers that rural development, based on tourism directed at the natural and cultural heritage, is constitutionally legitimate as long as it is sustainable.

Hence, if science and technique suggest the imposition of certain limitations on the numbers of visitor groups, at certain times, etc., these could not be judged as unconstitutional, given that they respond to sustainability criteria, but without detracting from the different international provisions that safeguard the right to the valorization of those assets that belong to the national history, not only as assets of the national heritage, but of all humanity, and their restriction to the populations is not legitimate." The foregoing leads, likewise, to a violation of the principles of progressivity and non-regression in environmental matters, the principle of objectification of environmental protection, as well as the fundamental rights contemplated in Articles 50 and 89 of the Political Constitution. Consequently, the unconstitutionality of Articles 2, 4 subsections c) and d), 7, 9 subsections d), f) and g), 14 subsection g) and 16 of Law No. 9892 is confirmed.

• B)Regarding the delimitation of the tourist zone established in Articles 3 and 6 of Law No. 9892.

In the sub examine, the plaintiffs claim that in Articles 3 and 6 of Law No. 9892, a tourist zone of differentiated management was established despite the lack of studies justifying its creation.

On this point, recall that Article 3 of Law No. 9892 provides that within the terrestrial and marine portion of the Isla San Lucas National Park "there shall be a differentiated management space dedicated to sustainable tourism activity, the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourist Zone." For its part, Article 6 eiusdem details the surfaces that make up that tourist zone, as it regulates: "The areas corresponding to the buildings of the former San Lucas prison, including the dock, as well as the marine and terrestrial access zone to the island, the plots, trails, and beach areas indicated, shall be assigned to the Tourist Zone condition. Said areas are specified in the following coordinates (…)".

In that sense, it should be noted that, in official letter No. SINAC-DE-1338 of August 4, 2019, the National System of Conservation Areas referred to the then Bill No. 21287 that led to Law No. 9892 and stated: "For the declaration of a tourist zone, a series of technical studies must be provided that support the establishment of said zone, this because said activity must be low impact, very sustainable, and strategically located in places that do not put at risk the Management Categories (EFM) prioritized by the General Management Plan (PGM) of the Protected Wild Area (ASP). It should be noted that for the definition of this type of zoning, SINAC has created and made official specific instruments that methodologically guide the definition of this type of zoning in the country's Protected Wild Areas (ASP)." In a similar vein, the Ministry of Environment and Energy pronounced on the aforementioned bill, which is seen in official letter No. DM-1216-2019 of November 27, 2019, where it reads: "Article 6 proposes that all Protected Wild Area (ASP) zoning be the result of the technical analysis of the General Management Plan, which consists of a planning instrument that guides the management of the ASP toward the fulfillment of its objectives. We suggest that the definition of the tourist zone be the result of what the technical studies of the subsequent General Management Plan yield" (bold from original).

Now, even though the legislator's intention with such norms could have been to circumscribe the tourist zone in question to a specific area of the island not to deprive it of the environmental protection it possesses, but to define in which specific surface area sustainable tourism activities can be carried out, in the sub lite it is not seen that, when defining such a zone, technical factors were considered (such as the biological, edaphic, hydrological, physiographic, ecological, climatic, and other characteristics of the area, as well as historical and architectural factors) for the purpose of scientifically determining its feasibility or not in relation to the protection of the environment and cultural heritage. This is even more serious, when it is observed that, according to the aforementioned Article 3, the tourist zone constitutes a differentiated management area, in which, given the absence of the alluded studies, there is no certainty that the preservation and conservation of natural and cultural resources are the primary objectives.

Therefore, the undersigned judges consider that in the sub lite, the violation of the principle of objectification of environmental protection is confirmed by creating a tourist zone within the Isla San Lucas National Park and defining its limits without any scientific study, which is also harmful to the precautionary and preventive principles—in environmental and cultural matters—and the fundamental rights contained in Articles 50 and 89 of the Political Constitution, for which Articles 3 and 6 of Law No. 9892 are unconstitutional.

• C)Regarding the commercial purposes provided for in Articles 9 and 14 of Law No. 9892.

Regarding this grievance, it should be recalled that the plaintiffs maintain that Law No. 9892 allows commercial purposes, which is incompatible with the regulations established for national parks.

Indeed, we observe that in Articles 9 and 14 of the challenged law, reference is made to commercial activities. According to the first of these norms, the Board of Directors of the Isla San Lucas National Park has among its powers: "d) Define environmentally sustainable tourism activities, whether commercial, transport, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island." For its part, according to Article 14, the trust's administrative 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, to achieve the greatest use of the Tourist Zone and enjoyment by visitors." On this matter, Article 3 of the 'Convention for the Protection of Flora, Fauna, and the Natural Scenic Beauties of the Countries of America' provides that the riches existing in national parks shall not be exploited for commercial purposes, and that the Contracting Governments only agree to provide to those protected wild areas "the facilities for public recreation and education." Concerning national parks, the Law of the National Parks Service is emphatic in stating that in those protected wild areas, visitors are prohibited from "15) Engaging in any type of commercial, agricultural, or industrial activity." By virtue of the above, it is relevant to cite Judgment No. 2012013367 of 11:33 a.m. on September 21, 2012, in which this Constitutional Chamber referred to the principles of progressivity and non-regression in environmental matters:

"V. On the principles of progressivity and non-regression of environmental protection. The principle of progressivity of human rights has been recognized by International Human Rights Law; among other international instruments, it is found in Articles 2 of the International Covenant on Economic, Social and Cultural Rights, Article 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 norms, the State assumes the obligation to increase, to the extent of its possibilities and development, the levels of protection of human rights, especially considering those, such as the right to the environment (Art. 11 of the Protocol), that require multiple positive actions from the State for their protection and full enjoyment by all their holders. From the principle of progressivity of human rights and the principle of non-retroactivity of norms to the detriment of acquired rights and consolidated legal situations, set out in Article 34 of the Constitution, the principle of non-regression or irreversibility of the benefits or protection achieved is derived.

The principle stands as a substantive guarantee of rights, in this case, of the right to a healthy and ecologically balanced environment, by virtue of which the State is obligated not to adopt measures, policies, nor approve legal norms that worsen, without reasonable and proportionate justification, the situation of the rights achieved until then. This principle does not suppose absolute irreversibility since all States experience national situations, of an economic, political, social nature, or due to natural causes, which negatively impact the achievements reached until then and force a downward reassessment of the new level of protection. In such cases, Constitutional Law and the principles under examination require justifying, in light of the constitutional parameters of reasonableness and proportionality, the reduction of protection levels. In this sense, the Constitutional Chamber has expressed in its jurisprudence, regarding the right to health: '…according to the PRINCIPLE OF NON-REGRESSION, it is prohibited to take measures that diminish the protection of fundamental rights.

Thus, then, if the Costa Rican State, in order to protect the right to health and the right to life, has a policy of openness to access to medicines, it cannot—much less by means of an International Treaty—reduce such access and make it more restricted, under the excuse of protecting commerce.' (Judgment of the Constitutional Chamber No. 9469-07). Regarding the right to the environment, it stated: 'The foregoing constitutes an evolutionary interpretation in the protection of the environment in accordance with Constitutional Law, which does not admit a regression to its detriment.' (Judgment of the Constitutional Chamber No. 18702-10)." (The highlighting does not correspond to the original). (In the same sense, Judgments 2014-012887, 2017-002375, 2017-005994, 2019-012745, and 2019-017397)." In this way, in accordance with the principle of progressivity, the State assumes the obligation to increase, to the extent possible, the levels of protection of human rights, including the right to a healthy and ecologically balanced environment.

For its part, the application of the principle of non-regression consists of a guarantee that constrains the State to refrain from adopting measures, policies, or norms that worsen, without reasonable and proportionate justification, the degree of protection of fundamental rights already achieved.

In consideration of the principles of progressivity and non-regression in environmental matters, as well as in consideration of what is contained in both the 'Convention for the Protection of Flora, Fauna, and the Natural Scenic Beauties of the Countries of America' and the Law of the National Parks Service, in national parks, the exploitation of their riches for commercial purposes and the development of commercial activities by visitors are prohibited. Despite this, and to the detriment of such principles, Law No. 9892 provides generic authorizations for the carrying out of commercial tourism activities in the Isla San Lucas National Park, as well as the signing of agreements or contracts for the provision of commercial services, which is evidenced in Articles 9 subsection d) and 14 subsection g).

In addition to the foregoing, in the sub examine, as has been indicated in prior recitals, regarding the challenged law, the existence of scientific studies that safeguard the precautionary, preventive—in environmental and cultural matters—and objectification of environmental protection principles, as well as the fundamental rights contemplated in Articles 50 and 89 of the Political Constitution, is notably absent.

Precisely, despite the fact that the authorization to carry out commercial activities within the Isla San Lucas National Park could generate a danger of serious or irreversible damage in a conservation area of absolute protection in the terms previously set forth, it is not seen that adequate and sufficient measures have been adopted to safeguard the environment, for example, through studies indicating the types of commercial activity absolutely prohibited or the concrete guidelines they must follow.

Given this situation, we consider the principles of progressivity and non-regression in environmental matters, the precautionary, preventive—in environmental and cultural matters—and objectification of environmental protection principles, as well as the fundamental rights contemplated in Articles 50 and 89 of the Political Constitution, to be violated. Consequently, we consider that the word "commercial," in Article 9 of Law No. 9892, as well as the phrase "and or commercial" in Article 14 eiusdem, are unconstitutional.

VI.Regarding the alleged unconstitutionality of Law No. 9892 of August 24, 2020, with respect to the composition of the board of directors charged with administering the Isla San Lucas National Park.

Article 8 of Law No. 9892 designates the Board of Directors of the Isla San Lucas National Park as a body of maximum deconcentration attached to the Ministry of Environment and Energy; it has instrumental legal personality for the exercise of its powers and is charged with the government and administration of the park. For its part, Article 10 eiusdem regulates the composition of the board in this way:

"ARTICLE 10-Composition.

The Board of Directors of the Isla San Lucas National Park shall be composed of the following members:

• a)The Minister of Environment and Energy, who shall preside over it, with a vice-minister of the ministry being able to act as an alternate.
• b)The Minister of Culture, with a vice-minister of the ministry being able to act as an alternate.
• c)The Executive President of the Costa Rican Tourism Institute (ICT), with the person holding the management position or a member of the Board of Directors of said institute being able to act as an alternate.
• d)A representative of the Executive Branch designated by the Government Council, an organ that shall also appoint an alternate.
• e)The mayor of the Municipality of the Central canton of Puntarenas, with a deputy mayor being able to act as an alternate.
• f)The president of the Chamber of Tourism of Puntarenas, with any of the members of the Board of Directors of said chamber being able to act as an alternate.

The president of the Board shall hold the judicial and extrajudicial representation of the organ. Likewise, they shall have a casting vote in the terms of Article 49 of Law 6227, the General Law of Public Administration, of May 2, 1978. The members of the Board of Directors shall not receive any per diem (dieta)”.

In turn, according to Article 9 eiusdem, the Board of Directors of the Isla San Lucas National Park has the following powers:

“ARTICLE 9- Duties and Powers. The Board of Directors of the Isla San Lucas National Park 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 historical buildings, developing facilities and services intended for the rest and recreation of visitors, the enabling and accessibility of land and maritime routes, port constructions, and, in general, the provision of all basic services.
• d)To define environmentally sustainable tourist activities, whether commercial, transportation, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island.
• e)To approve the strategic objectives for marketing and promotion necessary to make the Isla San Lucas National Park known, both within and outside the country.
• f)To grant approval for authorizations, use permits, and concessions to carry out works and services provided in the Tourist Zone.

In the case of works related to areas declared heritage, coordination with the Ministry of Culture shall be required.

• 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, modify, or revoke any trust relating to the Isla San Lucas National Park, as well as all types of contracts and agreements with public or private entities and individuals. It shall determine the entrance fees for the national park, as well as approve contracts for various reservation and purchase systems.
• j)To approve the use of the legal figures of public works concession with public service and contracting of mutual benefit with non-profit entities.
• k)To carry out any other type of action necessary to ensure the smooth operation of the Isla San Lucas National Park and the achievement of its purposes.

Regarding the conservation and preservation of the historical-architectural heritage, the criterion of the Cultural Heritage Research and Conservation Center of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island's biodiversity, the technical criterion of the National System of Conservation Areas (SINAC) shall prevail. At the request of the Board of Directors, said entities shall provide their criteria as expeditiously as possible” (bold text was included).

On the other hand, numeral 1 of the ‘Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America’ provides: “National Parks shall be understood as: The regions established for the protection and conservation of natural scenic beauties and of flora and fauna of national importance, which the public can best enjoy when placed under official supervision.” Now, it should be noted that the Biodiversity Law establishes:

“ARTICLE 22.- National System of Conservation Areas The National System of Conservation Areas is hereby created, hereinafter referred to as the System, which shall have its own legal personality; it shall be a deconcentrated and participatory institutional management and coordination system that shall integrate competencies in forestry, wildlife, and protected areas matters and the Ministry of Environment and Energy, for the purpose of issuing policies, planning, and executing processes aimed at achieving sustainability in the management of Costa Rica's natural resources. In accordance with the foregoing, the General Directorate of Wildlife, the State Forestry Administration, and the National Parks Service shall exercise their functions and competencies as a single instance, through the administrative structure of the System, without prejudice to the objectives for which they were established. The protection and conservation of the use of watersheds and water systems is included as a competency of the System (…)

ARTICLE 24.- Integration of the National Council The National Council of Conservation Areas shall be composed as follows:

1. 1The Minister of Environment and Energy, who shall preside over it.
2. 2The Executive Director of the System, who shall act as secretary of the council.
3. 3The Executive Director of the Technical Office of the Commission.
4. 4The directors of each Conservation Area.
5. 5One representative from each Regional Council of Conservation Areas, designated from within each Council.

ARTICLE 25.- Functions of the National Council The functions of this Council shall be:

1. 1To define the execution of strategies and policies aimed at the consolidation and development of the National System of Conservation Areas, and oversee their execution.
2. 2To supervise and audit the correct technical and administrative management of the Conservation Areas.
3. 3To coordinate, jointly with the Commission, the preparation and updating of the National Strategy for the Conservation and Sustainable Use of Biodiversity, which must be widely consulted with civil society and duly coordinated with the entire public sector, within the framework of each of the Conservation Areas.
4. 4To define strategies and policies related to the consolidation and development of state protected areas, as well as supervise their management.
5. 5To approve the strategies, the structure of the administrative organs of the protected areas, and the annual plans and budgets of the Conservation Areas.
6. 6To recommend the creation of new protected areas that increase their protection category.
7. 7To carry out technical and administrative audits for the oversight of the proper management of the Conservation Areas and their protected areas.
8. 8To establish the guidelines and directives to make the structures, administrative mechanisms, and regulations of the Conservation Areas coherent.
9. 9To appoint the directors of the Conservation Areas from a shortlist of three candidates proposed by the regional councils.
10. 10To approve the concession applications indicated in Article 39 of this law.
11. 11Other functions necessary to fulfill the objectives of this and other laws related to the functions of the System (…)

ARTICLE 28.- Conservation Areas The System shall be constituted by territorial units called Conservation Areas under the general supervision of the Ministry of Environment and Energy, through the National Council of Conservation Areas, with competence throughout the national territory, whether concerning protected wild areas, areas with a high degree of fragility, or private areas of economic exploitation. Each Conservation Area is a territorial unit of the country, administratively delimited, governed by a single development and administration strategy, duly coordinated with the rest of the public sector. In each one, both private and state activities in conservation matters are interrelated without detriment to the protected areas. The Conservation Areas shall be responsible for applying the legislation in force regarding natural resources, within their geographic demarcation. They shall execute the policies, strategies, and programs approved by the National Council of Conservation Areas regarding protected areas; likewise, they shall be responsible for the application of other laws governing their subject matter, such as the Wildlife Conservation Law, No. 7317, of October 30, 1992, and the Forest Law (Ley Forestal), No. 7575, of February 13, 1996, the Organizational Law, No. 7554, of October 4, 1995, and the Law Creating the National Parks Service, No. 6084, of August 24, 1977.

Based on the recommendations of the Council, the Ministry of Environment and Energy shall define the territorial division that is technically most advisable for the country's Conservation Areas, as well as their modifications.

ARTICLE 29.- Regional Council of the Conservation Area The System shall exercise the administration of the Conservation Areas through a Regional Council, which shall be formed by public call, to be made by the regional representative of the System, to all interested non-governmental and community organizations, the municipalities, and the public institutions present in the area. It shall be composed of the official responsible for the protected area and shall have a minimum of five members representing different sectors present in the area, elected by the Assembly of the organizations and institutions convened for this purpose; one municipal representative must always be elected. In those districts where the indicated organizations do not exist to form the Council, the municipalities shall be responsible for designating them in coordination with the System representative. These Councils shall have the organizational structure indicated by the regulations of this law, which shall have, at a minimum, a President, a Secretary, a Treasurer, and two Members, all elected from within its body, as well as a representative of the System, who shall always serve as Executive Secretary.

In the Conservation Areas where necessary, due to their complexity, Local Councils may be created, by agreement of the Regional Council of the Conservation Area, whose constitution shall be defined in the creation agreement. Each Regional Council shall establish its own regulations within the framework of current legislation, which shall be submitted to the National Council for final approval. In these regulations, a percentage of the total economic income of the Conservation Areas shall be established for its operation.” In summary, the National System of Conservation Areas consists of a “deconcentrated and participatory institutional management and coordination system that shall integrate competencies in forestry, wildlife, and protected areas matters and the Ministry of Environment and Energy, for the purpose of issuing policies, planning, and executing processes aimed at achieving sustainability in the management of Costa Rica's natural resources” -numeral 22- that “shall exercise the administration of the Conservation Areas through a Regional Council” -Article 29-. Furthermore, note that SINAC has instrumental legal personality and maximum deconcentration, which means it fulfills specific functions that the Ministry of Environment and Energy cannot assume.

Regarding this topic, it is appropriate to bring up what was recorded in judgment no. 2006009563 of 4:06 p.m. on July 5, 2006:

“IV.- The Biodiversity Law deconcentrates two organs from the Ministry of Environment and Energy: the National Commission for Biodiversity Management and the National System of Conservation Areas. To the first, it grants "instrumental legal personality" (Article 14) and to the second, "its own legal personality" (Article 22). These 2 articles are precisely the provisions challenged by the plaintiff that are linked to the issue of the organ's legal personality, which indicate:

"Article 14.- The National Commission for Biodiversity Management is hereby created with instrumental legal personality, as a deconcentrated organ of the Ministry of Environment and Energy…" "Article 22.- The National System of Conservation Areas is hereby created, hereinafter referred to as the System, which shall have its own legal personality; it shall be a deconcentrated and participatory institutional management and coordination system that shall integrate competencies in forestry, wildlife, and protected areas matters and the Ministry of Environment and Energy, for the purpose of issuing policies, planning, and executing processes aimed at achieving sustainability in the management of Costa Rica's natural resources. In accordance with the foregoing, the General Directorate of Wildlife, the State Forestry Administration, and the National Parks Service shall exercise their functions and competencies as a single instance, through the administrative structure of the System, without prejudice to the objectives for which they were established.

The protection and conservation of the use of watersheds and water systems is included as a competency of the System." In the case of the National Commission for Biodiversity Management (CONAGEBIO), the provision is clear in granting it an instrumental legal personality as a deconcentrated organ. Although, indeed, the norm does not indicate the degree of deconcentration of this organ, this Court understands, according to the powers and the specific competence granted, that it is a maximum deconcentration from the Ministry of Environment and Energy, as it is an organ specialized in biodiversity matters. Regarding this type of organization, the Chamber in its most recent jurisprudence indicated in judgment No. 2005-3629:

"IV.- On the merits. Since the core point of this study is the unconstitutionality of providing a deconcentrated administrative organ with an instrumental legal personality that allows it to contract, it is convenient to first review the functions constitutionally granted to the Executive Branch and the scope of this legal figure.

a- Functions granted by the Political Constitution to the Executive Branch. Article 140 of the Constitution determines a sphere of competencies and powers that are exclusive -and excluding- of the Executive Branch, understood as the President of the Republic and the respective Minister. Thus, the functions of political or governmental direction and the direction of international policy are demarcated as their own and exclusive. Regarding the function of political direction, -which is the only one we will address, in consideration of the study interest of this action-, it is important to highlight that the Executive Branch is responsible for a function of political orientation regarding state activity, whose purpose is to guide state policies in the various areas of public interest, in order to maintain the necessary unity of the State; and this is achieved through the various mechanisms of administrative self-supervision (planning power, power of direction -related to the issuance of directives-, the power of coordination -sectorization and regionalization-, the power to issue authorizations -approvals, endorsements, and approval).

Thus, far from being a legal-order competence, it is a constitutional-order one, proper to the Executive Branch, as this Chamber has previously considered, by virtue of which, it is the Executive that must set policy in a given area of action and not the other way around:

"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 in its various organs or ministries, as is the political directive of setting the objectives and goals of coordinated action in the other public entities, proposing the means and methods to achieve those objectives. It is also an essential function of the Executive Branch to guide, coordinate, and supervise the apparatus of the Administration (Article 140, subsection 8 of the Political Constitution) and to dictate general norms that are not merely simple execution of legal norms but delimiting ones (Article 140.2, Political Constitution) ..." (judgment number 3089-98, of three o'clock in the afternoon on May twelfth, nineteen ninety-eight).

In this sense, it is important to note that by virtue of the organizational processes of decentralization by subject matter -autonomous institutions- (Articles 188 to 190 of the Political Constitution) and territorial -municipalities- (Articles 169 and 170 of the Political Constitution), and deconcentration (Article 83 of the General Law of Public Administration), these functions are not carried out exclusively by the Executive Branch; however, by virtue of the provisions of Articles 26 subsection b) and 27.1 of the General Law of Public Administration, the function of direction and coordination of Government tasks and the Central Public Administration as a whole, and also of the decentralized Administration, in what corresponds, by virtue of the degree of government autonomy of the municipalities -given by constitutional norm- is maintained in the Executive Branch. This Chamber also already indicated, in judgment number 2002-06513, of two hours fifty-seven minutes in the afternoon on July third, two thousand two, that the structure of the Costa Rican State was determined by the original Constituent Assembly in the Political Constitution, and that, although its structure is not closed ("numerus clausus"), the ordinary legislator -indisputable holder of the residual competence- must adjust, in relation to the creation of public entities and organs, to the principles of that fundamental order.

It is thus that the doctrine of Public Law makes a clear differentiation between administrative decentralization and deconcentration, categorizing the first as that made up of public legal persons with full or special legal personality; with a specific attribution or competence, which it develops exclusively or privately, and not concurrently, alternatively, or in parallel, so that the greater Entity (State) cannot invade its sphere of competencies, since these are competencies that have been transferred from the Executive Branch to the new institution; for which they are endowed with patrimony and budgetary autonomy; so that they are recognized with a legal capacity to administer themselves (administrative autonomy), in the terms provided in Article 188 of the Political Constitution:

"The autonomous institutions of the State enjoy administrative independence and are subject to the law in matters of governance. Their directors are responsible for their management." For its part, deconcentrated organ refers to the phenomenon that occurs within the same legal person -without creating a new entity- with a specific and dependent competence task, in what is not deconcentrated, of the hierarchy of the entity to which it belongs, as provided in Articles 83.2, 83.3, 83.4, and 83.5 of the General Law of Public Administration:

"2. Minimum deconcentration shall occur when the superior cannot: a) Avail itself of the inferior's competencies; and b) Review or substitute the conduct of the inferior, ex officio or at the request of a party.

3. Deconcentration shall be maximum when the inferior is further removed from orders, instructions, or circulars of the superior.

4. The norms creating minimum deconcentration shall be restrictively applied against the competence of the deconcentrated organ and those creating maximum deconcentration shall be extensively applied in its favor." Thus, administrative deconcentration exists when by legal norm an exclusive competence is attributed to a lower organ of the entity, with some degree of autonomy, which produces the loss of competence by the hierarchical superior, hence, its condition can never be equal to that of the superior, even when it is the maximum degree of deconcentration. The doctrine is unanimous in considering that the Public Administration is made up of the set of public entities that make up the administrative organization, that is, by the greater public entity (State or Central Public Administration), and the rest of the lesser public entities (Decentralized Public Administration, be it institutional or by services -autonomous institutions- or territorial -municipalities), which have been created by an act of authority, of a constitutional nature (in the case of municipalities) or legal.

In this sense, decentralization will always imply the creation of lesser public entities, distinct from the State, endowed with legal personality, their own patrimony (which implies financial autonomy) and the attribution of an exclusive and excluding competence that is severed from the Executive Branch; which is why the greater public entity -State- cannot invade its sphere of competence, although it is subject to administrative tutelage (direction, planning, coordination, and control). Thus, the fundamental element to determine the presence of an entity is the endowment of legal personality, which is delegated by the State for the realization of a specific competence, and which has the immediate consequence of converting it into a center of imputation of rights and obligations, that is, it legitimizes it to manage by itself and before itself the delegated competencies, in attention to the degree of autonomy granted (administrative -minimum and first degree-, typical of autonomous institutions; governmental -second degree-, typical of municipalities and the Costa Rican Social Security Fund in relation to the administration of social security; and organizational -full or third degree, typical of State universities).

Thus, the endowment of legal personality to a public entity places it in a different position from that which, lacking personality, constitutes an organ. For this reason, the actions carried out by these entities are the responsibility of the entity, not of the State in the strict sense. Finally, it is necessary to remember that decentralization is a model of Administration organization, with the aim of seeking the best efficiency of public management, for the satisfaction of the public interest entrusted.

b- Instrumental legal personality. Now, the Chamber has held the criterion that the endowment of instrumental legal personality to a deconcentrated organ is not unconstitutional, as a model of administrative organization, in order to achieve greater efficiency in the state apparatus. It has been considered as a budgetary personification, which confers on a deconcentrated organ the power to manage its resources independently of the public Entity to which it belongs, although it is subordinate in all other aspects that are characteristic of the deconcentrated function. It is an endowment of mechanisms and legal instruments strictly necessary for the organ to fulfill the public tasks and functions delegated by virtue of law, all of which is not only adequate but necessary under the coverage of two fundamental principles of public management, efficiency and adaptability to change. In such a way, this instrumental capacity is subject to the terms and conditions provided in the law of its creation, and insofar as they are strictly indispensable for the fulfillment of the delegated public function; so that, if the law omits the competence, they must be presumed as proper to and reserved for the superior.

Thus, it may contract personnel, goods, and services that are indispensable for the fulfillment of the public function delegated to it, only in the understanding that the law expressly empowers it to do so. On the other hand, all the constitutional norms and principles of control and oversight of the Public Treasury are binding and applicable to this type of organ, that is, those governing administrative contracting, and those of Budgetary Law. In all other respects, they are subject to the control systems characteristic of the activity of public institutions." Under this assessment, the Court maintains the criterion that it is not unconstitutional to grant instrumental legal personality to a deconcentrated organ of the administration according to the considerations set forth. Thus, the creation of CONAGEBIO under the condition of a deconcentrated organ with instrumental legal personality is not unconstitutional.

Likewise, the Chamber applies the considerations set forth to the National System of Conservation Areas, which according to the questioned Article 22, was constituted as a deconcentrated and participatory management and institutional coordination system for the purpose of integrating competencies in forestry, wildlife, and protected areas matters and the Ministry of Environment and Energy. Although said provision indicates that this organ shall have its own legal personality, the truth is that this cannot be understood as full personality, but rather instrumental, since precisely the legislator created it as a deconcentrated organ, in order to attribute exclusive and technical competencies to it, but with a certain degree of independence and impartiality, which would allow the administration to achieve a higher level of effectiveness, efficiency, speed, and agility in its actions. Thus, this provision is not unconstitutional either” (the highlighting is not from the original).

The foregoing demonstrates that SINAC plays a fundamental role in relation to conservation areas, among which are protected wild areas, such as Isla San Lucas, which is reflected in its condition as an organ of maximum deconcentration in forestry, wildlife, and protected areas matters. Therefore, the National System of Conservation Areas exercises exclusive and technical competencies in such fields, without MINAE being able to give it orders, instructions, or issue circulars.

In keeping with such a role, the Regulation to the Forest Law (Reglamento a la Ley Forestal) -Decreto Ejecutivo 25721 of October 17, 1996- provides:

“Article 11.- On lands previously declared as State 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 provisions established in the management plan for the Protected Wild Area and other regulations established in this normative framework, as follows:

A- Within Protected Wild Areas In the case of Protected Wild Areas, except for National Parks and Biological Reserves, ecotourism activities may only be carried out exclusively in the zones established by the National System of Conservation Areas (SINAC), in accordance with the zoning of each Protected Wild Area” (the highlighting was added).

Another example of the role granted to SINAC regarding protected wild areas is reflected in the Wildlife Conservation Law (Ley de Conservación de la Vida Silvestre):

“Article 83.- The extraction of wildlife (*), continental and insular, is prohibited in national wildlife refuges, with the exception of management and extraction for nurseries or captive breeding facilities, subject to the prior completion of the corresponding technical-scientific studies.

The National System of Conservation Areas (*) shall have the powers and duties established by Law No. 6043, regarding National Wildlife Refuges that include areas of the maritime-terrestrial zone.” Furthermore, in the Regulation to the Wildlife Conservation Law (Reglamento a la Ley de Conservación de la Vida Silvestre) -Decreto Ejecutivo 40548 of July 12, 2017- it was recorded:

“Article 9.- Functions of SINAC. For the purposes of the Law and this Regulation, SINAC shall have the following functions:

1. To prepare and update the National Wildlife Plan, in accordance with the policies established in the National Biodiversity Policy and its Strategy, the National Development Plan, and the institutional planning instruments.

2. To grant the licenses, permits, or authorizations indicated by the LCVS and this regulation.

3. To ensure the correct application and fulfillment of the current legal framework on wildlife.

4. To prepare regulations for control and subsistence hunting, conservation, and sustainable use of wild flora and fauna when applicable.

5. To exercise the focal point (administrative authority) of the country before CITES and ensure its correct application and fulfillment, as established in the LCVS and the scope of this regulation.

6. To prepare and keep updated the National Wildlife Information System.

7.

Develop and review the Protocols established in this regulation.

8. Convene and coordinate the work of the National Wildlife Commission (Comisión Nacional de Vida Silvestre).

9. Develop educational materials that publicize the mission, objectives, and programs of SINAC regarding the conservation and sustainable use of wildlife.

10. Other functions assigned to it by the CONAC or the Minister of Environment and Energy.

Article 10.— Functions of the Conservation Areas. For the purposes of the Law and this Regulation, the Conservation Areas shall have the following functions:

1. Participate in the development of institutional programs and projects, and execute them in accordance with established procedures and provisions.

2. Coordinate the execution of activities with other competent agencies.

3. Inform and coordinate with the SINAC Executive Secretariat regarding the execution of regional-level programs and projects related to wildlife.

4. Grant and supervise use permits and administrative resolutions for the operation of management sites, as well as the issuance of control hunting licenses, wildlife use with or without commercial purposes, and other acts inherent to their management.

5. Participate in rapid ecological assessments and assessments of the population status of wildlife species and issue corresponding recommendations, in coordination with the SINAC Executive Secretariat.

6. Order management measures aimed at the protection and sustainable use of endangered species, and promote research on these species in coordination with the SINAC Executive Secretariat.

7. Review, evaluate, and approve or reject management plans for management sites, and ensure their effective compliance.

8. Promote scientific research on wildlife and the publication of technical-scientific documents, ensuring compliance with national legislation. Research on species that require appropriate technical management to foster coexistence with human activities, and on methods for managing wildlife populations with abnormal growth or inherent problems, shall be promoted with special emphasis, in coordination with the SINAC Executive Secretariat.

9. Analyze and evaluate the impacts caused by individual wildlife fauna species on agricultural activities.

10. Carry out formal and non-formal environmental education programs to raise community awareness about the appropriate management of wild flora and fauna, in accordance with institutional priorities.

11. Keep the National Wildlife Information System updated, based on the efforts they carry out.

12. Carry out prevention, control, and protection activities, and address complaints as appropriate.

13. Ensure proper compliance with wildlife legislation.

14. Support the Executive Secretariat in corresponding processes.

15. Other functions assigned by current legislation, the Executive Director of SINAC, the CONAC, or the Minister of Environment and Energy." For its part, the Biodiversity Law provides:

"ARTICLE 61.— Protection of protected wilderness areas The State must give priority attention to the protection and consolidation of state-owned protected wilderness areas located in the Conservation Areas. For these purposes, the Ministry of Environment and Energy, in coordination with the Ministry of Finance, must include in the budgets of the Republic the respective transfers to the trust or the financial mechanisms for protected areas to ensure, at a minimum, the personnel and necessary resources determined by the National System of Conservation Areas for the operation and integrity of state-owned protected wilderness areas and the permanent protection of national parks, biological reserves, and other state-owned protected wilderness areas." Now, in section 9 of Law No. 9892, the following is attributed to the National System of Conservation Areas: "(…) for the protection of wildlife and conservation of the island's biodiversity, the technical criterion of the National System of Conservation Areas (Sinac) shall prevail.

Upon request of the Board of Directors, said entities shall provide their criteria as expeditiously as possible." However, first of all, the foregoing does not imply that the Board of Directors of the Isla San Lucas National Park is obligated to request the technical criterion of SINAC. In reality, consultation with SINAC is provided for as a power of the Board of Directors, which it might well not exercise.

Furthermore, it should be noted that environmental protection falls upon the State as a whole, so its proper exercise requires the execution of coordinated efforts among the various Branches, bodies, and entities, among others. An example of this is seen in judgment No. 2019017397 of 12:54 p.m. on September 11, 2019, in which it was resolved:

"X.— On the stewardship of the Ministry of Environment and Energy, as well as the necessary coordination of the different institutions in environmental matters.— In the preceding recital, it was stated that State institutions are the first ones called upon to comply with protective environmental legislation, without any justification existing to exempt them from complying with environmental requirements. Consequently, in this section, the stewardship of the Ministry of Environment and Energy in environmental matters will be explained. In addition, the necessary coordination that must exist among the different State institutions will be set forth. In this regard, this Court, in judgment number 2004-8928 of 4:37 p.m. on August 18, 2004, has mentioned that it is evident that the central State is the entity primarily entrusted with the defense of the environment, which is reaffirmed in the Organic Environmental Law, number 7554 of October 4, 1996, which delegates to the Ministry of Environment and Energy a good part of the competencies in this matter, without discharging other public entities from their responsibilities in this field.

Likewise, for the case in question, it is important to clarify that the Ministry of Environment and Energy also has the authority to administer national wildlife refuges and wetlands, which is also derived from articles 82 and 84 of the Wildlife Conservation Law, 32 of the Organic Environmental Law, 13 of the Forestry Law (Ley Forestal), and 58 of the Biodiversity Law (see judgment number 2004-8928 of 4:37 p.m. on August 18, 2004).

Now then, although stewardship in environmental matters falls upon the Ministry of Environment and Energy, it is necessary to clarify that the State, in a broad sense, is the guarantor in the protection and guardianship of the environment and natural resources (see judgment number 6922-2010 of XX on XX). That is, although the central State delegates the defense of the environment to the Ministry in question, this does not eliminate the responsibility that other institutions of the State have in this matter. In this regard, this Constitutional Chamber has also expressed the need for coordination among public agencies that seeks to guarantee environmental protection. Thus, it mentioned that:

"In various opportunities, constitutional jurisprudence has indicated that environmental protection is a task that corresponds to everyone equally, that is, that there is an obligation for the State – as a whole – to take the necessary measures to protect the environment, in order to avoid degrees of contamination, deforestation, extinction of flora and fauna, excessive or inadequate use of natural resources, which endanger the health of the administered. In this task, by public institution, it must be understood to include both the Central Administration – Ministries, such as the Ministry of Environment and Energy and the Ministry of Health, which by reason of the subject matter have broad participation and responsibility regarding environmental conservation and preservation; who act, most of the time, through their specialized agencies in the matter, such as, for example, the General Directorate of Wildlife (Dirección General de Vida Silvestre), the Forestry Directorate (Dirección Forestal), and the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental, SETENA); as well as decentralized institutions, such as the National Institute of Housing and Urban Development (Instituto Nacional de Vivienda y Urbanismo), SENARA, the Costa Rican Tourism Institute (Instituto Costarricense de Turismo) or the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados); a task in which, of course, the municipalities have great responsibility, in what pertains to their territorial jurisdiction.

It is for this reason that one might think that this multiple responsibility would cause chaos in administrative management, which is not true, inasmuch as in order to avoid the simultaneous coexistence of spheres of power of different origin and essence, the duplication of national and local efforts, as well as the confusion of rights and obligations among the various parties involved, it becomes necessary to establish a series of coordination relationships among the various agencies of the Executive Branch and the decentralized institutions, and between these and the municipalities, in order to carry out the functions that have been entrusted to them (…)" (see judgment number 2009-000139 of 8:53 a.m. on January 13, 2009).

In summary, although the State delegates to the Ministry of Environment and Energy a good part of the competencies in this matter, since this Ministry holds the stewardship function in environmental matters and, therefore, is responsible for issuing environmental protection policies and the management and sustainable use of natural resources; it is also true that there is a need to coordinate among public agencies that guarantee environmental protection. Therefore, State institutions, the Executive Branch, the Legislative Branch, the Judicial Branch, Municipalities, as well as any other institutions, are all bound by environmental legislation or that which is related to environmental protection (see judgment number 8928 of XX on XX and judgment number 8713-2008 of 9:06 a.m. on March 23, 2006)" (emphasis added).

Regarding Isla San Lucas, in judgment No. 2011003741 of 2:37 p.m. on March 23, 2011, this Court referred to the need to coordinate efforts in order to safeguard the environment and cultural heritage:

"I.— In this amparo proceeding, the violation of rights protected in articles 50 and 89 of the Political Constitution is claimed, due to the deplorable state of the facilities of the former prison located on Isla San Lucas. According to the petitioner, neither the Ministry of Environment, Energy and Telecommunications, nor the Ministry of Culture and Youth, nor the Municipality of the Canton of Puntarenas, have taken the necessary measures to maintain the aforementioned facilities in good condition. This situation, according to the petitioner, is illegitimate and injures the Right of the Constitution.

II.From the documentary evidence brought to the record, as well as the reports rendered by the Minister of Environment, Energy and Telecommunications, Teófilo de la Torre Agüero, the Minister of Culture and Youth, Manuel Obregón López, the a.i. Director of the Center for Research and Conservation of Cultural Heritage, Javier Carvajal Molina, the Executive Director of the National System of Conservation Areas, Giselle Méndez Vega, and the Municipal Mayor of the Central Canton of Puntarenas, Juan Luis Bolaños Alvarado – which are given under the solemnity of the oath, with timely warning of the consequences, including criminal ones, provided for in article 44 of the Constitutional Jurisdiction Law – it has been accredited that:

a. the buildings of Isla San Lucas are in very poor condition, due to the omission of the authorities of the Municipality of the Canton of Puntarenas, the Ministry of Culture and Youth, and the Ministry of Environment, Energy and Telecommunications to take the necessary measures to conserve the facilities of the place (see report at folio 83).

III.From the relation of proven facts in this judgment, the Chamber considers that the omission of the respondent authorities to take the necessary measures and execute the pertinent actions to restore, preserve, and maintain in good condition the buildings of Isla San Lucas is illegitimate and violates the rights protected in articles 50 and 89 of the Political Constitution, for which reason the proper course is to declare the petition fully with merit, against all the sued authorities. Indeed, regardless of the discussion regarding the administration of the assets of Isla San Lucas, upon which on this occasion the Constitutional Tribunal omits any pronouncement (insofar as it is an aspect that completely exceeds the summary nature of this amparo proceeding), the obligation of all the respondent authorities (including, of course, the Municipality of the Canton of Puntarenas) to protect natural beauties, conserve and develop the historical and artistic heritage of the Nation, in strict adherence to the right protected in article 89 of the Political Constitution, is clearly evident.

IV.In the present case, however, it is evident that the deterioration of the facilities of Isla San Lucas responds, solely and exclusively, to the omission that has been proven in this amparo proceeding with respect to all the respondent authorities, who must coordinate their future actions to preserve the resources and the historical heritage of that site. It is clear that the impugned situation is illegitimate and injures the Right of the Constitution, for which reason the proper course is to declare the amparo with merit, not without first warning the respondents, based on the provisions of article 50 of the Constitutional Jurisdiction Law, not to incur in the future in the acts or omissions that gave rise to the granting of the petition.

Therefore:

The petition is declared with merit, and, consequently, the Minister of Environment, Energy and Telecommunications, Teófilo de la Torre Agüero, the Minister of Culture and Youth, Manuel Obregón López, the a.i. Director of the Center for Research and Conservation of Cultural Heritage, Javier Carvajal Molina, the Executive Director of the National System of Conservation Areas, Giselle Méndez Vega, and the Municipal Mayor of the Central Canton of Puntarenas, Juan Luis Bolaños Alvarado, are ordered to immediately and jointly adopt the necessary measures and execute the pertinent actions in order to protect, restore, and preserve the buildings of Isla San Lucas, upon which a report must be rendered to the Constitutional Chamber, within the non-extendable period of one year from the notification of this judgment. The foregoing under warning of the consequences, including criminal ones, arising from disobedience to the orders issued by this Constitutional Court, article 71 of the Constitutional Jurisdiction Law.

The State and the Municipality of the Canton of Puntarenas are condemned to pay costs, damages, and losses, which shall be liquidated in execution of judgment in the administrative contentious jurisdiction. Notify this judgment personally to the indicated officials. Let it be communicated." Note that the transcribed judgment orders the coordination of efforts among the respondent authorities in order to preserve cultural heritage and the environment, which does not imply per se that the administration of Isla San Lucas must fall specifically upon a body formed by the aforementioned sued parties.

On the contrary, it is important to highlight that, concerning the preservation of objectivity and technical support in the decision-making of certain bodies based on the subject matter they address, this Chamber established in judgment No. 2016007123 of 11:00 a.m. on May 25, 2016:

"VII.— On the Commission for the Regulation and Control of Commercial Advertising of Alcoholic Beverages (the Commission). In accordance with article 12 of Law No. 9047 'Law on Regulation and Commercialization of Alcoholic Beverages,' the Ministry of Health is in charge of the regulation and control of all types of commercial advertising related to the commercialization of alcoholic beverages, carried out through any means of communication free of charge or through payment. To comply with such task, the impugned Decree was issued and the Commission for the regulation and control of commercial advertising of alcoholic beverages was created, whose objective is precisely to review, approve or reject, and monitor commercial advertising on alcoholic beverages (section 4 of the Decree). According to impugned section 5, this Commission is composed of 5 full representatives and their respective substitutes; of them, 3 are officials of the Ministry of Health freely chosen by the Minister of Health, one is a representative of UCCAEP, and another is a representative of advertising agencies.

It also provides that the members must have technical competence in public health, addictions, law, advertising, and gender issues. Likewise, this Commission, in the event of reasonable doubts in a case, may request the opinion of experts. The members of the Commission serve in their positions for 4 years, and may be re-elected for equal periods. In particular, the representatives of the Ministry of Health cease in their positions when they cease to be officials of the institution or when the superior authority so decides. The presidency and secretariat of this body are held by officials of the Ministry of Health and remain in their positions for two years, and may be re-elected. Now then, in accordance with article 8, the quorum to convene is three members. Its resolutions are adopted by absolute majority and the president has a casting vote in case of a tie. This Commission must issue a ruling on the approval or rejection of the advertising material or drafts thereof submitted to it, within a period of one calendar month, counted from the business day following the submission of the request. Likewise, against the agreements of the Commission, the remedies of revocation with subsidiary appeal lie.

The petitioner questions that the Commission is composed of subjects of both public and private law, since it is a non-delegable public power, with the aggravating factor that, due to the established quorum, merely commercial private interests that are incompatible with the public function assigned to such body may prevail in its decisions. On this particular point, the position of the Office of the Attorney General of the Republic coincided with the petitioner, in pointing out that the integration of the Commission in charge of reviewing, approving or rejecting, and monitoring commercial advertising on alcoholic beverages, 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, seriously violating the principles of objectivity, transparency, and impartiality that must govern in the public function and which the Constitutional Chamber has elevated to constitutional rank, derived from the provisions of article 11 of the Political Constitution.

For their part, the representatives of UCCAEP and the associations appearing in this proceeding indicated that the integration of the Commission reflected the principle of citizen participation, without that influencing the impartiality of the members of the Commission. Furthermore, they explained that said members enriched the work of the Commission with their experience.

As a starting point, it is recalled that Law No. 9047 'Law on Regulation and Commercialization of Alcoholic Beverages' provides in section 12 that the Ministry of Health is in charge of the regulation and control of all types of commercial advertising related to the commercialization of alcoholic beverages, carried out through any means of communication free of charge or through payment. Without a doubt, it is a public power conferred by the legislator upon this specific Ministry. It is appropriate to transcribe the referred article again:

'ARTICLE 12.— Commercial advertising The Ministry of Health shall be in charge of the regulation and control of all types of commercial advertising related to the commercialization of alcoholic beverages, carried out through any means of communication free of charge or through payment. All control shall be carried out prior to the dissemination of the advertising.

The use of trademarks or names of alcoholic beverages in advertising, such as labeling of uniforms, means of transportation used for competitions, and sports articles of any sports team, association, federation, and league, as well as in recreational or cultural activities directed at minors, is prohibited.' As a first point, an element that is self-evident is underlined. The legislator's selection of the Ministry of Health as the instance in charge of the regulation and control of advertising related to alcoholic beverages is not random. Quite the contrary, its selection responds to the fact that this Ministry is in charge of the national health policy, as indicated by its organic law. Due to the impact that the consumption of alcoholic beverages can have on the population, the legislator's decision was to grant competence to said Ministry over advertising related to them.

Just as the first paragraph of the norm allows one to deduce that the issue of advertising control of alcoholic beverages is a matter of public health, the second makes it clear that the protection of minors must prevail in the exercise of said control.

This point - the protection of minors - is observed in multiple sections of the same Law No. 9047, such as article 9 in its subsections a), b), d), e) and g); or sections 13 and 16, related to the sale of alcoholic beverages to minors and their presence in establishments that sell said beverages, among other topics.

Likewise, the protection of minors in this matter is found in the Childhood and Adolescence Code, whose section 22 states:

'Article 22.- Restricted messages.

The collective communication media shall refrain from disseminating messages that are harmful to the rights of the minor or detrimental to their physical, mental, or social development.

Programs, advertising, and other messages disseminated by radio and television shall be adjusted to the corresponding audience. By means of an executive decree, matters related to the schedules governing programs unsuitable for minors shall be regulated.' (Emphasis added).

At the international level, the Convention on the Rights of the Child also provides for the protection of minors from the media. Its section 17 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 those aimed at the promotion of his or her 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 his or her well-being, bearing in mind the provisions of articles 13 and 18.' (Emphasis added).

It is not superfluous to recall that both - the right to health and the protection of the minor - find constitutional and conventional protection, as this Chamber has recognized.

In summary, impugned section 12 seeks the regulation and control of advertising for the commercialization of alcoholic beverages in order to protect public health and minors, preventing the interests related to said beverages from prevailing over them.

Now then, the task of regulating and controlling said advertising falls upon the Commission, by provision of the impugned Decree. As previously stated, state powers must be deployed following criteria of objectivity, since this entails not only the Administration's subjection to the principle of legality, but also the protection of the rights of individuals against state powers. In the instant case, the objectivity of the Commission is of particular importance, since it affects interests of special protection at the constitutional and conventional level, as has been highlighted in the preceding paragraphs. The objectivity of the Commission in the exercise of its tasks can only be guaranteed through an integration that reflects said objectivity and the absence of conflicts of interest in decision-making.

Thus, in order to resolve the controversy raised, it is necessary to analyze whether the integration of the Commission, in light of the principle of objectivity in relation to the principle of the best interests of the minor, is consistent with that legal mandate and is the most appropriate for the protection of the interests defined by the legislator.

As noted, the members of the passive coadjuvant associations pointed out that the inclusion of a representative of the advertising agencies and one from UCCAEP in the composition of the Commission is an expression of the principle of citizen participation, whose purpose is to enrich the work of the Commission with the specialized knowledge of said representatives.

However, in response to the aforementioned argument, no less true is that both UCCAEP and the advertising agencies represent instances whose primary purposes are referred with particular emphasis to the promotion of the business sector and the advertising activity, respectively, which in certain situations may collide with the protection of public health or the best interests of the minor, which are essential purposes of the advertising control established by Law No. 9047.

As stated in previous paragraphs, the purpose of advertising control is to place public health and the well-being of minors before any other type of interest, including the commercial interests of the companies involved in the production and commercialization of alcoholic beverages. Now then, in view of the purposes of said law, it is a contradiction that its regulation grants significant intervention in that control to UCCAEP and the advertising agencies, since they represent - precisely - the companies producing and commercializing alcoholic beverages. A clear contradiction is thus noted, since the entities that must be controlled and supervised regarding this particular subject, so sensitive for the purpose of protecting minors, have the possibility of influencing the decision of the body in charge of their control and supervision, without it being possible to derive from Law No. 9047 that this was the legislator's intention.

This clear conflict of interest and its impact on the right to health and the best interests of minors justify the Chamber's intervention in order to restore the original purpose of the legislator.

The Chamber does not ignore that the position of representatives of UCCAEP and the advertising agencies can be considered by the Commission, for the knowledge, experience, and perspective of their respective fields. However, the truth is that there is a more reasonable way to achieve this objective (without affecting the best interests of the minor and the principle of objectivity regarding the protection of the right to health) that has been provided for by the regulation to Law No. 9047 itself in its final section 5:

'In the event of reasonable doubts, the commission may request the opinion of experts.' Note that a substantial difference between the opinion of one of those experts and that of a member of the Commission lies in the latter's capacity to exercise a vote. If the participation of the representatives of UCCAEP and the advertising agencies occurred solely under the terms of the aforementioned norm, that is, without the right to vote, the value of their specialized experience could be preserved without calling into question the objectivity of said collegiate body.

In other words, if the reasonableness of the measure is examined, particularly its necessity, it is concluded that the participation with vote in the Commission of the representatives of UCCAEP and the advertising agencies is unnecessary. Necessity means that among several measures equally apt to achieve an objective, the competent authority has chosen the one that least affects the legal sphere of individuals.

Applying a mutatis mutandis approach, it is observed that the participation of said representatives, in their capacity as expert opinion, would achieve the objective of making their expertise available to the Commission, without calling into question the objectivity it must maintain in safeguarding the protection of health and the best interests of the minor.

It is worth referring to the report of the President of the Commission, who indicated that they have had to consult, as experts, officials from the Ministry of Health itself and from IAFA (a deconcentrated body of said Ministry). This need would be alleviated if the Commission were composed of officials from those bodies.

Regarding this issue, the UCCAEP representative referred to section 5 (…The persons who make up the Commission must have technical competence in the subjects of public health, addictions, law, advertising, and gender…) to emphasize the need for a composition made up of multidisciplinary experts. However, the analysis of said provision in light of the aims of the regulation (protection of health and the best interests of the minor) rather invites one to question the marked weight that the composition of the Commission grants to the opinion of representatives from the business sector, and not to other bodies that could have a clear interest in the matter, possess specialized knowledge in the subjects indicated by that provision (public health, addictions, law, advertising, and gender), and contribute to the balance of the interests at stake, such as the Patronato Nacional de la Infancia, the Instituto de Alcoholismo y Farmacodependencia, etc. The safeguard of Article 9 of the Constitution does not entail the blind viability of any type of citizen participation, as this disregards the need to protect other interests of constitutional relevance.

Finally, the Chamber observes that the challenged decree contravenes the legal provision by granting UCCAEP and advertising agencies powers in the appointment of members of the Commission. This Court notes that said representatives are excluded from the grounds for termination set out in section 6:

“Article 6 – The members of the Commission shall hold their positions for 4 years and may be re-elected for equal periods; the representatives of the Ministry of Health shall cease in their positions when they cease to be officials of the institution or when the superior authority so decides.” (Emphasis added) It is of interest to the Chamber to highlight that only the Ministry officials who make up the Commission could be removed when a superior authority so decides. The foregoing essentially means that UCCAEP and the advertising agencies may impose their representatives on the Ministry – the body entrusted by law with the supervision and regulation of advertising for beverages containing alcohol – without them being removable by a superior authority of that Ministry. This fact represents a partial emptying of the content of the law. If the law granted the Ministry of Health competence for the stated tasks, the composition of a Commission by persons completely external to the Ministry represents material non-compliance with the legal precept.

For example, the Commission could formally be included in the Ministry's structure, but if hypothetically all five of its members came from other bodies, the content of the law would be materially (and completely) emptied. In this case, the emptying of the content has been partial (only two out of five members represent bodies subject to control); even so, due to its significance in light of the best interests of the minor and the principle of objectivity in relation to the right to health, it does not survive the constitutional review exercised by this Chamber.

Consequently, the phrases “five” and “one representative from UCCAEP and another from the advertising agencies” in Article 5 of the challenged regulation are declared unconstitutional. As indicated in the preceding paragraphs, the position of the representatives from UCCAEP and the advertising agencies – as well as that of other bodies related to the subject matter, such as the Patronato Nacional de la Infancia, the Instituto de Alcoholismo y Farmacodependencia, etc. – may be considered in the work of the Commission. It is in these terms that the Chamber deems it reasonable to eliminate the vote of said representatives in the Commission, but to maintain their voice within it. This provisional situation shall remain for a period of 6 months, which is granted to the Executive Branch to reform Article 5 in the terms indicated in this judgment.

Regarding section 8, the Chamber observes that it only determines the formation of a quorum within the Commission, and therefore could only lead to constitutional issues if the validity of section 5 were maintained. However, in view of the declaration of unconstitutionality of the latter, the basis for the challenge against the former collapses, and therefore its constitutionality is upheld (…)” (emphasis added).

This same ratio decidendi is reflected in the recent resolution No. 2022025307 of 1:40 p.m. on October 25, 2022, this time specifically regarding environmental protection. Thus, this Court stated unanimously in recital XII:

“XII.- REGARDING THE ALLEGED VIOLATION OF THE RIGHT TO A HEALTHY AND ECOLOGICALLY BALANCED ENVIRONMENT, THE PRINCIPLE OF EQUALITY, THE PRINCIPLE OF HIERARCHY OF NORMS, THE PRINCIPLE OF SINGLE NON-DEROGABILITY OF REGULATIONS, AND THE PRINCIPLE OF OBJECTIFICATION OF ENVIRONMENTAL PROTECTION BY ARTICLE 18 OF THE CONSULTED DRAFT LAW. The signing Deputies consult whether Article 18 of the draft law injures the right to a healthy and ecologically balanced environment because: a) it provides for priority processing for green hydrogen production projects with respect to the environmental viability assessment (evaluación de viabilidad ambiental), and the expedited manner in which it would be processed, without this legislative initiative containing the pertinent studies confirming the expedited treatment; b) it grants the Minister of Environment and Energy the power to determine the procedure to follow regarding the environmental viability of projects related to green hydrogen, when this is a function that corresponds to the Secretaría Técnica Nacional Ambiental (SETENA), as provided by the Organic Environmental Law, which creates the secretariat as a body of maximum deconcentration of the Ministry of Environment and Energy (MINAE).

In light of the foregoing, they consider the provision under consultation could contravene the principle of hierarchy. Given the interdisciplinary nature that characterizes environmental matters, the various administrative allocations must exercise their individual competencies in a coordinated manner for the better satisfaction of the public interest, especially when dealing with the fundamental right to a healthy and ecologically balanced environment; however, this would not be equivalent to the Minister of Environment and Energy substituting the exclusive competencies granted to SETENA, since the competence to design, apply, and approve environmental impact assessments (evaluaciones de impacto ambiental) is not the minister's, but rather environmental impact assessments are a competence that corresponds, in a deconcentrated manner, to the Secretaría Técnica Nacional Ambiental. Furthermore, they claim said provision was being disapplied for a particular or specific case, as would be the case of green hydrogen and its viability, which could imply a violation of the principle of single non-derogability of a provision for the specific case.

On the other hand, they consider it risky to include accelerated processes for this procedure in the cited project. They reiterate that the questioned article provides that the procedure to follow, regarding viability, shall be that dictated by the head of the Ministry of Environment and Energy, which could contravene the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental), since it would be the minister who makes a decision of great significance for the environment, despite there being a technical body entrusted with that function. They refer to judgment number 14293-2005, from the Constitutional Chamber, which indicated that the principle of objectification of environmental protection is derived from Articles 16 and 160 of the General Public Administration Law, translating into the need to support decision-making in this matter with technical studies. c) they consult whether Article 18 of the consulted project injures the principle of equality because it gives priority to green hydrogen in relation to similar energy transition projects, which should be considered under equal conditions, as they present objectives coincident with and related to this draft law, such as the project for the “Law for the promotion and regulation of distributed energy resources from renewable sources,” legislative file No. 22.009, and the project for the “Law for the Contribution to the Energy Transition,” legislative file No. 21.343.

Moreover, the predominance is not based on any technical study supporting such treatment in relation to regulations of equal relevance, so the article under consultation could contravene the principle of equality and non-discrimination. They claim that there are no technical analyses and studies justifying the determination of public interest for the green hydrogen production project, when, as previously indicated, other initiatives exist with identical purposes that are not given the same treatment. They reiterate the absence of technical and scientific analyses and studies determining the predominance of green hydrogen compared to other energy alternatives such as those mentioned.

The provision consulted provides the following:

“ARTICLE 18.- Environmental viability. Due to the public interest surrounding green hydrogen production projects and that require environmental viability, the review of which shall be conducted in an expedited manner and with prioritization, the procedure to follow shall be that dictated by the head of the Ministry of Environment and Energy (MINAE) according to the categorization of the activity, the work, or the project. Once the type of environmental assessment to be conducted is identified, it must be indicated within the project name, on the corresponding form, that it is a priority project, so that the file intake system can prioritize the procedure. Regardless of the foregoing, the environmental impact assessment or the permit that the project requires must be resolved within a maximum of sixty calendar days.” In order to analyze the extremes consulted, it must first be stated that, as has been repeatedly held in this pronouncement, the Legislative Assembly, in the exercise of its function to issue laws in the formal and material sense, enjoys broad freedom of configuration to develop the constitutional program established by the Constituent Power.

The margin of maneuver regarding the matter regulated has also been called legislative discretion, understood as the possibility for that body, faced with a specific need of the social body, to choose the normative solution or rule of law it deems most just, adequate, and suitable to satisfy it, from the range or plurality of political options freely offered by the electorate through the system of legislative representation. It is clear that this power is not unrestricted but must observe constitutional precepts, values, and principles. In that sense, the declaration of public interest for economic activities aimed at the research, production, transformation, storage, transportation, commercialization, supply, end use, and export of green hydrogen is a manifestation of the principle of free configuration of the legislator, as developed in recital VII of this pronouncement (…)

On the other hand, the constitutionality of Article 18 of the project is consulted due to an alleged infringement of section 50 of the Political Constitution because it indicates that for projects requiring environmental viability, “the procedure to follow shall be that dictated by the head of the Ministry of Environment and Energy (MINAE) according to the categorization of the activity, the work, or the project.” To address that aspect, it is necessary to indicate that the Organic Environmental Law, No. 7554 of October 4, 1995, in development of Article 50 of the Political Constitution and as a means of safeguarding or ensuring the precautionary, preventive, and objectification principles of environmental law, establishes the technical competence for the scientific assessment of the environmental impact of various human behaviors and projects. It is in this sense that said legislation confers that specialized competence to a technical body called the Secretaría Técnica Nacional Ambiental, as a body of maximum deconcentration of the Ministry of Environment and Energy.

Consistent with that purpose, it is assigned the fundamental objective of harmonizing environmental impact with productive processes (Article 83). To this end, the law grants it the power to analyze environmental impact assessments, resolve them within the timeframes established by the General Public Administration Law, and recommend the necessary actions to minimize the impact on the environment, as well as those technically advisable to restore it. Moreover, Article 17 of the cited Law assigns SETENA the competence to carry out the environmental impact assessment of human activities that alter or destroy elements of the environment or generate toxic or hazardous waste or materials, and provides that its prior approval, by this agency, shall be an indispensable requirement to begin the activities, works, or projects. Laws and regulations shall indicate which activities, works, or projects require the environmental impact assessment.” Article 18 prescribes that the approval of environmental impact assessments must be processed before the Secretaría Técnica Nacional Ambiental, and section 19 indicates that the resolutions of the Secretaría Técnica Nacional Ambiental must be grounded and reasoned, establishing their obligatory nature for both private individuals and public entities and agencies.

Furthermore, the Organic Environmental Law establishes a multidisciplinary and highly technical composition, in which there shall be a representative of the Minister of Environment and Energy, who will act as General Secretary. SETENA is also composed of a representative of the Ministry of Health, with a specialty in sanitary engineering; a representative of the Instituto Costarricense de Acueductos y Alcantarillados, with a specialty in hydrology; a representative of the Ministry of Agriculture and Livestock, with a specialty in agronomy; a representative of the Ministry of Public Works and Transport, with a specialty in civil engineering; a representative of the Instituto Costarricense de Electricidad, with a specialty in energy development; and a representative of the state universities, with a specialty in biology. The Secretaría Técnica Nacional Ambiental was also created as a body of maximum deconcentration of the Ministry of Environment and Energy, which implies, according to the provisions of Article 83 of the General Public Administration Law, that the Minister, besides being unable to assume the competencies of the subordinate body and review or substitute its conduct (whether ex officio or at the request of a party), is equally inhibited from giving orders, instructions, or circulars to the subordinate body, such that the legislator intended to provide the Secretaría Técnica Nacional Ambiental with guarantees of independence from the superior.

This is also evidenced by Article 88 providing that the members of the Secretariat shall be full-time officials, with exclusive dedication and a prohibition on the exercise of their personal, professional, or private activities, whose removal may only be agreed upon when there is serious misconduct or non-compliance with what is established in this or other laws.

Due to all the foregoing, it is the Chamber's criterion that the legislator has free configuration in the creation and assignment of administrative competencies. This implies discretion in defining the administrative bodies responsible for carrying out a specific function regarding a particular matter. Thus, the mere assignment of a specific competence to a different body does not, in itself, constitute a breach of constitutional order. However, when dealing with environmental protection law, as a consequence of the preventive and precautionary principles, it is necessary that a competence of a technical or scientific nature, aimed at establishing environmental viability, the impact of a particular activity or project on the environment, or generally defining the type of technical-scientific tool to weigh those incidences on the environment and ecosystems, be assigned to a body of a technical nature and not one of an eminently political nature. The foregoing is because the weighing and analysis of such a matter demands and imposes that technical considerations sustain the granting or denial of said viability. While political bodies could establish programmatic guidelines on such matter, ultimately, the concrete application of the scientific and technical variable entails that functional orientation.

Thus, Article 18 of the consulted draft law, in providing that to determine the viability of projects related to green hydrogen production, “the procedure to follow shall be that dictated by the head of the Ministry of Environment and Energy (MINAE)” disregards the aforementioned criterion of technical functional specialty, transferring the competence in question to a political body, without any objective reason to support the single non-application or exception to the technical competence that, regarding such matter, has been generally assigned to a specialized body, according to the regulations of the Organic Environmental Law. Therefore, that treatment is contrary to Article 50 of the Political Constitution, from which the principle of environmental non-regression is derived, since it deteriorates the technical suitability of decisions concerning the type of evaluation, control, and oversight of activities that, to a greater or lesser degree, impact the environment, to the detriment of the right to a healthy and ecologically balanced environment.

That is, the assignment of competence to the head of the Environment portfolio regarding environmental assessments related to the subject of the draft law in question constitutes a single non-application of the technical competencies that have been legally assigned to a specialized body, in order to instead transfer them to a political body, hence an unjustified exception to the specialization of competencies that guarantees the technical assessment of the potential environmental impact of certain human development projects, an analysis that seeks to directly satisfy the precautionary and preventive principles. That treatment disapplies the aforementioned technical deference, creating asymmetrical treatment in the environmental assessments of that type of anthropogenic development, without any legitimate cause being observable to support that treatment.

On this point, the consultation is answered to the effect that Article 18 of the draft law “Law for the promotion and implementation of a green hydrogen economy in Costa Rica” is contrary to section 50 of the Political Constitution in that it provides that “the procedure to follow shall be that dictated by the head of the Ministry of Environment and Energy (MINAE)” and that “the environmental impact assessment or the permit that the project requires must be resolved within a maximum of sixty calendar days” (emphasis added).

Based on the foregoing, it is clear that the Chamber has affirmed that, in the exercise of its competencies, the State's actions must be deployed with criteria of objectivity and respecting the unequivocal rules of science or technology, as this leads to more effective and efficient protection of the fundamental rights of individuals vis-à-vis state powers and even against private third parties. In the case of the State, the principle of free configuration of the legislator grants it broad scope for the creation and assignment of administrative competencies, as well as the definition of which administrative bodies are in charge of a certain function in a particular matter. However, when it comes to protecting a healthy and ecologically balanced environment, the preventive and precautionary constitutional principles demand that a competence of a technical or scientific nature aimed at establishing environmental viability, or the impact of a particular activity or project on the environment, or, in general, defining the type of technical-scientific tool to weigh those incidences on the environment and ecosystems, be assigned to a body of a technical nature and not one of an eminently political nature.

Indeed, given the requirements of the objectification of environmental protection (objetivación de la tutela ambiental), strongly consolidated thanks to constitutional jurisprudence, the weighing and analysis of environmental matters necessitate that technical considerations support all decisions involving an impact on the environment, which naturally encompasses those resolutions, plan designs, or actions related to any management plan in a protected wilderness area (área silvestre protegida). While political bodies could issue programmatic guidelines on such matter, ultimately, the concrete application of the scientific and technical variable must prevail in the functional orientation and corresponding decisions.

The aforementioned requirement has been embodied, for example, in several collegiate bodies with competence in matters of environmental relevance, given that their composition reflects that pursuit of resolving matters concerning the environment in a substantiated manner, that is, based on scientific and technical knowledge, not on criteria of mere political expediency.

For instance, Article 5 of the National Parks Service Law provides for a council as an advisory body to the Executive Branch regarding the policy for the creation, development, and conservation of national parks. That body is composed as follows:

“a) The Minister of Environment and Energy, or their representative, who shall preside over it.

• b)The Minister of Culture, Youth, and Sports, or their representative.
• c)A representative of the Ministry of Public Education.

ch) A representative of the Costa Rican Tourism Institute.

• d)The Director of the National Parks Service.
• e)A representative of the College of Biologists.” This is of crucial importance, as the affirmative opinion of the Council is required to authorize various activities, such as sport and artisanal fishing in certain zones of the national parks.

Another example is seen in Article 21 of the Regulation to the Wildlife Conservation Law. This regulates the National Wildlife Council, whose objective is to support and technically advise MINAE and SINAC regarding the conservation and sustainable use of wildlife, as well as the fair and equitable distribution of the derived benefits. Such commission is composed as follows:

“a. From SINAC, the Wildlife Coordinator and their respective alternate.

b. Two principal representatives and two alternates designated by CONARE.

c. One principal representative and one alternate from the College of Biologists of Costa Rica.

d. One principal representative and one alternate from the College of Agricultural Engineers.

e. Two principal representatives and two alternates from non-profit non-governmental organizations, with proven experience in conservation and sustainable use of wildlife, which shall be elected through a participatory process led by MINAE SINAC.” In line with the ratio decidendi of judgment No. 2022025307 – where, as in the sub examine case, the main constitutional right protected is the environment, which has a natural and an urban aspect as explained ut supra – in this action of unconstitutionality, it is observed that the protection of cultural heritage and a healthy and ecologically balanced environment requires officials appointed on technical merit with competence of a scientific nature in the composition of the Board of Directors (Junta Directiva) of the Isla San Lucas National Park.

In this regard, while the free configuration of the legislator in the creation and assignment of administrative competencies is constitutionally protected, it is no less true that it is subject to a series of limitations – for example, when dealing with issues concerning environmental protection – given that, in such a case, based on the principles of objectification of environmental protection, preventive and precautionary measures, the logical-legal principle of non-contradiction, and the fundamental rights to a healthy and ecologically balanced environment and protection of natural beauty (Articles 50 and 89 of the Political Constitution), it is unavoidable that the entity or body responsible for the management and administration of a protected wilderness area (área silvestre protegida) incorporate the scientific element within its internal composition, in such a way that this factor, which promotes objectivity and technical support for decisions, participates in shaping its decisions.

In the sub iudice case, this implies that the composition of the Board of Directors of the Isla San Lucas National Park must be formed in such a way as to strengthen the substantiated and technical nature of its decisions, a purpose that inexorably demands that its members possess sufficient scientific knowledge in environmental and cultural heritage matters, by virtue of their experience in that field and because it involves a designation based on professional merit, not on purely political assessment.

Indeed, it is worth recalling that in section 4 of Executive Decree No. 29277 ‘Declares the area comprising Isla San Lucas and the coastal marine area as a National Wildlife Refuge’ it was provided:

“Article 4.—The Administration of the protected areas declared herein shall be the responsibility of the Ministry of Environment and Energy and the institutions established by the applicable regulations. The management categories established in this decree shall be governed in accordance with the applicable provisions established by legislation in force on the matter. Extraction activities of marine species shall be permitted based on the regulations established by the Fisheries and Aquaculture Institute (INCOPESCA).” Thus, since its creation, the administration of the Isla San Lucas National Wildlife Refuge fell to MINAE and the institutions contemplated in the applicable regulations, such as SINAC, having among its powers the administration of the conservation areas, as well as the National Council of Conservation Areas, whose functions include the definition of strategies and policies aimed at the consolidation and development of SINAC, as well as the supervision and oversight of the correct technical and administrative management of the conservation areas (see the above-cited sections of the Biodiversity Law).

Now then, although the administration of the Isla San Lucas National Wildlife Refuge, in accordance with Executive Decree No. 29277, was expressly assigned to MINAE and the institutions established in the applicable regulations, this situation was set aside with the issuance of Law No. 9892, since the surface area of the aforementioned refuge, which became part of the Isla San Lucas National Park, was placed under the administration of the Board of Directors (Junta Directiva) established in section 9 of that regulation, whose composition is comprised of: “a) The Minister of Environment and Energy, who shall preside over it, with a vice minister of the portfolio being able to act as an alternate. b) The Minister of Culture, with a vice minister of the portfolio being able to act as an alternate. c) The Executive President of the Costa Rican Tourism Institute (ICT), with the person holding the management position or a member of the Board of Directors of said institute being able to act as an alternate. d) A representative of the Executive Branch designated by the Government Council, a body that shall also appoint an alternate person. e) The mayor of the Municipality of the Central canton of Puntarenas, with a vice mayor being able to act as an alternate. f) The president of the Chamber of Tourism of Puntarenas, with one of the members of the Board of Directors of said chamber being able to act as an alternate.” Such a situation harms the principles of progressivity and non-regression of environmental protection, given that the administration of the area in question passed from a body with technical knowledge in environmental matters to one in which not a single one of its members is a technical appointee based on demonstrated scientific knowledge.

Similarly, the precautionary principle and the principle of objectification of environmental protection are violated, because, in light of the considerations set forth above, it is essential that the Board of Directors (Junta Directiva) of the Isla San Lucas National Park be composed of representatives from properly scientific agencies relevant to environmental protection and cultural heritage protection, especially since this collegial body is responsible for adopting a series of decisions of a technical-environmental nature that have an impact on the preservation of natural and cultural resources, sustainability, and biodiversity, among other matters of importance for the protection of a healthy and ecologically sustainable environment in that protected wilderness area (área silvestre protegida) and the aforementioned cultural heritage.

Specifically, this collegial body is responsible for, among other things, “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 intended for the rest and recreation of visitors, the enabling and accessibility of land and sea routes, port constructions, and, in general, the provision of all basic services. d) Defining environmentally sustainable tourism activities, whether commercial, transport, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island (…) f) Granting approval of authorizations, use permits (permisos de uso), and concessions to carry out works and services provided in the Tourist Zone.

In the case of works related to declared heritage areas, coordination with the Ministry of Culture shall be required. 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.” Even other tasks that are not specifically environmental, such as marketing and promotion of the park, must always consider the variable of safeguarding nature and cultural heritage, precisely because it is a protected wilderness area of historical-architectural interest.

It is worth highlighting that, previously, in the legal system, some of those functions now conferred upon the Board of Directors (Junta Directiva) of the Isla San Lucas National Park were granted to the National Council of Conservation Areas (Consejo Nacional de Áreas de Conservación) and SINAC. For example, article 25 of the Biodiversity Law (Ley de Biodiversidad) includes as part of the functions of the aforementioned council: “1.- Defining the execution of strategies and policies aimed at the consolidation and development of the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación), and monitoring their execution. 2.- Supervising and overseeing the correct technical and administrative management of the Conservation Areas (Áreas de Conservación) (…) 4.- Defining strategies and policies related to the consolidation and development of state protected areas (áreas protegidas estatales), as well as supervising their management. 5.- Approving the strategies, the structure of the administrative bodies of the protected areas, and the annual plans and budgets of the Conservation Areas (…) 8.- Establishing the guidelines and directives to make coherent the structures, administrative mechanisms, and regulations of the Conservation Areas (…) 10.- Approving the concession applications indicated in article 39 of this law.” Furthermore, article 9 of the Regulation to the Wildlife Conservation Law (Reglamento a la Ley de Conservación de la Vida Silvestre) established that SINAC is responsible for “Granting the licenses, permits, or authorizations specified in the LCVS and this regulation.” Therefore, the functions granted to the Board of Directors (Junta Directiva) of the Isla San Lucas National Park in subsections a), b), f), and h) of article 9, to mention a few examples, had previously been conferred upon SINAC and the National Council of Conservation Areas (Consejo Nacional de Áreas de Conservación), namely, actors of a technical nature.

On this subject, in the above-cited official letter DM-1216-2019 signed by MINAE on November 27, 2019, regarding legislative bill No. 21287, which became Law No. 9892, it was stated: “In article 7 on the creation of the Board of Directors (Junta Directiva) of the Isla San Lucas National Park, it is recommended that it be a body of maximum deconcentration under the Ministry of Environment and Energy, with instrumental legal personality for the exercise of its powers. Also, that the positions be permanent and that it be chaired by MINAE. We also recommend that they be persons with suitable technical and specialized profiles, accompanied by a person as Executive Manager of the Board, who supports the administration's management in specialized tasks such as the conservation and restoration of the island's cultural heritage. In addition, it must be accompanied by administrative personnel to comply with all the obligations imposed by law. The members of the Board must not receive any per diem compensation, and we suggest that their appointment be for periods of two years” (emphasis added).

In the same vein, in memorandum CICPC-CNP-023-2019 signed on July 1, 2019, by the National Commission for Historical-Architectural Heritage (Comisión Nacional de Patrimonio Histórico Arquitectónico) concerning the aforementioned legislative bill No. 21287, it was indicated:

“ARTICLE 9- Composition The National Commission for Historical-Architectural Heritage considers that it is not necessary to establish a Board of Directors (Junta Directiva) that comes to replace or supplant functions that were conferred by Law on the Cultural Heritage Center (Centro de Patrimonio Cultural).

ARTICLE 12 – Development and Infrastructure In relation to Articles 09 and 12, this Commission considers it very concerning that a Commission that is neither technical nor composed of specialists is given functions above the ministerial responsibilities themselves for the protection of heritage and the environment, in the interest of tourism.

The appreciation and historical enjoyment can be understood in very diverse ways by a Commission that would make decisions by vote where specialized criteria would not prevail (…)” (emphasis added).

Likewise, in report AL-DEST-IJU-006-2020 issued by the Department of Studies, References, and Technical Services of the Legislative Assembly concerning the bill that became Law No. 9892, it was noted:

“Article 9.- Composition Establishes how the Board of Directors (Junta Directiva) of the Isla San Lucas National Park will be constituted.

Regarding the prominent representatives on the Board of Directors, it is essential to establish in the article who will designate them, their rank, and the technical knowledge each representative must possess, besides the decision-making power to determine agreements.

Since this is a board of directors responsible for managing the operations of a protected wilderness area and a sustainable peripheral tourist area, in whose management ecosystemic, ecological, social, economic, cultural, tourist, and environmental principles converge, the representative individuals must possess expertise that allows for making decisions in keeping with those interests.

Regarding the functioning and organization of the body constituted here, although article ten refers to the General Law of Public Administration (Ley General de la Administración Pública), it must specifically indicate “regarding and corresponding to collegial bodies,” for greater clarity. However, it would be important at most to point out basic aspects such as the quorum to constitute the body and the minimum number of sessions per month” (emphasis added).

Based on the foregoing, it is contrary to the principles of progressivity and non-regression in environmental matters, to the precautionary principle and the principle of objectification of environmental protection, to the preventive principle in matters of cultural heritage, and, by derivation, to Articles 50 and 89 of the Magna Carta (Constitución Política), that the Board of Directors (Junta Directiva) of the Isla San Lucas National Park, according to article 9 of Law No. 9892, is not composed of technical bodies for the protection of the environment and cultural heritage that properly contribute to the design of policies, guiding guidelines, and other facets of environmental and cultural relevance within the decision-making process within that collegial body. Moreover, although article 9 of Law No. 9892 indicated that: “In matters of conservation and preservation of the historical-architectural heritage, the criteria of the Cultural Heritage Research and Conservation Center (Centro de Investigación y Conservación del Patrimonio Cultural) of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island's biodiversity, the technical criteria of the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación) shall prevail,” it is no less true that there appears to be no obligation to request such technical criteria.

Furthermore, it should be noted that the conservation and preservation of the historical-architectural heritage and the safeguarding of wildlife and biodiversity on the island are only some of the aspects of cultural and environmental relevance in which the criteria of the Cultural Heritage Research and Conservation Center and SINAC, respectively, must prevail, as the law expressly regulates, since the safeguarding of such constitutional assets naturally extends to other areas of protection concerning the park as a protected wilderness area and a site of cultural interest, such as dignity in relation to nature, landscape management, and education in this matter, among others.

Finally, even though the case file contains evidence that SINAC representatives participated in the ordinary sessions of the Board of Directors (Junta Directiva) of the Isla San Lucas National Park, 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, it is not proven that they attended all of the aforementioned sessions; an example of this is that of the 14 ordinary sessions held in 2021, the aforementioned Board of Directors only had the participation of one representative of the National System of Conservation Areas in five of them.

Therefore, the unconstitutionality of article 10 of Law No. 9892 is verified.

VII. Regarding the alleged unconstitutionality of Law No. 9892, concerning the granting of concessions

The undersigned judges also hold that, prior to the granting of any type of concession, authorization, or use permit in a national park, it is necessary to have sufficient and individualized studies that, in accordance with the principle of objectification of environmental protection, allow for technically and scientifically demonstrating that no harm will be caused to the environment and, in the specific case of Isla San Lucas, nor to the cultural heritage.

Despite the foregoing, Law No. 9892 authorizes the granting of concessions and permits for activities and facilities other than those for park services i) without a scientific study having been previously conducted to establish guidelines regarding which activities may or may not be concessioned in the Isla San Lucas National Park, in accordance with its environmental and cultural specificities, and in consideration of its conservation objectives and purposes; and ii) without expressly requiring the completion of environmental impact assessments (estudios de impacto ambiental) before the granting of the aforementioned 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 verified, despite the risk generated by the granting of concessions in a national park that also possesses cultural heritage.

Therefore, upon confirming the violation of the precautionary, preventive, and objectification principles of environmental protection, and the fundamental rights enshrined in Articles 50 and 89 of the Political Constitution (Constitución Política), the unconstitutionality of the second and third paragraphs of Article 7, subsections f) and j) of Article 9, as well as the phrase “the fees for concessions and permits” of Article 17 of Law No. 9892, is evidenced.

VIII.Regarding the rest of the grievances raised in the sub lite. Finally, we do not omit noting that we agree with the majority regarding what is established in Recitals XII and XIII of this ruling.

IX.Corollary. In sum, the undersigned judges dissent, we find the action with merit, and we annul Law No. 9892 of August 24, 2020, called 'Law for the Creation of the Isla San Lucas National Park' (Ley de Creación del Parque Nacional Isla San Lucas), for violation 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 the fundamental rights protected in Articles 50 and 89 of the Political Constitution.

Fernando Cruz C.

Paul Rueda L. Roberto Garita N.

CO05/24 ... See more Res: 2023-012817 CONSTITUTIONAL CHAMBER OF THE SUPREME COURT OF JUSTICE. San José, at fourteen hours and forty minutes on the thirty-first of May, two thousand twenty-three.

Unconstitutionality action processed in case file No. 21-005756-0007-CO filed by ANAIS VILLALOBOS KONG and ÁLVARO SAGOT RODRÍGUEZ, holders of identity card Nos. 105390615 and 203650227, respectively; against the entirety of the Law for the Creation of the Isla San Lucas National Park, Law No. 9892 of August 24, 2020, and, specifically, Articles Nos. 1, 2, 3 last paragraph, 5, 6, 7, 9 subsection d), 10, 14 subsection g), 15, 16, 17, and 18, to which was consolidated action No. 21-006852-0007-CO brought by GUSTAVO FLORES YZAGUIRRE, holder of identity card No. 107060843.

Resulting:

1. 1By brief received in the Chamber on March 23, 2021, the plaintiff files an unconstitutionality action against the entirety of the Law for the Creation of the Isla San Lucas National Park, Law No. 9892 of August 24, 2020, for violation of the principles of non-regression, objectification, precaution, and progressivity, as well as the right to a healthy and ecologically balanced environment, because, without technical justification, the area of a protected wilderness area (área silvestre protegida) was reduced and a type of area was created with purposes different from those that must exist within a national park. They state: “We believe we are directly legitimized to bring this unconstitutionality action because this matter involves diffuse environmental interests, in that we allege, among other things, an unjustified reduction, without studies, of an ASP. Also, because a change in management category occurred without there having previously been studies and evaluations to support the legislative decision-making, besides the fact that even now, with this law, it is being permitted to carry out land-use changes (cambios de uso del suelo) within a(n) area in a national park in violation of reiterated constitutional jurisprudence, which is also contrary to constitutional and conventional norms.As will be seen in our analysis, through this law, it is being permitted to intervene in a national park with commercial works, tourist facilities, and docks, all of which unconstitutionally affect marine and terrestrial biodiversity. All of the foregoing puts our natural heritage at risk and could deprive future generations not yet born of enjoying an ASP. Our foundation lies in what is provided in Constitutional articles 7, 21, 50, and 89, and article 75, second paragraph of the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional). That set forth above is expanded upon with our arguments set out below. QUESTIONED NORM 'CREATION OF THE ISLA SAN LUCAS NATIONAL PARK Law No. 9892 of August 24, 2020 Published in Supplement No. 248 to La Gaceta No. 233 of September 21, 2020 THE LEGISLATIVE ASSEMBLY OF THE REPUBLIC OF COSTA RICA DECREES: CREATION OF THE ISLA SAN LUCAS NATIONAL PARK (…) GROUNDS FOR THE UNCONSTITUTIONALITY ACTION FIRST: REDUCTION OF THE PROTECTED WILDERNESS AREA WITHOUT JUSTIFICATION The law now being challenged establishes in article three the 3 fragmented delimitations of the new national park as follows: 'Article 3.- Delimitations.The Isla San Lucas National Park shall be composed of a terrestrial portion and a coastal marine area. The terrestrial portion shall consist of the insular part of Isla San Lucas, located in the 0002) of Nicoya, cartographic sheet of the National Geographic Institute (Instituto Geográfico Nacional) called Golfo. Edition 3-IGNCR at north latitude 9 ° 55' 55 ' - 9 57' 20' and west longitude 84°53 ' 23 ' with an extension of four hundred sixty-two hectares (462 ha). The coastal marine area shall be composed of the waters around the island, with a depth of up to three meters (3 m) …' (Our emphasis) As can be seen, it states that the marine section will be composed around the island with a depth OF ONLY UP TO THREE METERS. But it turns out that this implied a reduction of the marine area that finds no justification in science and technique, since this very Chamber, in constitutional ruling Voto 2010-01 3090, had ordered that the marine area of Isla San Lucas was to be ALL the marine sector, up to a depth OF SIX METERS.The mentioned ruling stated, for our purposes, in its Therefore (Por tanto) section: '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, insofar as it modifies only subsection A. of article I of Executive Decree No. 33327, MINAE, except for the addition of the portion of water that is added to the Isla San Lucas National Wildlife Refuge and subsection B which remain valid' (Our emphasis) And it turns out that subsection B of said decree stated: 'B. A coastal-marine area comprised of the waters around Isla San Lucas up to a depth of 6 m' (Our emphasis) The foregoing implies a discrepancy of three meters, in principle, 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: 'Add to the Isla San Lucas National Wildlife Refuge a portion of water described by the following Costa Rica Lambert North coordinates:

Vertex Coordinate X Coordinate Y Condition 1 434875 213534 Vertex I, starting point at the limit of the six-meter depth contour line, reference where the expansion limit begins, in the water, passing through vertices 2 to 8, 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 limit is defined on the six-meter depth contour line, passing through vertices 9 to 14, generating 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 …' (Our emphasis) As can be seen, we are talking, without fear of error, about a delimitation in the marine area that belonged to the ASP of up to 6 meters deep. Even the constitutional ruling was also clear in stating 'The action is partially GRANTED. Consequently, article 1 ° of Executive Decree No. 34282-TUR-MINAET-C (sic)... except for the addition of the portion of water that is added to the Isla San Lucas National Wildlife Refuge' is annulled as unconstitutional (…) Therefore, that section that was added to the Refuge was also put at risk, and we so request it be declared. Let us see that there is no technical or scientific justification for doing this, and this transgresses the principle of scientific protection insofar as there was a reduction, without any argument or study whatsoever.

In summary: for all the above, when it is stated in Law 9892, in its article 3, that the marine boundary is marked by a depth of up to three meters, we have that a reduction in area occurred that never had any support to validate why that legislative decision was made, and this is regressive and violates constitutional articles 50 and 89 insofar as there is a lack of protection for biodiversity and also for the coastal marine landscape. Since it is clear that there are protected wetlands on Isla San Lucas, the above reduction in area even violates constitutional articles 7 and 50 linked to the ratified Convention on the Conservation of Wetlands of International Importance and Sites for Migratory Birds (RAMSAR) insofar as its article I establishes that wetlands extend to a depth of 6 meters at low tide. (…) We also highlight the matter of low tide, since the new law only speaks of protection for an area of up to three meters deep, but NOTHING was stated about whether the 3 meters begin to be measured at low tide or at high tide, and that single fact is fundamental in this action because it determines greater or lesser protection of areas and the confrontation with a norm provided for in a ratified international instrument.

Moreover, those wetlands of Isla San Lucas were already recognized by regulatory norm, so there is no justification for doing what the deputies did and later the Executive Branch itself, which could have vetoed the law but did not do so. We therefore allege that the unconstitutionality of the entire law should be declared, because by reducing the marine area in article 3, the entire normative body is altered systemically. And it is precisely that the rationale for those 6 meters depth at low tide is justified not only in the cited constitutional ruling but in the RAMSAR Convention, and consequently, by intentionally and in bad faith cutting back the wetland areas, we perceive the clear unconstitutionality and so request it be resolved. Also note the connection regarding the importance and the recognition of the San Lucas wetlands, that even in the 'Whereas clauses' (considerandos) of the repealed decree No. 33327 on the Isla National Wildlife Refuge, it was stated, in its delimitation, that it included the area of Isla San Lucas and the coastal marine area, but it added that the activity or project aimed at recovering and conserving the quality of waters and natural resources of the Puntarenas Estuary was declared of public interest, when it stated: (…) That is, with the negative impact caused by the law in its article 1 and especially in article 3, vital cycles and valuable ecosystems that function ecosystemically together with the wetlands of the Puntarenas Estuary could be altered, but apparently none of that weighed on the deputies who created the new legal body.

Adding to the above, let us keep in mind that linked by connection to constitutional articles 50 and 89, the norm provided in the Organic Environmental Law (Ley Orgánica del Ambiente), article 40, which speaks about the six meters depth at low tide for wetlands, or article 41, which establishes that even wetlands not protected or declared by law have special protection as being of environmental public interest, must be weighed. We therefore believe there is a clear unconstitutionality in the law that warrants declaring unconstitutional not only article 3 in its final paragraph of this new challenged normative body but the entire text of that Law 9892, because the error in the limits encompasses all related articles, given that there can be no protection if dozens of marine hectares of biodiversity that were previously protected are left out. The error is not resolved with an interpretive ruling, as we are facing a gross situation of ecosystemic lack of protection.

In the same line, we must mention a violation of constitutional articles 7, 50, and 89, linked to the Convention for the Conservation of Biodiversity and Protection of Priority Wilderness Areas in Central America, approved by Law No. 7433, which defines conservation as: 'Preservation, maintenance, restoration, and sustainable use of the elements of biodiversity,' since it is manifest that if an area is excluded without justification, valuable ecosystems for birds and marine life are being left unprotected within a protected wilderness area in Costa Rica. Let us see that with this, there are impacts on different life forms throughout the Gulf, and consequently, a site considered a nursery for various marine species that reproduce in the area is also affected. The impacts on that nursery also have negative repercussions for artisanal fishermen and their families currently, and for future generations consequently.

It is manifest that by reducing the area, the Convention on Biological Diversity (Law No. 7416 of June 30, 1994) is also violated, in relation to the State's duty to manage important resources for the conservation of biological diversity and protect ecosystems and natural habitats, as developed in article 8 (in situ conservation), subsections d) and e), insofar as the protected areas are left unprotected with the described reduction, where the prevailing criterion is unknown and there is also great uncertainty regarding the overall negative impact on the area from the action taken. There is also a disregard for article 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' (…) With Law 9892, instead, there has been a lack of protection for an ASP with the reduction, where it was not even contemplated that any measurement of the ASP should start from low tide.

In the Convention for the Protection of Flora, Fauna, and Natural Scenic Beauties of the Countries of America (Law 3763), it is forcefully stated: 'ARTICLE III. The Contracting Governments agree that the boundaries of national parks shall not be altered, nor any part of them alienated, except by action of the competent legislative authority.' Now, although in this case it was the Legislative Assembly that modified and delimited the new Park, this does not justify why the reduction of the protected wilderness area was carried out, and this must be very clear, as it justifies the declaration of unconstitutionality for violation of the principle of proportionality and reasonableness. We also point out that with the reduction of the protected wilderness area without studies or justification, we find violations of the precautionary principle and the principle of non-regression, since evidently the deputies and subsequently the Executive Branch relied solely on discretion for the reduction, despite the existence of clear norms and jurisprudence, and this cannot be permitted, as it even violates intra- and intergenerational protection, as we have noted.

Special mention deserves the violation of article 26 of the American Convention on Human Rights (Law No. 4534), which states: (…) This Authority must consider that by reducing the area of a protected wilderness area without any justification and without studies, the principle of progressivity is openly violated regarding the environmental protection that sites such as national parks and their wetlands deserve; therefore, it must be upheld without a doubt in this action, and we so request it be expressly stated. We also wish to add that constitutional article 7 and Advisory Opinion No. OC-23-17 of the Inter-American Court of Human Rights must be assessed alongside what has been stated, since it states therein: (…) We request that this Authority rule that in this case we are facing a violation of the principle of lifetime tenure (irreductibilidad) of PROTECTED WILDERNESS AREAS by providing in the article 3 in question that: 'the coastal marine area shall be composed of the waters around the island, with a depth of up to three meters (3 m)' Observe that the 6 meters provided for in constitutional ruling Voto 2010-013099 were ignored, in addition to everything stated above provided in the conventionality block as well as what the domestic law norms related by connection to constitutional articles 50 and 89 indicate.

In fact, Executive Decree No. 34282, which was partially declared unconstitutional, even included the Pan de Azúcar islet as part of the Isla San Lucas National Wildlife Refuge, but now we do not know what happened to that section, because the law was silent on the matter and therefore it must be considered that that portion was also excluded. Finally, we ask that you consider that Article 35 of the Organic Environmental Law has been violated, which by connection is linked to Articles 50 and 89 of the Constitution insofar as reducing the area of the WPA violated the objectives of every protected wilderness area, since it leaves unprotected a very large section that is important for the biodiversity contained therein, which would be left in the hands of irresponsible fishermen and people who will have no limits in taking actions contrary to protection. This Chamber has stated regarding the reductions of PROTECTED WILDERNESS AREAS (SIC) and technical studies:

(…)

SECOND: CHANGE OF MANAGEMENT CATEGORY AND THE INCLUSION OF A TOURIST ZONE WITHOUT STUDIES In this section we have two situations without studies. The first is that the management category is changed without studies, and the second is that this change of category, contrary to improving the situation, harms the WPA, since it was ordered to add a "commercial tourist" use, which they try to paint as protective by adding the word sustainable to tourist, but the entire change conceals a spirit of commercial purposes, where that option did not exist before, as we will now explain. To exemplify the above, we highlight that Article 2 of the law even speaks of a declaration of national interest and high priority for sustainable tourism development, so that you can appreciate what we are saying. And in fact, the word "sustainable" is used 7 times to give that supposedly "protective" aura.

Note that Isla San Lucas was, until the enactment of Law No. 9892 of August 24, 2020, a National Wildlife Refuge, called: Isla San Lucas National Wildlife Refuge. To change the management category, the necessary studies should have existed to justify why it was best to create a National Park, but that scientific assessment never existed in the file before the Legislative Assembly. Note that in the same way that studies are required to reduce a PROTECTED WILDERNESS AREA (SIC), there must also be those that validate the change to a category such as National Park, but as we said, in this case nothing exists in the legislative file.

That is to say, in addition to the change of category without studies, which seems unconstitutional to us, the most serious aspect of this situation is that you will never find within science and technique the justification that motivates adding a commercial and tourist use in the new national park. It is pointed out that we are facing a serious situation, insofar as that use, for commercial and tourist purposes, is not supported or founded on anything, and to that extent, there is an unconstitutionality.

In any case, if you can read the challenged law, you will find that its spirit is to convert this WPA into a site with "commercial and tourist" uses disguised under the concept SUSTAINABLE TOURIST DEVELOPMENT (…)

This Article 6 has four subsections or descriptive paragraphs:

Regarding subsection 1), we add that it speaks of a site with historical nuances due to the existence of buildings of the old prison, and georeferences (sic) are indicated, but where are the archaeological studies that justify all of the above? Why was the area not larger? At least within the legislative file, nothing exists, and that deficiency implies a violation of the principle of scientific tutelage. Remains of potsherds, burials, and lithic works of indigenous people have been found on the island, and therefore it is also worth asking: Why, if there are other areas with archaeological remains of original cultures, is only one of the points specified? Who and why (sic) were other sites of historical-archaeological value on the island excluded? In fact, only the most recent point historically speaking, which is the penal center, was georeferenced (sic). Where is the updated report from the National Museum of Costa Rica? Everything here are doubts that oblige us to accept the unconstitutionality. To date, 8 archaeological sites with remains of indigenous activity are known, duly marked throughout Isla San Lucas, and this makes this matter a very delicate point, since it is unjustified that georeferences (sic) are only indicated for the area of the penal center when there are more important sites, as we said.

In subsection b), a "recreation zone" called Playa El Coco is mentioned and demarcated, but that demarcation, even if it has georeferences (sic), does not in itself imply a study with a justification within science and technique as to why it was done, and in that we find another unconstitutionality. Note that a terrestrial and coastal biodiversity study should have existed to justify why that sector was determined and not another, but as we have said, nothing exists within the file, and that uncertainty leads us to conclude that a sector of Playa El Coco was chosen by mere discretion to declare it with that use within a NATIONAL PARK AS A RECREATION ZONE, and that should not be allowed. It must be known that the cemetery of the penitentiary center is occupying a sector of Playa Cocos, and there is also an exuberant evergreen forest on that beach together with a large sector of deciduous forest that reaches up to where the high tide mark allows, so a tourist project in 2021 implies tree removal (…)

That is, forest regeneration has taken over Playa Cocos, but it turns out that for the deputies, that beach should be for recreational use, without seeing the impacts or existing studies.

In subsection c), some coordinates for making trails are detailed, but the biological implications and the environmental impact of those trails also have no scientific justification.

Finally, paragraph d) is highly dangerous, since it speaks of a water section or "sector of waters," but if we add to this that Article 3 of the law reduced the marine section from 6 to 3 meters in depth, we have immense scientific uncertainty due to a lack of studies, and we ask that this be stated. Let us also see that that "section of waters" would be circumscribed to the said georeferences (sic), but it has no foundation to exist, and if we add that docks and piers will exist there, as determined by Article 16, we reach a climax of possible negative environmental impacts that were never previously justified as they should have been considered. Let us see that Article 16 speaks of the possibility of making several docks and piers at a point where that option did not exist before when that WPA was a wildlife refuge.

Therefore, we find deficiencies that lead to determining that Articles 3 in its last paragraph, 6, and 16 of Law 9892 are absolutely unconstitutional because there are no studies justifying what is stipulated therein.

In conclusion to the above, we add that from the previous articles we also clearly have that there is a differentiated and demarcated area in Law 9892 itself. Said area, where the 4 subsections are located, is considered as one of "affectation" that has questionable nuances that were never justified in their entirety, nor independently as we explained, and that leads to an unconstitutionality for violation of the principle of objectification and because the very word affectation does not rhyme with what should exist and would be permitted within a national park. And it is that the deputies did not have the powers to play, in the way they did, with the Legal System, as that escapes their competencies. See, for example, that the type of "affectations" in subsections b) and d) in any case, in addition to the lack of studies, clash dramatically with the National Parks Service Law in its Article 8, subsection 15 related to Article 12 of that same legal body; therefore, those articles 1, 3 in its last paragraph, 6, and 16 of Law 9892 have serious flaws of unconstitutionality.

Let us remember that in national parks it is NOT permitted to grant concessions outside the facilities for the service of the park itself, and only ecotourism, research, workshops, and eventually the use of water resources are permitted, but nothing more, but it would never be possible to give commercial purposes in docks, piers, etc., that could be authorized by the Board that will administer that WPA. We will expand on this below.

THIRD: COMMERCIAL PURPOSES DISGUISED AS SUSTAINABLE PURPOSES IN THE FRAGMENTATION OF THE WPA.

(…) there has been a shift from a wildlife refuge to a park with a tourist zone, where docks, piers, food services, and other maritime facilities will be permitted, all of it numerus (sic) apertus as if it were a kind of amusement park, forgetting the raison d'être and the objectives of these WPAs, bringing all of the above: noise pollution in the marine ecosystem from the engines of the boats, jet skis, and vessels that arrive at the site, light pollution, pollution from oils and fuels from the boats, impact on the marine soil in wetlands, sedimentation, etc.

All of the above contrasts openly with Article III of the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the American Countries, which indicated as an international obligation for Costa Rica that parks be destined for protection and restoration of their areas and that establishing commercial activities was prohibited. The spirit of what is established in the aforementioned international instrument is to protect ecosystems and not offer them to the highest bidder in concessions as spaces for tourist/commercial activities far removed from non-essential services, and that change and new "sustainable tourist" use is openly unconstitutional.

To further exemplify the commercial use within this WPA, we have to see that Article 14 of that Law 9892 establishes in subsection g) as one of the tasks and competencies of the Trust Commission that will administer the Park: "g) Approve the agreements and contracts for the provision of recreational and/or commercial services, as well as essential and non-essential services, to achieve the greatest development of the Tourist Zone and enjoyment of visitors (…)" In Article 9 of this nefarious new legal body, the duties of the Board of Directors that will administer the Park are indicated: "Article 9.- (Tasks and powers. The Board of Directors of the Isla San Lucas National Park shall have the following powers: ... d) Define the environmentally sustainable tourist activities, whether commercial, for transportation, sports, artistic, or cultural, that incentivize tourist attraction and visitation to the island." But we repeat that in accordance with Article III of the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the American Countries, any commercial use within a Park is totally prohibited.

See also Article 12 of the National Parks Service Law, which prohibits making any type of installation different from those used for the Park. But notwithstanding the above, as you can read, the word "commercial" is in several parts of the law as a permitted activity, and it is that if by conventional norm it would be prohibited to exploit a park for commercial purposes, how is it that here we are already facing that opening? The Isla San Lucas National Park should be there to protect the rich biodiversity of the island and its exuberant landscapes, but contrary to that, they now seek, once again, to enable for-profit purposes through concessions, evidently. Bear in mind that in the past there was more audacity by attempting to build hotels and casinos, but now they try to disguise some words to exploit the island again from a commercial standpoint. Even in the conformation of the board of directors, curiously, you do not see anyone from the NATIONAL SYSTEM OF CONSERVATION AREAS (SIC) (SINAC), who are the ones in charge of the control and protection tasks in the different WPAs in the country by legal mandate.

Neither will you notice that there is a representative of environmental groups, or the Regional Council of Conservation Areas, but you do see that there will be a member of the Puntarenas Chamber of Tourism. The reason for the above is clear and is no other than to seek the possible commercial purposes, which are what is prioritized over the protection of biodiversity (…)

That is to say, that National Parks are sites destined "...for the protection and conservation of the natural scenic beauties and of the flora and fauna of national importance..." where public visitation is permitted, but that does not in itself imply an opening to build several docks or piers, and that is where the situation becomes even more complicated, since it is clear that with this new Law there would be possible damages to marine wetland ecosystems; the above could also lead to tree felling and elimination of biodiversity, and this was not assessed with studies, and they simply thought to make a change of management category and create a "tourist zone", but they did not think about the negative impacts, and this violates the precautionary principle and that of objectification. Therefore, we ask that not only Articles 3, last paragraph, and Article 16 of Law 9892, which establish the change of category, together with the division of zones, be declared unconstitutional, but that the entire law be so declared, since those articles are structural to the challenged regulation.

As we said, the National Parks Service Law itself, which by connection is linked to Articles 50 and 89 of the Constitution, does NOT provide anywhere that tourist (commercial) zones can exist in National Parks as contemplated by Articles 3, last paragraph, 9 subsection d, 14 subsection g, and 16 of Law 9892, and therefore we find another basis for the claimed unconstitutionality.

Let us bear very much in mind that Article 8 of the National Parks Service Law prohibits felling (subsection 1), causing any type of contamination (subsection ll), and carrying out any type of commercial activity (subsection 15).

Now, know that the National University published in 2007 an investigation by the International Institute for Wildlife Conservation and Management (ICOMVIS-UNA), which demonstrated the numerous 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 in 29 families; 17 reptiles, among them the becker (Boa constrictor), guardacaminos (Conophis lineatus), and ciega (Loxocemus bicolor); 40 bird species, 9 migratory and 31 resident, such as the frigatebird (Fragata magnificens), pelican (Pelecanus occidentales), long-tailed ground dove (Columbina inca), black vulture (Coragyps atratus). White-tailed deer and howler monkeys were also detailed. The study indicates that the greatest number of species is located near the infrastructure that the penitentiary used to occupy, as it possesses a greater variety of resources such as food, water, and shelter, which are used by the diverse species. But it turns out that this will be a tourist zone, as the new law says, and so what will be the impact on this biodiversity? Nothing about that is known.

The study continues to indicate that more than 90 plant species were found, all native to the area, and distributed in 6 types of forest cover (cobertura boscosa), among them the evergreen and the deciduous. At least 8 species of bats were also found, the majority near the old prison, where groups of several species sleep. The majority feed on fruits, an important task because they are responsible for transporting seeds to different sites and thus contribute to the recovery of the original vegetation of the Island.

It should also be highlighted that in the "Baseline Study of the Flora and Fauna of the RNVS Isla San Lucas, Costa Rica," prepared, as we said, by the aforementioned International Institute for Wildlife Conservation and Management of the National University, it was determined that the forest cover (cobertura boscosa) of the Island covers 98% of its lands, and that due to this condition, they are inalienable and part of the Natural Heritage of the State (See table 1). And here we ask ourselves: how many trees will be felled to make that tourist zone given the current cover? And there is no answer.

Note that the forest cover (cobertura boscosa) has been increasing, and anyone who visits the island will notice that now, in 2021, there is practically forest over the entire island (…)

These authors even provide a map of forest regeneration on the island that ratifies that practically the entire island has forest cover (cobertura boscosa). They even illustrate the advance of the wetland over the years. (See annex) And it is that all that forest, it seems, was never a concern for either the Executive Branch or the Legislative Branch, and therefore the declaration of unconstitutionality is justified, given that there are no studies to endorse what was authorized.

For all these reasons, by also authorizing the construction of docks and other types of infrastructure in a TOURIST ZONE, the entire logic of protection that exists in our State and that is backed even by international conventions duly ratified, such as those we pointed out above, is changed. This is why we insist that the change of category is unconstitutional, as is allowing a tourist zone within a National Park with infrastructure that leads to negatively impacting marine and terrestrial ecosystems. It is clear that commercial uses were unconstitutionally authorized since they are prohibited both by internal norms and by the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the American Countries, and therefore the entire Law must be declared unconstitutional. It cannot be permitted in our State that an opening be established in a national park with a tourist zone where commercial use is allowed and where, to achieve this, negative impacts from marine pollution with oils, fuels, noise, infrastructure, forest clearing, even if it is just a few trees to cut, etc., must be had, and therefore we request the declaration of unconstitutionality of the entire law, since as we pointed out at the beginning, its spirit is to give relevance to those commercial purposes through the introduction of port infrastructure and within park lands that ultimately lead to an unconstitutional land-use change (cambio de uso del suelo) within a WPA (…)

That site of "differentiated management" implicitly entails a land-use change (cambio de uso del suelo), as we said, with a negative impact on an ecosystem that has been regenerating for decades after the prison was eliminated, but none of that was assessed, and this implies, to a certain point, another disguised reduction of the WPA, and we ask that it be declared so (…)

for this case, studies should have existed to justify the existence of the TOURIST ZONE within the park, but since they do not exist, we have that Article 3 of this Law 9892 becomes unconstitutional (…)

For all these reasons, the situation of proceeding to approve the creation of a tourist zone (Article 3), immersed within the Isla San Lucas National Park, must be considered an unconstitutional provision, for NOT having studies within science and technique that justify that subdivision (fraccionamiento) and, in any case, for being considered a TOTALLY INCOMPATIBLE USE with a National Park.

Finally, we have mentioned on several occasions the violation of Article 89 of the Constitution, and we have done so insofar as Law 9892 would alter the natural landscape that exists on the island and in the marine part surrounding it up to a depth of 6 meters after low tide, and we ask that this be considered.

FOURTH: ON THE BOARD OF DIRECTORS THAT WILL ADMINISTER THE PARK Article 1 of the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the American Countries states regarding National Parks:

(…)

On the other hand, when Article I of the convention speaks of "official surveillance," it is clear that we must understand that in Law 9892, the SINAC representative was unconstitutionally left out of the board of directors provided for in Article 10, who, pursuant to the Biodiversity Law, Article 22 et seq., which are connected by association with Article 50 of the Constitution, would have to be there, forming part of that collegiate body as the competent authority in Costa Rica that must ensure control and protection actions within the WPAs. That is to say, it is not enough to indicate that the Minister of MINAE will be on that board. The error is also not corrected by saying that Article 15 of the new law indicates that there will be SINAC park rangers, since the management and policy functions must be assumed by the board of directors, and what said Article 15 indicates are only field functions. But as can be seen in Article 10 of Law 9892, it was omitted that the official representative have any participation in this national park.

It is clear that that Article 10 of Law 9892 becomes unconstitutional since, without reasoning, the SINAC director was omitted from being integrated into the administrative board that will administer the Isla San Lucas National Park.

On the other hand, and along the same lines, we have that it was also omitted to indicate, in that Article 10, the incorporation to the board of a representative of the Regional Council of Conservation Areas, as contemplated in Article 23 of the Biodiversity Law, which by connection to Article 50 of the Constitution would be linked. It is not justified that civil society that participates in environmental protection and control has been excluded from that board of directors, especially when by special law these people play a fundamental role in the oversight of all WPAs in Costa Rica. Therefore, we consider that Article 10 of the cited new law must be declared unconstitutional, given that the deputies do not have legislative power to make omissions that are contrary to express norms, and less so without justifying the why (sic) of the omission.

Regarding that last intentional exclusion from the board of directors that will administer this WPA, we must add that Principle 10 of the 1992 Rio Declaration states that the best way to manage environmental affairs is by involving civil society, hence here exists a situation contrary to what is required internationally, and although Principle 10 of Rio is soft law, it is part of a roadmap that has been transgressed, and we ask that it be declared so, since the new law violates a "ought to be" regarding what should operate in Costa Rica, and with it, the principle of progressivity provided for in Article 26 of the American Convention on Human Rights is also violated. The exclusion of the head of SINAC and another from the CORAC is a contradiction, since these entities are responsible by legal mandate to protect biodiversity policies in the WPAs, and now it seems with Law 9892 that a totally sui generis national park has been created, without technical justifications, that clashes with the Constitution and the ratified conventions.

FIFTH: INCORPORATION OF PRIVATE SECURITY OFFICERS IN A NATIONAL PARK.

We consider that Article 15 of Law 9892 has a constitutional flaw insofar as it authorizes that private security personnel be integrated to perform surveillance tasks in the national park. The above even threatens the finances of the national park, as it is not known where the funds will be taken from to cover the salaries of those officers. It seems to us that that surveillance task should only be in the hands of the SINAC park rangers, who have the knowledge, training, and sensitivity to act within a park, which private security officers do not. This new police security body only generates an expense for the new WPA and could bring negative consequences to the park; therefore, we ask that this extreme be declared unconstitutional as well. Our State created the figure of park rangers to provide control and surveillance within the WPAs, and therefore there is no technical or opportune reason that justifies creating another type of surveillance body within these sites.

SIXTH: ON CONCESSIONS AND THE AUTHORIZATION TO BUILD DOCKS AND PIERS IN NATIONAL PARKS We must be clear that concessions are NOT permitted in national parks; only trainings, ecotourism activities, research, telecommunications towers, and eventually the use of water resources are authorized, pursuant to Article 18 and 18 bis of the Forest Law (Ley Forestal), so Article 7 of Law 9892 would be unconstitutional, since that new norm provides for granting "concessions and permits for activities and facilities other than park services," which ultimately mean an authorization -again- disguised to allow commercial purposes different from the protection and safeguarding of sites of special protection for biodiversity and the landscape, in accordance with the objectives of what is permitted in national parks and other WPAs.

We consider that by speaking of allowing "concessions and permits for activities and facilities other than park services," we are in the field of abuse of legislative administrative discretion, and with this, transparency in public function is violated, and for this reason, this Article 7 of the challenged law becomes unconstitutional, since it threatens the provisions of Article 50 of the Constitution, in addition to Article 89 of the Constitution as well. Let us observe the clear confrontation with Article 12 of the National Parks Service Law. If we combine Article 7, which speaks of concessions and permits other than park services, with the commercial uses in Articles 9 subsection d and Article 14 subsection g, we will understand the dangerous commercial meaning of that phrase "activities and facilities other than park services." We believe that the foregoing justifies the unconstitutionality present in this case, since the law is perverse in introducing changes that definitively enable commercial purposes within the park.

On the other hand, let us observe that the Law on Concession and Operation of Marinas and Operation of Tourist Marina and Pier Docks, in its first article, in connection with Article 32 of the Organic Environmental Law, which are by connection linked to Articles 50 and 89 of the Constitution, establish an express prohibition against building docks and piers in national parks, and since these laws have not been modified, we find a clear unconstitutionality and a regression in wanting to order what was set out in Article 16 of Law 9892 (…)

That is to say, if we are facing a law that creates a national park as it truly is, which is also surrounded by reefs (there are approximately 10 reefs) and many wetlands that represent, according to studies from 200€, 6.9 percent of the island's territory, we have that it is totally prohibited by express norm to build docks and piers. Note that the norm of the Law on Concession and Operation of Marinas and Operation of Tourist Marina and Pier Docks incontestably contemplated the prohibition of enabling tourist docks and piers, not only in national parks but also in sites where coral reefs exist. So, if San Lucas is surrounded by coral reefs, as well as wetlands under protection up to a depth of 6 meters from low tide, we have that the challenged law in its Article 16 is absolutely unconstitutional, for permitting infrastructure that by express norm would be contrary to protection within a WPA, and we ask that it be so ordered.

The foregoing prohibition against building docks and piers is even in accordance with what is set forth above in the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the American Countries, which obligates protection and prohibits denaturing areas and/or giving them commercial purposes within national parks. Likewise, with Law 9892 and its docks and piers, the Convention on Biological Diversity would be violated as developed in its Article 8 (in situ conservation) subsections d) and e), insofar as a protected wilderness area with national park status is expressly unprotected. For all these reasons, we have that Article 16—at least partially—of that challenged law violates the Political Constitution in its Articles 50 and 89, as well as several ratified international instruments (…)

SEVENTH: UNCERTAIN FINANCING As established in Article 17 of Law 9892, the financing is uncertain since it only indicates that the public sector could donate the same as the private sector. As can be seen in that norm, the creation of the WPA generates legal uncertainty in the budgetary area given that it was very vague, so by lacking a budget, it must be declared unconstitutional.

Norm 36 of the Organic Law of the Environment, which we relate by connection to constitutional numeral 50 and applicable to this case, provides that in order to create new areas, financing must be foreseen to protect and manage them, but given that the final part of Article 3 creates a tourist zone, it is clear that this section was never weighed with a budget for managing it, and from that point of view, generating the infrastructure referred to in norm 16, such as docks or landing stages, remains uncertain, and this budgetary deficiency shows me that a park was constituted with financial problems, and this makes norm 17 of Law 9892 unconstitutional. Likewise, all the foregoing applies to the provisions of norm 15 regarding the creation of a private police force without financing, whose legal nature would also be questionable. Note that a park is being created with a "tourist zone," without providing for concrete financing to develop everything pertinent, and this is irresponsible because it is left to the goodwill of institutions and companies.

Now, if we speak of companies donating maintenance and even being able to make investments as stated in norm 18, it could be because they probably pursue commercial ends to exploit the national park, which is perverse, since an entire platform is left open so that in the "sustainable tourism use" sector, the purpose that must exist within a national park is denatured. To conclude, note that numeral 5 establishes the state obligation to restore the architectural heritage located on the island, but it does not indicate where the funds themselves will come from (…) We request (sic) that our petition to declare the entirety of the norm entitled: Law for the Creation of the Isla San Lucas National Park No. 9892 unconstitutional be granted. We ask that it be stated that the law in question violates basic principles of environmental law such as the precautionary principle, the principle of no reduction of protected areas (ASP) without prior studies, the principle of non-regression, the principle of progressivity, the principle of objectification or scientific protection, the principle of reasonableness (sic), the principle of proportionality (sic).

We ask that it be held that said law violates not only constitutional norms such as Article 50, which establishes the right to a healthy and ecologically balanced environment, and numeral 89 insofar as it deprotects the marine and terrestrial landscape of Isla San Lucas, but also transgresses duly ratified conventions. That it be stated that the principle of non-regression is violated insofar as the radius of protection in the marine part is reduced from six meters of depth to only three meters, without any justification. The foregoing even violates the provisions of Article 26 of the American Convention on Human Rights, which establishes the principle of progressivity that should be a guiding principle for our State. That it be stated that it is clear that this new law pursues commercial ends to exploit the biological and scenic wealth within a national park, and this transgresses internal norms and ratified conventions. We beg that each of the petitions made when commenting on the unconstitutionalities be considered."

1. 2By means of a resolution of the Presidency of the Chamber at 7:52 hours on March 26, 2021, the unconstitutionality action filed by Anais Villalobos Kong and Álvaro Sagot Rodríguez, in their personal capacity, against the entirety of the Law for the Creation of the Isla San Lucas National Park, Law No. 9892 of August 24, 2020, and specifically, Articles 1, 2, 3 last paragraph, 5, 6, 7, 9 subsection d), 10, 14 subsection g), 15, 16, 17, and 18, was admitted for processing. Furthermore, a hearing was granted to the Procurador General de la República, the President of the Asamblea Legislativa, the Minister of Cultura y Juventud, the Minister of Ambiente y Energía, the Executive Director of the Sistema Nacional de Áreas de Conservación, and the Executive President of the Instituto Costarricense de Turismo. Likewise, it ordered: "This action is admitted because it meets the requirements referred to in the Law of Constitutional Jurisdiction in its Articles 73 to 79.The standing of the petitioners comes from Article 75, second paragraph, of the Law of Constitutional Jurisdiction, given that they appear in defense of diffuse interests for a healthy environment and the protection of the natural and archaeological heritage. Publish a notice three consecutive times in the Boletín Judicial regarding the filing of the action. Legal effects of the filing of the action: The publication provided for in numeral 81 of the Law of Constitutional Jurisdiction has the purpose of informing the courts and the bodies that exhaust the administrative channel that the unconstitutionality claim has been filed, so that in the processes or procedures in which the application of the law, decree, provision, agreement, or resolution is discussed, no final resolution shall be issued either while the Chamber has not made a pronouncement on the case. Several rules are extracted from this legal precept.The first, and perhaps the most important, is that the filing of an unconstitutionality action does not suspend the general effectiveness and applicability of the norms. The second is that only the acts of application of the challenged norms by judicial authorities in the proceedings initiated before them, or by administrative authorities, in the procedures aimed at exhausting the administrative channel, are suspended, but not their general validity and application. The third is that –in principle–, in cases of direct action (as occurs in the present action), the suspensive effect of the filing does not operate (see vote No. 537-91 of the Constitutional Tribunal)."
2. 3By brief filed with the Secretariat of the Chamber on April 5, 2021, Mario Andrés Boza Loría, identity card 102970932, expresses his support for and agreement with the arguments raised in the unconstitutionality action. He adds that: "I also wish to add the following: 1. Governance by a Board of Directors (Junta Directiva). I find the figure of a Board of Directors to administer this protected wilderness area (ASP) to be very harmful and inconvenient. The administration of an ASP depends on a director, administrator, or superintendent, who reports to a superior, in our case, to the director of the respective Conservation Area (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). This figure of a Board of Directors making decisions and establishing strategies and policies would create a disorder very detrimental to the efficient administration, protection, and development of San Lucas and for (sic) the achievement of the objectives of this ASP.Let us look at 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 about it. We would then have a Board of Directors making decisions, and on the other hand, the officials indicated above also making decisions, as corresponds to them, 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 ASP, the park rangers depend on the director of the Conservation Area and are appointed by the Minae. In the case of San Lucas, we would then have a Board of Directors that by law is responsible for 'contributing to the protection and environmental conservation of the national park' and 'establishing protection guidelines,' and on the other hand, the regular authorities of the Minae who are responsible for the work of the park rangers. 1.3.On this same topic, the law creates more disorder in Article 15, by indicating that in addition to the park rangers, the Board of Directors may hire the security it deems necessary. Again, who would coordinate the work of this extra security? (sic) 1.4. Unnecessary repetition 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 ASP. This includes defining strategies and policies, approving administrative structures and master or management plans, defining tourist and research activities, approving use permits and concessions, and everything related to trusts (fideicomisos). This law introduces a new administrative figure, which would cause disorder in a system that already works for all ASP. 2. Advisory Board (Junta asesora). I believe it is advisable to integrate the persons mentioned in Article 10, so that they collaborate with San Lucas, but constituted as an advisory board, not as a board of directors. 3.Trust (Fideicomiso). Article 13 indicates that the Board would use the 'figure of the trust as an instrument for the administration, management, development, and maintenance of the Isla San Lucas National Park...'. The figure of a trust performing administration and development tasks is totally inconvenient. We would then have these tasks, according to Law 9892, corresponding to the Board of Directors, to the trust, and also to the Minae. Obviously, this increases the disorder that this law has established. 4. Consequences of the foregoing. I consider that the harms against the good administration of San Lucas as an ASP would translate into a failure to comply with Article 89 of our Constitution, regarding adequately protecting the natural beauties of this island and its historical heritage."
3. 4By brief incorporated into the digital file on April 8, 2021, Kerlyn Jiménez Araya, identity card 604820059, requested to be considered as an active coadjuvant of the constitutionality action, because protected areas or protected wilderness areas, as in the case of the Isla San Lucas National Park, must not be reduced if there are no prior studies. She considers that the reduction of the area in question exposes marine ecosystems to risks. She points out that Article 3 of the challenged law leaves several hectares of the marine part unprotected and created a special zone that should not exist.
4. 5By brief incorporated into the digital file on April 8, 2021, Natalia Cordero Murillo, identity card 305460641, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
5. 6By brief incorporated into the digital file on April 8, 2021, María Margarita Guzmán Vargas, identity card 116710433, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
6. 7By brief incorporated into the digital file on April 8, 2021, Jackeline Villalobos Fernández, identity card 604740002, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
7. 8By brief incorporated into the digital file on April 8, 2021, Josué González Prendas, identity card 208450880, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
8. 9By brief incorporated into the digital file on April 8, 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, raise active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
9. 10By brief incorporated into the digital file on April 9, 2021, Noe Rivera Valverde, identity card 118300979, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
10. 11By brief incorporated into the digital file on April 9, 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, make a statement in the same terms as in the brief incorporated into the digital file on April 8, 2021.
11. 12By brief incorporated into the digital file on April 9, 2021, Johanna Murillo Víquez, identity card 208430431, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
12. 13By brief incorporated into the digital file on April 9, 2021, Alberto David Leitón Godínez, identity card 118280542, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
13. 14By brief incorporated into the digital file on April 9, 2021, Eduardo Josué Morales Bermúdez, identity card 208090831, raises active coadjuvancy.
14. 15By brief incorporated into the digital file on April 9, 2021, Valeria Marín Calderón, identity card 118490444, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
15. 16By brief incorporated into the digital file on April 9, 2021, Alessia Barletta Bogantes, identity card 118620938, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
16. 17By brief incorporated into the digital file on April 12, 2021, Yariel Mora Chavarría, identity card 117810211, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
17. 18By brief incorporated into the digital file on April 12, 2021, Yendry Calderón León, identity card 117900031, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
18. 19By brief incorporated into the digital file on April 12, 2021, Stacy Barrantes González, identity card 402550941, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
19. 20By brief incorporated into the digital file on April 12, 2021, Gabriela Rodríguez Castro, identity card 208350662, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
20. 21By brief incorporated into the digital file on April 12, 2021, Emily Arleth Segura Mora, identity card 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, raise active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
21. 22By brief incorporated into the digital file on April 12, 2021, David Antonio Marín Zúñiga, identity card 117760021, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
22. 23By brief incorporated into the digital file on April 12, 2021, Kathleen Soto Fonseca, identity card 402620336, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
23. 24By brief incorporated into the digital file on April 12, 2021, Hellen Barrantes Murillo, identity card 208450961, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
24. 25By brief incorporated into the digital file on April 12, 2021, Diana Hidalgo Alfaro, identity card 118580735, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
25. 26By brief incorporated into the digital file on April 12, 2021, Adrián Mora Molina, identity card 118910124, formulates active coadjuvancy.
26. 27By brief incorporated into the digital file on April 12, 2021, Fiorella Vega Motta, identity card 118630383, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
27. 28By brief incorporated into the digital file on April 12, 2021, Lilliam Daniela Mora Montoya, identity card 118500530, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
28. 29The edicts referred to in the second paragraph of Article 81 of the Law of Constitutional Jurisdiction were published in editions Nos. 70, 71, and 72 of April 13, 14, and 15, 2021, of the Boletín Judicial, respectively.
29. 30By brief incorporated into the digital file on April 13, 2021, Jorge Alberto Serendero Hülssner, residence card 115200011317, in his capacity as representative of For The Oceans Foundation, legal identity card No. 3-006-735148, formulates active coadjuvancy. He states: "I consider that this unconstitutionality action must be granted because the law being questioned is not supported by scientific studies that justify the reduction in marine protection or the special tourism zone that evidently pursues commercial ends' that border on constitutional Article 50 and the environmental interest emanating from our Legal System. It seems to me that in the marine part, there is a very serious problem in having authorized the construction of landing stages and docks, as indicated in Article 16 of the law, since this is totally prohibited in the Law on Concession and Operation of Marinas and Operation of Tourist Marinas and Landing Stages (Ley de Concesión y Operación de Marinas y Atracaderos Turísticos), in its first article.Those works could never be part of a national park because they promote pollution, and this distorts the reason for being of a national park or a wildlife refuge, and for this reason, I request that the unconstitutionality be declared. To conclude, I consider that it is totally unconstitutional to have reduced from 6 meters of depth to 3 in the perimeter of the park, since no study justified it. It is a complete contradiction that an island that has several marine wetlands has its protection perimeter, which is up to 6 meters of depth from the low tide line, limited, and for this reason, since there are contradictions between this new law and the RAMSAR Convention and the Organic Law of the Environment, regarding the protection of these humid forests, I request that the unconstitutionality be declared for violation of the precautionary principle and the principle of non-regression. It seems clear that that Trust Administration Commission (Comisión Administradora del Fideicomiso) pursues commercial ends, as the same law provides, and in view of this, I submit that the very figure of the trust constitutes a purely commercial entity, and for this reason, I believe that the trust borders on the political constitution, and therefore norm 13, which allows trusts in this protected wilderness area, must be declared unconstitutional.That norm 13 of the law openly clashes with the provisions of the Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of the Americas (Law 3763), which states regarding national parks: 'ARTICLE III. The riches existing in them shall not be exploited for commercial purposes.' But if you see Article 9 of the questioned law, it states: 'Article 9.- Tasks and Powers. The Board of Directors of the Isla San Lucas National Park shall have the following attributions: ... (d) Define environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island…' Therefore, I assert that by authorizing the constitution of trusts, international norms and even the very National Parks Service Law (Ley del Servicio de Parques Nacionales), which would be tied to constitutional Article 50, are violated.I could not conclude without saying that today there are various types of forests that cover 100 percent of the island, so how does all of this rhyme with carrying out commercial activities? Truly, the terrestrial biodiversity could be extremely compromised by this unconstitutional law."
30. 31By brief incorporated into the digital file on April 13, 2021, Andersson Montes Carrillo, identity card 118670764, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
31. 32By brief incorporated into the digital file on April 13, 2021, Esteban Castro Oviedo, identity card 208440854, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
32. 33By brief incorporated into the digital file on April 13, 2021, Jorge Enrique Morales Gómez, identity card 504460722, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
33. 34By brief incorporated into the digital file on April 13, 2021, Marco Chavarría Sánchez, identity card 402540558, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
34. 35By brief incorporated into the digital file on April 13, 2021, Christopher Solís Chavarría, identity card 402150734, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
35. 36By brief incorporated into the digital file on April 13, 2021, Anllel Raquel Cordero Mayorga, identity card 702690567, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
36. 37By brief incorporated into the digital file on April 13, 2021, Yendry Pamela Estrada Rivera, identity card 702880343, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
37. 38By brief incorporated into the digital file on April 13, 2021, Jenifer Vargas Madrigal, identity card 208210084, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
38. 39By brief incorporated into the digital file on April 13, 2021, Juan Manuel Morales Prado, identity card 504490003, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
39. 40By brief incorporated into the digital file on April 13, 2021, Keilyn Leticia López López, identity card 504460796, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
40. 41By brief incorporated into the digital file on April 13, 2021, Marcelo Antonio Roa Rosales, identity card 208500759, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
41. 42By brief incorporated into the digital file on April 13, 2021, Sharon Camila Alfaro Núñez, identity card 402600839, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
42. 43By brief incorporated into the digital file on April 13, 2021, Sofía Cordero Cordero, identity card 118870321, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
43. 44By brief incorporated into the digital file on April 13, 2021, Keytlin Gómez Zúñiga, identity card 402600263, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
44. 45By brief incorporated into the digital file on April 13, 2021, Jeilyn Elena Flores Navarro, identity card 305160463, raises active coadjuvancy.
45. 46By brief incorporated into the digital file on April 13, 2021, Keilyn Calvo Campos, identity card 118040698, formulates active coadjuvancy.
46. 47By brief incorporated into the digital file on April 13, 2021, Shazad Rolando Fuentes Chavarría, identity card 116670007, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
47. 48By brief incorporated into the digital file on April 14, 2021, Alberto Cruz Ramírez, identity card 402400204, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
48. 49By brief incorporated into the digital file on April 14, 2021, Daniel Mena Vargas, identity card 118810657, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
49. 50By brief incorporated into the digital file on April 14, 2021, Madeline Garita Matamoros, identity card 118370090, files active coadjuvancy.
50. 51By brief incorporated into the digital file on April 14, 2021, Sharon Blandón Ruiz, identity card 118690830, files active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
51. 52By brief incorporated into the digital file on April 14, 2021, Kevin Núñez Jaimes, identification number 117002159511, raises coadjuvancy.
52. 53By brief incorporated into the digital file on April 14, 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, file active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
53. 54By brief incorporated into the digital file on April 14, 2021, Ariel Granda Solano, identity card 402590208, raises active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
54. 55By brief incorporated into the digital file on April 14, 2021, María Jesús Víquez Camacho, identity card 402550350, formulates active coadjuvancy in the same terms as in the brief incorporated into the digital file on April 8, 2021.
55. 56By brief incorporated into the digital file on April 14, 2021, Eduardo Carillo Jiménez, identity card 105750493, files active coadjuvancy and states: "A- In the marine part, it is clear that there is a situation of unjustified reduction of the protected wilderness area since, for example, from constitutional vote No. 13099-2010 it had been determined that the marine part was going to have an expansion of 210 hectares, but in Article 3 of the questioned Law, it only states: (…) As can be seen in the foregoing, it is clear that what was highlighted in bold openly transgresses constitutional vote No. 13099-2010. On the other hand, it is not understood, nor is it justified, why a delimitation up to 3 meters of depth is mentioned if the Isla San Lucas Wildlife Refuge had provided for a perimeter of up to 6 meters of depth. With what studies was that reduction reasoned and foreseen as reasonable?The foregoing denotes a norm that violates the principle of non-regression, and we ask you to declare it so. It is also unconstitutional that a 'tourist zone' is sought to be established that would be DIFFERENTIATED (as stated in Article 3 of the law) from the rest of the park. Under what scientific criteria is a differentiated zone created in a national park in Costa Rica? Let us remember that national parks pursue the protection of biodiversity and the landscape, but they are not sites to be fragmented as the new law intends, and therefore we have an irregularity that violates the spirit of the very National Parks Service Law, and we ask that it be declared so. It is manifest that all the foregoing was done without studies, and the deputies do not have the competence to go as far as they did, and for this reason, I ask that the unconstitutionality be decreed. National parks are areas important for the biodiversity they contain, and generally, they are large areas that contain ecosystems that protect diverse ecological processes representative of the geographic area in which they are found."

In this case, Isla de San Luca could be declared a protected wilderness area (área silvestre protegida), but never a National Park.”

1. 57By brief incorporated into the digital case file on April 14, 2021, Carlos Andrés Matamoros Durán, identity card 702830890, raises an active joinder (coadyuvancia activa) in the same terms as the brief incorporated into the digital case file on April 8, 2021.
2. 58By brief incorporated into the digital case file on April 14, 2021, Stephanie Fabiola Arrieta Ángulo, identity card 117940867, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
3. 59By brief incorporated into the digital case file on April 14, 2021, Hazel Vanessa Jiménez Selva, identity card 208400078, makes an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
4. 60By brief incorporated into the digital case file on April 14, 2021, Diego Cruz Bermúdez, identity card 118620966, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
5. 61By brief incorporated into the digital case file on April 14, 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, file an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
6. 62By brief incorporated into the digital case file on April 15, 2021, David Rodríguez Paniagua, identity card 402170554, makes an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
7. 63By brief incorporated into the digital case file on April 15, 2021, Jeymar Dixon Solano, identity card 702730750, raises an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
8. 64By brief incorporated into the digital case file on April 15, 2021, Cherlin Urbina Rosales, identity card 402570190, raises an active joinder.
9. 65By brief incorporated into the digital case file on April 15, 2021, Melanie Quirós Porras, identity card 117830321, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
10. 66By brief incorporated into the digital case file on April 15, 2021, Hugo Arias Ramírez, identity card 204610008, raises an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
11. 67By brief incorporated into the digital case file on April 15, 2021, Brandy Tamara Jiménez Araya, identity card 118730794, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
12. 68By brief incorporated into the digital case file on April 15, 2021, Sebastián Morales Pérez, identity card 208430018, makes an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
13. 69By brief incorporated into the digital case file on April 15, 2021, María Daniela Aguilar Chavarría, identity card 118570529, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
14. 70By brief incorporated into the digital case file on April 15, 2021, Mariela Brenes Orozco, identity card 305420304, raises an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
15. 71By brief incorporated into the digital case file on April 15, 2021, Jeilyn Flores Navarro, identity card 305160463, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
16. 72By brief incorporated into the digital case file on April 15, 2021, Karla Valeska Solís Salazar, identity card 604750438, and Olga Mayela Salazar Bonilla, identity card 108150009, make an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
17. 73By brief incorporated into the digital case file on April 15, 2021, Luis Diego Bustos Arguedas, identity card 402520195, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
18. 74By brief incorporated into the digital case file on April 15, 2021, Lisbeth Sánchez Rodríguez, identity card 702730398, raises an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
19. 75By brief incorporated into the digital case file on April 15, 2021, Allan Solano León, identity card 402400301, makes an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
20. 76By brief incorporated into the digital case file on April 15, 2021, Jennifer Vásquez Arias, identity card 208130412, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
21. 77By brief incorporated into the digital case file on April 15, 2021, Keylin López López, identity card 504460796, raises an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
22. 78By brief incorporated into the digital case file on April 15, 2021, José Carlos Araya Campos, identity card 604810847, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
23. 79By brief incorporated into the digital case file on April 15, 2021, Leidy Sequeira Obando, identity card 208340142, makes an active joinder in this proceeding.
24. 80By brief incorporated into the digital case file on April 15, 2021, Natasha Solís Solórzano, identity card 114200104, raises an active joinder.
25. 81By brief incorporated into the digital case file on April 16, 2021, Sofía Cordero Cordero, identity card 118870321, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
26. 82By brief incorporated into the digital case file on April 16, 2021, Natasha Solís Solórzano, identity card 114200104, raises an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
27. 83By brief incorporated into the digital case file on April 16, 2021, Iván Rojas Arce, identity card 208340708, makes an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
28. 84By brief incorporated into the digital case file on April 16, 2021, Iván Mora Brenes, identity card 117600649, raises an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
29. 85By brief incorporated into the digital case file on April 16, 2021, Troy Vargas Ortiz, identity card 117300937, makes an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
30. 86By brief incorporated into the digital case file on April 16, 2021, Keytin Zapata Cortés, identity card 702870157, raises an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
31. 87By brief incorporated into the digital case file on April 16, 2021, Isaura Mora Bárcenas, identity card 117760949, files an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
32. 88By brief incorporated into the digital case file on April 16, 2021, Fabricio Ávila Sanabria, identity card 208340774, makes an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
33. 89By brief incorporated into the digital case file on April 16, 2021, Kendry Chavarría Mena, identity card 402580706, raises an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
34. 90By brief incorporated into the digital case file on April 16, 2021, Roberto Molina Ugalde, in his capacity as representative of the Union of Workers of the Ministry of Environment and Energy (Sindicato de Trabajadores del Ministerio de Ambiente y Energía, SITRAMINAE), makes an active joinder. He states: “I appear before Your Honor to present an active joinder so that Law No. 9892, enacted on August 24, 2020, be declared unconstitutional, for being contrary to the principles of non-regression, proportionality, objectivization, precaution, and progressivity. Our organization joins the prior unconstitutionality action as a joining party (coadyuvante) pursuant to Articles 75 and 84 of the current Law of Constitutional Jurisdiction. Likewise, given that a matter concerning diffuse interests in environmental matters is under discussion due to a violation of Articles 50 and 89, I request that we be recognized as having standing (legitimados) within this action (…) FIRST: We consider that Article 15 of the law whose unconstitutionality is challenged must be declared inapplicable within the domestic legal system, since it establishes the creation of a private police force or private security that will supposedly work alongside park rangers (guardaparques).The foregoing is contrary to the duty entrusted to hundreds of colleagues who work for SINAC MINAE and finds no support in any regulatory body. Bear in mind that a private police force within a national park conflicts with the control and protection duties that we carry out as public officials, recognized as police authorities (a special police body of the Costa Rican State); there is an evident intent in this to eliminate SINAC’s functions within protected wilderness areas, and this is very dangerous, because those persons who are appointed do not owe the sensitivity or the training that our colleagues have. We are therefore facing an invasion of powers that has no basis, and if it is pointed out that there is no financial support to pay for training or salaries, we have the situation that this new body will come to undermine the work that SINAC does in San Lucas, both in the marine part and on land.For this reason, we see that there is an unconstitutionality. The apparent purposes of that private police force are evidently commercial, and that should not be permitted in a national park. A serious problem will arise if the unconstitutionality is not declared regarding the coordination and direction of this security body, because it is not clear whether they will obey SINAC, the board of directors (junta directiva) that will be created (in which no one from SINAC participates), or whether they will answer to the merchants who obtain concessions within the park. We therefore pray that the unconstitutionality of that rule 15 be upheld. Canons 191 and 192 of our Magna Carta are violated, in the sense that the service of park rangers derives from a statutory regime, with selection mechanisms for public service based on suitability, which would not be respected in this case, by opening the door to a police force that differs from the duties and purposes of the park rangers themselves, who do possess the powers and adherence to a statutory regime, such as the Civil Service.SECOND: As rule 10 of Law 9892 is established, we have the situation that it was omitted that a SINAC representative participate in decision-making on the administration of this protected wilderness area, and that would violate the duty of protection that has been entrusted to this entity pursuant to Article 23 of the Biodiversity Law, which would be linked to Article 50 of our Constitution, and so we ask that it be declared. We believe that by leaving the director of SINAC out of the board of directors, there is an abandonment of environmental powers that violates the public environmental interest that should have prevailed, and therefore there is an unconstitutionality. It is extremely important to point out that the Regional Council of Conservation Areas (Consejo Regional de Áreas de Conservación, CONAC) was never asked for its opinion when the Law was only a bill, and this violates the duty of participation in legislative decision-making, and of course, a member of the CORAC should also have been part of that administrative board of directors.For all these reasons, we consider that rule 10 must be declared unconstitutional. And the entire law must be declared unconstitutional for not requesting the opinion of an entity vital to the administration of protected wilderness areas. The CONAC is the highest administrative body of the National System of Conservation Areas, and in that rule it was never consulted and there was never a firm agreement endorsing said rule. In other words, the prerogatives established by Article 11 and Article 50 of our Magna Carta are violated, and therefore the aforementioned Article 10 of the law at hand must also be declared unconstitutional. THIRD: It seems to us that if the protected wilderness area had an extension of hundreds of hectares, there is no justification whatsoever for why the area to be protected was reduced in the law, and I point this out with respect to the marine area specifically.Let us recall that constitutional vote No. 13099-2010 had determined that the marine part was going to have an extension of 210 hectares, but Article 3 of the challenged Law said nothing about that. And where are the technical and scientific studies to justify that reduction? Do we now have two areas with different management categories? If so, which studies justify one marine area continuing as a refuge (refugio) and another as a national park? And given that there is nothing in the case file, it merits upholding the unconstitutionality of rule 3 of the new law and therefore of the entire law, because this cannot be corrected with interpretations. And this problem cannot be corrected with simple interpretations to such an extent that we must also add to what has been stated that a marine area of 3 meters around the entire perimeter of the island has been left in limbo, given that the law delimited that the park extended to a depth of 3 meters, but the refuge extended to a depth of 6 meters.For all these reasons, we see inconsistencies of constitutional rank that warrant a declaration of unconstitutionality for lack of clarity and for uncertainty due to the absence of studies supporting the decision-making. Concluding this section, we have the situation that nothing was provided regarding the marine areas where mangroves exist, and this violates the RAMSAR convention, since it should have been noted that those forests reach a depth of 6 meters, measured from low tide. And if that is so, why was a delimitation of only 3 meters in depth authorized? The answer is clear: it is because everything was done in an improvised manner and likewise because the competent body in environmental matters, which is SINAC (CONAC), was not consulted. We estimate that the Principle of Reasonableness of public acts is violated, as set forth in Vote No. 1739-92 of the same Constitutional Chamber, since there is no reasonableness between the technical means to measure the perimeter of the protected area that have been mentioned in this same point.FOURTH: It is very troubling that it is provided to establish a ‘tourist zone’ that would be differentiated and fragment the terrestrial part of the park, as set forth in Article 3 of the Law. That zone that fragments or segments the park pursues commercial purposes, and it is there where the commercial concessions that the board of directors will authorize will supposedly operate, and the question that you should ask yourselves is: Where are the studies that justify fragmenting or dividing a national park? You will find nothing of that in any study, because there are no technical and scientific studies whatsoever in the legislative file, and so what we see is improvisation in biodiversity management, risks of significant environmental damage, and mere abusive discretion, and we ask that it be so ordered in the judgment. Along these lines, Article 3 and Article 6 are unconstitutional, and therefore the entire Law is, since they are a core and structural part of the challenged regulatory body.Attached, note from the secretary of CONAC (…) 1.- We request this worthy jurisdictional authority that we be recognized as a joining party and present in this unconstitutionality action filed under case file No. 21-005756-0007-CO pending before the court. 2.- Concomitantly with all the foregoing, we likewise request that the objections alleged in the facts of this joinder be incorporated into the litigation.”
35. 91By brief incorporated into the digital case file on April 16, 2021, María Cerdas Solís, identity card 118700632, raises an active joinder in the same terms as the brief incorporated into the digital case file on April 8, 2021.
36. 92By brief incorporated into the digital case file on April 16, 2021, Javier Rodríguez Fonseca, identity card 105460710, raises an active joinder and requests that the unconstitutionality action be granted. He states that: “THIRD: I consider above all that the marine part is being severely affected insofar as there was a reduction that has left many hectares around the island unprotected, as referred to in the arguments of the present action. In terms of depth, the marine part of the referred protected area is reduced by half, since originally, as a wildlife refuge (refugio de vida silvestre), it had a marine area of up to 6 meters in depth, but Article 3 of the Law that transforms it into a national park reduces it to 3 meters in depth. Since the current management category is one of greater protection, this reduction is a contradiction, with the aggravating factor that no reasonable and proportional study or technical or administrative justification is provided for such a severe and serious reduction.Nor was there any compensatory action in this regard during the drafting and approval of said law. This contravenes all scientific, technical, and administrative principles of the management of a protected wilderness area and the spirit of the SINAC Law, which promotes reasonably increasing, not reducing, areas of protection and strengthening of the ecosystems on which humans and other species depend. FOURTH: Still referring to the reduction of the marine area of the new national park, the esteemed legislators completely ignored the enormous value that Marine Protected Areas (MPAs) have as sites of recovery and spillover to the surroundings of fish populations and other associated marine resources. Since Isla San Lucas is one of the few marine sites protected in the already overexploited Gulf of Nicoya in terms of its fishery resources, it is not coherent to reduce the protected marine area of what is now the national park, as the local guarantor of the invaluable food security for the impoverished inhabitants of the gulf, and even more so in the context of the Covid-19 pandemic in which we still find ourselves.FIFTH: It is also of utmost importance to state that the delimitation provided in the challenged Law is NOT including the 210 hectares of marine area and islets that were added to the Wildlife Refuge through Decree 34282 and that the Constitutional Chamber maintained as part of the protected area in vote No. 13099-2010. It cannot be said that those 210 hectares are maintained as a ‘refuge’ outside the new park, because that fragmentation into two types of protected wilderness areas finds NO justification, nor are there studies or consultative processes that justify what was done, and this is extremely dangerous, and so I request that it be declared. SIXTH: Closely related to the previous point, that arbitrary suppression of the marine surface area of this protected area, added to the reduction of its depth already noted, eliminates the possibility of carrying out the various sustainable and responsible activities of the growing marine tourism, such as tourist observation of Cetaceans (whales, dolphins, and relatives), diving and snorkeling, seabird watching, etc., which contravenes the very purposes and articles of the law in question.It also runs counter to the technical recommendations, in accordance with SINAC’s objectives, for strengthening marine tourism activities on the island made by various consultancies in recent years. SEVENTH: The indicated reductions also go against governmental, national, and global policies to increase MPAs to 30% of the extent of the Exclusive Economic Zone (EEZ) of each country and of the planetary marine territory, a commitment that Costa Rica has assumed for several administrations now. EIGHTH: The formation of a Board of Directors that manages and administers the Park is a figure not stipulated by the SINAC Creation Law and, furthermore, does not consider representatives from academia or non-business civil society.

NINTH: It is my opinion that all the considerations made are fundamental for declaring the entire law unconstitutional.

1. 93By brief added to the digital case file on April 16, 2021, María Fernanda Cerdas Solís, identity card number 118700632, Isabel Cristina Solís Solano, identity card number 108630384, and Manuel Alberto Cerdas Salazar, identity card number 108320968, file an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
2. 94By brief added to the digital case file on April 16, 2021, Shirley Méndez Cordonero, identity card number 116480411, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
3. 95By brief added to the digital case file on April 16, 2021, Siam Herrera Arias, identity card number 117920947, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
4. 96By brief added to the digital case file on April 19, 2021, Natasha Solís Solórzano, identity card number 114200104, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
5. 97By brief added to the digital case file on April 19, 2021, Michelle Castro Aguilar, identity card number 118320895, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
6. 98By brief added to the digital case file on April 19, 2021, Ángel Gabriel Loaiza Vargas, identity card number 118450087, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
7. 99By brief added to the digital case file on April 19, 2021, Mayke Monge Vargas, identity card number 117930324, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
8. 100By brief added to the digital case file on April 19, 2021, Marlene Valverde Chacón, identity card number 105510575, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
9. 101By brief added to the digital case file on April 19, 2021, Esteban Valverde Vásquez, identity card number 116720527, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
10. 102By brief added to the digital case file on April 19, 2021, Angie Gómez López, identity card number 117180283, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
11. 103By brief added to the digital case file on April 19, 2021, Maripaz Espinach Bonilla, identity card number 118530618, Cynthia Bonilla Alfaro, identity card number 110430592, María Isabel Alfaro Chavarría, identity card number 104170263, María Bonilla Alfaro, identity card number 108300229, Andrés Espinach Bonilla, identity card number 115820626, Mauricio Espinach Montero, identity card number 105780247, and Gabriel Espinach Bonilla, identity card number 117850591, file an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
12. 104By brief added to the digital case file on April 19, 2021, Kendry Jiménez Hernández, identity card number 118750196, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
13. 105By brief added to the digital case file on April 19, 2021, Michelle Ulloa Martínez, identity card number 118400691, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
14. 106By brief added to the digital case file on April 19, 2021, Leidy Sequeira Obando, identity card number 208340142, files an active joinder (coadyuvancia activa).
15. 107By brief added to the digital case file on April 19, 2021, Cynthia Alvarado Bravo, identity card number 305310106, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
16. 108By brief added to the digital case file on April 19, 2021, Melany Gamboa Mata, identity card number 118720956, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
17. 109By brief added to the digital case file on April 19, 2021, Josyah Barahona Pérez, identity card number 118650312, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
18. 110By brief added to the digital case file on April 19, 2021, Daniela Vargas Leitón, identity card number 208470661, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
19. 111By brief added to the digital case file on April 19, 2021, Clarissa León Alfaro, identity card number 118150214, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
20. 112By brief added to the digital case file on April 19, 2021, Sheiner Umaña Erazo, identity card number 118390236, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
21. 113By brief added to the digital case file on April 19, 2021, Sebastián Castro Rojas, identity card number 118760799, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
22. 114By brief added to the digital case file on April 19, 2021, Leonardo Nach Vivas, identity card number 702970969, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
23. 115By brief added to the digital case file on April 19, 2021, Grettel Sánchez Montezuma, identity card number 702910457, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
24. 116By brief added to the digital case file on April 19, 2021, Ian Calvo Jiménez, identity card number 305480829, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
25. 117By brief added to the digital case file on April 19, 2021, Geison Fuentes Arguedas, identity card number 702800765, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
26. 118By brief added to the digital case file on April 20, 2021, Fabián Herrera Núñez, identity card number 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, file an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
27. 119By brief added to the digital case file on April 20, 2021, Daniela Vargas Leitón, identity card number 208470661, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
28. 120By brief added to the digital case file on April 20, 2021, Laura Porras Rojas, identity card number 118400342, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
29. 121By brief added to the digital case file on April 20, 2021, Steven Lozano Raith, identity card number 117860189, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
30. 122By brief added to the digital case file on April 20, 2021, Nikole Segura Mora, identity card number 118040136, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
31. 123By brief added to the digital case file on April 20, 2021, Gabriel Bello Escalona, identity document 186201205318, files an active joinder (coadyuvancia activa).
32. 124By brief added to the digital case file on April 20, 2021, Valeria Calderón Mora, identity card number 117980913, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
33. 125By brief added to the digital case file on April 20, 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 122200244732, file an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
34. 126By brief added to the digital case file on April 20, 2021, Brandon Sánchez Chavarría, identity card number 208360240, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
35. 127By brief added to the digital case file on April 20, 2021, Valeria Cortés Brenes, identity card number 118730609, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
36. 128By brief added to the digital case file on April 20, 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, file an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
37. 129By brief added to the digital case file on April 20, 2021, Laura Barrientos Calderón, identity card number 112750356, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
38. 130By brief added to the digital case file on April 20, 2021, Hillary Cubero Araya, identity card number 604740344, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
39. 131By brief added to the digital case file on April 20, 2021, Emmanuel Arce Quesada, identity card number 118050443, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
40. 132By brief added to the digital case file on April 20, 2021, Fabiola González Martínez, identity card number 402580758, files an active joinder (coadyuvancia activa) on the same terms as the brief added to the digital case file on April 8, 2021.
41. 133By brief added to the digital case file on April 21, 2021, Gustavo José Segura Sancho appears, in his dual capacity as executive president of the Instituto Costarricense de Turismo and Minister of Tourism. He states: “HISTORICAL ASPECTS LINKED TO ISLA SAN LUCAS. The Golfo de Nicoya constituted the southern boundary of Mesoamerica where the subarea of what was known as the Gran Nicoya developed. During the Middle Polychrome Period (800 to 1200 A.D.), the region experienced Mexican migrations of the Chorotega-Mange ethnic group (Dirán and Orotiña) on the Península de Nicoya and to the east of the Gulf, and was characterized by prosperity and the development of crafts. For the Late Polychrome Period (1200 to 1525 A.D.), which concluded through contact with Europeans, the culture possesses many traits characteristic of Mexican cultures.1 Additionally, 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.It was later traversed by Gil González de Avila (sic) (Dávila) in 1522, who even reached the río Tempisque, called by the aborigines Zapandí, Sabandí, or Sapandí.2 The islands of the Golfo de Nicoya, known as San Lucas, Orotiña, or de los Güetares, are described extensively by Gonzalo Fernández de Oviedo y Valdés, a Spanish chronicler who visited in 1529. Oviedo produced a chorographic map of the Golfo de Nicoya with nine of its islands, referring to some of them by their aboriginal names.3 The German traveler Wilhelm Adolp Marr describes, in February 1853, the area in question, stating that: The Gulf of Nicoya is one of the most beautiful spectacles of southern nature imaginable. Remove from the Gulf of Naples the works pertaining to the artistic activity of man, that is, the entire city of Naples and its surroundings, and I wager that every traveler would award the palm to the Gulf of Nicoya.It is a basin of 12 to 15 leagues in length by 1 to 6 in width, penetrating almost from south to north into that magnificent country, “the paradise of the Andes,” called Costa Rica… On the other shore of the Gulf, the mainland, moderately high, is bordered by jagged coral islands, among which, as if they were silver surfaces, form the most charming and comfortable inlets fed by the great ocean. Upward, toward Guanacaste, the Gulf resembles the background of a Swiss landscape and, with its islands, does not differ much from Lake Maggiore. Finally, entirely to the north, the picture is bounded by a mountain range rising behind a swampy forest several miles long.4 With regard to Isla San Lucas, Ley Nº 37 of August 3, 1847, granted the trade franchise to the said island. However, shortly thereafter the provision was rendered without effect and transferred to the Port of Puntarenas by Ley Nº 46 of September 4, 1847, article 7.Additionally, Ley Nº 7 of February 25, 1874, regulated the penitentiary (presidio) on San Lucas under the authority of the Governor of the Comarca of Puntarenas. Later, Ley Nº 12 of September 14, 1882, given the lack of salubrious conditions on the island, authorized the Poder Ejecutivo to erect a new penitentiary on another island of the Pacific littoral (article 1) and agreed to transfer inmates with more than three months remaining on their sentence to the penitentiary of Isla del Coco or whichever was chosen to replace San Lucas, with the benefit of reducing the remainder of the sentence by one quarter. Those with three months or less would be transferred to the jail of Puntarenas to serve them out in public works (articles 2 and 3). Nevertheless, for reasons of economy for the Public Administration, by Ley Nº 7 of October 6, 1882, the inmates of Isla del Coco were sent back to San Lucas (article 1), and it was ordered immediately, at the expense of the National Treasury, to undertake the works necessary to make the San Lucas penitentiary salubrious (article 3).The 1891 map prepared by Eliseo Fradin5 describes the penitentiary in the same sector as depicted on the Hoja Cartográfica Golfo of 1967. That is, among the crags adjacent to Playa Pilitas and Playa El Inglés. Moreover, Fradin’s map describes six lookouts on the island, five around its coast and one inland, near Cerro Control. Ley Nº 89 of March 20, 1925, authorized the disbursement of forty thousand colones for the reconstruction of the buildings of the San Lucas penitentiary with the necessary works for electric lighting and water supply, as well as ten thousand colones for the necessary studies for selecting the site of the new penitentiary. Ley Nº 54 of June 13, 1934, allocated twenty thousand colones for electric power services on the Island. The penitentiary remained on the Island until Ley Nº 5469 of April 25, 1974, ordered its transfer within a period of two years from its effective date (Sole Transitory Provision), and granted the administration of its lands to the Municipalidad de Puntarenas, a competence reiterated by Ley 6043 on the Maritime Terrestrial Zone in its article 78.Decreto Nº 24520 of July 27, 1995, declared the Penitentiary Building on this island to be of Historical-Architectural Interest. Additionally, the insular territory has to date a record of 9 archaeological sites.6 On the other hand, Decreto Nº 29277 of January 11, 2001, article 1, declared the area comprised by Isla San Lucas (4.62 km) and the coastal marine area, composed of the waters around the island with a depth of up to 6 m, as a Refugio Nacional de Vida Silvestre, thus transferring its administration to the Ministerio del Ambiente y Energía.7 By Decreto Ejecutivo 32349 of February 25, 2005, an Amplification and Delimitation of the area of the Humedal Estero Puntarenas and Associated Mangroves is established, declared within the Refugio Nacional de Vida Silvestre, the area comprised by Isla San Lucas and the coastal marine area.8 Thus, article 2 establishes that: Article 2—Expand and delimit the area of the Humedal Estero Puntarenas and Associated Mangroves declared under Decreto Ejecutivo N° 29277-MINAE, whose location is situated according to the cartographic sheets of the Instituto Geográfico Nacional denominated Golfo, edition 3-IGNCR, and Chapernal, edition 2-IGNCR, with an area of 4362 ha…Based on the foregoing, to date, legal norms for the administration of the Island are gathered, along with decrees establishing the historical character and environmental protection of the territory. REGARDING DECRETO EJECUTIVO 34282-TUR-MINAE-C AND THE ACTION OF UNCONSTITUTIONALITY FILED. By Decreto Ejecutivo 34282-TUR-MINAE-C of January 25, 2008,9 effective February 8, 2008, it is intended to rectify, delimit, and expand 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. In response to the Acción de Inconstitucionalidad filed against said Decree, the Sala Constitucional, by judgment 2010-013099 of fourteen hours and fifty-six minutes of August fourth, two thousand ten, in an integrative analysis of norms and competences, basically indicated that: (…) From the preceding judgment, certain elements can be generated in summary form: 1- Decreto Ejecutivo No. 34282-TUR-MINAET-C (sic) of January 25, 2008, published in Alcance 10 to La Gaceta No. 28 of February 8, 2008, remains in force. 2- That what was determined for the existence of the Refugio Nacional de Vida Silvestre Isla San Lucas remains unchanged. 3- That the decision of the Sala Constitucional number 2010-013099 of fourteen hours and fifty-six minutes of August fourth, two thousand ten, remains in force in all its aspects. 4- That said judgment clearly expresses the State’s obligation to unify competences for the purpose of administering Isla San Lucas. 5- That both environmental protection and the State’s historical heritage linked to Isla San Lucas must be respected. 6- That there must also be a correlation with tourism activity, for the purpose of providing zones for tourist visitation and enjoyment, with sustainable development and protection of the constitutionally established heritages. 7- That the coordination of various institutions gives rise to the possibility of using economic resources for the sake of constitutional protection and tourism development.REGARDING THE ELEMENTS OF CHALLENGE PRESENTED. As for the claimants’ assertions regarding possible defects of constitutionality, the following is noted: They point to the entire law as unconstitutional without any logical correlation. Article 3 of the Ley de la Jurisdicción Constitucional establishes that: “The Constitución Política shall be deemed infringed when this results from the confrontation of the text of the challenged norm or act, its effects, or its interpretation or application by public authorities, with constitutional norms and principles.” When indicating that the norm infringes the Constitución Política, a real confrontation must be generated, and the party filing the action must specify the reasons for the unconstitutionality and in what sense they may be considered as such. It is not enough to state that the entire Law is unconstitutional, nor to make allegations without a link to violated constitutional norms or principles.That obligation must lie with the claimants. More simply, the aphorism cannot be generated: “The Constitución Política shall be deemed infringed, when the Constitución Política is deemed infringed.” Which evidently defines nothing. When unconstitutionality is alleged, the declaration shall be made only for the purpose of ensuring that they be interpreted or applied in harmony with the Constitution or, if their contradiction with it proves insurmountable, their disapplication with general effects be ordered and their denunciation proceeded with; aspects not observed in the action brief. Unconstitutionality is the infringement, violation, or opposition of a lower-ranking legal norm to the Constitución Política in relation to a legal norm of the Constitución Política or one of its principles. Likewise, the infringement, violation, or opposition of a constitutional legal norm with respect to another constitutional legal norm of procedure is unconstitutional; which, as will be observed, is not found in the indicated brief.As to the challenged Law reducing the protected wilderness area (área silvestre protegida) without any justification. The claimants state that article 3 reduces the area to a 3-meter depth. The cited ordinal establishes that: “Parque Nacional Isla San Lucas shall be composed of a terrestrial portion and a coastal marine area. The terrestrial portion shall consist of the insular part of Isla San Lucas, located in the Golfo de Nicoya, cartographic sheet of the Instituto Geográfico Nacional denominated Golfo, Edition 3-IGNCR at north latitude 9º 55' 55\" - 9 57' 20\" and west longitude 84º 53' 23\", with an extension of four hundred sixty-two hectares (462 ha). The coastal marine area shall be composed of the waters surrounding the island, with a depth of up to three meters (3 m). Inserted within the two preceding areas, there shall exist a space of differentiated management dedicated to sustainable tourism activity, the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourist Zone (Zona turística).” To analyze said norm, a comprehensive study of the current legal framework must be undertaken.As previously noted, the Poder Ejecutivo, through Decreto No. 29277 of January 11, 2001, declared Isla San Lucas and the surrounding marine area up to a depth of six meters, as a Refugio de Vida Silvestre, providing that its administration would correspond to the Ministerio de Ambiente y Energía and that its management would be governed in accordance with the provisions established in that regard by the legislation in force on the matter. It was added that, through Decreto Ejecutivo No. 30714-C of September 26, 2002, the island, property of the Municipalidad de Puntarenas, was declared and incorporated into the Patrimonio Histórico Arquitectónico de Costa Rica, providing that such declaration prohibits the demolition of the property and its partial or total remodeling, without the prior authorization of the Centro de Investigación y Conservación del Patrimonio Cultural of the Ministerio de Cultura.The properties in question are the chapel and the former penitentiary (presidio), among others. Regarding the validity of Decreto Ejecutivo No. 29777 that created the protected wilderness area (área silvestre protegida) on the island, the Sala Constitucional indicated: (…) In addition, Decreto Ejecutivo No. 34282 of January 25, 2008, was issued, which increased the area of the Refugio by 210 hectares (containing portions of water and islets), and declared the sustainable tourism development of the island to be of national interest and high priority, establishing a Permanent Commission composed of the Ministers of Culture, Youth and Sports, Tourism, and Environment and Energy, or their representatives, and the Mayor of Puntarenas or their representative, charged with ensuring the rational management of the lands excluded from the Refugio and under municipal administration. Likewise, that Decree provided that for the development of tourism activities in the area under municipal administration and for the preservation of the cultural heritage of the island, the ICT would prepare a Master Plan for Sustainable Tourism Development, which would comprise an analysis of the environmental impact 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.That is, there is nothing new. It is clearly observed that the protected areas were duly designated. In addition, the actions and competences of the different administrations had already been clearly regulated. On the other hand, in the face of three actions of unconstitutionality filed against that Decree, the Sala Constitucional reiterated the validity of the creation of the Refugio de Vida Silvestre, and, therefore, declared it unconstitutional only insofar as it reduced the terrestrial area of the Refugio, but, indeed, maintaining the addition of marine area provided. In that sense, as already indicated above, it ordered: (…) So, what is deduced from the foregoing? Something that is very clear: Decretos Ejecutivos No. 29277, 30714-C, and 34282 are in force; and Ley 9892 Creación del Parque Nacional Isla San Lucas did not repeal them, neither expressly nor tacitly. That is, the Parque Nacional is created, and the protection of the architectural, historical, and environmental heritage established by the indicated decrees also remains in force.There is no change but rather an action of greater protection. So, is what is indicated in article 3 of said Law a matter of unconstitutionality? No, to speak of the issue of 3 or 6 meters is not pertinent because there are Executive norms that remain in force. Indeed, in order to integrate the legal framework, the legislator has established the order of application of the various segments of the Law. Article 9 of the Ley General de la Administración Pública provides: 1. The administrative legal order is independent of other branches of law. Only in the event that there is no applicable administrative norm, written or unwritten, shall private law and its principles apply. 2. In the case of integration, due to a gap in the written administrative order, jurisprudence, the general principles of public law, custom, and private law and its principles shall apply, in that order. The legislator’s mandate is clear: there is an obligation of comprehensive interpretation of the legal framework.In the present case, what is indicated by the Legislative Decree must be integrated with the Decretos Ejecutivos, since all of them establish the regulatory scheme regarding Isla San Lucas, which is not only a site of environmental protection but also a site for the protection of architectural heritage and the development of sustainable tourism activity. All of the above was already indicated by the Sala Constitucional in the judgment transcribed in previous sections. Normative integration must be done with sources of Public Law and only insofar as no regulation, written or unwritten, is found therein that contemplates a similar set of facts, may recourse be had to other normative spheres; or to the determination of unconstitutionality. What is pertinent in the present case, and in accordance with the principle of integration of the legal framework, is that there is no unconstitutionality of the Law in the challenged regulation.What happened with the claimants is that they neither applied nor analyzed the norms that are currently in force. In this vein, the Procuraduría General de la República, in Legal Opinion No. 39-99 of March 24, 1999, has indicated: (…) The foregoing makes it necessary to establish whether Administrative Law, in its written or unwritten sources, contains provisions on the subject alleged by the claimants, it being pertinent to note that the regulation of Decretos No. 29277, 30714-C, and 34282 remains in force; therefore, there is no unconstitutionality whatsoever. Regarding the idea presented by the claimants that the management category is changed and a tourist zone is included without studies. The claimants state that the current Law converts the protected wilderness area (área silvestre protegida) into a zone of tourist and commercial interest; and that sustainable tourism use is in reality a way to generate common commercial activity in disguise. Additionally, they state that article 6 reduces to a tourist zone the areas of the penitentiary (presidio), the plots, the trails, and the beach zones. All without technical studies.

Furthermore, a tourism project involves the felling of trees. Moreover, without substantive content, they indicate that the Law establishes commercial purposes disguised as sustainable solutions in the fragmentation of the wilderness area. Thus, they argue, Articles 3 and 16 allow docks, berths, food services; as if it were an amusement park because they are open-ended provisions (números apertus). In addition, they consider that Article 9 of the Law allows for the conception of what will be commercial areas. From the foregoing, it is clear that the plaintiffs are not correct.

First, with respect to Articles 3 and 9 of the Law, the challengers point out that the development of docks is allowed. They are correct, since it is pertinent to point out that, although it does not state it clearly, where there is sea, rivers, or lakes, there are docks. What must be generated is an entire sustainable tourism project, which the plaintiffs apparently do not understand. However, in the same ruling cited (2010-013099), the Constitutional Chamber (Sala Constitucional), in addition to recognizing and admitting that in the management of the island several public actors concur who must act under the principles of unity and coordination, pointed out that the constitutionality of the rest of the articles of the Decree challenged; and the possible tourism development that the Decree proposed, must have a very low environmental impact (impacto ambiental), respecting the protection of the environment and the cultural assets existing in the area and that motivate the two protection regimes that converge there. That is what the Law that they seek to annul clearly establishes. In that sense, the Constitutional Court indicated: (…)

See that the same Chamber points out a duty of coordination regarding the role of the Institutions, since the protection of the environment and historical heritage (patrimonio histórico) are not removed from tourism interest. Quite the contrary, the true interpretation of provision 50, in its clear dimension, implies the existence of places of recreation for human beings. Tourism, which the plaintiffs attack, is an economic sector, an industry, and a social phenomenon of modernity and postmodernity. Travelers are always motivated to visit destinations attracted by a natural element or some relevant element associated with flora and fauna. Sustainable tourism is a way of doing and managing tourism. There are two visions: from the point of view of supply, there is a management model; that is, how a destination treats its tourism resources in an environmentally friendly way, so that the surrounding communities benefit and at the same time there is equitable economic retribution.

From the point of view of demand, visitors are more conscious and prefer environmentally friendly practices. They have an ecological vision and know that with the money invested they contribute to the community, in addition to contributing to the conservation of a natural space or even a species of flora or fauna. And that continues to be the intention of the questioned law, generating low-impact development.

See that provision 6, which is sought to be annulled, clearly states that: “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 properties, the trails, and the beach areas indicated, will be affected under the condition of a Tourist Zone (Zona turística).” Furthermore, Article 16 states that: “The Isla San Lucas National Park may develop all necessary infrastructure to facilitate sustainable tourism, including the provision of water, electricity, telecommunications, hygiene and sanitation, docks, berths, food services and access routes, information and communication in various formats, as well as what it deems pertinent for the benefit of visitors and to ensure the enjoyment and appreciation of the historical, architectural, and natural richness of the park. In the construction of docks, berths, and other maritime facilities, the Costa Rican Institute of Pacific Ports (INCOP), the Ministry of Public Works and Transport (MOPT), and the Costa Rican Tourism Institute (ICT) will provide the corresponding technical support to the Board of Directors (Junta Directiva); likewise, these institutions are empowered to construct and maintain the works indicated in this norm.” The foregoing is consistent with what the Constitutional Chamber indicated in the judgment in question, by affirming, regarding sustainable tourism, that: (…)

Note that the same Constitutional Court has clearly indicated that: 1- Development is viable hand in hand with environmental sustainability. 2- This sustainability aims to protect and conserve the environment and its natural resources, in balance with economic diversification and the improvement of the quality of human life. 3- An example of this is the Certification for Tourism Sustainability (Certificación para la Sostenibilidad Turística) issued by the Costa Rican Tourism Institute as a highly important component, which denotes progress in protecting the right to a healthy and ecologically balanced environment while simultaneously promoting economic diversity through tourism. 4- It is also included that the Law for the Promotion of Rural Community Tourism (Ley de Fomento del Turismo Rural Comunitario), which instructs on making optimal use of environmental resources that are a fundamental element of tourism development, 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 agents of tourism development have the duty to safeguard the environment and natural resources, in the perspective of sound, constant, and sustainable economic growth, capable of equitably satisfying the needs and aspirations of present and future generations. 6- The infrastructure and programming of tourism activities must be conceived in a way that protects the natural heritage that constitutes ecosystems and biological diversity. 7- Equitable access to development is not only established in urban areas. 8- The development of these legal initiatives generates access to development, in terms of employment opportunities, or in quality of life. 9- Rural development, based on tourism directed at natural and cultural heritage, is constitutionally legitimate as long as it is sustainable.

It is clear, then, that Article 6, which they impute as unconstitutional, does nothing but gather the intentions of sustainable development established by the Honorable Constitutional Court. It is a clear summary of what is ordered by the cited Chamber. In addition, the UN proposed the topic of sustainable development goals and at the national level all institutions are focused on fulfilling them. In the country, there are some public and private institutions dedicated to promoting ecotourism and community tourism, the formation of networks for the development of sustainable tourism. It is known, then, that one of the priorities of the ICT is to promote sustainable tourism from ecotourism or community tourism; and this law generates that element of promotion. If private organizations in urban areas carry out sustainable practices by implementing mechanisms linked to conserving nature and contributing to the communities involved by carrying out social responsibility activities, it is more pertinent and obligatory to develop it in National Parks. The plaintiffs know that, when a National Park is established, the protection is greater.

It is pertinent to point out that this sustainability discourse dates back to the 80s with the Brundtland Report, when the existence of overpopulation with inadequate management of the planet's resources began to be discussed. And since Costa Rica is a country visited for its biodiversity, the objective of this Law is to develop a protection activity with low-impact tourism. And it is clear that a single Institution cannot economically sustain the project. Then, a decision to include various institutions appears, which can use their budgets for the sustainable development of the project. And, furthermore, said development generates tourism activity that directly causes employment, very necessary in our society after the COVID-19 pandemic. Therefore, Articles 6 and 16 are congruent with sustainable development and with the provisions of the Constitutional Chamber related to Isla San Lucas.

(…) That is, there is the limit to the action of the administrations that will coordinate the sustainable development of the Island, without violating the environment or the historical heritage: the master plan (plan maestro). It is not the first time that a Legislative Decree regulates the existence of a master plan. The most notorious example is the one linked to the Gulf of Papagayo Tourism Project (Proyecto Turístico Golfo de Papagayo). Note that the Regulation for the General Master Plan of the Gulf of Papagayo Tourism Pole (Reglamento al Plan Maestro General del Polo Turístico Golfo Papagayo), with the reform approved by the Board of Directors of the ICT in session 3765/2011 (La Gaceta 84 of 5/2/2012), highlights, among its guiding principles, respect for protected wilderness areas (áreas silvestres protegidas) and free access to beaches. Evidence of this is what the following articles state: “Article 3.2 f: (…) ‘It is the obligation of the ICT and the concessionaires to guarantee free access to the public zone of the maritime-terrestrial zone (zona marítimo terrestre), which must be dedicated to public use and the free transit of tourists.

Only in exceptional cases expressly provided by law, is it authorized that spaces of the public zone of the maritime-terrestrial zone be concessioned.’ Article 3.4 ibid.: Guiding principles on tourism space. ‘a) Free use of beaches and access to panoramic views: In accordance with the current legal system, the public zone of fifty meters in width of the maritime-terrestrial zone on the beaches must be dedicated to public use and the free transit of tourists. It is primarily the responsibility of the Executing Office (Oficina Ejecutora) to issue regulations and enforce existing ones that guarantee respect for this legal norm. Only in exceptional cases expressly provided by law, is it authorized that spaces of the public zone of the maritime-terrestrial zone be concessioned.’ ‘b) Respect for protected areas: (…).’” In addition, every land use plan (plan de uso del suelo) must be reviewed by the competent bodies, in such a way that current regulations generate the pertinent protection elements, which would be applied in the case of the reviews that must be made to the master plan issued in the case of Isla San Lucas.

For this, one member of the Board of Directors is the Minister of Environment. Furthermore, every master plan, as the same Chamber indicates in several of its rulings, must conform to zoning studies (estudios de zonificación) and zoning regulations (reglamentos de zonificación). The same Constitutional Court limits their issuance insofar as they must not be based on a reduction of the protected wilderness area. So, the plaintiffs know, and the Constitutional Court has so determined, that the Master Plan must pass all technical regulations, where the competent institutions must intervene, among them SINAC and SETENA. Moreover, it is an order of the same Chamber, so the Law merely complies with that instruction. In addition, an initial Master Plan is attached, in which the Honorable Constitutional Chamber can observe the effort to develop a project with the provisions emanating from the Constitutional Court.

Note the conglomerate of entities that participated in the development of the plan, and that the Law issued together with a plan like the one proposed implies an action of true coordination. Its beginning reads with the following legend: (…)

Regarding the exclusion of the SINAC representative from the Board of Directors. In particular, the plaintiffs are also incorrect, since the head of environmental matters is, by the same constitutional order, among those who must constitute the Board of Directors. Note that provision 10 of the Law indicates that: “The Board of Directors of the Isla San Lucas National Park will be composed of the following members: a) The Minister of Environment and Energy, who will preside over it, and a vice-minister of the portfolio may act as alternate. b) The Minister of Culture, and a vice-minister of the portfolio may act as alternate. c) The Executive President of the Costa Rican Tourism Institute (ICT), and the person holding the management or a member of the Board of Directors of said institute may act as alternate. d) A representative of the Executive Branch (Poder Ejecutivo) designated by the Government Council, a body that will also appoint an alternate. e) The mayor of the Municipality of the Central canton of Puntarenas, and a vice-mayor may act as alternate. f) The president of the Puntarenas Chamber of Tourism, and any of the members of the Board of Directors of said chamber may act as alternate.

The president of the Board will hold the judicial and extrajudicial representation of the body. Likewise, they will have a casting vote in the terms of Article 49 of Law 6227, General Law of Public Administration (Ley General de la Administración Pública), of May 2, 1978. The members of the Board of Directors will not earn any per diem.” Then, to indicate that the SINAC representative must be in that position is not acceptable. Their arguments are linked to Article 1 of the Convention for the Protection of Flora, Fauna, and Natural Scenic Beauties of the Countries of the Americas (Convención para la Protección de la Flora, Fauna y Bellezas Escénicas Naturales de los países de América). However, said provision establishes the definitions of a series of environmental institutes. Quite the contrary, regarding National Parks, said provision establishes that: “1.- National Parks shall mean: The regions established for the protection and conservation of natural scenic beauties and flora and fauna of national importance, which the public may best enjoy when placed under official surveillance.” According to the foregoing, there are no reasons to establish any unconstitutionality.

See that, regarding Isla San Lucas, the official surveillance will be linked to a Board of Directors that administers that Park. And it is within that Board of Directors that the head of environmental matters of the Republic will be: the Minister of Environment. Furthermore, the representation of SINAC corresponds to the Minister of Environment and Energy, due to their status as President of CONAC, in accordance with Articles 24.1 of the Biodiversity Law (Ley de Biodiversidad) and 10.1 of its regulation; who also holds the legal representation of the entire Environment and Energy portfolio in accordance with Article 7 of the Organic Regulation of MINAE (Reglamento Orgánico del MINAE) and in tune with their status as the superior hierarchical body of the ministry as established by Articles 25.2 and 28.1 of the LGAP. According to the foregoing, what the plaintiffs point out is also not acceptable. Moreover, as indicated by the same Constitutional Chamber in the aforementioned judgment: (…) So what the Law did was the same: include the entities indicated before in the Law, generating clear attributions in the powers of the Board of Directors. That is, it implemented the spirit of the constitutional judgment.

Regarding the use of private security personnel. This representation considers that there is an improper reading of Article 15 of the Law, also violating the interpretive spirit established by provision 10 of the Civil Code (Código Civil). Note that the cited provision 15 clearly states that: “For the surveillance and security of the Isla San Lucas National Park, the necessary endowment of park rangers (guardaparques) from the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación) of the Ministry of Environment and Energy (MINAE) will be provided, without prejudice to the possibility that the Board of Directors, directly or through the corresponding administration trust (fideicomiso de administración), may contract the security it deems necessary; said personnel will not have police authority nor may they exercise non-delegable functions proper to the administration.

Likewise, it may resort to the assistance of the Ministry of Security in situations that warrant it.” There is also no reason to modify it or to declare the article unconstitutional. From the literal reading of the cited article, it is established that it will be the SINAC park rangers who carry out the work of surveillance and security. What the article states is that, in the interest of having greater protection for the Park, the Board of Directors could carry out actions for the contracting of private security with the objective of assisting the park rangers in the surveillance and security of Isla San Lucas. This activity is common in the various institutions of the country, without the foregoing meaning that competences are transferred. That is, what is being done is an extension for the purposes of having effective surveillance and security of the Park.

Regarding the fact that concessions cannot be granted in the park. The plaintiffs state that Article 7 together with Article 9, subparagraph l), establishes the possibility of granting concessions in the Park, by regulating the latter (sic) the following: “The Isla San Lucas National Park will be governed by a master plan prepared based on technical criteria. For the fulfillment of the purposes established in this law, concessions and permits may be granted in the tourist zone for activities and installations other than park services. Lodging services and games of chance will not be permitted in this zone. In any case, the participation of local organizations in the granting of concessions must be promoted. Any conflict of competences will be resolved by the Minister of Environment and Energy.” Note again that the master plan will indicate the activities for which permission or concession may be granted; lodging activity and activities linked to casinos being impossible. Furthermore, the same plan, which must be approved by SINAC and SETENA, must analyze the environmental aspects. In addition, a power is granted to the Minister of Environment: to resolve possible conflicts of competence. The foregoing implies the protection of constitutional rights to the environment and the protection of historical heritage.

It is reiterated that “sustainable tourism” comes from the concept of “sustainable development” enunciated by the World Commission on Environment and Development of the United Nations 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 Federation of Natural and National Parks of Europe (Federación de Parques Naturales y Nacionales de Europa, F.P.N.N.E.), known as EUROPARC Federation, defines sustainable tourism as “all forms of development, management, and tourist activity that maintain the environmental, social, and economic integrity and the well-being of the natural and cultural resources of the area in perpetuity.” In addition, Article 39 of the Biodiversity Law establishes that: “The National Council of Conservation Areas (Consejo Nacional de Áreas de Conservación) is authorized to approve contracts and concessions for non-essential services and activities within state protected wilderness areas, except for the exercise of the responsibilities that this and other laws entrust exclusively to the Executive Branch through the Ministry of Environment and Energy (MINAE), such as protection and surveillance, definition, monitoring of strategies, plans, and budgets of the conservation areas.

These concessions and contracts may in no case include the authorization of access to biodiversity elements in favor of third parties or the exploitation of natural resources; nor the construction of private buildings. The non-essential services and activities shall be: parking lots, sanitary services, administration of physical facilities, food services, stores, construction and administration of trails, visitor management, and others defined by the Regional Council of the Conservation Area, by means of a technical study that justifies it. These concessions and contracts may be granted solely and exclusively to community development associations, cooperatives, microenterprises registered with the Ministry of Economy, Industry and Commerce (MEIC) or national non-profit social organizations that have objectives of support for the conservation of natural resources, that incorporate environmental management within the processes and concessioned area, and with their legal status current, provided they are composed and directly controlled by inhabitants of the communities located in the zone of influence of the respective protected wilderness area.

The conservation areas must provide ample information to these communities on the services they decide to grant in concession and establish a registry of local organizations in order to guarantee the greatest possible participation in the contracting processes. The National Learning Institute (Instituto Nacional de Aprendizaje, INA), in coordination with other public educational entities and the respective municipalities, will create training and technical instruction programs oriented primarily to the communities located in the zone of influence of the protected wilderness areas, so that they can take advantage of the benefits of this provision. The concessionaires or permit holders must present satisfactory external audits, carried out in the last year; all at the discretion of the Regional Council of the Conservation Area.” (Thus amended by the sole article of Law No. 9766 of October 29, 2019) Then, what is indicated by the plaintiffs is not unconstitutional either, as what is set forth in the cited article is clear, which clearly establishes that the National Council of Conservation Areas can approve contracts and concessions for non-essential services and activities within state protected wilderness areas.

What must be done is a comprehensive study of the administrative system, as ordered by provisions 6 and 7 of the General Law of Public Administration. Furthermore, the Ministry of Environment and Energy (MINAE) must establish approvals regarding protection and surveillance, monitoring of strategies, plans, and budgets of the conservation areas. For this reason, the Law foresaw this situation of competences that will be resolved by the Minister of Environment. On the other hand, the indicated provision 39 refers to the fact that concessions and contracts may in no case include the authorization of access to biodiversity elements in favor of third parties or the exploitation of natural resources, nor the construction of private buildings; therefore, once again, the law already establishes the limit. Finally, said regulation establishes what the non-essential services and activities are: parking lots, sanitary services, administration of physical facilities, food services, stores, construction and administration of trails, visitor management, and others defined by the Regional Council of the Conservation Area, by means of a technical study that justifies it.

Those who may be eligible for these concessions and contracts are community development associations, cooperatives, microenterprises registered with the Ministry of Economy, Industry and Commerce (MEIC) or national non-profit social organizations that have objectives of support for the conservation of natural resources, that incorporate environmental management within the processes and concessioned area and with their current legal status, provided they are composed and directly controlled by inhabitants of the communities located in the zone of influence of the respective protected wilderness area. Therefore, what the plaintiffs indicate is also not acceptable. The limit on concessions is duly regulated in Article 39 of the Biodiversity Law, which is in force at the time of this response.

Regarding the alleged uncertain financing. The challengers state that Article 17 of the Law is unconstitutional. Said article states that: “The Isla San Lucas National Park will have financial resources that allow it to exercise its mandates with agility and efficiency. These will include the resources corresponding to it by law from the National System of Conservation Areas (SINAC), transfers from the budgets of the Republic or donations from any natural or legal person, as well as the own funds generated by admission to the park, the use of its services, the fees (cánones) for concessions and permits, and, in general, by the payment for activities carried out within the park. The resources regulated in this law as well as all those produced by the park, will necessarily and exclusively be invested in the same national park. Oversight will be under the charge of the Comptroller General of the Republic (Contraloría General de la República).” Then, Article 18 indicates that: “Authorization to donate and subsidize.

The entire state, non-state, and financial public sector is authorized to make donations, investments, and include budgetary subsidies in favor of the Isla San Lucas National Park. The Costa Rican Tourism Institute (ICT) may transfer economic resources to the Board of Directors of the Isla San Lucas National Park for the realization of its investments in development and ordinary activities; likewise, it may design and carry out promotion and marketing for park visitation. The Board of Directors may receive donations from international organizations and foreign governments interested in contributing to the purposes of the park.” Furthermore, Article 13 regulates the possibility of using the trust (fideicomiso) figure. All the foregoing is clear and duly regulated. It is clearly established where the funds come from; so the assumptions the plaintiffs indicate are nothing more than that, assumptions.

Furthermore, as in all matters of public resources, there will be the obligation of control by the Comptroller General of the Republic. The manner in which the financing possibilities are established is in accordance with the law and rather generates a better possibility of obtaining resources that could not be achieved if an exclusive direction of SINAC is maintained.

IN ADDITION TO ALL THAT HAS BEEN INDICATED The Law whose declaration of unconstitutionality is sought has as its main objective to provoke the genesis of a new national park and historical and architectural heritage, which is located on Isla San Lucas. As previously indicated, Isla San Lucas is currently a Protected Wilderness Area, therefore, it is already contained within a management category; moving it to a National Park category does not generate a greater impact on third parties or the maritime-terrestrial zone. Nor to the Decrees mentioned above. The Legislative Assembly may, in its competence to approve bills, approve one such as the one that has been sought to be alleged as not adhering to the law of the Constitution. The legal character generated by the creation of said park implies greater legal protection since it must be regulated for the execution of various norms.

The creation of the new national park, located on Isla San Lucas, implies a greater action than is required in the development of a national park, since it generates obligations for various institutions. Furthermore, as has already been indicated, Isla San Lucas is already a protected wilderness area, with historical and architectural heritage, and with the possibility of tourist visits. In view of this, what the Constitutional Court has indicated is that there must be an attitude of coordination, which the Law that is sought to be annulled regulates clearly. Thus, regarding the legislated matter, it is not only not unconstitutional, but it conforms to the reality of what Isla San Lucas truly is and represents: a protection zone, a historical zone, and a tourist attraction zone.

The legislator involves the Costa Rican Tourism Institute (ICT) directly in the following aspects: 1.- As a member of the Board of Directors that is formed to be in charge, at the director and decision-maker level, of the Administration of the National Park. 2.- In the financial part, assigning competences that involve budgeting funds corresponding to the Institution for investment in the National Park, related to both construction and maintenance and restoration of works. 3.- With experience in the preparation of Master Plans. 4.- With capacity to advise on the construction of docks, berths, and other sustainable maritime facilities, of which it has been demonstrated before the Constitutional Court that they generate greater environmental protection when the Commission for Tourist Marinas and Berths (Comisión de Marinas y Atracaderos Turísticos) acts in its development. 5.- In the promotion of the tourist destination.

In this regard, it is worth indicating that, since the Costa Rican Tourism Institute has specialized areas such as the Inter-Institutional Commission for Marinas and Berths, in the development of berths, the Department of Certifications and Tourist Social Responsibility, as well as the Marketing Directorate, its participation is relevant, hence the participation of the ICT is vital even for the generation of economic development of the project, as indicated in Article 9 of the Law.

In conclusion, the ICT is an important actor, as it forms part of the Board of Directors for the administration and governance of the Isla San Lucas National Park and the obligations described. After the pandemic, the ICT will have to include, during the term of this law and within its budget, sufficient economic resources to meet the expenditures detailed in the Law. Therefore, this Law is clearly visionary and seeks to cover the public interest that our institution safeguards, noting that no violations of the Constitution are observed in its formulation. Quite the contrary, it responds to the instructions of the Constitutional Chamber. For the foregoing reasons, this representation considers that the unconstitutionality action must be denied because there are no defects of unconstitutionality to support it.

1. 134By brief incorporated into the digital case file on April 23, 2021, José Bourret Marín, identity card number 118400114, files an active joinder in the same terms as in the brief incorporated into the digital case file on April 8, 2021.
2. 135By brief incorporated into the digital case file on April 23, 2021, José Canales Morales, identity card number 118440765, raises an active joinder in the same terms as in the brief incorporated into the digital case file on April 8, 2021.
3. 136By brief incorporated into the digital case file on April 23, 2021, Danny Villalobos, identity card number 206430273, representing the Costa Rican Federation for Environmental Conservation, raises an active joinder and requests that the action be granted. He states: “VIOLATION OF THE PRINCIPLE OF SCIENTIFIC PROTECTION As the text of the questioned law was drafted, we find that various scientific studies are lacking, which ultimately lead to a regressive action and from that point of view the action deserves to be granted. To begin with, we have that norms 3 and 6 of the legal body speak of the geographical delimitation of the island both in its marine and terrestrial parts. But to elaborate this, there never existed a study that authorized reducing from 6 meters deep to 3 meters, and this transgresses the principle of proportionality and that of reasonableness, and thus we request that it be so ordered.As you will see, the text of the law is crystal clear in norm 3 when it states: ‘... The coastal marine area shall be composed of the waters around the island, with a depth of up to three meters (3 m)...’ But why (sic), if before this law, the decree that regulated the marine part had established that the island’s area extended to a depth of 6 meters, what was the idea behind reducing the protection? On the other hand, if this reduction from 6 to 3 meters deep had been justified, where was it environmentally compensated with another area? (sic) As this Authority will understand, the violation of the principle of scientific protection is more than clear and, given that, this law must be declared unconstitutional. Article 6 of the law establishes an area called the WATER SECTOR. And within it, certain geographical points are established and it adds: ‘Area of the polygon called “Water Sector” 746209.m2, equivalent to 74ha6209, equivalent to 0.75 km2’ The question that arises and stands out is: under what scientific criteria was this zone or sector established?And since there is no reason for it, we have that the information gap is more than clear. It should be clarified that it is manifest that after constitutional vote No. 13099-2010, there was an addition of 210 hectares that were added to those already protected, but what happened with that area that evidently was not contemplated or integrated into that water sector? Why is there a nebulousness about those 201 hectares? It is assumed that they should continue to be protected, but under what type of management? Why make differences between a national park area and a refuge area? Since nothing is clear, the action deserves to be granted. As will be understood, the marine part has been neglected and with it also all the biodiversity and archaeological wealth, since it must be known that there are many documented shipwrecks around the island and for this reason I request that the action be granted.Along these lines, I request that a criterion be requested from the National Museum. In the terrestrial part, we have that both in Article 3 and in Article 6 of the norm, differentiated sites are established, but there is NO scientific justification that validates this and therefore biodiversity in terms of flora and fauna could be put at risk. It is more than clear that the fragmentation with differentiated treatments in the terrestrial part is done to place commercial concessions (see Articles 9 subsection d and 14 subsection g) and this is unconstitutional in a national park insofar as the same Convention for the Protection of Flora, Fauna, and Natural Scenic Beauties of the Countries of America prohibits those uses. This convention states: ‘ARTICLE III.... The riches existing in them shall not be exploited for commercial purposes’ We request that it be seen and appreciated that the Park is of enormous scenic richness, so the concessions are to take advantage of that and to achieve profit for the businesspersons (sic) who obtain concessions.For all these reasons, we request that unconstitutionality be declared for violating principles of environmental law and even the referenced convention. VIOLATION (sic) OF THE PRINCIPLE OF REDUCTION (sic) OF PROTECTED WILD AREAS In the same line as above, we find that with the granting of commercial concessions and of essential and non-essential activities or services in block, decisions could be made by the board of directors that administers the park in such a way that only profit is sought and this would lead to irreversible damages. We are not saying that the services profit and that would lead to irreversible damages. We are not saying that with the essential and non-essential services damage is generated, but rather with the impact of the set of activities that would exist where some are commercial, as authorized by the same questioned norm in Articles 9 subsection d and 14 subsection g. Taken together, it is clear that Article 3 of the law and G led to dividing the park into zones without any studies having been conducted and the worst part is that this is done in tacit diminishment of sites that had until now been destined for the protection and regeneration of ecosystems.Therefore, although the entire island continues to be a protected wild area, it is tacitly sought to open it to activities that could bring environmental harms and damages. We do not say this simply for the sake of saying it, but rather your Authority must appreciate it thus, because there never existed a study that assessed the questioned segmentation. We cannot finish without saying that it seems totally unconstitutional to us that in this park, the construction of docks and ports is authorized because this should not be permitted in a site like Isla San Lucas that has had a period of regeneration in its marine and terrestrial parts over the years. In truth, opening to concessions of companies that will arrive with ships or boats at different docks is something irrational in a national park that could even affect constitutional numeral 89 due to impact on the landscape. Also, the marine landscape could be affected by the entry and exit of vessels to the site given the mentioned facilities that now do not exist.There never existed a prior study that measured the impact of building docks or piers and therefore Article 16 of the law has a defect of unconstitutionality. For all that has been stated, we request that the unconstitutionality of the entire law be declared. To this effect, we request that it be ordered that we have standing to bring action because there are diffuse interests at stake. Our basis is constitutional numerals 50 and 89.”
4. 137By brief incorporated into the digital case file on April 23, 2021, Julio Jurado Fernández appears, in his capacity as Attorney General of the Republic. He explains that: “I OBJECT OF THE ACTION THE PLAINTIFFS’ STANDING DERIVES FROM A DIFFUSE INTEREST THAT EXISTS IN THE MATTER The action processed under file 21-5756-007-CO has been filed for the purpose of having Law No. 9892 of August 24, 2020, declared unconstitutional. In summary, the arguments on which the plaintiffs base their action can be synthesized as follows. The plaintiffs consider that Law No. 9892 is unconstitutional because it reduces the protected wild area without technical justification by cutting back the maritime area. Likewise, it is argued that a change in management has occurred and a tourist zone has been created that modifies land use without support in technical criteria. Then, it is alleged that the Law establishes commercial purposes for the tourist zone that are incompatible with the environmental protection of a protected wild area.Thereafter, they argue that the governance model of the national park violates environmental protection by excluding the National System of Conservation Areas and that the protection regime is also violated by allowing private security to be contracted. Finally, it is considered unconstitutional because it enables the possibility of granting concessions in a protected wild area and because its financing is uncertain. The plaintiffs’ standing lies in the diffuse interest that has been constitutionally recognized in relation to environmental protection. II LAW No. 9892: A CHANGE IN THE MANAGEMENT CATEGORY OF ISLA SAN LUCAS Law No. 9892 of August 24, 2020, created the Isla San Lucas National Park, consequently modifying the management category that until that moment was applied in relation to that Protected Wild Area. By Executive Decree No. 29277 of January 11, 2001, the Executive Branch declared Isla San Lucas as a National Wildlife Refuge.Law No. 9892 modifies the management category of Isla San Lucas. Article 1 of that Law created the Isla San Lucas National Park. The provision in question is transcribed: ARTICLE 1-Creation. The Isla San Lucas National Park is created, which in addition to its condition as a protected wild area, shall be historical-architectural heritage and a sustainable tourism development zone, in the specific areas determined in this law. However, Law No. 9892 has not only created the Isla San Lucas National Park, but has also incorporated a sector of the Island into the historical-architectural heritage, and has created, on the Island, a so-called “Sustainable Tourism Development Zone.” Article 5 of Law No. 9892 has declared that the set of buildings of the former “San Lucas” penitentiary be incorporated into the Historical-Architectural Heritage of the Nation. The norm obliges the Ministry of Culture to create and keep updated an inventory of that heritage for its conservation.ARTICLE 5- Cultural and historical significance. The set of buildings of the former San Lucas penitentiary is declared historical-architectural heritage; the State must restore and preserve this heritage for the enjoyment and knowledge of present and future generations. The Ministry of Culture must carry out an inventory of the cited heritage and its state of conservation, updating it periodically, all of which it shall communicate to the Ministry of Environment and Energy (Minae) and to the entity in charge of the island’s administration.” Article 6 of Law No. 9892 creates, on Isla San Lucas, a so-called “Tourist Zone.” Law No. 9892 has created a National Park on Isla San Lucas and, nevertheless, simultaneously the norm has designated a series of areas of Isla San Lucas – areas delimited by the Law – to the condition of Tourist Zone. According to Law No. 9892, the areas corresponding to the buildings of the former San Lucas penitentiary, including the pier, as well as the marine and terrestrial access zone to the island, the properties, the trails, and particular beach zones are designated to the condition of Tourist Zone.Article 6 is transcribed, in its relevant part: ARTICLE 6- Tourist zone. The areas corresponding to the buildings of the former San Lucas penitentiary, including the pier, as well as the marine and terrestrial access zone to the island, the properties, the trails, and the beach zones indicated, shall be designated to the condition of Tourist zone. Numeral 6 divides the Tourist 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 is worth noting that in total the Tourist Zone is equivalent to 138 hectares out of a total of 462 hectares that is the total extent of Isla San Lucas. Article 3 of the Law delimits the entirety of the Isla San Lucas National Park and establishes that the Park has a terrestrial portion and a coastal marine area. The norm establishes, in its last part that, within the two previous areas, there must exist a differentiated management space dedicated to sustainable tourist activity, the promotion, and the development of sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourist zone.ARTICLE 3- Delimitations. The Isla San Lucas National Park shall be composed of a terrestrial portion and a coastal marine area. The terrestrial portion shall be made up of the insular part of Isla San Lucas, located in the Gulf of Nicoya, cartographic sheet of the National Geographic Institute called Golfo, Edition 3-IGNCR at north latitude 9º 55' 55\" - 9 57' 20\" and west longitude 84º 53' 23\", with an extension of four hundred sixty-two hectares (462 ha). The coastal marine area shall be composed of the waters around the island, with a depth of up to three meters (3 m). Insert, within the two previous areas, there shall exist a differentiated management space dedicated to sustainable tourist activity, the promotion, and the development of sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourist zone. In light of Article 3, it must be understood that the Master Plan provided for in Article 7 of Law No. 9892 must incorporate a differentiated management model for the Tourist Zone of Isla San Lucas.A differentiated management model that must respond, albeit with technical criteria, to the promotion of sustainable tourist activity. In this regard, Article 7 itself enables the administration to grant concessions and permits in the tourist zone, for activities and facilities other than park services, without lodging services and gambling being permitted. Article 7 of Law No. 9892 has therefore established that the so-called Tourist Zone of Isla San Lucas must be administered according to a differentiated management model with respect to the management plan for the rest of the National Park. As a corollary of the foregoing, the Tourist Zone of Isla San Lucas is not only designated for a specific public purpose, that is, to promote sustainable and inclusive tourism, but its management must respond to a differentiated management plan – with respect to that of the National Park – dedicated to sustainable tourist activity, the promotion, and the development of sites of historical, architectural, and environmental interest.In summary, Law 9892 has created the Isla San Lucas National Park, but the truth is that the same Law has also created, within that National Park, an area, equivalent to one-fifth of the area of the Protected Wild Area, which must be administered under a differentiated management plan with respect to the rest of the National Park. An area that is designated for a specific public purpose, that is, the promotion of sustainable tourism. It should be warned that, despite the fact that Law No. 9892 provides, in its Article 3, that within the National Park there must exist a Tourist Zone and an Area dedicated to Conservation, the Law is scarce and shallow in provisions and regulations regarding the management of the Protected Wild Area, particularly with its environmental management. Article 4.a has provided that one of the purposes of the park 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, the same Article 9 establishes that in matters of conservation and preservation of historical-architectural heritage, the criterion of the Center for Research and Conservation of Cultural Heritage of the Ministry of Culture shall prevail and that, for the protection of wildlife and conservation of the island’s biodiversity, the technical criterion of the National System of Conservation Areas shall prevail. Notwithstanding that Law 9892 creates the Isla San Lucas National Park, it does not contain a specific regulation on the management of the zone of the island that corresponds to the conservation area proper. III NATIONAL PARKS ARE PROTECTED WILD AREAS OF ABSOLUTE PROTECTION Under Article 32 of the Organic Environmental Law, National Parks are a type of Protected Wild Area. They are distinguished from other types of protected wild areas by their management category. Article 58 of the Biodiversity Law has established that, in general, Protected Wild Areas are dedicated to the conservation and protection of biodiversity, soil, water resources, cultural resources, and ecosystem services.“ARTICLE 58.- Protected wild areas Protected wild areas are delimited geographical zones, constituted by lands, wetlands, and portions of sea. They have been declared as such because they represent special significance for their ecosystems, the existence of threatened species, the impact on reproduction and other needs, and for their historical and cultural significance. These areas shall be dedicated to conserving and protecting biodiversity, soil, water resources, cultural resources, and ecosystem services in general. The objectives, the classification, the requirements and mechanisms for establishing or reducing these areas are determined in the Organic Environmental Law, No. 7554, of October 4, 1995. The prohibitions that affect individuals and legal entities within national parks and biological reserves are determined in the Law Creating the National Parks Service, No. 6084, of August 24, 1977.During the process of fulfilling requirements to establish state protected wild areas, the respective technical reports must include the pertinent recommendations and justifications to determine the most appropriate management category to which the proposed area must be subjected. In any case, the establishment of areas and categories shall take very much into account the rights previously acquired by indigenous or peasant populations and other individuals or legal entities, underlying or adjacent to it.” Specifically, National Parks are terrestrial, marine, marine-coastal, freshwater, or a combination of these (sic) geographical areas, of national importance, established for the protection and conservation of natural beauties and biodiversity, as well as for public enjoyment. These areas present one or several ecosystems in which species, habitats, and geomorphological sites are of special scientific, cultural, educational, and recreational interest or contain a natural landscape of great beauty.(See Article 70 of the Regulation to the Biodiversity Law, Executive Decree No. 34433 of March 11, 2008) Article 18 bis of the Forestry Law classifies National Parks as protected wild areas of absolute protection. Article 12 of the National Parks Service Law has established that in a National Park no type of concession may be granted for the exploitation of products of the national parks, nor may any permit be granted to establish facilities other than those of the National Parks Service. ARTICLE 12.- No type of concession may be granted for the exploitation of products of the national parks, nor may any permit be granted to establish facilities other than those of the Service. Consistent with the above, in vote No. 16975-2008 at 2:53 p.m. on November 12, 2008, the Constitutional Chamber has indicated that the granting of concessions in National Parks is irreconcilable with the objectives of Protected Wild Areas of absolute conservation, that is, National Parks and Biological Reserves: “the concession is the normal means of exploiting the areas of the maritime-terrestrial zone administered by the Municipalities (Law 6043, art. 39) and irreconcilable with the objectives of certain Protected Wild Areas, of absolute conservation; for example, national parks and biological reserves.For that reason, the Decree would be contrary to the National Parks Law, No. 6084 (art. 12), which prohibits granting concessions for the exploitation of products of the national parks or to establish facilities other than those of the MINAE Conservation Area, formerly the National Parks Service. In turn, the Biodiversity Law, No. 7788, Article 39, contains another prohibition against granting concessions within state protected wild areas that authorize third-party access to biodiversity elements or the construction of private buildings.” According to numeral 18 bis of the Forestry Law, the use of surface water sources in national parks may also be authorized when there is a justification of public interest. In accordance with Constitutional Chamber vote No. 17397-2019 at 12:54 p.m. on September 11, 2019, that use is justified only (sic) by constitutional values, particularly because the State must guarantee access to potable water in order to defend the fundamental right to enjoy that resource.In vote No. 17397-2019, the conditions and requirements for being able to use the water sources of national parks and biological reserves have been delimited: “In this regard, it can be observed that the questioned regulations establish a series of requirements and restrictions when carrying out the activity of water use in the natural heritage of the State. For a better analysis, these requirements and restrictions will be set forth. First of all, the article grants the Ministry of Environment and Energy the power to authorize the use of water from surface sources and the construction, operation, maintenance, and improvements in water supply systems on properties that make up the natural heritage of the State provided the following requirements are met: The existence of a prior declaration of public interest issued by the Executive Branch; The existence of an imperative population supply in favor of the authorized entities providing water service such as the Costa Rican Institute of Aqueducts and Sewers, the Municipalities, the Heredia Public Services Company, and the Associations Managing Aqueduct and Sewer Systems; The works must be executed based on technical studies, striving for the least possible environmental impact according to the corresponding environmental impact assessment instrument and in strict compliance with current environmental regulations, especially the works must be carried out in accordance with what is provided regarding the applicable technical criteria for intervention in protected wild areas contemplated in Law No. 7788, Biodiversity Law, of April 30, 1998, and its regulations.Likewise, this article determines greater protection for protected wild areas of absolute protection such as national parks and biological reserves. These additional requirements are as follows: Comply with what is provided in Article 38 of Law No. 7554, Organic Environmental Law, of October 4, 1995; The technical studies carried out must demonstrate that there is no other alternative source available to guarantee the water supply for the beneficiary population in adequate conditions of quality and quantity; The proposed activities must have, in advance, the technical endorsement of the Costa Rican Institute of Aqueducts and Sewers.” In National Parks, sport and artisanal fishing is only permitted upon an affirmative opinion from the National Parks Advisory Council and always provided it is proven that they will not cause ecological alterations. (Article 10 of the National Parks Law) Although Article 8 of the National Parks Law enables the possibility of receiving visitors, the same norm is clear that any type of commercial, agricultural, or industrial activity is prohibited within the respective park.That is to say, that the tourism that national parks receive does not justify the possibility of seeking to develop commercial, agricultural, or industrial activities in them. It is important to warn that the possibility that national parks receive visitors is framed within the concept of ecotourism. Article 18 of the Forestry Law establishes the possibility of authorizing ecotourism activities on the Natural Heritage of the State, including National Parks. Ecotourism is an activity oriented towards maintaining 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, involves low-impact tourist activities, and is locally beneficial and satisfactory for visitors. The regulatory definition of ecotourism is found in subsection n) of Article 2 of the Regulation to the Forestry Law, Executive Decree No. 25721 of October 17, 1996, amended by Executive Decree No. 35868 of March 24, 2010) In Constitutional Chamber judgment No. 16975-2008 at 2:53 p.m. on November 12, 2008, it noted that it is not valid to authorize, particularly in national parks and biological reserves, tourism activities other than ecotourism that respond, rather, “to a new economic orientation, which provides less protection than the previous regime, for areas of strict conservation or national parks.” It was indicated in said judgment: IX.- Finally, the contested Decree repeals Article 11 of the Regulation to the Forestry Law (art. 9° of Decree 31750), which stated that: ‘The research and ecotourism work contemplated in Article 18 of the Law, when dealing with lodging facilities within the areas of the Natural Heritage of the State, shall be limited to rustic structures, in accordance with the natural environment, oriented mainly to the lodging of researchers and secondarily tourists, so as not to interfere or compete with the well-being of local populations in the buffer zone.’ It conditioned constructions to rustic structures permitted on the Natural Heritage of the State, more in line with ecotourism, and the Decree comes to authorize a new economic orientation, which provides less protection than the previous regime, for areas of strict conservation or national parks.Apart from eliminating the requirement for rustic structures, the Decree (Article 3°) allows constructions of up to three levels and the use of considerable spaces, without specifying the site where they will be located, in the execution of projects and activities (15% of the concession area for primary forests and 25% for secondary forests), with the environmental transformations or alterations that would ensue on the built-upon soil. The public wild areas, of which the State is guardian, make up fragile ecosystems of great biodiversity, whose damages can produce irreversible consequences and impede the long-term preservation of resources. The foregoing imposes a careful assessment of the environmental costs and social benefits attached to the projects and activities to be executed within them.-“The authorization of ecotourism activities in a national park or biological reserve must be subject to scientific and technical criteria of sustainability.In this regard, it is worth citing Constitutional Chamber vote No. 13099-2010 at 2:56 p.m. on August 4, 2010, regarding Executive Decree No. 34282 “Decree that rectifies, delimits, and expands the limits of the Isla San Lucas National Wildlife Refuge and declares the sustainable tourism development of the island to be of national interest and high priority”: This Chamber considers that rural development, which is based on tourism directed at natural and cultural heritage, is constitutionally legitimate as long as it is sustainable. Hence, if science and technique suggest the imposition of certain limitations on the numbers of visitor groups, at certain times, etc., they could not be judged as unconstitutional, given that they respond to sustainability criteria, but without detracting from the different international provisions that safeguard the right to enhance the value of those assets that belong to national history, not only as assets of national heritage but of all humanity, and their restriction to populations is not legitimate.Under Article 11 of the regulation to the Forestry Law, in Protected Wild Areas only (sic) training, ecotourism, and research activities are permitted, when they are subject to what is established in their respective Management Plan.

In the case of Protected Wilderness Areas, with the exception of National Parks and Biological Reserves, ecotourism activities may be carried out only and exclusively in the zones established by the National System of Conservation Areas in accordance with the zoning of each Protected Wilderness Area. Under no circumstances may the ecotourism zone result in that zone of the protected wilderness area being devoted to a purpose other than the protection of ecosystems, the guarantee of environmental preservation, and the safeguarding of natural and cultural resources.

IV DESPITE CREATING A NATIONAL PARK, LAW NO. 9892 REDUCES THE LEVEL OF ENVIRONMENTAL PROTECTION OF ISLA SAN LUCAS Law No. 9892 has established that Isla San Lucas be a national park. Executive Decree No. 29277 of January 11, 2001, had created a National Wildlife Refuge on that island. Wildlife refuges are geographic areas that possess terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination of these. Their main purposes are the conservation, research, increase, and management of wild flora and fauna, especially those that are endangered. Ecotourism is authorized in state refuges. (See Article 70 of the Regulation to the Biodiversity Law, Executive Decree No. 34433 of March 11, 2008) Executive Decree No. 34282 of January 25, 2008, declared the sustainable tourism development of Isla San Lucas to be of national interest and high priority.

Article 2—The sustainable tourism development of the island is declared to be of national interest and high priority under the terms of this decree, as well as the conservation and restoration of the buildings of the former prison on Isla San Lucas. The agencies of the Public Administration and the Private Sector, within their respective legal frameworks, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the Island.

However, in ruling No. 13099-2010 already cited, it was noted that: "The declaration of national interest and high priority for sustainable tourism development, as stated in numeral 2, shall be understood as constitutional as long as the conservation and restoration of the buildings of the former prison and those that were built on the occasion of its existence remain limited to the tasks of 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 that must be the subject thereof." In accordance with Article 5 of Executive Decree No. 34282, tourism activity on Isla San Lucas had to conform to a Master Plan for Sustainable Tourism Development, which had to 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 Master Plan for Sustainable Tourism Development had to be submitted to the National Environmental Technical Secretariat of the Ministry of Environment and to the Ministry of Culture, Youth, and Sports for approval, in accordance with the requirements and procedures established by the legal system.

In ruling No. 13099-2010, it was also indicated that any economic or productive activity that intervenes in or uses the environment, particularly the ecosystems of the National Parks and, specifically, on Isla San Lucas, must respond to the philosophy of sustainable development according to the impact it has on it, since it is constitutionally relevant to control the repercussions it may generate on the environment. Ruling No. 13099-2010 is transcribed again:

IX.On the implications of sustainable development and tourism.- The cornerstone of development lies in environmental sustainability, 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 core idea of the principles of environmental law lies in the rational use of natural resources, with the protection of the environment to ensure the sustainability of present and future generations. Any economic or productive activity that intervenes in or uses the environment must respond to the philosophy of sustainable development according to the impact it has on it; in that sense, when the Executive Branch bases itself on this type of objective for economic and social development, this Chamber considers that rural tourism as such must respond to those values that protect sustainable development, because it could not be the exception, and it is constitutionally relevant to control the repercussions it may generate on the environment.

Tourism activity in the former National Wildlife Refuge of San Lucas had to be strictly subject to technical criteria that ensured the possibility of maintaining a natural environment on the island, with emphasis on its biological, physical, and cultural features, through a controlled process that guaranteed minimum environmental impact. The regulations in force required that tourism activities on the Island be of low impact. Under Executive Decree No. 34282, the development of infrastructure in the National Wildlife Refuge of Isla San Lucas had to be compatible with the principles of environmental sustainability, its protection, and conservation. The construction of large-scale infrastructure works was prohibited, given that this would imply a substantial land-use change. Ruling 13099-2010 is transcribed again:

The development of infrastructure must be compatible with the principles of environmental sustainability, its protection, and conservation; on the contrary, they would be constitutionally questionable if works were carried out that did not take into account the protection regimes in force on the Island, such as the construction of large-scale infrastructure works, given that the validity of the regime as a protected area would imply a substantial land-use change, and not because of the human works that existed long before the declaration of the Island as a Protected Wilderness Area and of historical-architectural heritage.

Under the category of National Wildlife Refuge, the infrastructure built at San Lucas, intended for tourist use, had to be strictly limited to the areas of the historical complex and the road leading to Playa Cocos. The facilities to be built had to be only those strictly necessary to meet the basic needs of visitors and tourism development agents, without the foregoing implying that it could extend beyond developments incompatible with a "green" philosophy, or that were not in harmony with the occupancy capacity of the place, all of which must be ensured in a sustainable manner in accordance with science and technology. Ruling No. 13099-2010 is cited once again:

Regarding the infrastructure intended for tourist use, it must be strictly limited to the areas of the historical complex and the road leading to Playa Cocos and to this beach, the facilities that must be built shall be only those strictly necessary to meet the basic needs of visitors and tourism development agents, without the foregoing implying that it can extend beyond developments incompatible with a "green" philosophy, or that are not in harmony with the occupancy capacity of the place, all of which must be ensured in a sustainable manner in accordance with science and technology. This Court recognizes that it is a real challenge to achieve the conservation and recovery of the Island's buildings, as well as their enhancement, 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 offer limited nature tourism and eco-tourism services, provided that sustainability criteria are met; otherwise, it would entail a conflict of constitutional relevance with Articles 50 and 89.

Regarding subsections a) and b) of numeral 5, they must be understood as constitutional to the extent that what is intended in the Master Plan conforms to what this Chamber has indicated, especially as long as the zoning studies and zoning regulations are not based on a reduction of the protected wilderness area by 5.5% of the area.

Despite the fact that Law No. 9892 has established that Isla San Lucas be a national park—which should offer a higher level of protection to the natural, cultural, and historical resources of Isla San Lucas—the truth is that Law No. 9892 reduces the level of protection of the island. Law No. 9892 creates a national park on Isla San Lucas, but it has also created, on the same island, a so-called Sustainable Tourism Development Zone, for all purposes called the Tourist Zone. Article 6 of Law No. 9892 has assigned a series of areas of Isla San Lucas—areas delimited by the Law and equivalent to one-fifth of its extension—to the status of Tourist Zone. According to Law No. 9892, the areas corresponding to the buildings of the former San Lucas prison, including the dock, as well as the marine and terrestrial access zone to the island, the plots, the trails, and particular beach areas are assigned to the status of Tourist Zone.

From the relationship between numerals 3 and 7 of Law No. 9892, it follows that the Master Plan of the Island must incorporate a differentiated management model for the Tourist Zone of the Island of San Lucas. A differentiated management model that must respond, albeit with technical criteria, to the promotion of sustainable tourism activity rather than to criteria of conservation and preservation of natural and cultural resources. This Master Plan also need not be submitted for approval by the National Environmental Technical Secretariat. According to Law No. 9892, the Tourist Zone of Isla San Lucas is not only assigned to a specific public purpose different from environmental protection—namely, that of promoting sustainable and inclusive tourism—but its management responds to a management plan differentiated from that of the National Park, dedicated to regulating sustainable tourism activity, the promotion, and the development of sites of historical, architectural, and environmental interest.

By reason of the foregoing, and despite the fact that Law No. 9892 has created a National Park, the truth is that its approval and enactment imply a change in the activities permitted in a significant area of Isla San Lucas. It should be taken into account that numeral 6 of that Law provides that four sectors—namely a) the Historical Sector, b) the Recreational Sector of Playa El Coco, c) the Trails Sector, and d) the Waters Sector—form part of a Tourist Zone; this is equivalent to 138 hectares out of a total of 462 hectares, which is the total extension of Isla San Lucas. In this zone, Law No. 9892 implies the possibility of carrying out activities compatible with tourism development, a purpose different from environmental and cultural protection. In this regard, it is important to note that Article 2 of Law No. 9892 has declared the tourism development of Isla San Lucas to be of national interest and high priority. In accordance with Article 2, the sustainable tourism development of the Island shall be without prejudice to the functions of conservation and restoration of the natural and cultural heritage.

ARTICLE 2- National interest. The sustainable tourism development of the island is declared to be of national interest and high priority under the terms of this law, as well as the conservation and restoration of the buildings of the former prison of Isla San Lucas. The agencies of the Public Administration and the private sector, within their respective legal frameworks, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the island.

However, the tourism activity authorized by Law No. 9892 is not ecotourism, particularly it is not the tourism activity that is considered reconcilable 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, aimed at maintaining a natural environment, with emphasis on its biological, physical, and cultural features, through a controlled process that guarantees minimum environmental impact and which, additionally, must be ecologically sustainable. It involves low-impact tourism activities, is locally beneficial, and satisfactory for visitors. Inherent to the concept of ecotourism permitted in National Parks is the prescription, provided for in Article 12 of the National Parks Law, which establishes that in a National Park, concessions may not be granted for the exploitation of products from the national parks, nor may permits be granted to establish facilities other than those of the National Parks Service.

Law No. 9892 aims, rather, at a tourism development of Isla San Lucas oriented toward an emphasis on economic aspects and on the conceptualization, marketing, and promotion of the island as a tourist attraction. To that end, Law No. 9892 intends for a Master Plan to establish the model for the systematic tourism development of the Island. A Master Plan that is not subject to the approval of the National Environmental Technical Secretariat. Law 9892 grants the Board of Directors of the Isla San Lucas National Park powers to define the sustainable tourism activities that encourage the tourist attraction and visitation of the island. These activities include commercial, transportation, sports, artistic, and cultural activities that encourage tourist attraction and visitation to the island. Furthermore, the Law grants the Board of Directors the possibility of entering into agreements for the provision of commercial services on the island. Article 9 is transcribed:

ARTICLE 9- Duties and powers. The Board of Directors of the Isla San Lucas National Park shall have the following powers: a) Define the 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 the guidelines for the protection, restoration, and administration of the historical buildings, developing facilities and services intended for the rest and recreation of visitors, the enabling and accessibility of land and sea routes, port constructions, and, in general, the provision of all basic services. d) Define the environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island. e) Approve the strategic objectives for the marketing and promotion necessary to publicize the Isla San Lucas National Park, both domestically and abroad. f) Grant approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourist Zone.

In the case of works related to areas declared as heritage, coordination with the Ministry of Culture shall be required. g) Approve the master plan of 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, modify, or revoke any trust relating to the Isla San Lucas National Park, as well as all types of contracts and agreements with entities and persons, public or private. It must determine the entrance fees to the national park, as well as approve the contracts for the various reservation and purchase systems. j) Approve the use of the figures of public works concession with public service and mutual benefit contracting with non-profit entities. k) Approve the strategic objectives for the marketing and promotion necessary to publicize the Isla San Lucas National Park, both domestically and abroad. l) Grant approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourist Zone.

In the case of works related to areas declared as heritage, coordination with the Ministry of Culture shall be required. m) Approve the master plan of the National Park, as well as the corresponding programs, plans, and budgets. n) Approve the administrative structure required for the institutional management of the park. o) Approve, renew, modify, or revoke any trust relating to the Isla San Lucas National Park, as well as all types of contracts and agreements with entities and persons, public or private. It must determine the entrance fees to the national park, as well as approve the contracts for the various reservation and purchase systems. p) Approve the use of the figures of public works concession with public service and mutual benefit contracting with non-profit entities.

telecommunications, hygiene and sanitation, docks, piers, food services, and access roads, information and communication in various formats, as well as any other it deems pertinent for the benefit of visitors and to ensure the enjoyment and appreciation of the historical, architectural, and natural richness of the park. In the construction of docks, piers, and other maritime facilities, the Costa Rican Institute of Pacific Ports (INCOP), the Ministry of Public Works and Transport (MOPT), and the Costa Rican Tourism Institute (ICT) shall provide the corresponding technical support to the Board of Directors; likewise, these institutions are empowered to build and maintain the works indicated in this provision.

Subsequently, it is clear that the tourism activities authorized by Law No. 9892 are not reconciled with the concept of ecotourism, since they imply a rather economic orientation, provide for the development of infrastructure that is not limited to that strictly necessary to meet the basic needs of visitors, but rather entails the construction of a complex of commercial services, transportation, food, and services on the island—excluding hotels and casinos. Additionally, it must be noted that the infrastructural development provided for by Law No. 9892 need not necessarily be subject to technical sustainability criteria. As has been explained, the management and development of the so-called Tourist Zone, pursuant to the challenged Law, must respond to criteria differentiated from the rest of the National Park.

Following this, it should 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 Law No. 9892, is incompatible with what was indicated in ruling of the Constitutional Chamber No. 13099-2010, in the sense that a declaration of tourism interest applying to a protected wilderness area must be limited to the functions of conservation, protection, and improvement of its surroundings. Furthermore, it must be subject to the principle of objectification of environmental protection. Article 2 under discussion is transcribed again:

ARTICLE 2- National interest. The sustainable tourism development of the island is declared to be of national interest and high priority under the terms of this law, as well as the conservation and restoration of the buildings of the former prison of Isla San Lucas. The agencies of the Public Administration and the private sector, within their respective legal frameworks, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the island.

It is evident that the declaration in Article 2 does not reconcile with a sustainable development philosophy that seeks to control the repercussions that tourism activity on Isla San Lucas may generate on the environment. It must therefore be insisted that, despite the fact that Law No. 9892 has established that Isla San Lucas be a national park—which should offer a higher level of protection to the natural, cultural, and historical resources of Isla San Lucas—the truth is that Law No. 9892 reduces the level of protection of the island. Compared to the protection regime that Isla San Lucas had under Executive Decree No. 34282—which declared the Island as a National Wildlife Refuge—the protection regime offered by the challenged Law is much lower. This despite the fact that Law No. 9892 creates a National Park.

Furthermore, it must be taken into account that whether as a wildlife refuge or as a national park, the Island is a protected wilderness area and, to that extent, part of the national heritage of the State, as established in Article 13 of the Forestry Law. This means that, in accordance with the provisions of Article 18 of that same law, the only permitted activities should be research, training, and ecotourism. However, as we have explained, the challenged law, by creating a tourist zone for the development of sustainable tourism, allows for the carrying out of activities different from those proper to ecotourism. This constitutes, in our view, a reduction in the level of environmental protection insofar as it implies the possibility of expanding the range of potentially permitted activities.

Now, this in itself is not unconstitutional if it is technically and scientifically justified that said expansion does not entail an impact on the environment, and that it does not compromise the conservation purposes of the ecosystems that the management category implies, as this Constitutional Court has indicated in its jurisprudence by deriving the principles of non-regression and objectification of environmental protection from Article 50 of the Constitution. In the above sense, it should be specified that no technical studies have been incorporated into the legislative record justifying the possibility of creating the so-called Tourist Zone, the allocation of a portion of the island to tourism development, nor the possibility of developing new infrastructure on the island that is not strictly necessary for visitors and staff.

The truth is that, under Law No. 9892, a significant portion of the Island has been assigned to a purpose different from environmental protection, namely the promotion of sustainable tourism development; additionally, Law No. 9892 allows the granting of concessions other than those necessary for park services, and also allows for the development of infrastructure that enables the construction of a complex of commercial services, transportation, food, and services on the island—excluding hotels and casinos—which does not reconcile with the concept of environmental protection of a national park.

In any case, it is necessary to emphasize that the governance model of the Island, created by Law No. 9892, has as its priority purpose the tourism development of the Island. Article 4 of that Law provides that, apart from the preservation of heritage, the authorities must contribute to the socioeconomic development of the Golfo de Nicoya, promote sustainable and inclusive tourism for the attention of national and foreign visitors, and guarantee the enjoyment, recreation, and generation of facilities and amenities for inclusive tourist visitation. Furthermore, the powers of the Board of Directors have as their main function the development of tourism infrastructure on the Island and the promotion and marketing of the Island as a tourist attraction destination. All of this, of course, also reduces the level of environmental protection and safeguarding of Isla San Lucas.

It is certainly not found that the Law providing that any future trust may contract private security is, per se, unconstitutional, but it would be unconstitutional if it provides for the use of the trust for the tourism development of a protected wilderness area, a development that, due to its impact, would imply a reduction in the level of environmental protection. Thus, it is considered that Law No. 9892 violates constitutional numeral 50 by breaching the principles of progressivity and non-regression in environmental matters and objectification of environmental protection. This is to the extent that Law No. 9892 implies the adoption of a norm that reduces, without reasonable and proportionate justification, the environmental protection of Isla San Lucas; and thus worsens the guarantee to a healthy and ecologically balanced environment. Additionally, it implies a violation of the principle of objectification of environmental protection, insofar as Law No. 9892 is not based on technical, objective, and verifiable criteria.

Regarding these principles, it is appropriate to cite the following judgments of the Constitutional Chamber:

V.On the principles of progressivity and non-regression of environmental protection. The principle of progressivity of human rights has been recognized by International Human Rights Law; among other international instruments, it is contained in Articles 2 of the International Covenant on Economic, Social and Cultural Rights, Article 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 norms, the State assumes the obligation to progressively increase, to the extent of its possibilities and development, the levels of protection of human rights, especially those, such as the right to the environment (Art. 11 of the Protocol), which require multiple positive actions by the State for their protection and full enjoyment by all their holders. From the principle of progressivity of human rights and the principle of non-retroactivity of norms to the detriment of acquired rights and consolidated legal situations, contained in numeral 34 of the Magna Carta, derives the principle of non-regression or irreversibility of the benefits or protection achieved.

The principle stands as a substantive guarantee of rights, in this case, of the right to a healthy and ecologically balanced environment, by virtue of which the State is obliged not to adopt measures, policies, or approve legal norms that worsen, without reasonable and proportionate justification, the situation of the rights achieved up to that point. This principle does not imply absolute irreversibility since all States experience national situations, of an economic, political, social nature, or due to natural causes, that negatively impact the achievements reached until then and force a downward reconsideration of the new level of protection. In those cases, Constitutional Law and the principles under examination require justifying, in light of the constitutional parameters of reasonableness and proportionality, the reduction in the levels of protection. (Ruling No. 5994-2017 of 11:00 a.m. on April 26, two thousand seventeen)

IX.On the principle of objectification of environmental protection. This principle refers to the need for all protection provided to the right to a healthy and ecologically balanced environment, as well as the relevant regulation, to be supported by technical, objective, and verifiable criteria. In accordance with what has been indicated, the applicable regulations provide that a change regarding the condition of springs must necessarily be documented and technically accredited, since they are precisely situations verifiable through the already mentioned univocal rules of science and technology, which allows, in turn, the control of the decisions adopted by the administration in this regard. Jurisprudence of this same Chamber has been referenced and cited in that sense—judgments 2004-1923 and 2017-11803—and under that criterion, which implies that any modification on this aspect must be documented and technically supported, it is ruled out that the word "permanent," and any change regarding the typology of the spring to consider it no longer as permanent but as intermittent, implies in itself an impact on the principle of objectification of environmental protection.

On the contrary, the duty to technically support these variations fully complies with respecting this principle. For this reason, the alleged impact on this principle must likewise be ruled out. (Ruling No. 9221-2019 of 11:41 a.m. on May 22, 2019)

Finally, it should be noted that Law No. 9892 provides in Article 3 that the coastal marine area is composed of the waters around the island, with a depth of up to three meters. This implies a reduction, not justified by technical criteria, of the area of the protected wilderness area, since under the Executive Decree creating the Wildlife Refuge, Article 3 of Decree No. 29277 of January 11, 2001, the protection area extended over the maritime part to a depth of 6 meters.

Regarding the issue of the reduction of wild areas, particularly in reference to San Lucas, the judgment of the Constitutional Chamber 13099-2010 can be cited again: The arguments in the three accumulated unconstitutionality actions have as a common denominator the aforementioned violation of Article 50 of the Constitution, due to the non-observance of Article 38 of the Organic Law of the Environment. To declare the unconstitutionality, it is sufficient to verify that the mandate established in this latter numeral was breached by modifying the extent of the protected wild area. Numeral 38 indicates that: "The surface area of protected wild areas, natural heritage of the State, whatever its management category, may only be reduced by Law of the Republic, after conducting the technical studies that justify this measure." Hence, the Executive Branch cannot reduce these areas without observing the legislative and technical procedure; for this reason, the Chamber partially upholds the claim to annul Article 1 only 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," the foregoing due to violation of the provisions of Articles 11, 50, and 89 of the Constitution, and not regarding the addition of the marine sector and islets, since that is permitted for the Executive Branch to agree upon by Executive Decree. V CONCLUSION In conclusion, this Advisory Body considers that Law No. 9892 of August 24, 2020, has defects of unconstitutionality."

1. 138By brief incorporated into the digital file on April 26, 2021, Sylvie Durán Salvatierra appears, in her capacity as Minister of Culture and Youth. She states that: "It is the criterion of this Institutional Head that the filed unconstitutionality action and its main foundations require a specialized technical criterion to be answered, a criterion which this Ministry lacks, as these are matters strictly linked to the conservation of protected wild areas on Isla San Lucas, a legal competence of other Ministries of the Executive Branch. Notwithstanding the foregoing, it is necessary to mention several aspects of interest in the filed action, such as: as transcribed above, the questioned Law mentions the Ministry of Culture and Youth in its Articles 5, 9, and 10. In the case of Article 5, we see that the Law accused of unconstitutionality declares the complex of buildings of the former San Lucas prison as historic-architectural heritage, imposing on this Ministry the duty to conduct an inventory of said heritage and its state of conservation.Furthermore, the last paragraph of Article 9 of the questioned law provides that in matters of conservation and preservation of historic-architectural heritage, the criterion of the Center for Research and Conservation of Cultural Heritage of the Ministry of Culture and Youth shall prevail. However, despite the above, it turns out that Law 7555 on Historic-Architectural Heritage of Costa Rica of September 27, 1995, in its Article 3, provides the following: 'Article 3. The State has the duty to conserve the country's historic-architectural heritage. The Ministry of Culture, Youth and Sports is the highest authority on the matter and shall provide the necessary advice to the owners, possessors, or holders of real rights over the assets that form that heritage, so that the purposes of this law are fulfilled.' Given the above, it follows that since the enactment of Law 7555, this Ministry is responsible for ensuring the conservation of the historic-architectural heritage, for which it established a specialized administrative unit, named the Center for Research and Conservation of Cultural Heritage.Thus, the obligations imposed by the now questioned Law are for monitoring and compliance by this Center, with clear instruction from Law 7555 itself and from this Ministry. In this vein, we can verify that within the plaintiffs' claims, no actions are derived or alleged that are related to this Ministry, and it is beyond its competence to render a report on the aspects accused of being unconstitutional in Law 9892. Now then, and as a reference for this esteemed Constitutional Court, it is of interest to bring up Constitutional Chamber Vote 2010-015388 at seven hours fifty-two minutes of March twenty-six, two thousand ten, which, in what is relevant, provided the following: (…) The foregoing highlights that a space with exceptional values of various kinds (environmental, touristic, cultural) can perfectly exist and generate shared management by the Ministries involved. In the example case, the location called Antigua Zona Americana de Quepos, had a declaration as natural heritage of the State, pursuant to Executive Decree No. 35325-MP-MINAET of June 2009, at the time when this Ministry promoted the declaration of the buildings at the site as Historic-Architectural Heritage of the country (as they are exceptional banana houses from the early 20th century).Thus, after completing the corresponding administrative procedure, via Executive Decree No. 37329-C, published in Supplement No. 153 to La Gaceta No. 198 of October 12, 2012, the State finalized the declaration of the area as Historic-Architectural Heritage of Costa Rica, thereby confirming the possible harmonious existence of two types of heritage declarations (cultural and natural) for the benefit of the community, whose management is exercised within their sphere of competence by the respective authority of the Executive Branch. Ergo, it is concluded that, as far as this Ministry is concerned, the heritage declaration of cultural value (historic-architectural) can coexist with others of a touristic and/or environmental nature, where each Ministry must attend to and comply with its own obligations derived from the very specific legal framework that covers it."
2. 139By brief incorporated into the digital file on April 26, 2021, Francisco San Lee Campos, identity card number 107500349, files an active joinder in the same terms as the brief incorporated into the digital file on April 8, 2021.
3. 140By brief incorporated into the digital file on April 26, 2021, Eduardo Newton Cruickshank Smith appears, in his capacity as President of the Legislative Assembly. He indicates that: "I. BACKGROUND Processing of Law 9892. Below are details of the procedural aspects of Law 9892: Law 9892, 'Creation of the Isla San Lucas National Park' was discussed under legislative file number 21287. The base text of the bill was published in Supplement 102, Gaceta 84 of May 08, 2019. On March 06, 2019, the bill was assigned to the Special Permanent Commission on Tourism for the corresponding report (See folio 28). Consultations to institutions and their respective responses: On folio 59, there is official letter AL-DESTCO-068-2019 from the Department of Technical Services, regarding the Report on Mandatory Consultations pursuant to Article 126 of the Regulations of the Legislative Assembly for Bill 21,287: - National Commission on Historic and Architectural Heritage, the institutional response appears on folios 159 to 161. - National Commission on Territorial Administrative Division. - National Geographic Institute (IGN), institutional response visible on folios 119 to 123. - Costa Rican Tourism Institute (ICT), response from the General Management visible on folios 106 to 116.ICT sends an addendum to its response, see folios 201 to 203. Response from the Municipality of Puntarenas Folios 213 to 227. - Institute of Aqueducts and Sewers (ICAA), response visible on folios 196 to 199. Volume 2. - Costa Rican Electricity Institute (ICE). - Costa Rican Institute of Pacific Ports, institutional response appearing on folios 101 to 104. (folio 52) A consultation motion is approved in record No. 1 of June 6, 2019, see folio 59; the consultation motion also included the Conservation Areas System (SINAC), see folio 154. A motion is approved to consult the File to the following institutions: National Commission on Territorial Administrative Division, National Commission on Historic and Architectural Heritage, National Geographic Institute (IGN), Costa Rican Tourism Institute (ICT), Municipality of the Central Canton of Puntarenas, Costa Rican Institute of Aqueducts and Sewers (ICAA), Costa Rican Electricity Institute (ICE), Costa Rican Institute of Pacific Ports, and National System of Conservation Areas (SINAC).(Folios 58 to 61). From folio 63 to 100, there are consultation notes to the institutions and proof of receipt of those notes by the institutions. In Ordinary Session No. 9 of October 10, 2019, folio 251, it was approved by procedural motion to call the Municipal Council of the Municipality of Puntarenas to a hearing, as well as to consult the file with MINAE and the Attorney General's Office of the Republic 252, 256, and 268 to 271. MINAE's response appears on folios 272 to 273. The National Chamber of Community Tourism (CANTURURAL) and the National Chamber of Ecotourism are consulted. Legal Report from the Department of Technical Services, AL-DEST-IJU-006-2020 of January 21, 2020, appears on folios 290 to 311. In Ordinary Session No. 1 dated June 06, 2019, the file was assigned to a Subcommittee for its respective study, folio 60; once the deadline expired, the subcommittee was reconstituted, and an extension was granted for the subcommittee report deadline.There is no record that a subcommittee report was delivered. Commission Report (Dictamen) In extraordinary session number 15 of January 22, 2020, it is put to a vote on the merits, given that the deadline granted and extended by the Commission to report on the bill, pursuant to Article 80 of the Regulations of the Legislative Assembly, was expiring. The bill is approved unanimously. On January 29, 2020, the Special Permanent Commission on Tourism delivers to the Secretariat of the Directorate, the File with the Unanimous Affirmative Report (Dictamen) (Visible on folios 312 to 324). First Debate: In Extraordinary Plenary Session Number 37 of August 10, 2020, with forty-five votes in favor and one against, the file was approved in its First Debate processing stage. (Visible on folio 855). First Report on Motions 137, 20 motions approved and 28 rejected (See folios 347 to 353). Second Report on Motions 137, 12 motions approved and 34 rejected (See report on folios 563 to 570).Motions 137 from folio 354 to 409. Motion to Dispense with Reading 410 and revisions from folios 411 to 458. Second Debate In Extraordinary Plenary Session Number 39 of August 13, 2020, with thirty-nine votes in favor and zero against, the file was approved in Second Debate. (Visible on folio 928). II. REGARDING THE QUESTIONS OF UNCONSTITUTIONALITY Before responding to each of the questions, it is necessary for the Constitutional Chamber to consider the relevant legal and factual aspects outlined below regarding the origin, evolution, and situation of Isla San Lucas, aspects that were analyzed by the legislators through historical, normative, and jurisprudential background, responses to consultations with specialized institutions, and descriptions of events that occurred on that Island, as well as the discussion of texts, motions, studies, and reports; all documentation contained in five volumes of the legislative file of approximately 250 folios each volume.Information that supports Law 9892, Law for the Creation of the Isla San Lucas National Park. It begins with relevant aspects of the legal regime of Isla San Lucas, first citing Law 5469 Law for the transfer of Isla San Lucas to the Municipality of Puntarenas. The legislator, upon enacting Law Number 5469 of April 25, 1974, ordered the transfer of ownership of the Island to the Municipality of Puntarenas. The purpose was to place San Lucas under municipal administration so that it could use it as a tourist center, for which the Costa Rican Tourism Institute (ICT) was assigned the task of preparing the corresponding Tourism Development plan. For its part, the law on the maritime-terrestrial zone provided that 'the island of San Lucas shall retain its current legal situation under the administration of the Municipality of Puntarenas' (Article 78). Precisely, Law 9892 repeals Articles 2 through 8 of that Law 5469.While the law in question was in force - and therefore, the administrative powers of the Municipality were also in force - the Executive Branch issued Decree Number 29277-MINAE (of January 11, 2001) in which it declares a National Wildlife Refuge (RNVS-ISL) "... a terrestrial portion formed by Isla San Lucas, located in the Gulf of Nicoya, IGN cartographic sheet named Golfo, Edition 3-IGNCR at North Latitude 9° 56' and West Longitude 84° 54.5' with an extension of 4.62 square km and the coastal marine area, composed of the waters around the island with a depth of up to 6 meters" (Article 1), and transfers the administration of the Island to the Ministry of Environment and Energy (MINAE). In addition to the above, the Constitutional Chamber heard unconstitutionality action No. 03-006587-0007-CO filed by the Mayor of the Municipality of Puntarenas against Executive Decree No. 29277-MINAE, of January 11, 2001, where he alleged the violation of two principles: municipal autonomy and the disregard, via regulation, of a law of the Republic.The alleged violations were dismissed by the Chamber through judgment 2004-08928 at sixteen hours thirty-seven minutes of August 18, two thousand four. The Chamber indicated that with the enactment of the Organic Law of the Environment, Law 7554 of October 4, 1995, the Executive Branch was granted the competence to establish or delimit protected wild areas, a situation that the Chamber's jurisprudence considered constitutional. Another relevant antecedent is that Isla San Lucas was considered a site of historical interest by Decree 24520-C in 1995. Subsequently, the Ministry of Culture, through Executive Decree No. 30714-C of September 26, 2002, declared and incorporated the Island into the Historic-Architectural Heritage of Costa Rica. In this regard, the Constitutional Chamber stated: (…) In 2008, Decree 34282 TUR-MINAET-C of January 25, 2008, rectifies, delimits, and expands the boundaries of the Wildlife Refuge.This decree was the subject of an unconstitutionality action that was partially upheld through Resolution No. 13099-2010 of August 4, 2010. The Chamber in that resolution sketched out and delineated a constitutional reference framework regarding the regulation of Isla San Lucas. Therefore, we consider it relevant to point out that Law 9892 retakes some aspects of Decree 34282 TUR-MINAET-C of January 25, 2008, but above all, it is important to keep in mind that the design of Law 9892 sought to align with the provisions of judgment 13099-2010 of the Constitutional Chamber, since to a large extent, what was indicated by this Court justifies and supports the proposal that the law puts forward in light of the legal goods and rights that are involved and must be guaranteed in an adequate regulation of Isla San Lucas. The Chamber in that resolution stated: (…) Law 9892 proposes a harmonious and balanced regulation of Isla San Lucas where it considers several topics of constitutional relevance and of international conventions and instruments, such as the fundamental right to a healthy and ecologically balanced environment, the protection of the National and Cultural Heritage, and matters relating to sustainable Tourism.In this regard, the Constitutional Chamber stated (…) Within the framework of the constitutional panorama set forth, this Presidency will now refer to each of the questioned aspects: 1.- Regarding the alleged reduction of the protected wild area without any justification The plaintiffs question the law based on mistaken premises, so the reasons proving that Law 9892 does not present any unconstitutionality will be set forth, and it does not affect any fundamental right or constitutional principle, and no constitutional norms, such as Articles 7, 50, and 89 of the Political Constitution, are violated or contradicted as the plaintiffs incorrectly point out. Nor does Law 9892 contravene international conventions, treaties, or instruments, and it does not negatively affect any human right, and it is not true that the law affects the conventions the plaintiffs cite, such as the Convention on the Conservation of Wetlands of International Importance and Migratory Bird Sites (RAMSAR), the Convention for the Conservation of Biodiversity and Protection of Priority Wild Areas for Central America, the Convention on Biological Diversity, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador.Nor does the law affect the Convention for the Protection of Flora, Fauna, and Natural Scenic Beauties of the American Countries, Law 3763, nor is any article of the American Convention on Human Rights violated. It is not true, as the plaintiffs assert, that the principle of lifetime tenure (irreductibilidad) of protected wild areas has been affected. Quite the contrary, Law 9892 seeks fulfillment of international commitments in the areas of human rights and environmental law, as well as ensuring everyone's right to a healthy and ecologically balanced environment. The plaintiffs are not correct in alleging that Law 9892 reduced the wild area of the Isla San Lucas Wildlife Refuge. What Law 9892 did was create the Isla San Lucas National Park on a large part of the area of the Isla San Lucas Wildlife Refuge, but it did not reduce any area. It must be clear that there is no type of reduction to the Isla San Lucas Wildlife Refuge in Law 9892; it is not reduced or eliminated.What is done is to create, by law, a national park, which is a category with greater protection, and in some specific areas, special connotations are indicated, duly supported in the legislative file. Law 9892 creates and delimits the Isla San Lucas National Park, comprised of a terrestrial portion and a coastal marine area, and determines that inserted within the two areas, there will exist a space called the Tourism Zone dedicated to sustainable tourism activity and the promotion and development of sites of historical, architectural, and environmental interest, and in addition, the law indicates that this space will have differentiated management. It is therefore a special law, given the conjunction of characteristics and elements it involves, and contrary to what the plaintiffs allege, its purpose is the preservation of the natural, historical, cultural, archaeological, architectural, and environmental heritage.It should be noted that the Constitutional Chamber annulled Decree 34282 TUR-MINAET-C of January 25, 2008, but it preserved the area comprised of waters around Isla San Lucas up to a depth of 6 meters; the expansion that took place was recognized by the Constitutional Chamber as valid, as a power of the Executive Branch. It is of utmost importance to point out that this measure has not been changed by Law 9892. Even though the National Park that is created covers a large part of the Refuge, there remain spaces that continue as a protected wild area. Rather, what the law does is give a large part of the Island, or rather the refuge, a category of greater protection. Therefore, the Constitutional Court is requested to dismiss this allegation as unfounded. 2. Regarding the alleged change of management category and the inclusion of a tourism zone without studies Once again, the plaintiffs start from mistaken premises, so the Constitutional Court is requested to analyze this point considering that the legislators had access not only to the legislative file and the documents contained therein, but also to all the background of Isla San Lucas, which are within their reach, and which were studied objectively, to support the creation of the National Park and the tourism zone.The Organic Law of the Environment indicates that for the reduction of the surface area of protected areas, two requirements must be met: that it be done by Law of the Republic, and second, that it be justified by technical studies. However, it is again recalled that Law 9892, Law for the Creation of the Isla San Lucas National Park, does not make any reduction of the protected wild area. In any case, the Legislative Assembly approved this law after valuable discussion that resulted in adjustments to the texts to improve them. Finally, it was approved with a majority of legislators with the conviction that the creation of the Isla San Lucas National Park is constitutional, because this law was shaped following the course marked by the cited 2010 judgment of the Constitutional Chamber. Likewise, the legislator considered that this law comes to guarantee better environmental protection for Isla San Lucas.As can be deduced from the information contained in the file, the creation of the Park is also founded and grounded on the importance of preserving and publicizing the historical, architectural, and archaeological heritage that exists on Isla San Lucas, and making a necessary enhancement (puesta en valor) of the assets that are cultural and historical heritage. It was also considered that the Constitutional Chamber conducted a site visit to Isla San Lucas for the matter decided in 2010, and was able to verify the situation of Isla San Lucas; likewise, it recognizes the need to carry out an 'enhancement' (puesta en valor) of the cultural heritage, but as the Chamber rightly points out, cultural heritage is so that, to the extent its conservation permits, it is known by both nationals and foreigners and can be appreciated by present and future generations; thus, the Isla San Lucas Park created in this law comes to carry out an enhancement (puesta en valor) of the historical-cultural heritage and the spaces on the Island that can be appreciated by visitors through sustainable tourism, all combined with the protection of the environment.Regarding the concept of 'enhancement' (puesta en valor) of Isla San Lucas, the Constitutional Chamber stated (…) 'VII.- On the protection of cultural heritage. -Imminent disappearance' 'C.- OF THE 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 undisputed. In the judicial inspection on June 4, 2010, this Constitutional Court, as well as the parties and the coadyuvants appearing in the process, verified the visible lack of maintenance of the buildings located on Isla San Lucas due to the passage of the decades, and the need to take actions to halt the advanced deterioration that the infrastructure existing there has suffered (and the wooden structures that existed on the site), and the pressing need to stop their disappearance.On the other hand, the historical testimony of archaeological sites of cultures that lived on the island, and whose protection is owed not only regarding the historical function that had been assigned to it as a penitentiary center. "...The declaration of national interest and high priority for sustainable tourism development... shall be understood as constitutional as long as the conservation and restoration of the old prison buildings and those built on the occasion of its existence are circumscribed to the tasks of conservation, protection, and improvement of its environment. The same must occur with the archaeological sites and the cemetery located in Playa Cocos, (...). Regarding the infrastructure intended for tourist use, it must be strictly limited to the areas of the historical complex and the road leading to Playa Cocos and to the latter; the facilities to be built shall be those strictly necessary to meet the basic needs of visitors and tourism development agents.(...) This Court recognizes that achieving the conservation and recovery of the Island's buildings, as well as their enhancement (puesta en valor), is a true challenge, 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 offer limited services of nature tourism and eco-tourism, provided that it responds to sustainability criteria, otherwise, it would entail constitutional friction with Articles 50 and 89. The need to carry out an enhancement (puesta en valor) of the assets immersed in Isla San Lucas is the main reason why the Isla San Lucas National Park is created; it is for that reason that the sustainable tourism development of the island is declared of national interest and high priority, as well as the conservation and restoration of the buildings of the former prison of Isla San Lucas.The Isla San Lucas National Park is delimited in its terrestrial portion and the coastal marine area. It must be kept in mind that the purposes of the park include the preservation of the natural, historical, cultural, archaeological, and architectural heritage, and very importantly, helping the socioeconomic development of the Gulf of Nicoya and promoting sustainable and inclusive tourism, for the care of national and foreign visitors, as well as enjoyment, recreation, and the generation of facilities and comforts for inclusive tourist visitation. Furthermore, it must not be overlooked that the Law indicates that the Administration of the Island is under the responsibility of the Ministry of Environment and Energy (MINAE) and that the Ministry of Culture will report the inventory of historical, cultural, archaeological, and architectural assets to MINAE. In addition, the Tourism Zone is delimited in the law and includes the buildings of the former San Lucas prison, the dock, the marine and terrestrial access zone to the island, the properties, the trails, and the beach areas that are specified.Likewise, it must be considered that the law indicates that the park will be governed by a Master Plan based on technical criteria. And most importantly, the law indicates that any conflict of competencies will be settled by the Ministry of Environment, which in any case has among its functions the formulation, planning, and execution of natural resource and environmental protection policies, and furthermore, the Forestry Law (Ley Forestal), Law No. 7575, establishes as an essential and priority function of the State to ensure the conservation and protection of natural forests; therefore, the cutting or use of forests in national parks, biological reserves, mangroves, protective zones, wildlife refuges, and state-owned forest reserves is prohibited. For its part, the Costa Rican Tourism Institute (ICT) has the function of protecting and publicizing constructions or sites of historical interest, as well as places of natural beauty or scientific importance, keeping them intact and preserving the native flora and fauna in their own environment.In conclusion, the unconstitutionalities indicated in this point by the plaintiffs are rejected because technical studies are mandatory in the event of a reduction of protected wild areas or because it is necessary to demonstrate that there is no impact on the environment, but in the case of Law 9892, greater protection is given to the fundamental right to a healthy and ecologically balanced environment, and at the same time, the National and Cultural Heritage is protected. In any case, the National Park category is based on the documentation contained in the legislative file. Furthermore, note that precisely among the attributions of the Park's Board of Directors are: - defining the strategies and policies aimed at the consolidation and development of the park, contributing to the protection and environmental conservation of the national park, - establishing the guidelines for the protection, restoration, and administration of the historical buildings, developing facilities and services intended for the rest and recreation of visitors, the habitation and accessibility of land and maritime routes, port constructions, and, in general, the provision of all basic services, - defining the environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that encourage tourism attraction and visitation to the island, - approving the strategic objectives for marketing and promotion necessary to publicize the Isla San Lucas National Park, both domestically and abroad. 3.Regarding commercial purposes disguised as sustainable purposes in the fragmentation of the Protected Wild Area The unfounded arguments that the plaintiffs make on this point are unacceptable, as they are based on suppositions that lack a basis to request their declaration of unconstitutionality.

It is clear that the regulation of the National Park permits only those activities that are committed to the fulfillment of the purposes of that law and to the economic and social development of the Gulf of Nicoya, the preservation of the historical-cultural heritage, the purposes of the law in general, and that do not conflict with the protection of natural resources and sustainable tourism. The Park's Board of Directors (Junta Directiva del Parque) shall be governed in its structure, organization, and operation by Law 6227, General Law of Public Administration (Ley General de la Administración Pública), of May 2, 1978. Likewise, every law introduced into our single legal system must coexist with the existing norms in accordance with the rules of application of law; in that sense, the actions of the organs, institutions, or organizations within the framework of this law are obligated to act in accordance with the parameters of responsibility and within the limits imposed by the same legal system, for example, the Law on Administrative Procurement (Ley de Contratación Administrativa), the Law against Corruption and Unlawful Enrichment (Ley contra la corrupción y el enriquecimiento ilícito), etc., etc. The resources available to the park must be duly administered as the laws indicate, and all management activities, trusts (fideicomiso), investments, infrastructure development, or permitting processes Infrastructure development or concessions must all be done under the control of the Comptroller General of the Republic (Contraloría General de la República).

Therefore, what is improperly alleged by the plaintiffs to the effect that other purposes are disguised in this law is in no way accepted. 4. Regarding the Board of Directors that will administer the park The arguments of the plaintiffs are not admissible and are therefore categorically rejected, regarding the alleged unconstitutionality of the composition of the Park's Board of Directors. The plaintiffs' assessments are erroneous in asserting that the Park will not have official State supervision or administration and in considering SINAC excluded from the supervision of the park. The law states that, for the governance and administration of the Isla San Lucas National Park, a Board of Directors is created as a fully decentralized body (órgano de desconcentración máxima) attached to the Ministry of Environment and Energy (Ministerio de Ambiente y Energía, MINAE), with instrumental legal personality for the exercise of its powers.

The Board of Directors of the Isla San Lucas National Park shall be composed of the ministers or presidents of: the Ministry of Environment and Energy, the Ministry of Culture, the Costa Rican Tourism Institute (Instituto Costarricense de Turismo, ICT), the Mayor of the Municipality of the central canton of Puntarenas, a representative of the Executive Branch, and a representative of the Puntarenas Chamber of Tourism. Among the powers of the Park's Board of Directors are: -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 the rest and recreation of visitors, the enablement and accessibility of land and sea routes, port constructions, and, in general, the provision of all basic services, -defining environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island. -approving the strategic objectives for marketing and promotion necessary to make Isla San Lucas National Park known, both within and outside the country.

Note that the Board's composition brings together high-level officials from State institutions; the board itself is a fully decentralized body with instrumental legal personality, so it is not correct to state that it lacks official supervision. Secondly, in matters of conservation and preservation of the historical-architectural heritage, the criterion of the Center for Research and Conservation of the Cultural Heritage (Centro de Investigación y Conservación del Patrimonio Cultural) of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island's biodiversity, the technical criterion of the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, SINAC) shall prevail. Therefore, it is clear that the supervision of the island will be the official State supervision through the institutions that make up the Island and, in addition, it will have the technical criterion of SINAC. 5.

On the incorporation of private security officers in a national park What is alleged by the plaintiffs is not admissible, firstly, because park rangers (guardaparques) are not excluded from the surveillance and security of the park and, furthermore, because the law is clear in stating that private security officers shall not have police authority nor may they exercise non-delegable functions proper to the administration. Therefore, the plaintiffs' allegations do not proceed and must be rejected. 6. Regarding concessions and authorization to build docks and piers (atracaderos) in national parks Likewise, we reject the arguments of unconstitutionality raised by the plaintiffs. It was previously indicated how the Constitutional Chamber (Sala Constitucional) considers that the high priority of sustainable tourism development... must be understood as constitutional; therefore, the law of Isla San Lucas National Park must be understood as a special law, which creates a national park but specifies special regulations considering the characteristics and needs of Isla San Lucas and the importance that tourist visitation will have so that nationals and foreigners can learn about the historical-architectural heritage.

For the foregoing, the Park may develop all the necessary infrastructure to facilitate sustainable tourism, including the provision of water, electricity, telecommunications, hygiene and sanitation, docks, piers, food services and access routes, information and communication in various formats, as well as whatever it deems pertinent for the benefit of visitors and to ensure the enjoyment and appreciation of the historical, architectural, and natural wealth of the park. Likewise, the law states that regarding the construction of docks, piers, and other maritime facilities, the board of directors may count on Incop, MOPT, and ICT. What is alleged regarding that concessions and authorization to build docks and piers in national parks violate constitutional norms is rejected, because the entirety of the articles regulating this law must be considered and the balance and guarantees that the law contains for environmental protection must be highlighted. 7.

As to the financing being uncertain This argument must be rejected because it includes a series of suppositions or presumptions that do not necessarily have to materialize and that also would not necessarily occur as a result of the validity of the challenged Law. It is not valid to claim that it involves uncertain financing, because it includes resources that exist today, such as the resources corresponding to the National System of Conservation Areas (SINAC). Although transfers from the Republic's budgets will depend on having fresh and available free resources, it cannot be excluded a priori as a possible source of financing. As for donations from any natural or legal person, that is also a possibility. For example, a campaign could be carried out to receive donations for the restoration of historic sites. On the other hand, by stating that the fees that the park may charge for the use of its services, the fees (cánones) for concessions and permits must be invested in the same national park, that would constitute a permanent source of income. III. PRAYER FOR RELIEF (PETITORIA) In accordance with the report rendered, it is requested that the unconstitutionality action be rejected."

1. 141In judgment no. 2021008520 of 9:15 a.m. on April 28, 2021, issued by this Court in case file no. 21-006852-0007-CO, it was ordered: "I.- On the object of challenge. In the sub examine, the plaintiff considers that Law No. 9892 creating Isla San Lucas National Park violates the principle of non-regression in environmental matters, because despite it being a national park, the challenged law in article 8 assigns its administration to a Board of Directors and not to SINAC as corresponds, and it also modified the essential objective of a national park, superimposing visitation over conservation, by having given high priority to sustainable tourism development in articles 2 and 4, a purpose that departs from the national park management model and that, 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 Organic Law of the Environment (Ley Orgánica del Ambiente) and article 12 of Law No. 6084 creating the National Parks Service (Servicio de Parques Nacionales).He states that, in addition, the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental) and articles 11 and 50 of the Constitution are violated, because such modifications were made without the prior technical studies required for these cases, which also violates articles 32, 33, 34, 36, and 37 of the Organic Law of the Environment and article 59 of the Biodiversity Law (Ley de Biodiversidad). He points out that, in addition, article 13 of the challenged law provides for the creation of a trust as an administration instrument for the national park, which contravenes what is established in the Law on Strengthening Budgetary Control (Ley de Fortalecimiento del Control Presupuestario), since it could evade the controls to which the public budget is subject. II.- Based on the foregoing, it is necessary to first indicate that it is not for this Court to determine whether a legal norm contravenes another norm of the same hierarchy, since that does not constitute a matter of constitutionality, but rather an issue of ordinary legality, in which case it is the competence of the ordinary jurisdiction to define the applicable norm to a specific case; note that defining a presumed antinomy between legal norms is one of the ordinary functions of the legality jurisdiction and not of the constitutional jurisdiction, as is well defined in the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional).Hence, the action is inadmissible only insofar as it alleges a violation of articles 32, 33, 34, 35, 36, and 37 of the Organic Law of the Environment, article 59 of the Biodiversity Law, article 12 of Law No. 6084 creating the National Parks Service, and the Law on Strengthening Budgetary Control. In all other respects, this process is admissible. III.- Article 84 of the Law of Constitutional Jurisdiction provides that, if after the action is filed and before the publication of the respective notice, other unconstitutionality actions are filed against the same law, decree, provision, agreement, or resolution, those actions shall be accumulated to the first and shall be considered as an extension. Actions filed in that capacity by the parties to suspended proceedings shall also be accumulated, if filed within the fifteen days following the first publication of the notice. As evidenced in the record, this process was filed on April 8, 2021.For the reasons stated and given the evident connection between the object of challenge in this matter and that questioned in case file number 21-005756-0007-CO processed before this Chamber since March 23, 2021, and in order to avoid contradictory decisions that could affect the rights and interests of the involved parties, it is ordered, in this act, to accumulate this case file to the aforementioned one and to extend the corresponding points. Therefore (Por tanto): The action is rejected outright only insofar as the plaintiff alleges a violation of articles 32, 33, 34, 35, 36, and 37 of the Organic Law of the Environment, article 59 of the Biodiversity Law, article 12 of Law No. 6084 creating the National Parks Service, and the Law on Strengthening Budgetary Control. In all other respects, this process is admissible. Let this action be accumulated to the one being processed before this Chamber under case file number 21-005756-0007-CO and be considered as an extension thereof."
2. 142By written submission incorporated into the digital case file on May 4, 2022, Sebastián Morales Pérez, ID number 208430018, files an active joinder (coadyuvancia activa) in the same terms as in the written submission incorporated into the digital case file on April 8, 2021.
3. 143By written submission incorporated into the digital case file on May 4, 2022, Óscar Barboza Lizano, ID number 109030806, files an active joinder and states: "Very concerned about the reduction of the protected area and the creation of a commercial zone established in the Law of Isla San Lucas National Park, without specialized studies to support the reduction. The following studies are attached: • Assessment of fisheries in the middle and outer zone of the Gulf of Nicoya in Costa Rica from 2013 prepared by José Ángel Palacios of BIOMARCC-SINAC-GIZ • and POPULATION PARAMETERS, FOOD WEB OF THE CORVINA AGUADA Cynoscion squamipinnis (Günther, 1867), AND PHYSICAL-CHEMICAL CHARACTERISTICS IN ZONES 1 and 2, PAQUERA-TAMBOR RESPONSIBLE FISHING MARINE AREA, GULF OF NICOYA, COSTA RICA, carried out by: M.Sc. Rosa Lidia Soto Rojas, M.Sc. Luis Hernández Noguera, Lic. Jose (sic) Luis Vega Alpízar and Licda. Hannia Vega Bolaños of PROJECT (0079-14) Contributions to the artisanal and semi-industrial fisheries management of the Gulf of Nicoya, Costa Rica from the School of Biological Sciences and Marine Biology Station of the National University.Both studies demonstrate the ecological importance of Isla San Lucas National Park and allow us to gauge the possible impact or risks that ecosystems and associated biological processes could have from reducing the protected area, which, as can be deduced from the studies, is a reproduction zone for marine species of ecological importance and significance for artisanal fishers; without a doubt, before making a decision such as reducing the protected area, it is necessary to carry out studies that clarify in greater depth: what the impact on marine ecosystems and on local artisanal fishing communities will be from the aforementioned reduction. Likewise, contrary to Costa Rica's international conservation commitments, the establishment of a special commercial zone will affect the health of the ecosystem, contrary to the objectives of National Parks. Therefore, the Unconstitutionality Action is supported, since Protected Wild Areas (Áreas Silvestres Protegidas), as is the case of Isla San Lucas National Park, should not be reduced if there are no prior studies evaluating the impact of doing so.It is for the foregoing that I respectfully request that the action be declared with merit because the area reduction puts marine ecosystems at serious risk, the impacts of which could be significant for their protection. It is important to note that article 3 of the law of Isla San Lucas National Park establishes the boundaries. From our perspective, it is totally and absolutely unconstitutional, since it leaves many hectares of the marine part unprotected, and in addition, regarding the terrestrial part, a special zone is created, which draws our attention. It is assumed that in National Parks there should not be such special zones dedicated to commercial activities; therefore, article 3 would be violating the Washington Convention which prohibits commercial purposes in national parks, subscribed to by our State."
4. 144By written submission incorporated into the digital case file on May 4, 2022, Tatiana Cantillano Rodríguez, ID number 118650694, Patricia Villalobos Arias, ID number 108310698, Leonor Urrutia Ruiz, ID document 155812839512, Marcela Rivera Rodríguez, ID document 155809945629, Jeannina Rodríguez Elizondo, ID number 107690778, Sebastián Bravo Rivera, ID number 118600766, Yanory Rodríguez Castro, ID number 104070792, Álvaro Medina Santana, ID number 501660208, Katherine Rodríguez Zúñiga, ID number 118040218, Marlene Jiménez Mora, ID number 104650154, Joselyn Matei Mora, ID number 116690702, Wendy Rivera Ramírez, ID number 111860844, Minor Monge, ID number 900710034, Mario Cantillano Gamboa, ID number 102450454, Víctor Cantillano Monge, ID number 106060443, Luis Cantillano Monge, ID number 900830147, Maribel Marín Miranda, ID number 106650566, Roberto Monge Monge, ID number 105260066, Jefferson Chaves Monge, ID number 117530218, José Garita Valverde, ID number 107080749, María del Rocío Jiménez Chacón, ID number 105000606, Hugo González Jiménez, ID number 303800577, Luis Guillermo Salazar, ID number 107030197, César Salguero Hernández, ID number 304140736, Guillermo Rodríguez Castro, ID number 105320679, Stephanie Medina Rodríguez, ID number 112690321, Tatiana Vargas González, ID number 205720501, Ana Virginia Rodríguez, ID number 105100225, Margarita Rodríguez Castro, ID number 105320682, Diana Salazar Rodríguez, ID number 115280634, Elsa Paniagua Chacón, ID number 105680788, Carolina Méndez Contreras, ID number 503800856, Laura Rojas Berrocal, ID number 112500335, Flory Berrocal Paniagua, ID number 106390274, Carolina Berrocal Paniagua, ID number 109000792, Rafael Berrocal Soto, ID number 102810321, Susana Rojas Berrocal, ID number 110850879, Olga González Torres, ID number 103910121, Vinicio Marín González, ID number 110980179, Francisco Marín Sierra, ID number 104160787, Marcela Marín González, ID number 109030567, Kattia Marín González, ID number 109650472, Randall Rodríguez Rodríguez, ID number 108670161, Walter Umaña Ruiz, ID document 133812840613, Ana Ocampo Marín, ID number 106960892, Fernán Rodríguez Porras, ID number 111190615, Fernán Rodríguez Castro, ID number 103650609, Ruth Jiménez Mora, ID number 106320325, Walter Rodríguez Rodríguez, ID number 107140076, and María Fernanda Leitón Quesada, ID number 117230488, file an active joinder in the same terms as in the written submission incorporated into the digital case file on April 8, 2021.
5. 145By written submission incorporated into the digital case file on May 5, 2021, Isaac Espinoza Alvarado, ID number 402590518, files an active joinder in the same terms as in the written submission incorporated into the digital case file on April 8, 2021.
6. 146By written submission incorporated into the digital case file on May 5, 2021, David Argüello Cáceres, ID number 901150123, files an active joinder in the same terms as in the written submission incorporated into the digital case file on April 8, 2021.
7. 147By resolution of 1:42 p.m. on May 17, 2021, the Presidency of the Chamber ordered: "Active coadjuvant persons who filed their action between April 5, 2021, and May 5, 2021, are hereby warned that, within a period of THREE DAYS, counted from the day following the notification of this resolution and under warning of denying the processing of their action in case of non-compliance, they must: provide the joinder request duly signed and authenticated, as well as pay and add the Bar Association (Colegio de Abogados) stamp for the sum of two hundred seventy-five colones for each of the authenticated signatures on the joinder filing brief."
8. 148By means of a certification issued on May 19, 2021, by the technician of the Chamber of the Court of the Constitutional Chamber, it was stated that: "once the COSTA RICAN JUDICIAL CASE MANAGEMENT SYSTEM (SISTEMA COSTARRICENSE DE GESTIÓN DE DESPACHOS JUDICIALES) CONTROL OF RECEIVED DOCUMENTS was reviewed and a thorough review was made in the UNCONSTITUTIONALITY ACTION processed under case file number 21-005756-0007-CO promoted by FRANCISCO ÁLVARO ANTONIO SAGOT RODRÍGUEZ, it is certified: That the resolution of one forty-two p.m. on May seventeen, two thousand twenty-one was not notified to the coadjuvant 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, for not having indicated a place, house, office, electronic means, or fax number for that purpose."
9. 149By written submission incorporated into the digital case file on May 20, 2021, Jorge Alberto Serendero Hülssner, in his capacity as unlimited general attorney-in-fact (apoderado generalísimo sin límite de suma) of the Foundation For The Oceans, reaffirmed what was indicated in the document previously provided to this Court.
10. 150By means of a certification issued on May 25, 2021, by the technician of the Court Chamber, it was recorded: "That after reviewing, in the COSTA RICAN JUDICIAL CASE MANAGEMENT SYSTEM, the CONTROL OF RECEIVED DOCUMENTS; and, having made a thorough review of the case file in which this UNCONSTITUTIONALITY ACTION is processed, it does not appear that from the seventeenth to the twenty-fourth of May, two thousand twenty-one, the coadjuvants: 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 have filed any brief or document to comply with what was ordered in the resolution of one forty-two p.m. on May seventeen, two thousand twenty-one, issued in UNCONSTITUTIONALITY ACTION number 21-005756-0007-CO promoted by FRANCISCO ALVARO ANTONIO SAGOT RODRÍGUEZ."
11. 151By written submissions incorporated into the digital case file on May 27, 2021, Silvia Hernández Sánchez appears, in her capacity as president of the Legislative Assembly, and states: "II. REASONS FOR OPPOSITION TO THE PGR'S OPINION A. Miscalculation Beginning with the differentiated management area (área de manejo diferenciado), we must clarify that there is an accounting error of areas by the advisory body of the Constitutional Chamber, since to establish said 138 hectares it mistakenly mixed the 'terrestrial' area of the island with the adjacent water zone."

Indeed, the operation carried out by the PGR is a simple summation of the areas contemplated in the breakdown of Article 6 of Law 9892, given that the so-called "Building Area (Área de edificaciones)", "El Coco Beach Recreation Area (Área de recreo playa El Coco)", and "Trails Area (Área de senderos)" constitute a total of 65.5 hectares of the island's total 462 hectares, but not the so-called "Water Sector (Sector de agua)" (74.6 hectares), which is not counted within those 462 hectares of the island's total area proper; hence, the proportions reported in the PGR's report are incorrect. To this aspect, another of significant importance must be added: the so-called "Building Area (Área de edificaciones)", "El Coco Beach Recreation Area (Área de recreo playa El Coco)", and "Trails Area (Área de senderos)" do not, under any concept, constitute innovations/creations established or generated by Law 9892, but rather verifications of existing realities on Isla San Lucas (see Decree 34282).

B. Differentiated Management Area as Opposed to Absolute Protection The issue of the differentiated management area, which the PGR's report underscores on several occasions, does not turn out to be an innovation in Law 9892/2020. Decree 34282, whose constitutionality has already been analyzed by the Constitutional Chamber, was what brought this matter up, for in its Article 2 it established: (…) Likewise, in its Article 5, the cited decree provides for the approval of a Master Plan for Sustainable Tourism Development, precisely differentiated, however, in general terms for the ENTIRE island. The legal-rank regulation that the Legislative Assembly has enacted rather comes to circumscribe and delimit the areas on which sustainable tourism development is intended, because indeed, from the relationship of Articles 3, final paragraph, and 7 of Law 9892, it follows that (…) With the wording that has been in force through Decree 34282, the possibilities for action and access have been permitted throughout the entire island, whereas, with the delimitation carried out by the Legislative Assembly, the differentiated management zone is what marks and delimits such possibilities for action and access, duly delimited in its area and coordinates, in pursuit of reinforcing protection over the rest of the island.

Now, differentiated management in pursuit of sustainable tourism development must not be understood as a decoupling of this zone from the rest of the protective regulations that exist in our country. The Honorable Deputies recognized this in their interventions regarding the approval of Law 9892 (…) In this same vein, when the Legislative Assembly consulted the Ministry of Environment and Energy, the Ministry was emphatic in supporting the then-proposed regulatory modification, aimed at clearly delimiting the powers of action in the differentiated management area (…) The foregoing is also not innovative regarding the Isla San Lucas National Park, because currently, in the different national parks throughout the national territory, there exists suitable and appropriate infrastructure precisely intended for visitor access and facilitation, in pursuit of the delimitation of areas and the protection of larger areas.

By official letter of December 22, 2021-SINAC-DE-2047, the Excel table inserted at the end of this document was attached, showing that paving works, bridges, lighting and posts, sanitary services, restaurants, Law 7600 accessibility adaptations, potable water, lodgings, etc., exist in practically ALL of the country's national parks. C. Survival of the National Refuge The PGR states that Law No. 9892 provides in Article 3 that the coastal marine area is composed of the waters around the island, up to a depth of three meters, which supposedly constitutes a reduction, not justified by technical criteria, of the protected wild area, since under the Executive Decree creating the Wildlife Refuge, Article 3 of Decree No. 29277 of January 11, 2001, the protection area extended over the maritime part up to a depth of 6 meters. This conclusion presupposes that the new law enacted by the Legislative Assembly would be derogating or somehow inhibiting the Executive Branch's regulations already implemented through Decree 34282, which created the Isla San Lucas Wildlife Refuge.

The foregoing is completely mistaken, not only because Law 9892 has not provided for such a thing, but precisely because the express will of the legislators has been the opposite (…) In other words, the National Park includes the waters around the island up to 3 meters in depth; from there onwards, the deeper waters included within the Refuge continue to be protected by the latter category. Said regulation is not derogated or modified. The relationship between Articles 3 and 6 of Law 9892 specifies in detail the extent of the zone where sustainable tourism activities are permitted (which were equally permitted in the Refuge's management plans), preventing them from now being carried out in other areas of the island. In the following composite image prepared by the National Geographic Institute (IGN), what we indicate can be easily appreciated, as the respective areas of the National Park and the Refuge are evidenced and contrasted: (…) D. Alleged Decrease in Protection: Reality Criterion In the PGR's judgment, the differentiated management model for the tourist zone responds to the promotion of sustainable tourist activity with an emphasis on economic aspects and on the conceptualization, marketing, and promotion of the island as a tourist attraction, rather than on criteria for the conservation and preservation of natural and cultural resources; such tourist activities do not respond to the concept of ecotourism, particularly, the PGR indicates, it is not the tourist activity that is considered reconcilable with the management category of a national park, especially reinforced because in a National Park, concessions cannot be granted, nor can permission be given to establish facilities other than those of the National Parks Service, that is, commercial, transport, sports, artistic, and cultural facilities that incentivize tourist attraction and visitation to the island.

This criterion is erroneous. In the first place, we must make it clear that "ecotourism" and "sustainable tourist activity" are not even remotely synonymous. The first concept results from the "observation and appreciation of nature or traditional cultures in natural zones," while the second constitutes "tourism that fully takes into account current and future economic, social, and environmental impacts to meet the needs of visitors, the industry, the environment, and host communities (…) Precisely, SINAC, within the framework of the Project for Strengthening the Tourism Program in Protected Wild Areas (…) has opted for this second approach to sustainable tourism activities, which it has embodied in the document SUSTAINABLE TOURISM STRATEGY IN THE PROTECTED WILD AREAS OF THE NATIONAL SYSTEM OF CONSERVATION AREAS (…) This reality is reflected in the attached Excel table (…), as stated, corresponding to official letter December 22, 2021 – SINAC-DE-2047, where, by way of example, five national parks have restaurant services and six have lodging services for visitors.

Moreover, the provision for granting concessions on Isla San Lucas has been pending at MINAE since 2012; thus it reads in the MANAGEMENT PLAN OF THE ISLA SAN LUCAS NATIONAL WILDLIFE REFUGE, prepared by the National System of Conservation Areas (…) In the General Management Plan of the Isla San Lucas National Wildlife Refuge 2020-2030 (…), Weaknesses, Opportunities, and Strengths of the Protected Wild Area were determined, which clearly reflect needs and possibilities for improvement that coincide with what is established in the Park Creation Law, and particularly coincides with the issue of eventual service concessions, for the purpose of compensating for some of the weaknesses that were noted for what was then still a Refuge (…) Just to underscore one of the weaknesses the island had under the previous Refuge scheme, we emphasize the concrete case of the vandalism that affected Isla San Lucas, generating the loss of valuable historical heritage, all as a result of abandonment by SINAC personnel, due precisely to the insecurity the place had.

Between Friday night on November 25, 2017, and the early morning of Saturday, November 26, flames consumed the historical building where the old command headquarters was located on Isla San Lucas. It was a two-level structure of 100 square meters. The building was totally destroyed by the fire. The Judicial Investigation Agency (OIJ) opened an investigation to determine the causes of the fire; however, it did not obtain results regarding those responsible for such damage. All this occurred due to the abandonment in which the Refuge found itself, with an administrative and personnel disposition insufficient for the protection of the historical heritage. Regarding the occurrence of these events, the following official letters sent by the National System of Conservation Areas to the office of Deputy Carlos Ricardo Benavides can be cited; (…) it is considered that the regulatory interpretation presupposed by the PGR's advisory report to the Constitutional Chamber results in being completely detached from reality and, mainly, disconnected from the integrality of the applicable regulations.

The PGR forgets that, since the implementation of the National Parks Service Law in 1977, not only conservation and preservation were promoted, but also visitation, and that, with the passage of years, sustainable tourism (Biodiversity Law, 1998) has become a fundamental pillar of the conservation system, to the point that the delimitation of tourist access zones has had to be established as a basic criterion of administrative action. In that same line of thought, it reads in the Technical Services Report of the Legislative Assembly (AL-DEST-IJU-006-2020 (…) In the following Excel sheet (from official letter December 22, 2021 – SINAC-DE-2037), the extensions and proportion of said zones in the various national parks and wildlife refuges existing in the country can be appreciated, verifying that, precisely in pursuit of the total and absolute protection of 96.09 percent of said areas, visitation and sustainable tourism are promoted in 3.91% of the country's national parks (total of tourist visitation areas) (…) E. Two Relevant Legal Issues and Safeguards This representation wishes to underscore two aspects of the matter that call into question the ultra-literal interpretation the PGR makes in its report to the Chamber regarding what is viable and non-viable in National Parks, as well as regarding the precautions established to prevent environmental or architectural heritage abuses.

As we have indicated above, it seems to us that the PGR has overlooked that, since the implementation of the National Parks Service Law in 1977, not only conservation and preservation were promoted, but also sustainable tourism (Biodiversity Law, 1998) has become a fundamental pillar of the conservation system. We consider that, from a regulatory point of view, the administration has carried out an operation of harmonizing public purposes, that is, in the way that best guarantees the realization of all the public purposes it is directed towards (Art. 10 LGAP), given that said operation necessarily entails carrying out all those activities necessary for the sustainability of said tourist visitation (Art. 12 LGAP). From this point of view, it is not unfeasible that, in Law 9892/2020, the correct implementation of the public purpose of conservation/preservation versus sustainable tourism was promoted.

In this same line of action, the Legislative Assembly also established in the LAW FOR THE CREATION OF THE ISLA SAN LUCAS NATIONAL PARK No. 9892/2020 a mechanism that the PGR has also overlooked, regulated in the last paragraph of its Article 9: (…) Observe how it would not be possible for the administration of the Isla San Lucas National Park to ignore the environmental and architectural heritage criteria that the technical bodies have established. In our understanding, this aspect turns out to be decisive for safeguarding against any abuse or disregard of the general environmental and historical-architectural heritage regulatory framework and, at the same time, cauterizes the zone against all risks that the PGR's report has highlighted. F. Technical Studies According to the PGR's opinion discussed in this document, the authorization of ecotourism activities (we emphasize, rather, sustainable tourism) in a national park or a biological reserve must be subject to scientific and technical sustainability criteria.

From this basic starting point, the PGR errs again. Law 9892 establishes the legal norms that would enable the realization of certain actions in the tourist zone of the Isla San Lucas National Park. The task of issuing licenses, concessions, authorizing the provision of water, electricity, telecommunications, hygiene and sanitation, docks, piers, food services, and access roads, information and communication, and effectively putting the park into operation, as it has always been, is the responsibility of the administrative authority. By itself, Law 9892 does not imply putting such concrete actions into effect. Furthermore, the technical criteria of the last paragraph of the cited Article 9 will always prevail. This precision, which initially appears innocuous, reveals a confusion or erroneous interpretation, which basically consists of the fact that scientific and technical studies that the Legislative Assembly must have in view to make the decision of whether or not to authorize a possibility of action are one thing; and another thing are the scientific and technical studies that must motivate (factual and legal components) the administrative act of granting new licenses or permits, for example, or for enabling a pier or similar works, all actions that the competent public administration currently already uses and practices in various national parks.

This was precisely clarified and supported by the Constitutional Chamber in the consultation on Legislative Decree 9909 (opinion 2020-013837 of eighteen hours and thirty minutes of July twenty-second, two thousand twenty), revealing the error of interpretation that had been sustained regarding its previous criteria (…) That is to say, it is the responsibility of the Legislative Assembly to place the granting and final realization of concrete actions in the hands of the administrative authority, but not to make those specific decisions in a legal-rank text, much less to technically support them. The assessment regarding the degree of technical certainty that should prevail for making the decision to open, for example, a food service or a lodging for visitors, is left to the discretion of the administrative authority and under its control regarding technical justifications. The legislative decision, manifested through the issuance of a legislative decree, given its general and abstract nature, involves providing for the creation of the well-known national park and its characteristics; and for this, the legislative file contains consultations and opinions from all the competent technical bodies, the main and most relevant being that of the Ministry of Environment, which, it should be noted, was favorable to the establishment of the national park.

Finally, regarding this point, if the problem the PGR finds refers exclusively to the Tourist Zone, simply, we must limit ourselves to underscoring that, since the constitution of the National Refuge, management plans exist (see the annexed MANAGEMENT PLAN OF THE ISLA SAN LUCAS NATIONAL WILDLIFE REFUGE from 2012), related to tourism and historical heritage expressly in the same Tourist Zone of the questioned Law. This has been the object of special regulations aimed at its use for tourist visitation under the name of Public Use Zone (…) it is requested that the Constitutional Chamber declare the unconstitutionality action processed under file 21-005756-0007-CO without merit."

1. 152By resolution of 5:00 p.m. on May 28, 2021, it was ordered: "By resolution of the Presidency of this Chamber at 1:42 p.m. on May 17, 2021, the persons who filed their active joinder request between April 5, 2021, and May 5, 2021, were warned that, within a period of three days, counted from the day following notification of that resolution and under warning of denying the processing of their request in case of non-compliance, they had to submit their duly signed and authenticated joinder request, as well as pay for and attach the Bar Association stamp. However, it is noted that only the petitioner JORGE ALBERTO SERENDERO HULSSNER, in his capacity as general agent without limit of sum of the Foundation FOR THE OCEANS (joinder request received in the Chamber's Secretariat at 7:41 a.m. on April 13, 2021), complied with the mentioned warning, through a brief received in the Secretariat of this Chamber on May 20, 2021.Therefore, in accordance with the certification signed by the Chamber's Secretary on May 25, 2021, it is noted that the other persons who raised their joinder request, 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 warning within the established period.Consequently, it is resolved: Article 83 of the Constitutional Jurisdiction Law indicates that within fifteen days following the first publication of the notice referred to in the second paragraph of Article 81, the parties that appear in the matters pending at the date of filing the action, or those with a legitimate interest, may appear [sic] to join in the allegations that might justify their appropriateness or inappropriateness, or to expand, as the case may be, the grounds for unconstitutionality in relation to the matter that interests them. In the specific case, it is verified that all the joinder requests were filed between April 5, 2021, and May 5, 2021, within the period of fifteen days after the first publication of the notice on April 13, 2021. However, given that they did not comply with what was warned by this Chamber in the resolution of 1:42 p.m. on May 17, 2021, the appropriate course is to reject the joinder requests filed before this Tribunal between April 5, 2021, and May 5, 2021, with the exception of that filed by JORGE ALBERTO SERENDERO HULSSNER, in his capacity as general agent without limit of sum of the FOUNDATION FOR THE OCEANS, who complied with the warning on May 20, 2021, and is therefore considered an active joinder party.It should be clarified that, although by brief received in the Secretariat of this Chamber at 2:54 p.m. on April 16, 2021, the petitioner ROBERTO MIGUEL MOLINA UGALDE, identification number 5-0195-0151, representative of the SINDICATO DE TRABAJADORES DEL MINISTERIO DE AMBIENTE Y ENERGÍA (SITRAMINAE), submitted his signed and authenticated joinder request, the fact is that he did not provide the Bar Association stamp as warned. Similarly, in the case of the joinder request received in the Chamber's Secretariat at 1:53 p.m. on April 22, 2021, filed by DANI ALBERTO VILLALOBOS VILLALOBOS, identity card number 2-0643-0273, in his capacity as representative of the FEDERACIÓN COSTARRICENSE PARA LA CONSERVACIÓN DEL AMBIENTE, who also failed to comply with the warning, in the sense of presenting his request duly authenticated and with the Bar Association stamp. For which reason their requests are equally denied.Regarding the active joinder party JORGE ALBERTO SERENDERO HULSSNER, in his capacity as general agent without limit of sum of the FOUNDATION FOR THE OCEANS, the latter is advised that - as to the effects of the joinder -, as the joinder party is not the main party to the process, it will not be directly harmed or benefited by the judgment; that is, the efficacy of the judgment does not reach the joinder party directly and immediately, nor does res judicata affect them, nor do the immediate effects of executing the judgment reach them, since through joinder, the jurisdictional authority cannot be obliged to issue a resolution in their favor, for not having been a main party in the process. What can affect them, but not due to their condition as joinder party, but like anyone else, is the erga omnes effect of the ruling. The judgment in constitutional matters does not particularly benefit anyone, not even the plaintiff; it is in the prior trial where this can be recognized.Moreover, the hearings granted to the Office of the Attorney General (Procuraduría General de la República), the President of the Legislative Assembly, the Minister of Culture and Youth, and the Executive President of the Instituto Costarricense de Turismo, in the resolution of 7:52 a.m. on March 26, 2021, are deemed answered. Likewise, the hearing granted in the same resolution to the Minister of Environment and Energy and the Executive Director of the National System of Conservation Areas is deemed unanswered, by virtue of the fact that the Management System contains no record of any document submitted by them in order to answer the granted hearing. Furthermore, it is noted that by resolution No. 2021-008520 of 9:15 a.m. on April 28, 2021, action No. 21-006852-0007-CO was ordered accumulated to this action, within which the plaintiff GUSTAVO FLORES YZAGUIRRE, identity card number 107060843, equally challenges Law No. 9892 of August 24, 2020, called Law for the Creation of the Isla San Lucas National Park, considering it contrary to Article 50 of the Political Constitution, in the same sense as the allegations raised in this action No. 21-0005756-0007-CO. The proceeding being ready, the unconstitutionality action is assigned to Justice Paul Rueda Leal, who, by turn, is responsible for its substantive study."

“Notify”.

1. 153In a brief added to the digital case file on November 14, 2022, Susana Rojas Berrocal, identification number 110850879, stated: “Last Thursday, November 10, I logged into my Judicial Branch user account to check the status of a Family Proceeding I have active, and upon reviewing my case files I was surprised to find that I appear as a co-helper (coadyuvante) in the Unconstitutionality Action (Acción de Inconstitucionalidad) processed under case file 21-005756-0007-CO, with my identification number and full name matching exactly, which causes me great confusion because I have absolutely nothing to do with this matter, I have not filed any brief nor participated in anything related to this Action. I wish to make clear to the Honorable Constitutional Chamber (Sala Constitucional) that I have not taken any action whatsoever related to this proceeding and I respectfully request that I be informed whether this is due to a mistake or if, on the contrary, I am the victim of some identity theft (suplantación de identidad) and who proposed me as a co-helper (coadyuvante).”
2. 154By order of the investigating magistrate (magistrado instructor) at 1:45 p.m. on November 15, 2022, it was decided: “By brief added to the electronic case file on November 14, 2022, Susana Rojas Berrocal states that she has taken no action related to this proceeding; for that reason, she requests clarification as to why she appears as a co-helper (coadyuvante) and asks to be told who proposed her as such. In this regard, the interested party is informed that the co-helper brief (escrito de coadyuvancia) was received in the Chamber by email on April 27, 2021, and added to the digital case file on May 4, 2021. The aforementioned brief was sent by Tatiana Cantillano Rodríguez and attached a list of signatures that includes—apparently—the signature and identification number of Susana Rojas Berrocal. If her disagreement persists, the interested party may expressly request her removal from the case file. Likewise, she is advised that, should she consider that identity theft (suplantación de identidad) occurred, she must appear before the relevant authorities to assert her rights, if she so chooses. Notify the interested party.”
3. 155By brief added to the digital case file on January 27, 2023, Susana Rojas Berrocal, identification number 110850879, states: “In response to what was indicated in the order of one forty-five p.m. on November fifteen, two thousand twenty-two, I wish to express my request for removal from the instant case and to clarify that I have nothing to do with it.”
4. 156By order of the investigating magistrate (magistrado instructor) at 8:31 a.m. on March 17, 2023, a hearing (audiencia) was granted to the mayor (alcalde) of Puntarenas and to the director of the Regional Office for Mexico, Central America and the Caribbean of the International Union for Conservation of Nature.
5. 157By brief added to the digital case file on March 24, 2023, José Francisco Coto Meza, in his capacity as general judicial representative (apoderado general judicial) of the Instituto Costarricense de Turismo, requests that the Cámara de Turismo de Puntarenas be asked to rule on the allegations set forth by the claimants.
6. 158By brief added to the digital case file on March 28, 2023, Susana Rojas Berrocal, identification number 110850879, states: “In response to what was indicated in the order of one forty-five p.m. on November fifteen, two thousand twenty-two, I wish to express my request for removal from the instant case and to clarify that I have nothing to do with it.”
7. 159By brief added to the digital case file on March 31, 2023, Úrsula Parrilla Artiuguina appears, in her capacity as regional director of the International Union for Conservation of Nature, for Mexico, Central America and the Caribbean. She states: “I write in follow-up to the referenced unconstitutionality action, through which IUCN is requested to rule on the allegations set forth by the claimants. In this regard and in response to the request of the Constitutional Chamber, IUCN submits its contributions to respond to said allegations, which are found in Annex 1 (Anexo 1) of this communication. Likewise, I would like to reiterate our willingness to attend to any additional request for information that may be required within the framework of this proceeding, and for this purpose Dr. José Courrau has been designated, thematic expert in Protected Areas based in this regional office and who can be contacted at the following email address.” In the referenced annex, the following was set forth: “Annex 1- CONTRIBUTIONS OF THE INTERNATIONAL UNION FOR CONSERVATION OF NATURE (IUCN) TO THE UNCONSTITUTIONALITY ACTION CASE FILE # 21-005756-0007-CO This document responds to the consultation submitted by the Constitutional Chamber of Costa Rica in case file 21-005756-0007-CO.The criteria provided by IUCN are purely technical and seek only to contribute to the discussion of the aforementioned case, without prejudice to any of the parties. I. About IUCN Created in 1948, IUCN is the largest and most diverse environmental network in the world, harnessing the knowledge, resources and reach of our more than 1,400 member organizations and 15,000 experts. This diversity and experience make IUCN the global authority on the status of the natural world and the measures needed to safeguard it. Our broad membership also means we can incubate ideas and are a trusted repository of best practices, tools and international standards. We provide a neutral space in which governments, NGOs, scientists, businesses, local communities, indigenous peoples’ organizations and others can work together to solve environmental challenges and achieve sustainable development. Working with many partners and supporters, IUCN implements a broad and diverse portfolio of conservation projects worldwide.These projects combine the latest science with the traditional knowledge of local communities to work to reverse habitat loss, restore ecosystems and improve people’s well-being. IUCN’s vision is “A just world that values and conserves nature” and the mission is “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 continue to be the most successful option for in situ conservation in the world. They form an integral part of all international national biodiversity conservation commitments and seek to preserve representative and functional samples of the world’s terrestrial and marine natural systems and species, as well as to maintain important ecological processes for human populations. Additionally, they contain important cultural resources and can be important sites for adaptation to the effects of impending climate change.Historically, protected areas have been established by governments, but more recently the importance of areas that have been protected and sustainably managed by communities, indigenous peoples and private individuals or organizations has been recognized. The establishment of protected areas is a manifestation of the commitment of countries and society to the present and future with the conservation of biodiversity and ecosystem services. This commitment manifests the need to maintain species, ecosystems and processes (and services) that are essential for human survival and that, additionally, generate economic income that can be sustainable and distributed in a fair and equitable manner. The review and assignment of management objectives for biodiversity conservation purposes must be carried out from a systemic perspective. This implies that the components and their interactions must be considered in the assignment of objectives in individual protected areas.According to Groves (2003) and Dudley (2008), a biodiversity conservation system should meet the following characteristics: Representativeness, comprehensiveness and balance: including examples of the highest quality of the full range of a country’s environment types; it includes the extent to which protected areas provide a balanced sample of the environment types they are intended to represent. Adequacy: integrity, sufficiency of 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 that make up the country’s biodiversity. Coherence and complementarity: positive contribution of each protected area to the set of conservation and sustainable development objectives defined by the country. Consistency: application of management objectives, policies and classifications under comparable conditions in a standardized manner, so that it is clear to all the purpose pursued by each protected area within the system framework and the possibilities that its management and use contribute to the system’s objectives are maximized.Cost-effectiveness, efficiency and equity: adequate balance between costs and benefits, and due equity in their distribution; includes effectiveness: the minimum number and area of protected areas needed to achieve the system’s objectives. III. General Aspects of Protected Area Management Categories Having a valid system that responsibly describes the process for assigning, reviewing, and evaluating the management categories that summarize and guide the management of valuable protected areas. These categories help organize the types of use permitted in these areas. The manifest differences between management categories highlight that biodiversity conservation can be achieved by different management models. IUCN has been the organization responsible for the creation, analysis and updating of the international system of protected area management categories. This technical tool has been globally recognized as the benchmark for organizing management categories in countries.From the first version of the categories in 1974 to the new edition of 2008, much has been learned about the implications for the management and future of areas, and their relationship with the governance arrangements that define decision-making in protected areas. Some reasons for applying a system of protected area management categories: • Consolidate a national system of protected areas that reflects a range of management objectives and governance types. • Annual planning to allocate staff and budget according to a process directly related to management categories. • Raise the profile of protected areas as a critical basis for more sustainable development. • Integrate protected areas into large-scale land-use planning (ordenamiento territorial) schemes or promote such a scheme. • Safeguard protected areas against environmentally irresponsible development and its impacts. • Improve data collection to enhance knowledge about the protected area system and capture more accurate information on categories and governance types to measure progress toward national and international commitment goals. • Improve category-specific management at the site level. • Communicate more transparent management objectives to various interest groups. • Highlight the national category system when striving to apply it in accordance with current law.A management category system for a country’s protected areas represents a responsible approach to organizing the management and governance of these areas. The methodological approach of this proposal is based on the 2008 “Guidelines for Applying Protected Area Management Categories,” developed by IUCN. The 2008 guidelines recommend that national initiatives to assign management categories must consider, develop and implement a process for assigning/reviewing management categories in a country. They also add 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 IUCN definition of a protected area. Here the country’s landscape is broadly considered: private, communal, indigenous lands, conservation gaps, relationship zones ↓ If so, document the following characteristics – legal status, management objectives and the justification for the protected areas’ status (focal biodiversity and cultural objects, ecosystem services).Here key scientific aspects are incorporated such as: connectivity, condition of management objects, climate change impact on protected areas (especially adaptation), among others ↓ Use the information to propose a management category and governance for the protected area, based on IUCN guidelines. The implications of the protected area categories for the present and future of the country and the institutional and human capacities required to carry out management must be documented. Discuss the role of the protected area in reference to the national legal framework, national institutional guidelines for protected areas and international technical references for protected area management. ↓ Carry out a consultation process throughout the entire process to agree on the proposed category ↓ The government makes the final decision on the category ↓ Monitor, evaluate and adapt the management of protected areas and their management categories.Use the information to report on the management of protected areas (e.g., to the CBD) IV. Contributions to the points of the unconstitutionality action The information provided by IUCN in the following points comes primarily from the following sources: Dudley, N. (Editor) (2008). Guidelines for applying protected area management categories. Gland, Switzerland: IUCN. x + 96pp. SINAC and UNDP. (2014). Consultancy report “Recategorization of Protected Wild Areas” of the project Removing Barriers to Sustainability. IUCN 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 Law 9892 (Ley 9892) presents a strong focus on the tourist use of the protected wild area (área silvestre protegida) and a lesser focus on the conservation of biodiversity and ecosystem services.Additionally, it presents an interest in preserving the constructions and other historical features of the site. Moreover, Law 9892 incorporates aspects of zoning and definition of permitted uses within these zones of the protected wild area. According to good practice in protected wild area management, both zoning and the determination of permitted uses are tasks pertinent to the area’s management plan (plan de manejo) and not to a law. Natural systems are dynamic and their planning requires flexibility to adjust to entropy. Leaving zones and their uses enshrined in a law results in a “freezing” of management that can only be corrected with a new law. 1. Reduction of the protected wild area without justification After reviewing the points raised by the plaintiffs, we can indicate that the size of the protected area was reduced by Law 9892 of August 24, 2020, by reducing the original marine boundary of up to 6 meters in depth that covered the Refugio de Vida Silvestre at low tide to one of up to 3 meters in depth (without indication of high or low tide).IUCN recommends carrying out a cartographic analysis to accurately determine the reduction in the size of the protected wild area, in its marine space. At the same time, it is recommended to conduct an assessment of the coastal-marine richness in order to determine whether, with the change from 6 meters to 3 meters, valuable species and ecosystems remain unprotected. 2. Change of management category and the inclusion of a tourist zone without studies Evidently, the protected wild area underwent a change of management category from Refugio de Vida Silvestre to Parque Nacional. The assignment of the management category of a protected wild area must be the product of an analysis that considers the area’s creation objectives, its natural, cultural and other values, the current condition of these values, the uses that could be contemplated, among others. Such an assessment must be carried out jointly with interest groups, authorities and local communities.According to the Reglamento de la Ley de Biodiversidad, articles 71 and 72, when modifications or changes are made to the management category of protected wild areas, a detailed technical report must be prepared, and in the event that the level of the management category is raised, the specific reasons justifying the decision must be explained (…) For IUCN, the organization that developed the protected area management categories globally, raising a protected wild area from a less restrictive management category to a more restrictive one is carried out in order to make the importance of protecting the values that the protected wild area contains more evident. However, in the case of Parque Nacional San Lucas, the change of category denotes an interest in developing tourist use rather than strengthening the protection of the site’s natural and cultural values. Additionally, there is a lack of studies and technical justifications for the change of category and for the insertion of tourist activities within the site.As can be seen in the table below, the permitted uses in a Refugio de Vida Silvestre and a Parque Nacional differ in that in the refuge, activities of management and direct use of biodiversity, construction of public works and tourist and recreational infrastructure are permitted. These activities are not permitted in the national park. Meanwhile, in the national park concessions and use permits (permisos de uso) are permitted, whereas in the refuge they are not permitted. (…) However, despite what is indicated in the two types of management categories, according to Costa Rica’s Ley Forestal, forests are Patrimonio Natural del Estado (PNE). This legal concept includes protected wild areas, and its article 18 and 18 bis define the permitted uses within them: Research, training, ecotourism and activities necessary for water use. Therefore, what is expressed in that article acts as a macro management category that makes all protected wild areas equal in terms of permitted uses.The PNE overrides what is expressed by the management categories. IUCN recommends that this situation be resolved by the Costa Rican state to avoid confusion and, at the same time, allow the management categories to be applied to their full extent. IUCN also recommends reviewing the technical justifications for the change of category in Law 9892. Likewise, it is recommended that both zoning and the permitted uses within them be resolved in the process of developing and approving a management plan (plan de manejo) as the primary technical instrument for the management of protected wild areas. 3. Commercial purposes disguised as sustainable purposes in the fragmentation of the protected wild area Among the permitted uses in national parks, according to Costa Rican legislation, are concessions for non-essential services and use permits (permisos de uso). There is no indication regarding activities for commercial purposes within the area.In good practices for national parks, concessions for non-essential services are recognized, as long as they do not alter or compromise the conditions of the site’s values. Additionally, as already indicated in previous points, zoning and permitted uses within the protected wild area must be addressed in a site management plan (plan de manejo) and not in its enabling law. It is worth emphasizing the importance of having the technical justifications for zoning and permitted uses in the management plan. As IUCN, we cannot issue an opinion on the implication that commercial purposes are being disguised as sustainable but fragment the protected wild area. 4. On the Board of Directors (Junta Directiva) that Will Administer the Park As IUCN, we have no technical criteria to contribute to this point. This point must be addressed in accordance with the national legislation concerning the governance of protected wild areas. 5.Incorporation of Private Security Officers in a National Park As IUCN, we have no technical criteria to contribute to this point. This point must be addressed in accordance with the national legislation concerning the control and vigilance of protected wild areas. However, we wish to draw attention from the perspective of environmental and social safeguards, specifically the risks to the rights, livelihoods and well-being of neighboring communities. SINAC, as the guaranteeing institution for the country’s protected areas, has extensive experience in control and vigilance activities and provides the necessary training for its personnel to carry out these activities within what the law permits. Incorporating private security officers to perform control and vigilance activities within the protected wild area, without proper training or the institutional coverage of SINAC, may lead to risks against the safeguards of the rights, livelihoods and well-being of neighboring communities. 6.On Concessions and the Authorization to Build Docks and Wharves in National Parks. As mentioned in the previous points, it is not the role of a law but rather of a management plan (plan de manejo), grounded in scientific and technical information and developed participatively with interest groups, to determine zones and permitted uses in a protected wild area. Additionally, the Ley de Biodiversidad allows concessions and use permits (permisos de uso) in national parks, even though articles 18 and 18 bis of the Ley Forestal define the four types of use for all Patrimonio Natural del Estado, which includes protected areas and which overrides the existing management categories. In any case, the Contraloría General de la República in 2003 already expressed an opinion that does not recognize tourist docks and wharves as possible concessions within protected wild areas. 7. Uncertain Financing As IUCN, we have no technical criteria to contribute to this point. This point must be addressed in accordance with the national legislation concerning the financing of protected wild areas.”
8. 160By order of the Presidency of the Chamber (Presidencia de la Sala) at 2:08 p.m. on April 12, 2023, it was decided: “In accordance with the provisions of articles 10 and 85 of the Ley de la Jurisdicción Constitucional, an oral hearing (vista oral) is convened for ANAIS VILLALOBOS KONG, ÁLVARO SAGOT RODRÍGUEZ and GUSTAVO FLORES YZAGUIRRE, in their capacity as claimants; the Procurador General de la República, the president of the Asamblea Legislativa, 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 (alcalde) of Puntarenas and the director of the Regional Office for Mexico, Central America and the Caribbean of the International Union for Conservation of Nature in their capacity as informants; and Jorge Alberto Serendero Hülssner, in his capacity as co-helper (coadyuvante); all in the unconstitutionality action being processed under case file no. 21-005756-0007-CO.1) On the date, time and modality of the hearing: The hearing is scheduled for 8:30 a.m. on May 4, 2023, and will be held in person in the Hearing Room located on the second floor of the Corte Suprema de Justicia Building, Barrio González Lahmann, San José.2) On attendance: Each of the participants may participate in the hearing themselves, or be accompanied by a legal professional.3) On the accreditation of the parties: Within a period of THREE DAYS, counted from receipt of this notification, the claimant, informant, co-helper and other parties must inform the names and identification numbers of those who will appear before this Court.4) On technical requirements: for the purpose of making corresponding arrangements, the claimant, informant, co-helper and other parties must inform about the use of equipment and technical implements during their intervention, such as computer presentations, videos or slides; in order to avoid inconveniences or unforeseen events, which must be communicated to the Chamber within the period of THREE DAYS, counted from receipt of this notification. Additionally, it is clarified that on the day of the hearing, the claimant, informant, co-helper and other parties must appear THIRTY MINUTES before the scheduled time with their respective electronic equipment and connecting cables, in case the use of equipment is required for their presentations.5) On the conduct of the Hearing: the following procedural aspects are determined: A) The Chamber will begin the proceeding by granting the floor to the claimant party for a maximum of fifteen minutes, so that within that time they may present the legal and technical arguments of the case file, adjusting to the specific object of their claim and avoiding straying into aspects foreign to their action. If for any reason they join the proceeding late, they must take it up from the moment the hearing is at, which means that, if they have been absent at the time of taking the floor, they may not present their arguments later, unless the Court decides otherwise. B) After the claimant party’s presentation is finished, the floor will be given to the Procurador General de la República, the president of the Asamblea Legislativa, 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 (alcalde) of Puntarenas and the director of the Regional Office for Mexico, Central America and the Caribbean of the International Union for Conservation of Nature. Each will have a maximum time of ten minutes, within which they must present the corresponding legal and technical arguments, also adjusting to each of the claims raised by the claimant party. If for any reason they join the proceeding late, they must take it up from the moment the hearing is at, which means that, if they have been absent at the time of taking the floor, they may not present their arguments later, unless the Court decides otherwise. C) After the presentation of the foregoing authorities is finished, the floor will be given to the co-helper (coadyuvante) Jorge Alberto Serendero Hülssner, for a maximum time of five minutes, within which he must set forth the corresponding legal and technical arguments, also adjusting to each of the claims raised by the claimant party. If for any reason he joins the proceeding late, he must take it up from the moment the hearing is at, which means that, if he has been absent at the time of taking the floor, he may not present his arguments later, unless the Court decides otherwise. D) Once the aforementioned presentations are concluded, the Presidency of the Chamber will grant the floor to the claimant party, as well as to the Procurador General de la República, the president of the Asamblea Legislativa, 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 (alcalde) of Puntarenas and the director of the Regional Office for Mexico, Central America and the Caribbean of the International Union for Conservation of Nature so that within a maximum time of three minutes they may formulate the reply they deem pertinent; the order of intervention will be the same as that arranged for the initial presentation. E) Once these presentations are finished, the Presidency of the Chamber will grant the floor to the present judges, so they may formulate the questions or clarifications they consider necessary. F) If there is no need for further interventions by the judges, the hearing will be concluded, without prejudice to the participants being able to submit in writing at a later date their observations on aspects discussed during the proceeding.

Order matter: Due to the judicial nature of this proceeding, the parties present must take the necessary precautions to avoid unnecessary disturbances caused by the operation of electronic devices, and must therefore turn off cellular telephones, pagers, and other devices that, by their nature, may cause disturbances during the proceeding. The parties are warned that any disregard of what is indicated here and any disruption of order by any means will empower the Court to adopt the measures it deems pertinent. Let it be notified."

1. 161By document incorporated into the digital case file on April 13, 2023, William Rodríguez López, in his capacity as Minister of Tourism, indicated that both he and legal advisor José Coto Meza will participate in the hearing scheduled for May 4, 2023.
2. 162By document incorporated into the digital case file on April 17, 2023, Wilber Madriz Arguedas, in his capacity as Mayor of Puntarenas, indicates that Carlos Ricardo Benavides Jiménez will participate in the hearing of May 4, 2023, in his capacity as attorney.
3. 163By document incorporated into the digital case file on April 18, 2023, Úrsula Parrilla Artiuguina, in her capacity as judicial and extrajudicial representative with powers of unlimited general attorney-in-fact for the IUCN, states that her position is administrative and her responsibility is to direct her represented entity in all the known countries. She clarifies that she is not a scientist or a specialist in the subject of the report submitted, but rather her responsibility is to supervise that projects are carried out in the best manner. She states that the most qualified personnel on the subject is the scientist José Courrau, Doctor of Natural Resources, and for this reason she requests that he be authorized to make the dissertation.
4. 164By document incorporated into the digital case file on April 18, 2023, Rodrigo Arias Sánchez, in his capacity as President of the Legislative Assembly, indicates that Freddy Camacho Ortiz, Director of the Legal Advisory Department, will attend the hearing of May 4, 2023, on his behalf.
5. 165By document incorporated into the digital case file on April 18, 2023, Nayuribe Guadamuz Rosales, in her capacity as Minister of Culture and Youth, indicates that, at the hearing of May 4, 2023, she will be accompanied by Vladimir Cubillo Marenco, in his capacity as legal advisor to the office.
6. 166By document incorporated into the digital case file on April 18, 2023, Wilber Madriz Arguedas, in his capacity as Mayor of Puntarenas, indicates that at the hearing of May 4, 2023, he will participate in his capacity as Mayor and the attorney Carlos Ricardo Benavides Jiménez.
7. 167By document incorporated into the digital case file on April 18, 2023, Franz Tattenbach Capra, in his capacity as Minister of Environment and Energy, indicates that for the hearing of May 4, 2023, Rafael Gutiérrez Rojas was appointed, in his capacity as Vice Minister, due to the fact that he must attend to the international agenda. He states that Karen Quesada Fernández will also participate representing SINAC, as well as Ana Lorena Polanco, in her capacity as legal advisor to that office.
8. 168By document incorporated into the digital case file on April 18, 2023, Wilber Madriz Arguedas appears in his capacity as Mayor of Puntarenas and states: "I proceed to refer to the main arguments outlined by the plaintiffs, not without first presenting in a summarized form some data that I consider fundamental for understanding the origin and due constitutional basis of Law 9892. 1- Historical, normative, and jurisprudential background of the Law for the Creation of the Isla San Lucas National Park, Law 9892. In order to comprehensively understand the formation of Law 9892, it is also necessary to understand the historical origin of the administrative, social, and cultural manifestations of Isla San Lucas over hundreds of years, as well as to keep in mind the normative evolution (laws and decrees) that occurred with respect to its administration and its purposes, just as it is necessary to recall the rulings of this Constitutional Chamber from 2010 and 2011 when hearing unconstitutionality actions against one of its decrees, as well as the one that resolved an amparo appeal in 2011.All these elements were collected from the Statement of Purposes of the bill, as well as in the statements of the legislators throughout the law-making process. - Conquest era. The island we know today as San Lucas, upon the arrival of the Spanish, was visited by Gonzalo Fernández de Oviedo in the year 1529. According to his account, its aboriginal inhabitants called it 'Chara' but the Spanish baptized it with the name 'Sant Lúcar,' a name that would eventually derive into the current 'San Lucas.' According to the historical research work carried out by Antal B. Bálint (La Isla de San Lucas, 2nd edition, Biblioteca de la Colonia Agrícola, 1965), the aborigines of Chara spoke Nahuatl, although there was evidence that before them the island was populated by the Caribs. 'The island of Chara is the one the Christians call Sant Lúcar... In these islands there are pearls; and I saw the islands of Chara and Chira and Pocosi; and I took them from some offerings the Indians brought us to eat... in these islands of Chara and Pocosi they do not have canoes, but rafts of four or five or six logs tied at the ends and in the middle with other thinner poles crossed...The island of Chara, which others call San Lúcar, is located at nine degrees and thirty-eight minutes, which is two-thirds of a degree minus two minutes.' (Costa Rica vista por Fernández de Oviedo, Ministry of Culture, Youth and Sports, Imprenta Nacional, San José, Costa Rica, 1978, pp. 20-27). - Island for Commerce. Law No. 37 of August 3, 1847, granted San Lucas the commerce franchise. - Creation of the prison. During the 19th century, the island was used as a site for political exile or to serve quarantine for crew members of foreign ships. In 1873, Tomás Guardia ordered it to 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 Comarca of Puntarenas. Law No. 89 of March 20, 1925, authorized the issuance of forty thousand colones for the reconstruction of the buildings of the San Lucas penitentiary with the necessary works for electric lighting and water supply, as well as ten thousand colones for the necessary studies for selecting 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 electric power services on the Island. (Colección de Leyes y Decretos, semester 1, volume 1, p. 512). Thus, the island functioned 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 of thousands of inmates and the violations of their human rights were captured by the world-famous work 'La Isla de los Hombres Solos,' by José León Sánchez, the best-known novel by a Costa Rican author on the planet. - Agricultural Colony stage. On December 10, 1961, the prison system underwent a profound change, with the island becoming the so-called 'Colonia Agrícola Penal de San Lucas.' Although since 1948 very important changes had occurred in its regime, such as the prohibition of physical mistreatment and the closure of the old punishment dungeons, it was finally this Agricultural Colony that marked a profound change, led in the Superior Council of Social Defense by Joaquín Vargas Gené, Manuel Guerra, and Héctor Beeche Luján.It fell to Lic. Rigoberto Urbina Pinto, in his capacity as General Director of Social Defense, to launch the project. - The Hacienda. The island was transformed in a large part of its territory into what they called 'The Hacienda' (La Hacienda), whose main activity consisted of raising Brahman cattle and pigs, poultry, and the production of banana (guineo), corn, tomato, and other vegetables. During that time, there was no forest at all, and the persons deprived of liberty produced agricultural goods on most of its extension. The aforementioned writer Antal B. Bálint developed his work while he was one of the persons deprived of liberty on the island itself: 'In the rainy season there is such an abundance of pasture that the cattle cannot use it all, and so many inmates are occupied in the 'chapia.' In the summer, when there are several months of drought, fodder is scarce and it is necessary to resort to prepared foods.The pig farm is installed near El Coco beach, it has excellent breeders and good facilities. The Hacienda has several banana (guineos) plantations to feed the pigs, apart from that they receive leftovers from the different kitchens of the Colony and the usable by-products of the Hacienda for them.' 'At El Coco beach there is another mixed poultry farm with geese, ducks, turkeys, chickens, and various ornamental birds. The birds are nourished with concentrated feed. There are also several horses used for riding. As for agriculture, the terrain is stony and clayey, the topography broken, the aridity of the climate, and the lack of water for irrigation do not allow for much to be done. In the winter, a not very abundant crop of corn, tomatoes, and other vegetables can be produced.' (Op. cit., pages 14 and 15). During those years, there were also workshops on the island for manufacturing brooms by the inmates.Various furniture was also produced; 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 penitentiary model. The building that housed the library was the most modern and beautiful construction in the Colony. It was an idea of Joaquín Vargas Gené and was founded with the collaboration of José León Sánchez. It had thousands of books, most donated by diverse institutions. It was during that time that the Chapel was built, in which various religious activities were held, during its beginnings under the sponsorship of the Franciscan Sisters of Saint Clare College. - Transfer to the Municipality of Puntarenas. In 1974, Law 5469 provided that once the closure of the penal center occurred, the Island became the property of the Municipality of Puntarenas, with the purpose of developing a tourism project there, taking advantage of the natural and scenic richness of the island. 'Article 1.- The ownership of Isla de San Lucas, located in the Gulf of Nicoya, is transferred to the Municipality of Puntarenas.' 'Article 2.- The Municipality must use the Island as a tourism center, for which it is authorized to contract the necessary infrastructure works.' 'Sole Transitory Provision.- The transfer referred to in Article 1 shall be effected at the moment the current Penitentiary located on Isla de San Lucas is moved to another site, for which a period of two years is granted to the Executive Branch to find a new location for said Penitentiary, in accordance with the laws in force.' - Decree of Incorporation into the Historical-Architectural Heritage of Costa Rica of the property called Isla San Lucas, Ministry of Culture.By means of Executive Decree 24520-C of August 25, 1995, the buildings that made up the former penitentiary located on Isla San Lucas were declared of historical-architectural interest. The architectural part and graffiti of the old Penitentiary are considered extremely important, as they evidence the history of how the State controlled and repressed those deprived of liberty. Some of the outstanding architectural elements of the prison deserving the status of historical heritage according to the decree are: The dock. Essential for the access of people and the provisioning of the site. Concrete structure in contact with seawater. The stone causeway. A connecting and conducting element of the main flow of the complex. The chapel. The quintessential architectural and symbolic element. The Command Post. This is the penitentiary administration building, composed of two floors. The access dungeons.The cell blocks (pabellones). High historical and cultural value. The Medical Dispensary. Site for the health care of persons deprived of liberty and officials of the penal center. Sick people from neighboring islands were also attended. Las Jachas neighborhood. Symbol of the diversity of strata and ways of life on the Island. The houses of the 'Las Jachas' neighborhood are considered structures of cultural value, representative of a way of life present in the history of the Island, which must be rescued. Other structures. The Island has two houses, various ruins, stone corrals, internal roads, among others that formed part of La Hacienda de San Lucas during the time of the Penal Agricultural Colony. - Decree creating the Wildlife Refuge. On February 12, 2001, the Decree for the Creation of the Isla San Lucas Wildlife Refuge, Decree Number 29277, was issued. In its Whereas Clauses (Considerandos), said decree recognized the importance of 'the cultural features' of Isla San Lucas (whereas 2) as well as the importance of research, recreation, environmental education, scenic beauty' through the 'use of renewable natural resources, rationally exploited' (whereas 5).Regarding its administration, Article 4 of said decree states: Article 4.—The Administration of the protected areas hereby declared shall be the responsibility of the Ministry of Environment and Energy and the institutions established by the normative framework in force…'. This wording allows us to affirm that even with the creation of the Wildlife Refuge, there was awareness of the need to recognize the role of other institutions, such as the Municipality of Puntarenas (as the registered owner of the island and entrusted by law to ensure the tourism component together with the ICT) and the Ministry of Culture (as the competent entity for the care and restoration of the immense historical heritage contained on the island). - Decree expanding the Refuge, declaring the Sustainable Tourism Development of the Island of national interest, and creating the multi-institutional board of directors.By means of Decree Number 34282, published on August 8, 2008, the boundaries of the island were expanded, including the islets near the island and the marine portion between said islets and San Lucas. Additionally, by means of this normative set, the sustainable tourism development of San Lucas was declared of national interest and high priority: 'Article 2.- The sustainable tourism development of the island is declared of national interest and high priority under the terms of this decree, as well as the conservation and restoration of the buildings of the former penitentiary on Isla San Lucas. The branches of Public Administration and the Private Sector, within the respective legal framework, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the Island.' Likewise, a Permanent multi-institutional Commission was entrusted with the administration of the Wildlife Refuge: 'Article 3.- A Permanent Commission is created, composed of the Ministers responsible for Culture, Youth and Sports, Tourism, and Environment and Energy, or their representatives, and by the Mayor of Puntarenas or his representative, charged with ensuring the rational management of the 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 Costa Rican Tourism Board (ICT) was entrusted with the preparation of a Master Plan for Sustainable Tourism Development, with 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, the ICT shall prepare a Master Plan for Sustainable Tourism Development, which shall include an analysis of the environmental impact (análisis del impacto ambiental) and the technical norms 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 is necessary to point out that, despite the filing of two unconstitutionality actions against the cited articles 2, 3, and 5, as well as against numeral 4 of that decree, this Constitutional Chamber considered them in accordance with the Law of the Constitution and maintained their validity, as we shall see in the next section. - Resolutions of the Constitutional Chamber (Sala IV) on unconstitutionality actions against Decree Number 34282 of 2008.It is of core importance to transcribe several of the texts that make up ruling number 13099-2010 of this Chamber, to better understand how this Constitutional Court addressed the existence of a conflict of institutional competences linked to public rights and powers contained in our Political Constitution. In this way, the enormous importance of Law 9282 for promoting the harmony of such constitutional rights and the complex interplay of the competences of the Ministry of the Environment, the Ministry of Culture, the Costa Rican Tourism Board, and the Municipality of Puntarenas, with respect to Isla San Lucas, will be much better understood. Regarding the conflict of competences, the Chamber posed the problem and then held that the preservation of the environment, the protection of historical heritage, and the role of the municipal body are reconcilable, and both declarations have identical value before our Constitution: 'In the action before us, Law 5469 of April 25, 1974, which is the Law for the Transfer of Isla San Lucas to the Municipality of Puntarenas, is in apparent dispute with Law No. 7554 of November 13, 1995, which is the Organic Law of the Environment, and, finally, Law No. 7555 of October 4, 1995, which is the Law of Historical-Architectural Heritage of Costa Rica.The substantive issue of this unconstitutionality claim lies in determining which legislative provisions predominate or if they complement each other in the case of Isla San Lucas, all of which obliges us, for a better weighing, to re-examine the approach made in the claim analyzed by the Chamber in its ruling No. 2004-08928.' (…) 'But in addition to what was previously resolved regarding the violation of the principle of normative hierarchy and the affectation of municipal autonomy alleged by the Municipality of Puntarenas, Executive Decree No. 30714-C (prior to the transcribed ruling) is decisive for the discussion of this unconstitutionality action, the consideration of which was not brought forward nor was it assessed at that time by the Chamber, inasmuch as the property called Isla San Lucas, of the province of Puntarenas, is declared and incorporated into the Historical-Architectural Heritage of Costa Rica, carried out mainly under the protection of Law 7555, on the Historical-Architectural Heritage of Costa Rica, an administrative act equally valid as the one declaring the Protected Wild Area by the Ministry of Environment and Energy, and they coexist, each one in its own sphere of competence.' Regarding the constitutional value of historical-cultural heritage and its economic importance, this Chamber pronounced as follows: 'It is for this reason that the concept of historical-architectural heritage has evolved, and with it the criteria for its protection, so that it is no longer justified on a 'romantic' ideal, but as a condition of the peoples' identity, as an integral part of their history and culture, attending to reasons of social-economic and urban-environmental or urban-ecological development, and which has a more human foundation.It is thus that protection by the States becomes necessary, allowing for effective and efficient action, based on a coherent scientific construction with reality, both in the sphere of territorial and architectural theories, as in the legal one, as it interacts with other disciplines and knowledge, such as History, Anthropology, Architecture, and Restoration Theory, and Law, among others; and that takes into consideration the country's own circumstances, such as the degree of underdevelopment and economic dependency. It is thus that the protection of this heritage must be actively integrated into the social and economic resources of the country, so that it does not constitute a burden for the State, nor for the population (owners, possessors, or holders of any real right over the assets incorporated into this special regime of tutelage), in such a way that it is configured as another resource that generates social well-being.XVII.- The protection of cultural heritage is framed within Urban Planning Law, which lately has come to be understood within the broader framework of Environmental Law, which finds its legal-constitutional support in articles 50 and 89 of the Political Constitution, inasmuch as they textually provide: 'The State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth. Every person has the right to a healthy and ecologically balanced environment. Therefore, they are legitimized to denounce acts that infringe upon that right and to claim reparation for the damage caused. The State shall guarantee, defend, and preserve that right. The law shall determine the corresponding responsibilities and sanctions' (article 50); and 'Among the cultural aims of the Republic are: to protect natural beauties, to conserve and develop the historical and artistic heritage of the Nation, and to support private initiative for scientific and artistic progress' (article 89).This last norm provides guidelines for public authorities to promote the protection of the environment, understood in an integral manner, that is, not understood in its traditional sense that has been limited to the scope of natural resources, which is commonly known as 'the green,' inasmuch as it has been understood to include natural resources (forests, water, air, minerals, flora and fauna, etc.), but also in relation to the environment in which one lives, which includes not only the scenic beauties of nature, such as the landscape, but also everything related to cities and urban and rural conglomerates, that is, the concept of the urban.' Regarding the Convention Concerning the Protection of the World Cultural and Natural Heritage, approved by Costa Rica through Law 5980, the Chamber held: 'For this Chamber, the obligation established in Article 4 of the Convention is not exhausted with the formal declaration of sites under a determined legal regime (national or international), but rather implies an assertive and progressive function of the State, without prejudice to eventually obtaining the financial, artistic, scientific, and technical benefits through the mechanisms provided for in the Convention; therefore, the putting into operation of cultural assets is possible through their rehabilitation, that is, their enhancement as a source of financial resources. 'As can be seen, the legal coverage of international instruments is the same for natural and cultural heritage, consequently, anything that falls outside these standards shall be illegitimate, which includes neglect that aggravates the conditions of cultural assets.In accordance with the foregoing, it falls to the Chamber to analyze if it is also a legitimate aim of the States to promote development through policies that allow the exploitation of archaeological sites, natural, cultural, or mixed heritage, in such a way that they are enhanced, according to what is intended with Executive Decree 34282-TUR-MINAET-C.' 'Thus, the crux of the discussion in this action should not be rooted solely in the issue of conserving the natural heritage on Isla San Lucas (understood as ecological and environmental aspects only). The Chamber has verified that the passage of decades has allowed the regeneration of the secondary forest, so that in this aspect, the declaration as a Protected Wild Area obtained the protection from the Ministry of Environment, Energy, and Telecommunications necessary for the recovery of spaces that were formerly used for cattle raising, for example.But the palpable lack of maintenance of the historical center, its progressive deterioration, and the threat to the historical and cultural assets existing on Isla San Lucas must not be taken lightly. With the Executive Branch's intention to develop ecotourism in the region, as a measure to provide protection to cultural heritage, a new field of discussion opens up that would consequently allow the reaffirmation of concepts and assets that are equally protected internationally and that are incorporated into the obligation contained in Article 89 of the Political Constitution, by indicating among the cultural aims, the protection of natural beauties, conservation and development of the historical and artistic heritage of the Nation.' Regarding the role of sustainable tourism and its importance within the Law of the Constitution, the cited ruling of the Chamber pointed out: 'Among the constitutional aims of the State is that of developing policies that reduce social and economic gaps, adjusted, of course, to the environments, be they natural, rural, or mixed, all of which arises from what is mandated by Article 50 of the Constitution.Having access to development, in terms of job opportunities, or quality of life, and therefore, economic progress, is part of the recognition and advancement of human rights, hence rural development through tourism must not mean for individuals that they must abandon their customs and traditional ways of life to migrate to the cities, but rather an adjustment of them with the current needs and advances. In this sense, in the Chamber's opinion, the true challenge for the human being is that progress and—why not—happiness (material and spiritual) be generated without threatening the available resources in the environment; the contrary would simply translate into social inequalities that prevent advancing towards a new stage of human development.' Regarding the role and constitutional duty of the legislator to stimulate rural development based on tourism combining natural heritage and cultural heritage, this Court held: 'Now then, rural development, based on tourism, must be founded on other particular axes: one of them is what the doctrine points to as the conservation of the values inherent to rural spaces.This principle lies in the fact that rural spaces demand to be conserved sustainably. In this sense, the forest, the sea, the mountain, the volcanoes, the mangroves, wetlands, etc., provide different types of development scenarios according to whatever interests may exist. In itself, each one constitutes a value of scenic appreciation subject to constitutional protection. But the work of targeting and stimulating this type of rural development policies are matters that correspond to the Legislator and the Executive Branch in their constitutional functions. This Chamber must highlight that the conservation of the particular characteristics of rural environments or of the natural or scenic environment is a value contained in Article 89 of the Constitution that requires protection and must be directed at protecting the environment that enhances its value, not only as a rural space, but also as a tourist destination so that the positive effects are felt in the neighboring communities.' Regarding the constitutional principles of Unity and Coordination, related to the existence of the multi-institutional body charged in the decree with administering the Wildlife Refuge, the Chamber forcefully expressed: 'The State is a unity of competences, which must be subdivided by degrees of specialization to achieve its tasks and aims indicated in the legal system.If the public organs and entities must fulfill constitutional aims (articles 50 and 89) based on the degree of specialization of functions, their coordination must be a priority aspect for the solution of the problems that arise in the exercise of their respective competences, the Ministry of Environment, Energy, and Telecommunications insofar as it governs the natural heritage, the Ministry of Youth, Culture, and Sports in relation to the conservation policies of the historical-patrimonial heritage, the Costa Rican Tourism Board in the habilitation and conservation of historical sites and natural beauty for tourism, and the Municipality of Puntarenas in ensuring the local interests of its community. The Law that created the Ministry of Culture, Youth and Sports, No. 4788, and the Law of Historical-Architectural Heritage of Costa Rica, No. 7555, indicate the specific scope of competence of the Ministry as the governing body in the matter.'

All of the aforementioned historical, cultural, administrative, regulatory, and jurisprudential elements and events form the basis of Law 9282 for the Creation of the Isla San Lucas National Park. They are mentioned by the legislators in the Statement of Motives for the bill that later became Law 9282, as well as in the discussions recorded during its processing in committee and the legislative plenary. The claimants' assertion that the law is unmotivated, untimely, or arbitrary is not true. On the contrary, it is the most integrative regulatory effort undertaken by the State to harmonize the powers of public entities with responsibilities over 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 heritage riches contained on the island. We will now analyze the arguments raised by the claimants. 2- Regarding the alleged reduction of the Protected Wilderness Area (Área Silvestre Protegida) claimed by the claimants The Law for the Creation of the Isla San Lucas National Park does not repeal the status of the territories covered by the Refuge; it only changes the status of the majority of the refuge, converting it into a national park.

The rest of the area belonging to that refuge remains protected as such. From a simple review of Law 9282, we can see that there is no rule whatsoever that repeals the refuge. There is a change of status in favor of the entire terrestrial portion of the island as well as the immediate aquatic surroundings (up to three meters). Those are the areas that make up the National Park. But the areas not covered by Law 9282 (consisting of some islets located at a distance from the island and a marine portion) did not lose their protection, as could not happen by indirect and not express effect of the law. The map prepared by the Topographic and Territory Observation Department of the National Geographic Institute (IGN) from the year 2021 and provided to this judicial file by the Presidency of the Legislative Assembly, is broadly enlightening to elucidate this point. For the purposes of this municipal report, I likewise request that it be admitted as evidence.

In it, the image of the current National Park is contrasted with that of the Wildlife Refuge (Refugio de Vida Silvestre), making it clear that the lack of protection alleged by the claimants over some areas never occurred. On the contrary, the majority of the refuge became a National Park. The rest continues as such. Below I provide the referenced image of the map prepared by the IGN for this purpose. 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 NATIONAL GEOGRAPHIC INSTITUTE TOPOGRAPHIC AND TERRITORY OBSERVATION DEPARTMENT YEAR: ISLA SAN LUCAS NATIONAL PARK R I O S A N J UA N INTERESTED PARTY: SYMBOLOGY Limit of the National Refuge, Decree 34282 San Lucas National Park Island, Law 9892 Marine Area (sic) San Lucas National Park, Law 9892 3- Regarding the alleged change in management category and inclusion of a tourist zone without studies The areas for tourist visitation in ALL national parks have a different use and management than spaces covered by forest cover (cobertura boscosa).

These visitation areas in Costa Rica represent less than 4% of the total extension of all national parks and other protected wilderness areas. These visitation areas in each case were determined by management plans carried out by SINAC, in many cases based on historical realities, as in the specific case of Isla San Lucas, given the existence of prison facilities and other old buildings that are obviously not creations of nature. The so-called tourist zone indicated by Law 9282 is exactly the SAME tourist visitation zone that has existed for almost 50 years, and is the same one established by the Island's Management Plan prepared by SINAC in its most recent version from the year 2020, a zone it designates as the High Intervention Zone (Zona de Alta Intervención, ZAI) and Medium Intervention Zone (Zona de Mediana Intervención, ZMI), as well as being coincident with the Sustainable Development Plan for Isla San Lucas issued by the Costa Rican Tourism Institute.

This tourist visitation area or zone is composed of the lands visitable over decades, devoid of forest, where the historical buildings of the former penal colony are located (the common cells, the dungeons, the administrative building, the church, the medical dispensary, the prisons kitchens and laundry, the commissary, the areas that occupied the houses of the administrative officials and prisoners of good conduct, the corral and other facilities of La Hacienda, and the library, the pier, the surveillance and prisoner reception towers, the park ranger houses (old and current), the water wells of the old penal colony, the boat landing areas in the bay, as well as the trails and paths made over more than 150 years by officials of the old penal colony, municipal officials later, and SINAC officials more recently (depending on who held the day-to-day administration of the island) as well as the public beach area immediately adjacent to the ordinary high tide line.

There is no novelty whatsoever in this area nor any room for inventing novelties. The claimants attempt to mislead those who do not know the island well or have never visited it. These spaces are the same ones that have been occupied by human beings since at least the 19th century and have been used for various social and economic activities. There is no alteration of the material conditions of the forest zones (which are excluded from the tourist visitation zone). This has been scientifically addressed by various entities, particularly the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, SINAC), a body of MINAE that prepared the Management Plan for Isla San Lucas. I repeat that its current version dates from the year 2020. This SINAC Management Plan designates the High Intervention Zone (ZAI) and the Medium Intervention Zone (ZMI) as the Visitation area of what was until then the Wildlife Refuge.

This same area is fundamentally what Law 9282 designated as the Tourist Zone. Below we will transcribe the description made by the aforementioned SINAC Management Plan: “4.7.4 High Intervention Zone (ZAI) The sectors of the ASP defined with this category would have a much higher level of intervention and use than in other zones. The objective or desired condition will always be to remain within an environmental state in accordance with the management category established for the RNVSISL, but allowing more opportunity for the development of practices and activities typical of high intervention. As in the other zones, the conservation and development objectives are aimed at having spaces where a permanent and more intensive sustainable tourist activity can be maintained, more open productive activities or resource utilization, while still having strict controls and standards. Intervention for administrative and special use has greater possibilities for development as long as it is duly planned and controlled (SINAC, 2016).

This zone comprises part of the marine area of San Lucas Bay; the Infrastructure of the old Presidio; Playa Cocos and Playa Tumbabotes; the Trail to Playa Cocos, the Trail to Playa Tumbabotes, the Trail to the Corral de Piedra, the Trail to the 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, the El Trogón Trail; as well as the two sites for Prevention, Protection, and Control infrastructure to be located in Tumbabote and Hacienda vieja. Also the sites of the Teca plot and the new Park Ranger house.” In the case of the Medium Intervention Zone, the Management Plan on page 50 describes it as follows: “4.7.3 Medium Intervention Zone (ZMI) The space or sites defined for this category will have a possibility of interventions of medium intensity, frequency, and impact in the practices and activities that can be developed.

The objectives are aimed at having spaces where resources can be used and the impact on them can be controlled, although with reasonable limits established by legislation. Water resources, ecosystems, habitats, biodiversity, and cultural resources are maintained in an acceptable state of health. The ZMI comprises the Trail to Playa Cirial, the Trail to Punta Cañón; Punta Cañón; Playa El Inglés, Playa El Limón, Playa Hacienda vieja, and Playa Cirial.” Immediately after, the SINAC Management Plan specifies as one of the activities to be developed in the Medium Intervention Zone the following: “Visits for organized groups of people are permitted, for tourist, educational, recreational, and scientific purposes.” As can be appreciated, this geographical description of the ZAI and the ZMI coincides with that of Law 9282 in its Article 6, which states: “ARTICLE 6- Tourist Zone. The areas corresponding to the buildings of the former San Lucas presidio, including the pier, as well as the marine and terrestrial access zone to the island, the plots, the trails, and the beach areas indicated, shall be subject to the status of Tourist Zone.

Such areas are specified in the following coordinates: a) Area designated Historical Zone: site where the buildings of the former San Lucas presidio are located, (…) b) Playa El Coco recreation area (…) c) Sector designated Trails Area (…) d) Area designated Water Sector (…).” Tourist use is equally permitted throughout the entire extent of the High Intervention Zone (ZAI) according to the referenced Management Plan from the year 2020 issued by SINAC, but also the construction of infrastructure necessary for visitor services. “In this management zone, the following is permitted: - Recreational and tourist activities: guided walks on authorized trails for observing flora, fauna, and historical resources; non-commercial photography and video. - The construction of infrastructure for visitor services (for example, visitor centers, restroom facilities, trails, scenic overlooks, platforms, cafeteria, craft shops). - The construction of infrastructure for the administration of the Refuge. - Authorized scientific research and monitoring according to binding regulations. - The management of species of flora and fauna with biological restoration objectives is permitted, based on scientific knowledge for fulfilling the conservation objectives of the ASP, previously authorized by SINAC. - The installation of equipment and constructions of scientific interest or for the management of the Refuge is permitted, previously authorized by SINAC. - Filming and photography for scientific and dissemination purposes of the attributes and values of the ASP is permitted. - In this zone, the installation and operation of non-essential services approved based on current regulations is also permitted.” (Page 52, Isla San Lucas Management Plan, year 2020, SINAC).

As can be appreciated, the description of the areas included as High Intervention in the Management Plan, and therefore suitable for tourist activities and the construction of facilities for visitor services such as “visitor centers, restroom facilities, trails, scenic overlooks, platforms, cafeteria, craft shops,” among others, as well as “the installation and operation of non-essential services,” as described by said Plan, are the same territories described in Law 9282. There was no arbitrariness on the part of the legislators in creating Law 9282 when establishing the area in which tourist activities may eventually be authorized (all according to its Master Plan and the technical criteria of SINAC and the Historical Heritage Center). It is precisely essential to remember that according to Article 7 of this Law 9282, all activities that may be carried out in said tourist zone shall be determined by a Master Plan, which subjects them to scientific criteria: “ARTICLE 7-Scope and restrictions.

The Isla San Lucas National Park shall be governed by a master plan prepared based on technical criteria. (…)” As a corollary to the above, the last paragraph of Article 9 of said Law 9282 reinforces the technical-scientific nature in the administration of this zone and its subjection to the same regarding the protection of natural and cultural heritage, obligatory for the Board of Directors in relation to each and every one of its powers: “Article 9-. Tasks and powers. The Board of Directors of the Isla San Lucas National Park shall have the following attributions: (…) In matters of conservation and preservation of historical-architectural heritage, the criterion of the Cultural Heritage Research and Conservation Center of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island's biodiversity, the technical criterion of the National System of Conservation Areas (Sinac) shall prevail.

Upon request of the Board of Directors, said entities shall provide their criteria as expeditiously as possible.” The claimants are surprised that the beach area of the sector known as Playa El Coco is considered part of the recreational areas. Their surprise is astonishing when they well know that during the time it had refuge status, it was equally used by visitors. The country's beaches are and have historically been areas of public access and recreation for Costa Ricans, including the beaches of national parks, such as the specific case of the internationally famous Playa Espadilla in Manuel Antonio National Park or the entirety of the extent of Gandoca Manzanillo National Park in the province of Limón. All those beaches, although located within a national park, are sites visited by national and foreign tourists since time immemorial, a case identical to Playa El Coco, which has been subject to visitation since the time of the aforementioned “Agricultural Penal Colony” in San Lucas, through the years of municipal administration, and during the entire era of the Wildlife Refuge.

In this sense, the Law for the Creation of the National Park does not generate any novelty with respect to that sector of the island, but rather reaffirms the historical use promoted by the State, including the National System of Conservation Areas and its Management Plan for that island. To assert that this beach area was included in the visitation zone indicated by Law 9282 in a surprising, abusive, or capricious manner is simply a reckless statement that ignores the use that has been given to that beach for over a century, but which also reflects the claimants' historical and legal ignorance of the way in which the normative evolution of the island has been nourished. 4- Regarding the alleged commercial purposes “disguised as sustainable purposes” in the “fragmentation” of the ASP The claimants attempt to shock with the term “commercial” that the law assigns to part of the activities that could be permitted by the administrative board (which is also subject to technical-environmental criteria).

The claimants ignore the fact that commercial activities already exist in National Parks, such as the sale of food and beverages (for example, the case of Poás Volcano National Park with its spacious cafeteria, pastry area, clothing store, plush toys, books, purses, and other articles alluding to the volcano, or the Los Arrayanes cafeteria and souvenirs located within Irazú Volcano National Park), or the sale of tourist items (as in Rincón de la Vieja National Park or Manuel Antonio National Park), or the commercial lodging service at the Base Crestones Lodge in Chirripó National Park, a large site built of concrete and wood with rooms capable of lodging 4 tourists each, a lodge that has showers, restroom facilities, and therefore all the respective drinking water and wastewater installations. A set of associations from that region gathered in the Community Rural Consortium offers in that Chirripó National Park a diversity of commercial services such as “meal services, store, equipment rental, lodging, and luggage transfer within Chirripó National Park,” as they themselves indicate on their website.

Visit: https://www.chirripo.org/ SINAC itself also promotes this on its official website: “With your visit you will not only delight your senses, but will also contribute to the development and well-being of neighboring communities, by acquiring associated services, such as luggage transport, lodging, food, and the sale of souvenirs.” Visit: https://www.sinac.go.cr/ES/ac/aclap/pnch/Paginas/default.aspx The cited “associated services” are clearly commercial services provided in exchange for monetary consideration. Are the claimants concerned that commercial internal transport activities could occur in a national park after this activity has been permitted and promoted by the State for decades as the sole means of access and movement in Tortuguero National Park, through whose protected waters more than two hundred thousand tourists per year peacefully travel (SINAC data from the year 2022) on commercial boats?

Not to mention the commercial service of thousands of tourist guides who operate daily within our national parks and charge for that service. The Isla San Lucas National Park has no reason to be devoid of commercial services as fundamental as a soda or cafeteria, souvenir shop, or even transport via electric wheelchairs so that persons with disabilities can tour the facilities of the former penitentiary, or the rental of docking services at a pier designed to serve visitors, just to cite some of the commercial services that could be provided in the future without any impact on the environment and that are currently provided in other national parks. Even if the claimants do not understand it this way, all of these are commercial services. No one is going to provide them for free, not even the State through MINAE does so in the other national parks. I repeat, they are commercial services even though they are often euphemistically called “non-essential” services to disguise their purely commercial nature and differentiate them from the isolated service of mere environmental protection that denies the immense relevance that visitation to our national parks has as the main economic support for their existence.

All these services are commercial since they are provided in exchange for payment received by private legal persons, regardless of whether they are associations or other social organizations, or small entrepreneurs from the surrounding communities of the mentioned national parks. The claimants use alarmist language to mislead the judges, to insinuate that the commercial activities to be developed in San Lucas could be others of a sinister character, with some negative consequence for the environment, and not those previously indicated. That insinuation is deceptive and lacking real support, typical of an imagination dedicated to generating unfounded fears in this case. They ignore the provisions of Article 9 of Law 9282 that regulates the powers of the San Lucas Board of Directors, when the rule clearly establishes as one of the powers of that board: “f) Grant approval for authorizations, use permits, and concessions to carry out works and services provided in the Tourist Zone.” To then state in the following paragraph of the same article: “In matters of conservation and preservation of historical-architectural heritage, the criterion of the Cultural Heritage Research and Conservation Center of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island's biodiversity, the technical criterion of the National System of Conservation Areas (Sinac) shall prevail.” This provision contained in the SAME article that contains the powers of the Board of Directors of the San Lucas National Park is not vain or gratuitous.

It is a clear legal determination that establishes the limits and content of the provisions that this board can make, whose powers are not completely unrestricted, but are subject to the scientific or technical-environmental criterion of SINAC. No type of commercial, artistic, sports, or transport permit or authorization could be granted against the technical or scientific-environmental criterion, precisely because Law 9282 establishes this. 5- Regarding the Board of Directors that administers the Park since the year 2020 The claimants seek for the Constitutional Chamber to annul the legal provisions according to which an administrative board belonging to MINAE, in its capacity as a deconcentrated body, and composed of representatives of the highest level of MINAE, the Ministry of Culture, the Costa Rican Tourism Institute, the Puntarenas Chamber of Tourism, and this Municipality of Puntarenas, be excluded from such administration, so that SINAC is exclusively the body that administers said island.

Such a claim violates the constitutional principle of Free Configuration and attempts to give constitutional rank to norms of legal rank. The Municipality of Puntarenas, in accordance with Law 5469, is the registered owner of that island and has obligations derived from that condition. When the terrestrial portion of the island was already a Wildlife Refuge and some public officials considered that all power regarding the island was exclusively SINAC's, this Constitutional Chamber determined that MINAE, the Ministry of Culture, and the Municipality of Puntarenas are all responsible for the maintenance, conservation, and proper use of the Historical and Cultural Heritage of said Refuge and its natural beauties. This is how it was expressed in the ruling of fourteen hundred thirty-seven hours on March twenty-third, two thousand eleven: “III.- From the relation of proven facts in this judgment, the Chamber considers that the omission of the respondent authorities to take the necessary measures and execute the pertinent actions to restore, preserve, and maintain in good condition the buildings of Isla San Lucas is illegitimate and violates the rights protected in Articles 50 and 89 of the Political Constitution, for which reason it is proper to declare the appeal granted in all its extremes, against all the sued authorities.

Indeed, regardless of the discussion relating to the administration of the goods of Isla San Lucas, on which on this occasion the Constitutional Court omits any pronouncement (as it is an extreme that completely exceeds the summary nature of this amparo process), it is clearly evident the obligation of all the respondent authorities (including of course the Municipality of the Canton of Puntarenas) to protect the natural beauties, conserve and develop the historical and artistic heritage of the Nation, in strict compliance with the right protected in Article 89 of the Political Constitution. IV.- In the present case, however, it is evident that the deterioration of the facilities of Isla San Lucas responds, solely and exclusively, to the omission that has been demonstrated in this amparo process with respect to all the respondent authorities, which must coordinate their future actions to preserve the resources and historical heritage of that site.

It is clear that the contested situation is illegitimate and injures the Right of the Constitution, for which reason it is proper to declare the amparo granted, not without first warning the respondents, with support in the provisions of Article 50 of the Law of Constitutional Jurisdiction, not to incur in the future in the acts or omissions that gave merit to the acceptance of the appeal.” Even more decisive was Judgment number 13099-2010 of this Constitutional Chamber when resolving the action brought against Executive Decree 34282 TUR-MINAE-C, in which the exact same discussion that the current claimants who have challenged Law 9282 have brought again was addressed. Regarding the participation of various entities in the administration of a Protected Wilderness Area, this Chamber said: “Therefore, no incompatibilities are demonstrated between environmental protection and the conservation of cultural goods made available to humanity, with a project that must be developed integrally with the environment, which must be inclusive of all its components, not exclusive.

It is worth recalling from the coadjuvancy brief of the Executive President of the Costa Rican Tourism Institute, where he precisely places among the purposes ‘the enhancement’ as a necessary aspect of access to human manifestations on the Island. Thus, even though with the powers of the Organic Law of the Environment it is authorized to establish management categories regulated as Protected Wilderness Areas by Executive Decree, another of the same nature has operated with the heritage declaration contemplated in the Historical-Architectural Heritage Law of Costa Rica, through the respective declarations by Executive Decree. The convergence of the Municipality of Puntarenas is manifested when within the scope of application of Law No. 5469, which materializes the transfer of Isla San Lucas to the Municipality of Puntarenas, dating from 1974, it is ratified in the Law on the Maritime Terrestrial Zone, Law No. 6043 of March 2, 1977.

Precisely, Article 78 of this Law establishes: ‘The island of San Lucas shall conserve its current legal situation under the administration of the Municipality of Puntarenas.’ And numeral 82 of that same normative text establishes: ‘This law is of public order, repeals ... as well as all others that oppose it except Law No. 4071 of January 22, 1968 and its reforms and Law No. 5469 of April 25, 1974. ...’ Furthermore, it is legislation in force not reformed or expressly repealed by subsequent legislation, so its validity is maintained as long as it does not infringe upon environmental and historical-architectural heritage principles, and must not contravene the policies of the governing bodies, a situation that must be elucidated by all the organs and entities involved.” 6- Regarding concessions and the authorization to build piers and docks in national parks To begin our argument against what the claimants state in this section, I wish to express that just in the year 2020, the new Cuatro Esquinas Operational Center debuted within Tortuguero National Park.

With an investment exceeding ₡1.110 billion, the infrastructure has a total area of 1,800 square meters, includes lodgings for staff and volunteers working in the national park, as well as a multi-purpose hall, storage warehouses, and a boat pier. All of the above built by SINAC for the use of its officials with public funds from the tickets tourists pay to enter that national park. (See the August 26, 2020 edition of the newspaper La República, report titled “Minae and Sinac deliver new operational center of Tortuguero National Park”). This simple example from our reality is quite enlightening regarding the conceptual and legal error of the claimants. The claimants return to their strategy of imaginatively magnifying the possibilities that Law 9892 grants to the public administration that currently manages that park. When Article 7 of the law indicates the possibility of having facilities on the island “distinct from the park service,” it is precisely so that there can be a pier that responds worthily to the needs of tourism, making it sustainable from a human and economic perspective.

To aspire to have a first-class dock, capable of attending to people with some disability or elderly visitors, the Isla San Lucas National Park cannot resign itself to receiving them at a pier designed to attend to the park rangers of the service of these wilderness areas. To attend to visitors sustainably, it is necessary to foresee the possibility of having a pier designed for tourism, which is absolutely in accordance with reality. Today, the only pier on Isla San Lucas is the historical pier, over one hundred years old, with serious structural deficiencies and which represents a danger to visitors, who are the immense majority of those who visit the island, and not the few park rangers who inhabit it. This article is aimed at having in the future facilities conceived and designed for the safety and comfort of the visitors who will access that small visitable portion of the island (5%), and that is the correct interpretation of the norm that the claimants question.

There is absolutely no abuse of legislative discretion, but rather a provision consistent with reality, with the needs of the human beings who visit the park, and with the Political Constitution in its Articles 50 and 89 and the principles of Free Configuration, Unity, and Coordination. Making tourists rely solely on facilities that may and can be built only for the park service function is an absurdity and a disdain for the intrinsically sustainable tourism nature that national parks have had since their conception. The way in which the State may manage to build the facilities (whether by building them directly or by granting a concession for a landing dock, for example) does not generate any constitutional injury, as long as it is carried out within the framework of sustainability and the protection of natural and historical-heritage resources. Origin of national parks linked to tourism.

Law 1917 of July 30, 1955, which created the Costa Rican Institute of Tourism, declares as national parks the area of two kilometers around the craters of the country's volcanoes, and it also establishes, through this Law, the Turrialba and Irazú volcanoes as national parks. Article 6.- The custody and conservation of the zones comprised within a radius of two kilometers around all the craters of the country's volcanoes is entrusted absolutely to the Costa Rican Institute of Tourism, in accordance with Article 5, subsections e) and f) of this law, and such zones are declared National Parks. The Institute shall issue, in order to achieve the conservation of the landscape, native flora and fauna, the regulations to which those who wish to visit these National Parks must submit, and may set the fees for the right of visit it deems convenient, the proceeds of which shall be allocated to the conservation and beautification thereof and to providing greater amenities to visitors.

The Institute may also build roads, hotels, and other buildings on them, endeavouring in all cases to preserve the site’s primitive environment and landscape. "Article 5.- The Institute shall have the following functions: (...) f) The maintenance of National Parks, in the places it deems convenient. The resolution issued by the Institute regarding the declaration of zones as National Parks shall be considered a matter of public utility or social interest for the purposes of the corresponding expropriation." Said provision remains in force. The current version of said Law 1917 establishes: "Article 64.- (The first paragraph was repealed by Article 1 of Law Nº 4071 of January 22, 1968, 'Declares Urban Zone of the City of Puntarenas and Reforms Other Laws') The Atlantic zone comprised between the upper part of the Cerere River (tributary of the Estrella), upstream from its confluence with the Cusuco, to the East, comprising the Águila (sic) and Chey Rivers (tributary of the Telire), is declared a reserved zone destined as a National Park to be placed under the care of the Tourism Institute.

"Transitory IV.- The State, through the National Geographic Institute, shall endeavor, within the shortest possible term, to locate the zones of the national territory that, in accordance with Article 5, subsection f) of this law, are to be declared National Parks." With the foregoing presentation of some 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 sustain the cost of our national parks without the income represented by the billions of colones paid by tourists each year. Therefore, it is obvious that all our national parks must have the facilities that permit the human service these tourists require for their safety and comfort, such as tourist docks or landing docks in sites whose access is via water, as in 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) there were 1,176,464. In 2021, 1,705,228 visitors paid their entrance fee. And in 2022, 2,346,028 tourists purchased their ticket to enter our parks. From April 2020 to December 2022, foreign and national 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 unviable. And keeping those parks open to tourism without adequate facilities is inhumane and contrary to our legislation. The plaintiffs' arguments in this regard lack all sense and do not conform to the Law of the Constitution or to the reality of the country. 7- Of the supposed "uncertain" financing of the park The financing provided for by Law 9892 is far superior to what the other national parks currently have. The law allows the contribution of resources by the State and by private entities, as well as from international donations.

But it mainly indicates that this park will receive the funds that national parks ordinarily receive from SINAC. We consider the mere transcription of the corresponding provisions sufficient to demonstrate the unfounded nature of the plaintiffs' argument: "ARTICLE 17- Financing. The Isla San Lucas National Park shall have financial resources enabling it to exercise its mandates with agility and efficiency. These shall include the resources corresponding to it by law from the National System of Conservation Areas (Sinac), transfers from the Republic's budgets or donations from any individual or legal entity, as well as the own funds generated by entrance to the park, the use of its services, the royalties from concessions and permits and, in general, from the payment for activities carried out within the park. The resources regulated in this law, as well as all those produced by the park, will necessarily and exclusively be invested in the same national park.

Oversight shall be the responsibility of the Office of the Comptroller General of the Republic." "ARTICLE 18- Authorization to donate and subsidize. The entire state, non-state, and financial public sector is authorized to make donations, investments, and include budget subsidies in favor of the Isla San Lucas National Park. The Costa Rican Tourism Institute (ICT) may transfer economic resources to the Board of Directors of the Isla San Lucas National Park to carry out its investments in development and ordinary activities; likewise, it may design and carry out promotion and marketing for visitation to the park. The Board of Directors may receive donations from international organizations and foreign governments interested in contributing to the park's purposes." From a simple reading of the preceding articles, the existence of sufficient provisions for the economic support of this National Park is clearly evident.

Conclusions Law 9892 is grounded in material, historical, natural, normative, and jurisprudential elements of this Chamber, which address the particular nature of Isla San Lucas. This is recorded in the statement of grounds for the respective bill. The space for tourist visitation indicated in Law 9892 is the same space that historically contains the facilities of the former prison plus the trails, the water access to the island, the El Coco beach, and other spaces used for tourist visitation for decades, all endorsed similarly by the Island Management Plan issued by SINAC and the Sustainable Tourism Development Master Plan prepared by the ICT. The creation of the National Park converted the majority of the Wildlife Refuge into a Park, but it did not repeal the existing protection over the areas not contemplated within it, which continue to have the protection they have held since 2001 and 2008 under the respective decrees.

The creation of the park in no way diminished the protected area (sic). As of Law 9282, there coexist a National Park Area (consisting of the entirety of Isla San Lucas plus its aquatic contour up to a depth of 3 meters) with the islets near the island incorporated as a Refuge in the 2008 decree plus the rest of the waters that were and continue to be protected by said provision. The existence of a body belonging to MINAE composed of the head of that ministry together with the heads of Culture, ICT, and the Municipality of Puntarenas responds coherently to the constitutional principles of Coordination and Unity, as well as to the principle of Free Configuration. All of the foregoing was stated by this Chamber regarding the joint administration of Isla San Lucas since ruling 13099 of 2010. For all the reasons set forth by this Municipal Government, I request that the actions brought against said Law 9892 be declared WITHOUT MERIT and that we be allowed to continue working on behalf of the citizens of Puntarenas and the best economic opportunities for their integral development in harmony with the environment and with their historical and cultural heritage."

1. 169Through a brief incorporated into the digital case file on May 2, 2023, Magda Inés Rojas Chaves, in her capacity as Deputy Attorney General of the Republic, mentions that she will appear at the hearing of May 4, 2023, together with Elizabeth León Rodríguez.
2. 170On May 4, 2023, a record of hearing was incorporated into the case file, which reads: "The undersigned, in my capacity as Secretary of the Constitutional Chamber, attests that at eight thirty-five a.m. on May fourth, two thousand twenty-three, the oral hearing scheduled within the unconstitutionality action being processed under case file 21-005756-0007-CO began. Present at said proceeding were justices Fernando Castillo Víquez (Presiding), 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 plaintiffs, Magda Inés Rojas and Elizabeth León, representatives of the Attorney General's Office, Freddy Camacho Ortiz, director of the Legal Department of the Legislative Assembly, Vladimir Cubillo Marenco, legal advisor to the Ministry of Culture and Youth, Rafael Gutiérrez Rojas, Vice Minister of Environment and Energy, Karen Quesada Fernández, legal advisor to the National System of Conservation Areas (SINAC), William Rodríguez López, executive president and José Francisco Coto Meza, legal advisor to the Executive Presidency of the Costa Rican Tourism Institute, Wilber Madriz Arguedas, mayor and Carlos Ricardo Benavides Jiménez, legal advisor to the Municipality of Puntarenas, José Correu, advisor to the Regional Office of the International Union for Conservation of Nature, and Jorge Alberto Sendero Hülssner, in his capacity as coadjuvant.The presiding justice of the Chamber gave the plaintiffs a period of fifteen minutes to present their arguments, while the remaining parties were given a period of ten minutes, except for the coadjuvant, who was given a period of five minutes. During this stage, Mr. Correu indicated that he made an error in the report he submitted to the Court, and he will therefore file the respective correction to the case file. For his part, Mr. Serendero indicated that he ceded his time allotment to the plaintiff Sagot Rodríguez; however, said request was not accepted by the presiding justice of the Chamber, considering that granting the request would violate the principle of equality of arms. Once this stage concluded, a period of up to three minutes was given to the parties to exercise their right of rebuttal. At ten-thirty a.m., the presiding justice of the Chamber ordered a fifteen-minute recess.At ten forty-eight a.m., the hearing resumed, and justices Rueda Leal, Fernández Argüello, Castillo Víquez, and Justice Garro Vargas proceeded to ask questions of the parties. Once this stage concluded, and at the request of a party, the presiding justice granted one minute to the plaintiff Sagot Rodríguez and to Mr. Carlos Ricardo Benavides Jiménez to make final considerations. Finally, the presiding justice adjourned the hearing at eleven fifty a.m. That is all."
3. 171Through a brief incorporated into the digital case file on May 8, 2023, evidence was submitted to the case file.
4. 172Through a brief incorporated into the digital case file on May 9, 2023, José Francisco Coto Meza, in his capacity as general judicial representative of the ICT, submits evidence for better resolution and indicates: "the cited resolution was issued at the request of the National System of Conservation Areas, for the purpose of managing the environmental viability (viabilidad ambiental) of the Isla San Lucas landing dock. The technical viability was duly granted by SETENA. The foregoing clearly demonstrates that SINAC did request the development of a landing dock as necessary infrastructure for the development, maintenance, and administration of the cited Island."
5. 173Through a brief incorporated into the digital case file on May 10, 20223, Wilber Madriz Arguedas, in his capacity as mayor of Puntarenas, states: "I hereby send an electronic copy of the various documents we offered to provide during the Hearing held by this Constitutional Chamber last Thursday, May 4, 2023. 1. Minutes of the Board of Directors of the Isla San Lucas National Park from 2020 to 2023. These minutes show the harmonious work and joint investment of the different institutions that make up the Board of Directors formed by Law 9892. You can also note the permanent participation of SINAC and its regional body ACOPAC (Central Pacific Conservation Area), as the technical advisory body to that Board of Directors. To be more precise, you can verify the direct participation of officials from said body 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; in addition, the Vice Minister of the Ministry of Environment (MINAE) presided over 100% of the sessions of that Board of Directors, accompanied by his advisors.The minutes attest to the non-existence of conflicts in the conservation and management of natural or cultural resources. On the contrary, the harmonization of the work of all participating entities and strict adherence to the diverse and meticulous technical studies, the existence of which has been recorded in said minutes, is evident. 2. Official Letter number CR-INCOP-PE-0056-2022, dated January 27, 2022, from the Costa Rican Institute of Pacific Ports (INCOP), recounting the investments made by that institute in the Isla San Lucas National Park, for a total amount of 984,604,910 (Nine hundred eighty-four million six hundred four thousand nine hundred ten colones), investments that had the approval of SINAC and the Ministry of Culture, as well as the respective processing of permits by the Technical Secretariat for the Environment (SETENA). The content of pages 10 and 11 is striking, as it relates that the Project for the construction of the Landing Dock of the Isla San Lucas National Park was presented by the Director of SINAC: '3.2 Landing Dock on Isla San Lucas.This project was presented by the Executive Director of SINAC through a form duly signed on September 29, 2020; it is ranked first in the Trust's Project Bank, with a prioritization score of 87.5, analyzed, valued, and provided by the Costa Rican Tourism Institute (ICT). The ICT during the year 2021 carried out the tender for contracting professional services for the preparation of designs, plans, detailed work budget, and schedule. However, despite three tenders having been held for the contracting, they did not meet the minimum admissibility requirements established in the bidding terms, therefore they were declared void. We proceeded last year to tender again, meaning it was tendered for the fourth time at the beginning of this year, and the technical criterion of the executing unit was issued for the recommendation of award; it is expected, if the entire contracting process is favorable, to be able to begin said execution during the first quarter, for which a budget of ₡51,480,000.00 million colones is foreseen.Once that stage is concluded and the documentation previously indicated has been delivered to INCOP, and the respective agreement between the parties has been signed, the contracting of a company will proceed for the submission to SETENA of the project to obtain the environmental viability (viabilidad ambiental); if the environmental certification (certificación ambiebtal) (sic) is achieved, the contracting of a company to build the project would proceed, which will be carried out through public tender, provided it is approved by the board of directors of INCOP.' 3. Presentation by the National System of Conservation Areas (SINAC) of the Study for the Management of Visitor Flows in the Isla San Lucas National Park, from 2021, carried out by MSc. Rosa Montero of the Central Pacific Conservation Area (ACOPAC) of SINAC, with data provided by Olger Núñez, also an official of ACOPAC. As can be seen in said study, SINAC itself points out the requirement for a new Dock, a Visitor Control and Service Center, and a 30-meter-high Tower for internet service within the National Park, among other infrastructure needs, as also exist in many other national parks of Costa Rica. 4.News from media outlets La República and El Mundo regarding the construction of a Dock for vessels and other works in the Tortuguero National Park, an installation built by SINAC at a cost exceeding one billion colones and inaugurated in August 2020, for the use of its officials and tourists."
6. 174Through a brief incorporated into the digital case file on May 11, 2023, the plaintiff Álvaro Sagot Rodríguez states: "As a synthesis of the hearing and the new evidence: ON COMMERCIAL PURPOSES IN NATIONAL PARKS It is important to make clear that there are norms of legal rank, linked to constitutional numerals 50 and 89, which expressly prohibit commercial purposes in national parks, as in the National Parks Service Law, which establishes in numeral 8 subsection 15: 'Article 8.- Within national parks, visitors are prohibited from: … 15) Carrying out any type of commercial activity...' For its part, Article 3 in fine of the Convention for the Protection of the Flora, Fauna, and the Scenic Natural Beauties of the Countries of America establishes that any commercial use within a National Park is totally prohibited. The norm states: 'ARTICLE 3 The Contracting Governments agree that the boundaries of national parks shall not be altered nor any part of them alienated except by action of the competent legislative authority.The riches existing in them shall not be exploited for commercial purposes.' Notwithstanding the foregoing, the questioned law states in several provisions that commercial agreements in both essential and non-essential services are permitted so that the commercial tourism purposes of the law are fulfilled, and this absolute opening could cause significant negative environmental impacts in a site designated by law for protection. So the doubt that has always been present is: Why, if commercial purposes were wanted, was the reserve status not preserved, where commercial purposes are indeed permitted subject to prior permission from SINAC? We even have the fact that under the current law, there could soon be a massive invasion of the marine part of the national park with jet skis and other recreational vessels, or of the terrestrial part with Burger King, KFC, etc., restaurants, for whoever can do the more can do the less, as the old adage says, and in truth, everything is permitted, and it falls under the criteria of businesspeople, tourism chambers, politicians, decision-making, and, of course, SINAC was left out, having been expelled by the deputies, notwithstanding what is stated in the Biodiversity Law regarding the administration of protected wild areas in general.Now, if the deputies wanted commercial opening in essential and non-essential services, why did they not previously modify the National Parks Service Law, or why did they not denounce the conventions that prohibit such commercial purposes in parks? The answer is very simple: the deputies improvised without the required studies. And it is because Article 14 subsection g, among others of the questioned law, states that the trust is responsible for: 'g) Approving the agreements and contracts for the provision of recreational and/or commercial services, as well as essential and non-essential services, to achieve the greatest utilization of the Tourist Zone and enjoyment of visitors.' Therefore, the unconstitutionality and unconventionality is well-founded. ON INFRASTRUCTURE Regarding infrastructure, there is also a great opening that transcends park ranger installations and basic services or non-essential services, and for proof of this, see provision 16 of the law which states: 'The Isla San Lucas National Park may develop all the necessary infrastructure to facilitate sustainable tourism, including the provision of water, electricity, telecommunications, hygiene and sanitation, docks, landing docks, food services and access roads, information and communication in various formats, as well as whatever it deems pertinent for the benefit of visitors and to ensure the enjoyment and appreciation of the historical, architectural, and natural richness of the park.' Now, combine those two openings, of undertaking all types of infrastructure, with the freedom to establish concessions and commercial contracts previously mentioned, and you will have the perfect scenario to create a distorted urban amusement park in a site whose legal nature is for protection, as established both internally and conventionally.Note that provision 7 of the law states in its second paragraph: 'For the fulfillment of the purposes established in this law, concessions and permits for activities and installations other than park services may be granted in the tourist zone.' Therefore, if whoever can do the more can do the less, we have that with the law an opening is being produced that does not rhyme with what is permitted in a national park. We emphasize with the above that it is a danger for the law to remain in force in its entirety, as it violates what is established, and worst of all, THERE NEVER WERE STUDIES for it, meaning, in addition to unconstitutionalities, there are unconventionalities that must be declared, and the principle of scientific protection and the principle of progressivity are also violated. And of course, we fall into regressions due to the lack of protection and failure to observe the express provisions in force.For that 'sustainable' tourist zone, you will find nothing to justify it, and less so with foundations in our norms, such as the National Parks Service Law which remains in force, or the Convention for the Protection of the Flora, Fauna, and the Scenic Natural Beauties of the Countries of America. Truly, there was never a study that assessed the environmental impact within the park, and this fact alone is not justified by the argument of seeking 'a new form of governance in national parks' as was insistently stated by the Municipality of Puntarenas. Therefore, the entire provision clearly has a commercial economistic spirit contrary to express national and conventional norms, and it should be declared as such. ON THE MANAGEMENT FORMS OF TWO DIFFERENT PROTECTED WILD AREAS OF VERY DISPARATE LEGAL NATURE It is clear that, with the new delimitation generated by the questioned law, the reserve and the park have been fragmented WITHOUT STUDIES, without knowing the reasons for that decision, nor are the consequences of this binary form of administration known.To date, the social, economic, and environmental effects are unknown, and you did not hear them even at the hearing. On one hand, it is now said emergently that there is a national park that borders the current reserve, but all that can be seen is legislative improvisation. To date, we do not even know why it was left out of the SINAC administration. In other words, now, due to lack of justification, several doubts prevail: 1. What justified the 3-meter depth measurement for the park? 2. Why was it not stated in the law that it should be based on low tide or high tide, to establish the beginning and end of the marine part of the park? 3. What is the social and economic impact (among artisanal fishermen, for example) of the new demarcation? 4. Is the human right to food1 of artisanal fishermen affected by the new division between the two protected wild areas? 5. Based on which studies did the deputies consider that there would be no damage to the economy of artisanal fishermen, who could previously come to fish from the terrestrial part of the island? 6.Who will assume the economic losses and food impacts on artisanal fishermen? 7. Where do the wetlands remain, which, on one hand, are sites of high fragility, extending up to 6 meters from low tide, but now the park reaches only up to 3 meters (without specifying if it is from low tide or high tide) (sic)? 8. As noted by the IUCN representative, Mr. Courrou, where are the studies that determine the environmental impacts on the boundaries of the two protected wild areas, which, as is clear, have their management categories differentiated, but regarding which nothing has been done? 9. Is the principle of objectification and the principle of progressivity violated by establishing the limits of the new park? 10. Finally, we have, as we pointed out in the action brief, that a sustainable tourist area with economic and cultural purposes was delimited and georeferenced, but it turns out the island is replete with other sites of archaeological and cultural richness, but they were not included within that special protection, and we cannot explain why, and it is because even though they are in a national park, a commercial tourist area with special protection for scenic beauties and cultural and archaeological treasures should not have been fragmented, differentiated, excluded, and designated, because this has no technical justification. 11.The question is valid regarding the remaining archaeological sites, since it is unknown whether these other places will receive the same professional and economic assistance as the areas of the prison, as it seems under the law, only the penitentiary area is of notable interest. 12. It is clear that the law generates many uncertainties that are not resolved even with an interpretive vote of several provisions, because the entire law is riddled with unconstitutionalities and unconventionalities. In closing, we ask you to observe that since the law was under formation, SINAC issued a criterion stating that NO studies in various areas existed for the bill, and therefore it is fundamental to consider that document recently submitted to this case file by the authorities, as it demonstrates what the SINAC representative, the MINAE representative, and the IUCN representative stated."
7. 175Through a brief incorporated into the digital case file on May 15, 2023, Madga Inés Rojas Chavez, in her capacity as Deputy Attorney General, appears. She states: "As indicated in the report of April 22, 2021, and in our intervention at the oral hearing, the Attorney General's Office considers that Law No. 9892 violates Article 50 of the Constitution due to the breach of the principles of progressivity and non-regression in environmental matters, of objectification of environmental protection, and of reasonableness. To reach this conclusion, it is necessary to review the regime of protected wild areas and the particularities of Isla San Lucas, as we did in legal opinion No. OJ-082-2020 of June 9, 2020, referring to bill No. 21287 that gave rise to the challenged law. I. On the regime of protected wild areas. According to the provisions of Article 58 of the Biodiversity Law (No. 7788 of April 30, 1998), a protected wild area (área silvestre protegida) is a delimited geographic zone, constituted by lands, wetlands, and portions of sea, which is declared as such for representing special significance due to its ecosystems, the existence of threatened species, the repercussion on reproduction and other needs, and for its historical and cultural significance; and which are dedicated to conserving and protecting biodiversity, soil, water resources, cultural resources, and ecosystem services in general. Article 32 of the Organic Environmental Law (No.

7554 of September 28, 1995), indicates forest reserves, national parks, biological reserves, national wildlife refuges, wetlands, and natural monuments as types or categories of management of protected wilderness areas. Based on the provisions of Article 38 of the Organic Law of the Environment, Article 39 subsection i) of the Forest Law (No. 7575 of February 13, 1996), and Article 2 of the Wildlife Conservation Law (No. 7317 of October 30, 1992), we have repeatedly considered that protected wilderness areas form part of the natural heritage of the State. (For example, see our opinions Nos. OJ069-2008 of August 12, 2008, C-134-2016 of June 8, 2016, OJ-088-2018 of September 18, 2018, OJ-036-2019 of May 20, 2019, among others). And the Constitutional Chamber has also so held, stating that: "The Natural Heritage of the State is a public domain asset whose conservation and administration are entrusted, by law, to the Ministry of Environment and Energy, through the National System of Conservation Areas (Forest Law, Arts. 6 subs. a and 13 para. 2°, and 14; Organic Law of the Environment, Article 32, para. 2°).

It is comprised of two important components: a) Protected Wilderness Areas, whatever their management category, declared by Law or Executive Decree: forest reserves, protective zones, national parks, biological reserves, national wildlife refuges, wetlands, and natural monuments (Forest Law 7575, Arts. 1°, para. 2°, 3° subsection i; Organic Law of the Environment 7554, Article 32; Biodiversity Law No. 7788, Arts. 22 et seq. and 58; National Parks Service Law No. 6084, Article 3° subs. d and f, in relation to the Organic Law of MINAE No. 7152 and its Regulations; Wildlife Conservation Law No. 7317, Article 82, subsection a). b) Other forests and forest lands or lands of forest aptitude belonging to the State and public institutions (Article 13 of the Forest Law), which have an immediate legal affectation. For the maritime-terrestrial zone, the same Law 6043 (Article 73) excludes Protected Wilderness Areas from its scope and subjects them to their own legislation.

The rest of the forested areas and lands of forest aptitude of the coastal zones are also under the administration of the Ministry of Environment and are governed by its specific regulations (Forest Law, Article 13 and concordant articles). (Vote No. 16975-2008 of 14 hours 53 minutes of November 12, 2008. Reiterated in votes Nos. 17650-2008 of 12 hours and 23 minutes of December 5, 2008, 16938-2011 of 14 hours 37 minutes of December 7, 2011, and 17397-2019 of 12 hours 54 minutes of September 12, 2019).

The inclusion of protected wilderness areas within the natural heritage of the State has significant consequences. In the first place, it implies that, in accordance with Article 32 second paragraph of the Organic Law of the Environment, Article 6 subsection a) and Article 13 second paragraph of the Forest Law, and Articles 22 and 28 of the Biodiversity Law, these areas must be administered by the National System of Conservation Areas, to the exclusion of any other public entity. (See in this regard Constitutional Chamber vote No. 17397-2019 already cited). And, secondly, by forming part of that heritage and according to the provisions of Article 18 of the Forest Law and Article 11 of its Regulations, in protected wilderness areas it is only possible to carry out training, research, and ecotourism activities, as established by the corresponding management plan (plan de manejo), as well as works for the use of water for human consumption, according to a recently enacted reform.

(See our opinions Nos. C-103-1998 of June 8, 1998, C-016-2002 of January 15, 2002, C-134-2016 of June 8, 2016, OJ-0272018 of February 28, 2018, OJ-036-2019 of May 20, 2019, among others). In this regard, the Constitutional Chamber has indicated that the use of lands in protected wilderness areas is limited to what is "provided for in the law and its regulations; and their uses are basically destined for research, training, and ecotourism tasks, previously approved by the Ministry of Environment and Energy, not by the municipality (see Article 18 of the cited Forest Law)." (Vote No. 19776-2014 of 10 hours 30 minutes of December 3, 2014). And that, in this sense, the management plan (plan de manejo) "is important as a tool for the safeguarding of the natural resource of a protected wilderness area, as well as for channeling the research, protection, training, and ecotourism activities that can be carried out on State property." (Vote No. 2752-2014 of 9 hours 15 minutes of February 28, 2014.

In the same sense, see votes Nos. 2020-2009 of 8 hours 30 minutes of February 13, 2009, 15070-2011 of 10 hours 41 minutes of November 4, 2011, 12716-2012 of 16 hours 01 minute of September 12, 2012, among others).

The management plan (plan de manejo), according to Article 3 of the Regulations to the Biodiversity Law, is "the planning instrument that allows guiding the management of a protected wilderness area towards the fulfillment of its long-term conservation objectives. It is based on medium-term strategic lines of action and on management objectives for the natural and cultural elements included within the area, as well as on the relationship of the latter with their socio-environmental surroundings. It is the basis for the development of other planning and regulation instruments for Protected Wilderness Areas." It follows, then, that the management plan (plan de manejo) is the instrument through which the National System of Conservation Areas, as administrator of the protected wilderness areas, carries out its planning and zoning tasks for these spaces, that is, organizing the territory according to its biophysical characteristics and determining the uses and activities permitted or prohibited within the wilderness area and the specific sectors in which the different permitted activities can be developed.

Under the protection of the provisions of Article 18 of the Forest Law, Article 11 of its Regulations (Executive Decree No. 25721 of October 17, 1996) establishes that in the natural heritage of the State, only training, ecotourism, and research activities are permitted and that these activities will be subject to what is established in the management plan (plan de manejo) of the Protected Wilderness Area. It also provides that, in protected wilderness areas, except in national parks and biological reserves, ecotourism activities may be authorized to private parties, only in the areas designated for this purpose by SINAC, and that SINAC may authorize the carrying out of permitted activities through the granting of use permits (permisos de uso) and the charging of the respective fee. According to that same regulation, the ecotourism activities that can be authorized are rustic trails or paths, camping areas, viewpoints, canopy, hanging bridges, rappelling, rest areas, lunch areas, kayaking, canoeing, recreational cycling, fishing, and lodging facilities.

For its part, in accordance with these limitations, Article 82 of the Wildlife Conservation Law establishes that in state wildlife refuges, development projects and the exploitation of natural resources cannot be carried out, which is reiterated in Article 70 of the Regulations to the Biodiversity Law (Decree No. 34433 of March 11, 2008), which provides that in these refuges, only training, research, and ecotourism activities can be carried out. Regarding the activities that can be developed in national parks and biological reserves, Article 58 of the Biodiversity Law establishes that the prohibitions in this regard are those established by the Law for the Creation of the National Parks Service (No. 6084 of August 24, 1977). Said law, in Articles 8, 10, and 12, provides that in these spaces it is prohibited to carry out any type of commercial, agricultural, or industrial activity, that fishing activity is limited to artisanal and sport fishing when it is proven not to cause ecological alterations, and that no type of concession can be granted for the exploitation of products, nor can permission be granted to establish other facilities, different from those of the National Parks Service.

Also relevant is the provision in Article 3 of the Convention for the Protection of the Flora, Fauna, and Scenic Natural Beauties of the American Countries (approved by Law No. 3763 of October 19, 1966) to the effect that the riches existing in national parks may not be exploited for commercial purposes. Based on these latter provisions, it has been indicated that National Parks and Biological Reserves are wilderness areas of absolute conservation. (Constitutional Chamber, vote No. 16975-2008 of 14 hours 53 minutes of November 12, 2008. Also, see our opinions Nos. C-228-1998 of November 3, 1998, C-297-2004 of October 19, 2004, OJ-236-2003 of November 17, 2003, OJ-093-2004 of July 19, 2004, OJ-069-2008 of August 12, 2008, and OJ-027-2018 of February 28, 2018). For the foregoing, it is understandable that Article 11 of the Regulations to the Forest Law excludes national parks and biological reserves from the possibility of authorizing, through use permits (permisos de uso), the carrying out of the ecotourism activities provided for therein, such as rustic trails or paths, camping areas, viewpoints, canopy, hanging bridges, rappelling, rest areas, lunch areas, kayaking, canoeing, recreational cycling, fishing, and lodging facilities.

Now then, in accordance with Article 39 of the Biodiversity Law, in protected wilderness areas, including national parks and biological reserves, the National Council of Conservation Areas is empowered to approve contracts or concessions for non-essential services and activities, such as parking lots, sanitary services, administration of physical facilities, food services, shops, construction and administration of trails, administration of visitation, and others defined by the respective Regional Council of the Conservation Area. These concessions may not include the exercise of MINAE's own responsibilities, such as the definition and monitoring of strategies, plans, and budgets of the Conservation Areas; nor the authorization of private buildings. That article expressly provides that these "concessions and contracts may be granted solely and exclusively to community development associations, cooperatives, microenterprises registered with the Ministry of Economy, Industry, and Commerce (MEIC), or national non-profit social organizations that have objectives of support for the conservation of natural resources, that incorporate environmental management within the processes and concessioned area and with their legal status in force, provided that they are integrated and directly controlled by inhabitants of the communities located in the zone of influence of the respective protected wilderness area." Article 40 establishes that the concessions and contracts authorized in Article 39 must be based on the strategies and plans approved in the first instance by the Regional Council and definitively by the National Council of Conservation Areas, in accordance with the established laws and policies, and that the formulation of strategies and plans for the protected areas will in no case be affected by considerations that are not strictly technical.

According to Article 57 of the Regulations to the Biodiversity Law, the granting of contracts for non-essential services must respect the provisions of Article 39 of the Biodiversity Law and, for the definition of other non-essential services not mentioned by the law, the Regional Council of Conservation Areas may request the criterion of the Technical-Scientific Committee of the corresponding Conservation Area. Then, Article 58 of those Regulations establishes that for the granting of concessions for non-essential services in protected wilderness areas, the General Management Plan (Plan General de Manejo) of the protected wilderness area will be the technical tool that must be used as a basis, and other complementary planning instruments may be considered. And that protected wilderness areas that do not have a planning instrument must carry out the technical studies that support the granting of the concession.

It can be noted that the figure of concessions for non-essential services is different from the figure of the use permit (permiso de uso) contemplated in Article 11 of the Regulations to the Forest Law for authorizing the training, research, and ecotourism activities provided for in Article 18 of the Forest Law. The former is for providing complementary services to the public purpose of conservation and sustainable use of the biodiversity encompassed within the state protected wilderness areas. That is, it refers to services that the National System of Conservation Areas could directly provide for the attention of visitors to the protected wilderness areas, or concession to a private party for their provision. Meanwhile, the use permit (permiso de uso) is contemplated to authorize private parties the exclusive use of the natural heritage of the State, for research, training, ecotourism activities, and access to drinking water, which are not activities or services complementary to the public service of conservation and sustainable use of biodiversity, but rather, they are activities of private initiative that could be authorized in the natural heritage of the State.[1] Furthermore, in accordance with Article 39 of the Biodiversity Law, concessions for non-essential services can only be granted to community development associations, cooperatives, microenterprises registered with the Ministry of Economy, Industry, and Commerce, or national non-profit social organizations that have objectives of support for the conservation of natural resources, that incorporate environmental management within the processes and concessioned area and with their legal status in force, provided that they are integrated and directly controlled by inhabitants of the communities located in the zone of influence of the respective protected wilderness area; whereas, for the granting of use permits (permisos de uso), these limitations do not exist.

In principle, all protected wilderness areas must be administered and used in accordance with the previous provisions. And, although these regulations and use limitations are set in legal and regulatory norms, it must be kept in mind that protected wilderness areas, "as of their declaration, it is intended to endow these geographical zones with the conservationist and protectionist vocation necessary to fulfill their function." (Constitutional Chamber, votes Nos. 21258-2010 of 14 hours of December 22, 2010, 16938-2011 of 14 hours 37 minutes of December 7, 2011, and 2752-2014 of 9 hours 15 minutes of February 28, 2014). And that, by virtue of this, protected wilderness areas are framed "within a planning context whose purpose is to preserve the natural resource." (Constitutional Chamber, vote No. 16938-2011 already cited). Consequently, the modification of the rules referring to a protected wilderness area in which conditions of use and regulations on its administration are established, different from the regime applicable to the generality of these protected spaces, could imply a worsening in the level of protection of the area and, consequently, the violation of constitutional principles.

In that sense, the Constitutional Chamber has pointed out that: "Environmental public domain status implies a special regime of protection: The declaration of public domain status for environmental reasons implies a special sphere of protection, to the extent that it configures a special regime of ownership, regulated by intense public law norms that seek to safeguard the fulfillment of a purpose of protecting the right to a healthy and ecologically balanced environment. In consideration of those constitutive reasons and for the sake of the benefits underlying its teleological dimension, any determination of total or partial declassification, or of recomposition of its legal nature, demands and imposes the due technical analyses that weigh the environmental variable in the decision-making, as a derivation of the principles of non-regression, progressivity of the environment, precautionary, preventive, and pro-natura.

The special constitutional protection of the environment requires an exhaustive study of the reasons that support this type of determination, in the context of the various levels that make up the ecosystems, as well as the relationships of the environment with the anthropological surroundings and within this, the social, economic incidences, among others. In this way, the absence of that type of technical rigor in the variation of the nature of the environmental public domain neglects and breaches, even by risk, the substantial content of that right. The same must be noted regarding the permissibility of carrying out human activities within these territorial spaces, without the due consideration of the impact that those can produce on the environment, for which it is necessary to consider the primary use regime of the asset, the typology of convergent ecosystems in that area, the existence or not of special use regimes imposed by legal norms.

Indeed, the variation of use of an asset that has traditionally been conferred an environmental protection regime requires technical assessments on the consequences that these new anthropic incursions will produce in the ecosystem, as well as whether they are congruent with the environment, under a context of environmental sustainability. (Vote No. 22606-2022 of 13 hours 10 minutes of September 28, 2022). Technical assessments that are unknown in relation to the change carried out regarding Isla San Lucas.

II. Regarding the Isla San Lucas Wildlife Refuge

Regarding Isla San Lucas, one must start from the Law for the Transfer of Isla San Lucas to the Municipality of Puntarenas (No. 5469 of April 25, 1974), which ordered that transfer for the purpose of the Municipality administering the island and developing a tourist center there, by itself or by public tender. For this, it authorized the Municipality to contract the necessary infrastructure works, to carry out all types of activities characteristic of a well-organized tourist operation, and entrusted the Costa Rican Tourism Institute with the task of technically studying the territory of the island and preparing the tourist development plan, to be complied with by the Municipality. The legislator maintained that special regime when the Law on the Maritime-Terrestrial Zone (No. 6043 of March 2, 1977) was enacted, because, in Article 78, it was provided that "Isla de San Lucas will conserve its current legal situation under the administration of the Municipality of Puntarenas." With these norms in force, the Executive Branch, through Decree No. 29277 of January 11, 2001, declared Isla San Lucas and the surrounding marine area up to a depth of six meters, as a Wildlife Refuge, providing that its administration would correspond to the Ministry of Environment and Energy and that its management would be governed in accordance with the provisions established in this regard by the legislation in force on the matter.

Subsequently, through Executive Decree No. 30714-C of September 26, 2002, the island was declared and incorporated into the Historical-Architectural Heritage of Costa Rica, providing that this declaration prohibits the demolition of the property and its partial or total remodeling, without prior authorization from the Center for Research and Conservation of Cultural Heritage of the Ministry of Culture.

Regarding the validity of Decree 29777 which created the protected wilderness area on the island, despite the existence of Law No. 5469, the Constitutional Chamber indicated: "A superficial analysis of the question could lead one to think that Decree 29277-MINAE attempts to repeal what is provided in the cited laws. However, we must remember that the competence to establish conservation areas is granted to the Executive Branch by various legal-rank norms (cfr. previous paragraph), in direct development of the norm contained in Article 50 of the Political Constitution. Thus, when the Executive Branch formulates a declaration of this type, it does so by express legal authorization and in compliance with its constitutional duties regarding the environment, so it is not the Decree that creates the legal regime of the protected areas, but rather it is only the means that allows for swift and effective protection of the environment, by leaving to the competent technical bodies the assessment of the environmental reasons that lead to the determination of a zone of this nature.

Thus, the questioned Decree is not unconstitutional for attempting to reform the cited legal norms, since it is norms of the same and higher rank that allow the Executive Branch to act as it did in defense of the integrity of the environment. (...) ... what was done by the Executive Branch in the present case is within the framework of its competences, in that it allows fulfilling the duty imposed upon it by Article 50 of the Political Constitution, as well as the copious regulation produced by International Law in relation to the unavoidable obligation of the State to protect the environment, adopting all suitable measures to achieve an integral and effective guarantee. Thus, although municipalities have undeniable duties in this field, it is evident that the protection of the environment transcends purely local interest, to constitute a matter of national interest, so the actions of the central State as delegate of the sovereign Nation for the fulfillment of its associative ends, in that they foster an effective defense of its natural assets, are not only valid, but even indispensable.

A decree like the challenged one, by determining –based on technical criteria not susceptible to discussion in this venue- that Isla San Lucas and the Estero de Puntarenas are areas of environmental interest that require a special legal regime, could never harm municipal autonomy, recognized in Articles 169 and 170 of the Political Constitution. The legislator himself wished to reserve these competences for the Executive Branch, as they involve interests of the national community. Thus, Law No. 7152 of June 5, 1990, created the Ministry of Natural Resources, Energy, and Mines, which it constituted as the lead authority of the environmental sector and entrusted, due to its technical specialty, the task of \'Issuing, through executive decree, norms and regulations, of mandatory character, relating to the rational use and protection of natural resources, energy, and mines\' (Article 2 subsection ch).

The authority of the Ministry of Environment and Energy (successor to the competences of the Ministry of Natural Resources, Energy, and Mines) to administer national refuges and wetlands derives additionally from Articles 82 and 84 of the Wildlife Conservation Law, 32 of the Organic Law of the Environment, 13 of the Forest Law, and 58 of the Biodiversity Law. In conclusion, this Chamber finds in the challenged acts no violation whatsoever of the autonomy of the Municipality of Puntarenas, since the aspects they regulate are of interest to the entire community, and not only to the inhabitants of the central canton of Puntarenas." (Vote No. 8928-2004 of 16 hours 37 minutes of August 18, 2004. Emphasis added).

It is of interest to point out that, on that occasion, priority was given to the public and national interest of conserving the natural resources existing on the island, over the local interest of the Municipality in managing it. Subsequently, Executive Decree No. 34282 of January 25, 2008, was issued, which reduced 5.5% of the terrestrial area of the Refuge and increased its area by 210 hectares (containing portions of water and islets), declared the sustainable tourism development of the island of national interest and high priority, and established a Permanent Commission comprised of the Rector Ministers of Culture, Youth and Sports, Tourism, and Environment and Energy, or their representatives, and by the Mayor of Puntarenas or his 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 municipal administration area and for the preservation of the island's cultural heritage, the ICT would prepare a Master Plan for Sustainable Tourism Development, which would include an environmental impact analysis and the technical norms necessary to achieve the economic, social, and environmental development objectives, as well as the protection of the cultural heritage of that specific area.

In the face of three actions of unconstitutionality filed against that Decree, the Chamber reiterated the validity of the creation of the Wildlife Refuge, and, therefore, declared it unconstitutional, only insofar as it reduced the terrestrial area of the Refuge, but, indeed, maintaining the addition of the marine area provided. In that sense, it held: "The three accumulated actions of unconstitutionality have as a common denominator the alleged infraction of Article 50 of the Constitution, due to the non-observance of Article 38 of the Organic Law of the Environment. To declare the unconstitutionality, it is sufficient to verify that the mandate established in this last numeral was breached, by modifying the size of the protected wilderness area. Numeral 38 indicates that: 'The surface area of protected wilderness areas, natural heritage of the State, whatever their management category, can only be reduced by Law of the Republic, after performing the technical studies that justify this measure'.

Hence, the Executive Branch cannot reduce these areas without observing the legislative and technical procedure, for which reason the Chamber partially grants the claim to annul Article 1° only 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', the foregoing due to infraction of the provisions of Articles 11, 50, and 89 of the Constitution, and not with regard to the addition of the marine sector and islets, since that is permitted for the Executive Branch to agree upon by Executive Decree." (Vote No. 13099-2010 of 14 hours 56 minutes of August 4, 2010). In that same vote, the Chamber recognized the validity of the declaration as historical-architectural heritage, since, based on international norms, the possibility of protecting natural and cultural heritage simultaneously and adopting measures aimed at enhancing the value of that cultural heritage is determined.

Consequently, it admitted that in the management of the island several public actors concur that must act under the principles of unity and coordination, and, it also pointed out that the possible tourism development proposed by the Decree must be of very low environmental impact, respecting the protection of the environment and the cultural assets existing in the zone and that motivate the two protection regimes that converge there. In that sense, it indicated: "...both rights, natural environmental and urban environmental must be balanced when Cultural Heritage is present, given that it also concerns constitutional values that cannot be legitimately excluded from the rights of access and enjoyment of all individuals, nationals and foreigners, which is known as its enhancement. But the Chamber holds that it must be demystified that the aspiration of human development can only be achieved in an urban environment.

Faced with this situation, the Chamber would be facing a dilemma: although Executive Decree 34282-TUR-MINAE-C contains provisions that clearly border on Article 50 of the Political Constitution, and that is so declared in this judgment, there are others that do find their foundation in national and international legislation, which cannot be eliminated because they precisely find their support in norms of higher legal rank, in addition to being consistent with their condition 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, it is not appropriate to sacrifice the protection of the National and Cultural Heritage. (...) The State is a unit of competences, which must be subdivided by degrees of specialization to achieve its tasks and ends indicated in the legal system.

If public organs and entities must fulfill constitutional purposes (Articles 50 and 89) based on the degree of specialization of functions, their coordination must be a priority aspect for solving the problems that arise in the exercise of their respective powers: the Ministry of Environment, Energy and Telecommunications as it governs the natural heritage, the Ministry of Youth, Culture and Sports regarding policies for the conservation of the historical-architectural heritage, the Costa Rican Tourism Institute in the habilitation and conservation of historical and natural beauty sites for tourism, and the Municipality of Puntarenas in safeguarding the local interests of its community. (…) The principle of unity of the State has greater importance in the gray areas of public law, insofar as the only solution in accordance with Constitutional Law is to resort to the principles of cooperation and coordination among the organs and entities of the State, each in its degree of autonomy and specialization by subject matter.

In this sense, the efficacy of state actions requires considering that the principle of unity must give rise to the supremacy of certain organs for the coordination of state activities. In this regard, the Chamber recognizes that the Executive Decree grouped the various governing bodies in their field of specialization so that they could be responsible for low-impact tourism development on the Island; the truth is that the Chamber only partially upholds the claim due to non-compliance with the provisions of Article 38 of the Organic Environmental Law, because not all applicable formal legal aspects and technical studies were fulfilled. But in other respects, it is evident from Articles 50 and 89 of the Political Constitution, just as they provide for the protection of the natural environment, they indicate as purposes to develop (for public access and enjoyment) the assets of the country's historical-architectural heritage; these are equally constitutional objectives and must prevail without one degrading the other.

(…) A type of rural tourism with low ecological impact that respects environmental regulations is compatible with Constitutional Law, containing the international obligations extensively developed in the Chamber’s precedents (to which this Chamber refers), and with Article 89 of the Political Constitution when setting cultural objectives, among them: protecting natural beauties, conserving and developing the historical heritage, whose value is enhanced by the access the population may have to it. Therefore, no incompatibilities are demonstrated between the protection of the environment and the conservation of cultural assets made available to humanity, with a project that must be developed integrally with the environment, that must be comprehensive of all its components, not exclusive... Thus, even though the powers of the Organic Environmental Law authorize establishing regulated management categories such as Protected Wilderness Areas via Executive Decrees, another of the same nature has operated with the heritage declaration contemplated in the Historical Architectural Heritage Law of Costa Rica, via the respective declarations by Executive Decree.

The convergence of the Municipality of Puntarenas is manifested when, within the scope of application of Law No. 5469, which materializes the transfer of Isla San Lucas to the Municipality of Puntarenas, dating from 1974, it is ratified in the Law on the Maritime Terrestrial Zone, Law No. 6043 of March 2, 1977. Precisely, Article 78 of this Law establishes: “San Lucas Island will retain its current legal status under the administration of the Municipality of Puntarenas.” And numeral 82 of that same regulatory text establishes: “This law is of public order, repeals … as well as all others that conflict with it, except Law No. 4071 of January 22, 1968 and its amendments, and Law No. 5469 of April 25, 1974…” Furthermore, it is legislation in force, not amended or expressly repealed by subsequent legislation, so its validity is maintained as long as it does not infringe upon environmental and historical-architectural heritage principles, and it must not contravene the policies of the governing bodies, a situation that must be clarified by all the organs and entities involved.

In addition to the above, Isla San Lucas has a purpose of being used as a tourist center with financial benefits for various socially beneficial institutions. The development of infrastructure must be compatible with the principles of environmental sustainability, protection, and conservation; on the contrary, they would be constitutionally questionable if works were carried out without considering the protection regimes in force on the Island, such as the construction of large-scale infrastructure works, given that the validity of the regime as a protected area would imply a substantial land-use change, and not because of the human works that existed long before the declaration of the Island as a Protected Wilderness Area and as historical-architectural heritage. Hence, the Chamber does not consider that Articles 2, 3, 4, 6, and 7 of Executive Decree 34282-TUR-MINAET-C have constitutional defects, but understood with the following nuances.

The declaration of national interest and high priority for sustainable tourism development, indicated in numeral 2, shall be understood as constitutional as long as the conservation and restoration of the buildings of the former prison and those built on the occasion of its existence are limited to the work of conservation, protection, and improvement of its environment. The same must occur with the archaeological sites and the cemetery located at Playa Cocos, without prejudice, of course, to the archaeological and scientific studies that must be the subject thereof. Regarding the infrastructure intended for tourist use, it must be strictly limited to the areas of the historical complex and the road leading to Playa Cocos and to the latter; the facilities to be built shall be those strictly necessary to meet the basic needs of visitors and tourism development agents, without the foregoing implying that it can extend beyond developments incompatible with a “green” philosophy, or that are not in tune with the carrying capacity of the site, all of which must be ensured sustainably according to science and technique.

This Tribunal recognizes that it is a true challenge to achieve the conservation and recovery of the buildings on the Island, as well as their enhancement, 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 offer limited nature tourism and eco-tourism services, as long as sustainability criteria are met; otherwise, it would entail a friction of constitutional relevance with Articles 50 and 89. Regarding subsections a) and b) of numeral 5, they shall be understood as constitutional to the extent that what is intended in the Master Plan conforms to what is indicated by this Chamber, especially insofar as the zoning studies and zoning regulations are not based on a reduction of the protected wilderness area by 5.5% of the area.” That is to say, although it is true the Chamber recognized the validity of the existence of the Wildlife Refuge, and, for that reason, declared the Decree unconstitutional insofar as it diminished part of its terrestrial area, it determined as necessary the coordination of powers by the Municipality of Puntarenas, the Costa Rican Tourism Institute, the Ministry of Culture, and the National System of Conservation Areas, and recognized the possibility of developing tourism activities of very low environmental impact, in accordance with the protection regimes of the island.

It should be noted that, in that ruling, the interest in protecting the island's natural resources continues to be emphasized, hand in hand with the protection of the historical-architectural heritage, and, therefore, the type of tourism development that the Constitutional Chamber recognized as valid on the island is related to ecotourism activities, of very low environmental impact, in accordance with the conservation purposes of those heritages. For that reason, it was indicated that the facilities that can be built are those strictly necessary to meet the basic needs of visitors and tourism development agents, without the foregoing implying that it can extend beyond developments incompatible with a green philosophy. Consequently, it is possible to affirm that the activities and facilities endorsed by the Constitutional Chamber are the same ecotourism activities already contemplated in the general regime of protected wilderness areas.

III. Analysis of the unconstitutionality action. Taking into account all the foregoing and returning to the exposition regarding our criterion on the present unconstitutionality action, we consider that Law 9892 is violative of the principles of progressivity and non-regression in environmental matters, of objectivization of environmental protection, and of reasonableness, for two fundamental reasons: 1. Law 9892 represents a degradation in the level of environmental protection or environmental safeguarding of Isla San Lucas, without technical basis. 2. The contested Law modifies, for a specific concrete case, the regime specific to national parks, without having a technical criterion. 1. Law 9892 represents a degradation in the level of environmental protection of Isla San Lucas, without technical basis. Although Law 9892 creates the Isla San Lucas National Park and this, in theory, would imply an increase in the management category granted to the protected wilderness area, the truth is that the content of the norm shows that, in reality, the level of protection of the island is not being improved, but rather, on the contrary, is being diminished.

The degradation in the level of protection implied by the Law occurs mainly because the protected wilderness area regime is modified and due to the type of activities it allows. Note that the entire law is permeated and directed by the declaration of national interest and high priority for the sustainable tourism development of the island set forth in Article 2. Furthermore, Article 1 provides that the island will be, besides a protected wilderness area, historical-architectural heritage and a sustainable tourism use zone, in the specific areas determined in the law. That is to say, it establishes that there is an area of the island that will be a tourism use zone; therefore, that zone, defined in Articles 3 and 6, is a space of differentiated management, as the law itself expressly provides in Article 3. In other words, a specific space of the island is being excluded from the protected wilderness area regime, which the law calls a tourism zone.

For this space of differentiated management, Article 7 states that concessions and permits may be granted for activities and facilities other than the park service. But, besides that, a governance and planning model is established for the entire island, distinct from that of protected wilderness areas. The foregoing, by virtue of the fact that the entire island ceases to be administered by SINAC, to be managed by a Board of Directors composed of representatives of the Ministry of Environment, the Costa Rican Tourism Institute, the Executive Branch, the Mayor of the Municipality of Puntarenas, and the Chamber of Tourism of Puntarenas (Articles 8 and 10); and, according to Article 9, that Board will be responsible for: “a) Defining the 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 the guidelines for the protection, restoration, and administration of the historical buildings, developing facilities and services intended for the rest and recreation of visitors, the habilitation and accessibility of land and maritime routes, port constructions, and, in general, the provision of all basic services. d) Defining environmentally sustainable tourist activities, whether commercial, transport, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island. e) Approving the strategic objectives for marketing and promotion necessary to make known the Isla San Lucas National Park, both inside and outside the country. f) Granting approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourist Zone.

In the case of works related to areas declared heritage, coordination with the Ministry of Culture shall be required. g) Approving the master plan of 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. i) Approving, renewing, modifying, or revoking any trust related to the Isla San Lucas National Park, as well as all types of contracts and agreements with entities and persons, public or private. It must determine the entrance fees to the national park, as well as approve the contracts for the various reservation and purchase systems. j) Approving the use of the figures of public works concession with public service and contracting of mutual benefit with non-profit entities. k) Carrying out any other type of action necessary to ensure the smooth operation of the Isla San Lucas National Park and the achievement of its purposes.” Although Article 9 indicates that for the protection of wildlife and conservation of the island's biodiversity, the technical criterion of SINAC will prevail, the truth is that this specialized body is excluded from the management and planning of the protected wilderness area.

Note that, even for the island's planning, a master plan is chosen (Article 7), not a management plan, which must be approved by the Board of Directors. That is to say, the zoning of the protected wilderness area and the determination of the activities that can be carried out will be defined in that instrument, which is different from the management plan, and, therefore, it will not have to be issued following the procedures and technical requirements established for the development of management plans for protected wilderness areas. Recall that the training, research, and ecotourism activities that can be carried out in protected wilderness areas are subject to what the management plan provides. Also, contracts for non-essential services that can be granted in protected wilderness areas are subject to that planning instrument, and even to the technical criterion of the Regional Environmental Conservation Council.

In this case, the definition of the activities and concessions that can be granted on the Island falls to a different body and is subject to the master plan for the island's tourism development. Apart from the foregoing, the regulatory framework offered by the law regarding the type of activities that could be authorized is extremely broad, so the master plan could allow the development of activities and infrastructure beyond what is permitted in the general regime of protected wilderness areas, and even beyond the guidelines given by the Constitutional Chamber in ruling no. 13099-2010, in which it was indicated that only tourism activities of very low environmental impact, in accordance with the island's protection regimes, were possible, and that the facilities that could be built would be those strictly necessary to meet the basic needs of visitors and tourism development agents. Furthermore, the degradation in the level of environmental protection of the island, without technical criteria, is also found in the reduction of the marine area of the protected wilderness area.

There is extensive jurisprudential development by the Constitutional Chamber regarding the requirement of technical criteria that justify the reduction of the extent of a protected wilderness area, and, in this case, it has not been possible to determine what the technical justification was for reducing the protected marine area around Isla San Lucas. The only reason that has been set forth in this regard is that the entire area comprising the wildlife refuge could not be declared a national park because the Executive Decree that declared it also included within that refuge the estuary of Puntarenas and that, consequently, it was not viable to include that space within the declaration of the national park. However, it must be emphasized that Executive Decree no. 29277 of January 11, 2001, which created the Isla San Lucas Wildlife Refuge, did not declare the estuary of Puntarenas as part of it.

Article 3 declared that estuary as the “Estero de Puntarenas and Associated Mangroves Wetland,” that is, as a separate protected wilderness area, with a distinct management category. In any case, even if it is interpreted that the marine part not included in the park remains a wildlife refuge, there is no technical basis that justifies dividing the island and the surrounding marine waters into two different protected wilderness areas and that demonstrates that this division does not generate negative consequences for the protection of the island. In this sense, it must be borne in mind that the marine area that would continue to be a wildlife refuge would be managed by SINAC, with the corresponding management plan and the general rules for protected wilderness areas, while the rest of the marine area and the insular land that are part of the national park will be administered by the Board of Directors, by the tourism development master plan, and by the provisions of Law 9892. 2.

Law 9892 modifies, for a specific concrete case, the regime specific to national parks, without having a technical criterion. The regime being given to the Isla San Lucas national park is different and incompatible with the general regime of national parks. As stated earlier, in national parks and biological reserves, pursuant to Article 58 of the Biodiversity Law and the Law Creating the National Park Service, it is prohibited to carry out any type of commercial, agricultural, or industrial activity; no type of concessions may be granted for the exploitation of products, nor may permission be granted to establish other facilities, distinct from those of the National Park Service. Article 3 of the Convention for the Protection of Flora, Fauna, and Natural Scenic Beauties of the Countries of America establishes that the resources existing in national parks may not be exploited for commercial purposes.

Based on these provisions, it has repeatedly been indicated that national parks and protected wilderness areas are areas of absolute conservation. And, in such a manner, the granting of use permits to private parties for ecotourism activities has been restricted, as provided in Article 18 of the Regulations to the Forest Law. What can be provided in national parks are non-essential services complementary to the public purpose of absolute conservation, which can be provided directly by SINAC or concessioned according to Article 39 of the Biodiversity Law. The concessions for these non-essential services can in no case involve the construction of private buildings, nor facilities different from those of the National Park Service. Law 9892 has provisions openly contrary to that protection regime for national parks: “ARTICLE 7-Scope and restrictions. The Isla San Lucas National Park shall be governed by a master plan prepared based on technical criteria.

For the fulfillment of 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.” ARTICLE 9- Functions and powers. The Board of Directors of the Isla San Lucas National Park shall have the following attributions: (…) d) Define environmentally sustainable tourist activities, whether commercial, transport, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island. (…) f) Grant approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourist Zone. (…) j) Approve the use of the figures of public works concession with public service and contracting of mutual benefit with non-profit entities.” ARTICLE 14-Administrative Commission of the Trust and its functions.

The Administrative Commission of the Trust shall appoint from its membership a presidency, a vice-presidency, and a secretary. All members of this commission shall work ad honorem. Among the functions of this commission are 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 achieve the maximum use of the Tourist Zone and enjoyment of visitors.” Consequently, the Attorney General's Office considers that this modification for a specific case, which lacks technical justification, harms the principles of non-regression in environmental matters, of objectivization of environmental protection, and of reasonableness, and with it, is contrary to Article 50 of the Political Constitution and the Convention for the Protection of Flora, Fauna, and Natural Scenic Beauties of the Countries of America.”

1. 176In the proceedings, the prescriptions of law have been fulfilled.

Drafted by Judge Castillo Víquez; and,

Considering:

I. ON ADMISSIBILITY AND PRELIMINARY MATTERS

The unconstitutionality action is a process subject to certain formalities, which must be observed so that, in a valid manner, the Chamber can hear the merits of the challenge. Precisely, numeral 75 of the Constitutional Jurisdiction Law regulates the admissibility requirements for the unconstitutionality action. Firstly, it requires a prior pending matter to be resolved, whether in judicial or administrative proceedings (in the procedure to exhaust it), in which the unconstitutionality has been invoked as a reasonable means to protect the right or interest considered harmed. In the second and third paragraphs, exceptionally, it contemplates scenarios where the prior matter is not required, such as the non-existence of individual and direct harm due to the nature of the matter, the defense of diffuse or collective interests, or when the action is directly filed by the Comptroller General of the Republic, the Attorney General of the Republic, the Prosecutor General of the Republic, or the Ombudsperson.

Now then, in the sub lite, the petitioner bases its standing on the defense of diffuse interests, since, in its opinion, Law no. 9892 violates the right to a healthy and ecologically balanced environment, sheltered in Article 50 of the Magna Carta.

On the matter, in repeated pronouncements this Tribunal has recognized the existence of a true diffuse interest in claims related to the violation of the environment –for example, see rulings 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 sub examine, that jurisprudential line is reiterated and, consequently, the standing of the plaintiff is endorsed based on the second paragraph of ordinal 75 cited ut supra.

Having clarified the above, by brief incorporated into the digital file on March 24, 2023, José Francisco Coto Meza, in his capacity as general judicial representative of the Costa Rican Tourism Institute, requests that the Chamber of Tourism of Puntarenas be asked to rule on the allegations made by the plaintiffs. On the matter, this Tribunal does not consider it appropriate to grant such a request, since in the sub iudice the executive president of the Costa Rican Tourism Institute is already providing information.

II. ON THE JOINDERS

Article 83 of the Constitutional Jurisdiction Law establishes that within 15 days following the first publication of the edict contemplated in the second paragraph of ordinal 81, the parties in the pending matters at the date of the filing of the action or those who have a legitimate interest may appear to coadyuvate with the allegations that might justify its admissibility or inadmissibility, or to expand the grounds of unconstitutionality relating to the object of the action.

In the sub lite, the Presidency of the Chamber, by resolution at 17:00 hours on May 28, 2021, admitted as active coadjuvant Jorge Serendero Hülssner, in his capacity as general representative without limit of amount of the For The Oceans foundation, since he appeared within the term indicated ut supra; however, it rejected the rest of the coadjuvancies formulated within the process, because the managers omitted to comply with what was ordered by this Tribunal.

Finally, in view of the briefs incorporated into the digital file on November 14, 2022, and January 27, 2023, and in response to the request made by Susana Rojas Berrocal, identity card 110850879, the coadjuvancy formulated in her name by means received in the Chamber by email on April 27, 2021, added to the digital file on May 4, 2021, is vacated.

III. OBJECT OF THE ACTION

The plaintiffs challenge the entirety of Law no. 9892, called “Law Creating the Isla San Lucas National Park” and, in particular, ordinals 1, 2, 3 last paragraph, 5, 6, 7, 9 subsection d), 10, 14 subsection g), 15, 16, 17, and 18, on the grounds in particular: a) that there was a change in the management category of the protected wilderness area of Isla San Lucas and a tourism zone was included without prior studies; b) the area of the protected wilderness area was reduced without any justification; c) commercial purposes disguised as sustainable objectives are established; d) the National System of Conservation Areas is not part of the Board of Directors of the Isla San Lucas National Park; e) the presence of private security officers in a national park is permitted; f) the granting of concessions and the construction of docks and jetties within the national park is authorized; and g) the financing of the created protected wilderness area is uncertain.

In their view, these provisions violate Articles 7, 50, and 89 of the Political Constitution, the right to a healthy environment, and the principles of reasonableness, lifetime tenure (irreductibilidad) of protected wilderness areas, proportionality, non-regression, objectivization, the precautionary principle, and the principle of 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 Wetlands of International Importance and Sites for Migratory Birds, numeral 11 of the Additional Protocol on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador,” ordinal 8, subsections 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 for the Protection of Flora, Fauna, and Natural Scenic Beauties of the Countries of America.

IV. ON THE CHALLENGED REGULATIONS

Law no. 9892 of August 24, 2020, called “Law Creating the Isla San Lucas National Park,” whose constitutionality is challenged, provides the following:

“CHAPTER I GENERAL ASPECTS ARTICLE 1-Creation. The Isla San Lucas National Park is created, which, in addition to its condition as a protected wilderness area, will be historical-architectural heritage and a sustainable tourism use zone, in the specific areas determined in this law.

ARTICLE 2- National interest. The sustainable tourism development of the island is declared of national interest and high priority under the terms of this law, as well as the conservation and restoration of the buildings of the former prison of Isla San Lucas. The agencies of the public Administration and the private sector, within their respective legal framework, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the island.

ARTICLE 3- Delimitations.

San Lucas Island National Park shall be comprised of a terrestrial portion and a coastal marine area.

The terrestrial portion shall consist of the insular part of San Lucas Island, located in the Gulf of Nicoya, national geographic institute map sheet named 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 be comprised of the waters surrounding the island, to a depth of up to three meters (3 m). Within the two aforementioned areas, there shall be a differentiated management area dedicated to sustainable tourism activity and the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourism Zone (Zona turística).

ARTICLE 4- Purposes. The purposes of San Lucas Island National Park are the following:

• a)The preservation of the natural, historical, cultural, archaeological, and architectural heritage.
• b)To contribute to the socioeconomic development of the Gulf of Nicoya.
• c)The promotion of sustainable and inclusive tourism, for the benefit of national and foreign visitors.
• d)The enjoyment, recreation, and creation of facilities and amenities for inclusive tourism visitation.

ARTICLE 5- Cultural and historical significance. The complex of buildings of the former San Lucas prison (presidio San Lucas) is declared historical-architectural heritage; the State must restore and preserve this heritage for the enjoyment and knowledge of present and future generations.

The Ministry of Culture must conduct an inventory of the cited heritage and its state of conservation, updating it periodically, all of which it shall communicate to the Ministry of Environment and Energy (Minae) and to the entity responsible for the administration of the island.

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 terrestrial access zone to the island, the plots, the trails, and the beach areas indicated, shall be affected by the condition of Tourism Zone. Said areas are specified in the following coordinates:

• a)Area called Historical Zone (Zona histórica): site where the buildings of the former San Lucas prison are located, 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 continue on a north course along the coastline until reaching point 1A Area of the polygon called "Buildings Area (Área de edificaciones)": 265664.59 1 m2, equivalent to 26ha5664, equivalent to 0.27km2 b) Playa El Coco recreation area (Área de recreo playa El Coco): comprised of the following coordinates in the CRTM05 projection:

Playa El Coco 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 continue on a south course along the depth contour of 4.00 meters in the sea until reaching point 1B Area of the polygon called "Playa El Coco recreation area": 76401.99, equivalent to 7ha6401, equivalent to 0.08km2 c) Sector called Trails Area (Área de senderos): comprised of the following coordinates in the CRTM05 projection Trails 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 continue on a north course along the coastline until reaching point 50C.

50C 399304.38 1099473.03 51C 399343.31 1099505.35 Trails Area 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 continue on a north course along the coastline until reaching point 1C.

Area of the polygon called "Trails Area": 314277.731 m2, equivalent to 31 ha4277, equivalent to 0.31 km2 d) Area called Water Sector (Sector de agua): comprised of 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 continue on an east-south-west course, along the coastline until reaching point 1D Area of the polygon called "Water Sector" 746209.m2, equivalent to 74ha6209, equivalent to 0.75 km2

CHAPTER II

ADMINISTRATION

ARTICLE 7-Scope and restrictions. San Lucas Island National Park shall be governed by a master plan developed based on technical criteria.

For the fulfillment of the purposes established in this law, concessions and permits for activities and facilities other than park services may be granted in the tourism zone. Lodging services and games of chance shall not be permitted in this zone.

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

Any conflict of jurisdiction shall be resolved by the Minister of Environment and Energy.

ARTICLE 8- Governance of the island. For the governance and administration of San Lucas Island National Park, the Board of Directors of San Lucas Island National Park is created, which shall be a maximum deconcentration body attached to the Ministry of Environment and Energy (Minae), and with instrumental legal personality for the exercise of its powers.

ARTICLE 9- Duties and powers. The Board of Directors of San Lucas Island National Park shall have the following powers:

• a)To define the 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 the guidelines for the protection, restoration, and administration of the historical buildings, developing facilities and services intended for the rest and recreation of visitors, the enabling and accessibility of land and sea routes, port constructions, and, in general, the provision of all basic services.
• d)To define environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that incentivize tourist attraction and visitation to the island.
• e)To approve the strategic objectives for marketing and promotion necessary to publicize San Lucas Island National Park, both within and outside the country.
• f)To grant approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourism Zone.

In the case of works related to areas declared heritage, coordination is required with the Ministry of Culture.

• g)To approve the master plan of 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, modify, or revoke any trust (fideicomiso) relating to San Lucas Island National Park, as well as all types of contracts and agreements with entities and persons, public or private. It must determine the entrance fees to the national park, as well as approve the contracts for the various reservation and purchase systems.
• j)To approve the use of the legal concepts of public works concession with public service and mutual benefit contracting with non-profit entities.
• k)To carry out any other type of action necessary to ensure the proper functioning of San Lucas Island National Park and the achievement of its purposes.

In matters of conservation and preservation of the historical-architectural heritage, the criterion of the Cultural Heritage Research and Conservation Center (Centro de Investigación y Conservación del Patrimonio Cultural) of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island's biodiversity, the technical criterion of the National System of Conservation Areas (Sinac) shall prevail. Upon request of the Board of Directors, said entities shall provide their criteria as expeditiously as possible.

ARTICLE 10-Composition. The Board of Directors of San Lucas Island National Park shall be composed of the following members:

• a)The Minister of Environment and Energy, who shall preside over it, with a Vice Minister of that ministry being able to act as an alternate.
• b)The Minister of Culture, with a Vice Minister of that ministry being able to act as an alternate.
• c)The Executive Presidency of the Costa Rican Tourism Institute (ICT), with the person holding the management or a member of the Board of Directors of said institute being able to act as an alternate.
• d)A representative of the Executive Branch designated by the Government Council, which body shall also appoint an alternate.
• e)The Mayor of the Municipality of the Central Canton of Puntarenas, with a Deputy Mayor being able to act as an alternate.
• f)The President of the Puntarenas Chamber of Tourism, with any of the members of the Board of Directors of said chamber being able to act as an alternate.

The President of the Board shall hold the judicial and extrajudicial representation of the body. Likewise, the President shall have a casting vote under the terms of Article 49 of Law 6227, General Law of Public Administration, of May 2, 1978. The members of the Board of Directors shall not receive any stipend (dieta).

ARTICLE 11- Duration and organization. The six members of the Board of Directors of San Lucas Island National Park shall remain in their posts for as long as they hold the position that legitimizes them as members and, in the case of the representative of the Executive Branch, for as long as they are not removed by the Government Council.

The Board of Directors of the park may validly meet with the participation of alternate members, even in the event that the principal titular position is vacant.

In matters not regulated in this law, the Board of Directors shall be governed in its structure, organization, and functioning by Law 6227, General Law of Public Administration, of May 2, 1978.

ARTICLE 12- Sessions. The Board of Directors shall meet ordinarily at least once a month and, extraordinarily, when required; in which case, the Presidency shall issue the call.

All sessions of the Board of Directors must be formally documented.

The Board of Directors may invite technical personnel and other persons required for decision-making to its sessions.

ARTICLE 13- Trusts. The Board of Directors of the National Park is authorized to use the trust (fideicomiso) instrument as a tool for the administration, management, development, and maintenance of San Lucas Island National Park, for the fulfillment of the purposes indicated in this law. This instrument shall be established with a state commercial bank and must directly execute the tasks and powers assigned to it by the Board.

Within the trust structure, there shall be an Administrative Commission (Comisión Administradora) and an Oversight Office (Fiscalía), whose members shall be appointed by the Board. Said commission shall be considered a Special Committee, in accordance with Article 116 of Law 1644, Organic Law of the National Banking System, of September 26, 1953. It shall be an interdisciplinary collegial body composed of five persons of recognized honorability, with knowledge in any of the following subjects: administration, infrastructure development, tourism, environment, cultural heritage, marketing, or other subjects pertaining to the purposes of this law.

The Board of Directors is also authorized to administer the funds entering the park for any concept, through said trust.

The selection of the state commercial bank that will act as trustee shall be carried out through a rigorous profile determination, under parameters of security, liquidity, diversification, profitability, fiduciary experience, and risk control.

The Office of the Comptroller General of the Republic shall have unrestricted access to all information and documentation of the trust, when it deems it pertinent.

ARTICLE 14-Administrative Commission of the Trust and its functions. The Administrative Commission of the Trust shall appoint from among its members a presidency, a vice-presidency, and a secretary. All members of this commission shall work ad honorem.

Among the functions of this commission are the following:

• a)To fulfill all those tasks or assignments entrusted by the settlor (fideicomitente), established in the trust contract.
• b)To coordinate with the Board of Directors of San Lucas Island National Park and follow its general guidelines, for the proper functioning and fulfillment of the trust.
• c)To approve the manuals corresponding to administration, management, surveillance, and others related to the trust.
• d)To review and approve, annually, the ordinary and extraordinary budgets of the trust.
• e)To instruct the trustee on the actions required and that fall within the scope of the trust.
• f)To meet at least once a month ordinarily and, extraordinarily, whenever convened by the Presidency of the Board or the representative of the trustee.
• g)To approve agreements and contracts for the provision of recreational and/or commercial services, as well as essential and non-essential services, to achieve the greatest use of the Tourism Zone and enjoyment by visitors.
• h)The functions attributed to it by the trust contract relating to internal control, surveillance, procurement, personnel, and others necessary for the administration of the national park.
• i)Any other function arising from the trust contract, its manuals, or others directly related.

ARTICLE 15- Surveillance and security. For the surveillance and security of San Lucas Island National Park, the necessary complement of park rangers from the National System of Conservation Areas of the Ministry of Environment and Energy (Minae) shall be provided, without prejudice to the possibility that the Board of Directors, directly or through the corresponding administration trust, may contract the security it deems necessary; said personnel shall not have police authority nor may exercise non-delegable functions inherent to the administration. Likewise, it may request the assistance of the Ministry of Security in situations that warrant it.

CHAPTER III

DEVELOPMENT AND FINANCING

ARTICLE 16- Infrastructure development. San Lucas Island National Park may develop all the infrastructure necessary to facilitate sustainable tourism, including the provision of water, electricity, telecommunications, hygiene and sanitation, docks, berths, food services and access routes, information and communication in various formats, as well as any other it deems pertinent for the benefit of visitors and to ensure the enjoyment and appreciation of the historical, architectural, and natural richness of the park.

In the construction of docks, berths, and other maritime facilities, the Costa Rican Institute of Pacific Ports (Incop), the Ministry of Public Works and Transport (MOPT), and the Costa Rican Tourism Institute (ICT) shall provide the corresponding technical support to the Board of Directors; likewise, these institutions are empowered to build and maintain the works indicated in this rule.

ARTICLE 17- Financing. San Lucas Island National Park shall have financial resources that allow it to exercise its mandates with agility and efficiency. These shall include the resources legally corresponding to it from the National System of Conservation Areas (Sinac), transfers from the budgets of the Republic or donations from any natural or legal person, as well as the own funds generated by the entrance fee to the park, the use of its services, the fees (cánones) for concessions and permits, and, in general, the payment for activities carried out within the park.

The resources regulated in this law, as well as all those produced by the park, shall necessarily and exclusively be invested in the same national park.

Oversight shall be the responsibility of the Office of the Comptroller General of the Republic.

ARTICLE 18- Authorization to donate and subsidize. All state, non-state, and financial public sector entities are authorized to make donations, investments, and include budgetary subsidies in favor of San Lucas Island National Park.

The Costa Rican Tourism Institute (ICT) may transfer economic resources to the Board of Directors of San Lucas Island National Park for its investments in development and ordinary activities; likewise, it may design and carry out promotion and marketing for park visitation.

The Board of Directors may receive donations from international organizations and foreign governments interested in contributing to the purposes of the park.

ARTICLE 19- Authorization for credits and loans. To fulfill its objectives, the Board may arrange credits and/or loans with public or private entities, national or foreign, always subject to the controls and provisions of Law 8131, Law of Financial Administration of the Republic and Public Budgets, of September 18, 2001.

ARTICLE 20- Repeal. Articles 2 to 8 of Law 5469, Law of Transfer of San Lucas Island to the Municipality of Puntarenas, of April 25, 1974, are repealed.

TRANSITORY PROVISION I- The Board of Directors of San Lucas Island National Park must be constituted within a period not exceeding two months, counted from the entry into force of this law.

TRANSITORY PROVISION II- As long as the trust referred to in this law has not been constituted or during periods when it may cease to be effective, the Board of Directors shall carry out all corresponding tasks through the powers granted to it by this and other laws.

The period to initiate the steps to contract the trust may not exceed ninety calendar days from the effective date 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 that make up the Board of Directors of San Lucas Island National Park, as well as the Ministry of Economy, Industry and Commerce (MEIC), must develop a strategy to promote the participation of local organizations in the tourism activities developed in the park.

It shall take effect upon its publication.

Given at the Presidency of the Republic, San José, on the twenty-fourth day of August of the year two thousand twenty.

LET IT BE EXECUTED AND PUBLISHED".

V. SUSTAINABLE DEVELOPMENT AND TOURISM

This Court, in ruling no. 2010-13099, when referring previously to the regulatory situation of this island regarding decree no. 34282-TUR-MINAE-C, pronounced on the implications of sustainable development together with tourism. It stated on that occasion that the cornerstone of development lies in environmental sustainability, which aims to protect and conserve the environment and its natural resources, in balance with economic diversification and the improvement of the quality of human life. It emphasized that the core idea of the principles of environmental law lies in the rational use of natural resources, with the protection of the environment to ensure the sustainability of present and future generations. Thus, any economic or productive activity that intervenes in or uses the environment must respond to the philosophy of sustainable development, according to the impact it has on it.

In that sense, when the Executive Branch bases itself on this type of objective for economic and social development, this Chamber considered that rural tourism as such must respond to those values that protect sustainable development, because it could not be the exception, and it is constitutionally relevant to control the repercussions it may generate on the environment. An example of this is the Certification for Tourism Sustainability (Certificación para la Sostenibilidad Turística) issued by the Costa Rican Tourism Institute as a component of utmost importance, which denotes an advance in protecting the right to a healthy and ecologically balanced environment and, at the same time, promoting economic diversity; this measure generates incentives in favor of companies dedicated to the tourism exploitation of natural and cultural resources. On the other hand, it was indicated that Law no. 8724, which is the Law for the Promotion of Rural Community Tourism, seeks to bring benefits to families and communities by using their localities as tourist destinations, and among its norms is subsection a) of Article 2, which states: "To 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 Global Code of Ethics for Tourism, adopted by resolution A/RES/406(XIII) of the thirteenth General Assembly of the UNWTO in Santiago, Chile, on December 27 to October 1, 1999, and adopted by the United Nations General Assembly in resolution A/RES/56/212 of December 21, 2001, establishes:

"Article 3.

Tourism, a factor of sustainable development 1. All the agents of tourism development have the duty to safeguard the environment and natural resources, with a view to sound, constant 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 capable of saving scarce and valuable natural resources, particularly water and energy, and avoiding as far as possible the production of waste.

…

4. Infrastructure shall be designed and tourism activities programmed in such a way as to protect the natural heritage composed of ecosystems and biological diversity, and to preserve endangered species of wild fauna and flora. Agents of tourism development, and particularly professionals in the sector, must accept limitations imposed on their activities when exercised in particularly sensitive areas: desert, polar or high mountain regions, coastal areas, tropical forests or wetlands, which are 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 they respect the natural heritage and local populations and are in keeping with the carrying capacity of the sites visited." For this reason, this Chamber indicated that, for equitable access to development, the traditional idea that development only occurs in urban areas must be abandoned, when in the rural environment other factors that make the place unique can be exploited, while of course seeking not to threaten those conditions. It was noted that there is no doubt that the exploitation of natural resources implies economic diversity; to that extent, the environment requires protection to withstand the burdens of human intervention, so it is necessary to ensure reasonable development in equilibrium with the environment, such that the control that could be exercised would increase according to the impact it may have on it. Consequently, tourism development must not imply the destruction of public domain assets or the surroundings, because it even depends on their preservation to achieve the economic improvement of rural communities within the parameters of sustainability.

Among the constitutional aims of the State is also that of developing policies that reduce social and economic gaps, adjusting its actions to the protection of environments, whether natural, rural, or mixed, based on the provisions of Article 50 of the Constitution. Having access to development, in terms of job opportunities and quality of life, is equivalent to economic progress that forms part of the recognition and advancement of human rights; hence, rural development through tourism should not mean that individuals must abandon their traditional customs and ways of life to migrate to cities, but rather an adjustment of those customs to current needs and advances. In this sense, it was indicated that, in the opinion of the Chamber, the true challenge for human beings is to generate progress and—why not—happiness (material and spiritual) without threatening the resources available in the environment; the opposite would simply translate into social inequalities that prevent moving toward a new stage of human development.

The Chamber recognized that the balance between the two is very delicate, but for this to occur without degrading the environment, science and technique must be relied upon to determine the loads 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, widely recognized in international human rights instruments, merits these considerations from this Constitutional Court. Thus, this Chamber concluded that rural development based on tourism aimed at natural and cultural heritage is constitutionally legitimate as long as it is sustainable. Hence, if science and technique suggest the imposition of certain limitations on the number of visitor groups, at certain times, etc., these cannot be judged as unconstitutional, given that they respond to sustainability criteria, but without detracting from the various international provisions that safeguard the right to enhance the value of those assets belonging to national history, not only as assets of the national heritage but of all humanity, and their restriction to the population is not legitimate.

In relation to the protection of the surroundings and natural and cultural heritage, in that same ruling the following was stated:

“X.- Regarding 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, but at the same time, recognizes the State’s need to contribute with policies to promote economic diversity, as well as the conservation and protection of cultural and natural assets, because without one or the other, the existence of equitable human progress for all social sectors could not be understood. The protection of the environment, economic diversification, and quality of life are legitimate aims of the State, as it must implement development policies in both urban and rural areas. But the type of progress in a rural environment must depart from a centralist development model, which assumes that this can only occur in urban areas, when it should exploit particularities and other specific needs.

Now, rural development, based on tourism, must be founded on other particular axes: one of them is what doctrine identifies as the conservation of the intrinsic values of rural spaces. This principle lies in the fact that rural spaces must be conserved sustainably. In this sense, the forest, the sea, the mountain, the volcanoes, the mangroves, wetlands, etc. provide different types of development scenarios according to whatever interests may exist. In themselves, each constitutes a scenic appreciation value subject to constitutional protection. But the task of targeting and stimulating this type of rural development policies are matters corresponding to the Legislature and the Executive Branch in their constitutional functions. This Chamber must highlight that the conservation of the particular characteristics of rural environments or of the natural or landscape surroundings is a value contained in Article 89 of the Constitution that requires protection and must be directed at protecting the surroundings that enhance its worth, not only as a rural space, but also as a tourist destination so that the positive effects are felt in neighboring communities. In this sense, Article 35 of the Organic Environmental Law establishes that:

‘The creation, conservation, administration, development, and vigilance of protected areas shall have as objectives:

a…

…

• f)To protect the natural and landscape surroundings of historical and architectural sites and centers, of national monuments, of archaeological sites, and of places of historical and artistic interest important for the nation’s culture and identity.’ The Political Constitution identifies as goals of legal relevance not only the protection but also the conservation and development of the historical and artistic heritage of the Nation. In the dictionary of the Royal Spanish Academy, to protect has the following meanings: 1.- To shelter, favor, defend.; and 2.- To shield a person, animal, or thing from harm or danger, by placing something over it, surrounding it, etc. For its part, to conserve means: 1. To maintain something or care for its permanence; 2. To keep someone alive and unharmed; 3. To continue the practice of customs, virtues, and similar things; 4. To carefully guard something, among other meanings.

And to develop, in the applicable meaning, is to increase, to give increment to something of a physical, intellectual, or moral order. In line with the above, the Law authorizes as legitimate objectives the creation, conservation, administration, development, and vigilance of protected areas containing historical, architectural, and archaeological sites or centers, which implies that in the management of cultural resources, human intervention is permitted for the maintenance, guarding, preservation, and care of the assets located in their surroundings, while at the same time development promotes the rescue and enhancement of places of interest that may exist in the location and its surroundings. Assets of cultural interest require protection and conservationist measures in the environment in which they are found, so that they can be distinguished as a tourist resource; otherwise, the State’s omission would imply an illicit abandonment from a constitutional standpoint and in light of the international treaties in force in the Republic.

Added to the above, to conserve implies the idea of ensuring protection and permanence, within the context of the values and customs specific to urban and rural spaces, for which sustainability criteria and practices must be admitted. The administration and development of the asset must be protected, as well as enhance the asset according to the characteristics in its environment, so if it is infrastructure created by man, it will imply technical management, which requires maintenance measures and investment to ensure its development when being enhanced in value, as well as its conservation. In the case of Isla San Lucas, subsection f) of Article 38 of the Organic Environmental Law applies insofar as there exist not only elements of natural heritage, since as a site with historical and archaeological buildings, they are important for the nation’s culture and identity. Consequently, it is important to cite the Global Code of Ethics for Tourism, as it states that:

‘Article 4 Tourism, a factor in the utilization and enrichment of the cultural heritage of humanity Tourism resources belong to the common heritage of humanity. The communities in whose territory 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 transmit to future generations. Particular attention shall be given to the protection and rehabilitation of monuments, sanctuaries, and museums, as well as of places of historical or archaeological interest, which must be widely open to tourist visitation. Public access to privately owned cultural assets and monuments shall be encouraged with full respect for the rights of their owners, as well as to religious buildings without prejudice to the needs of worship. The resources derived from the visitation of 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 such a way that it allows the survival and flourishing of traditional cultural and craft production, as well as folklore, and that it does not lead to their standardization and impoverishment. (the bold highlighting is not from the original)’ Costa Rican legislation sparsely regulates the possible administration of these historic sites, but from the isolated norms derives the obligation to protect natural and landscape surroundings, which admits human intervention, but with the intention of improving places, not their destruction or abandonment. The Law on Historical-Architectural Heritage of Costa Rica, Law No. 7555 establishes that:

‘Article 9. Obligations and Rights The declaration of real estate assets as a monument, building, or historic site entails the obligation on the part of the owners, possessors, or holders of real rights over the assets so declared to: Conserve, preserve, and adequately maintain the assets. ... j) […] The State and the respective municipality shall have the right to expropriate the assets; they may exercise it for the benefit of other public entities. This right encompasses assets that threaten environmental harmony or pose a risk to conserving those that have been declared of historical-architectural interest. The Executive Branch and the respective municipality shall be obligated to prevent the total or partial demolition of a protected building. Guarantee that the use of the protected assets shall not alter their conservation and shall also be congruent with the inherent characteristics of the property. In any case, such use shall not conflict with morality, good customs, or public order.’ (the bold highlighting is not from the original) For this Chamber, it is also important to note that Articles 71 and 72 of the Organic Environmental Law clearly delimit the foregoing:

‘Article 71.- Visual pollution. Actions, works, or installations that exceed, to the temporary or permanent detriment of the landscape, the maximum admissible limits set by established technical norms or those issued in the future shall be considered visual pollution.

Article 72.- Landscape conservation. The competent authority shall promote that public and private sectors participate in landscape conservation. When carrying out a work requires affecting it, the resulting landscape must be at least of equal quality to the previous one.’ From the above, not only the aims of conservation, preservation, and development are extracted, but also the principle of sustainability in the utilization and development of assets of the artistic, archaeological, and cultural heritage, to enrich their surroundings by improving their scenic beauty, and to provide access and safety to assets and people, as advised by technical and scientific norms in their respective fields. On the other hand, coupled with the need for rehabilitation, restoration, maintenance, and control of activities, are, ultimately, the social and economic benefits for the many sectors that will depend on this activity.”

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

• a)Previous situation of Isla San Lucas, as documented in legislative file no. 21.287, which gave rise to Law No. 9892.

This island, in the pre-Hispanic period, was occupied by indigenous peoples. It was conquered in 1529 and, at that time, was called Isla Chara. It was the Spanish who christened it Isla San Lúcar and later Isla San Lucas. In 1873, under the government of General Tomás Guardia, the Costa Rican State decided that Isla San Lucas would be dedicated to a prison. It was in 1930 when the group of heritage buildings known on the island today was apparently developed; the main administrative building, which they called the commissary, was built, along with the group of buildings dedicated to serving as a prison. This underwent a significant change in 1961, when it became a penal colony, an experiment promoted by some lawyers so that, through the Ministry of Justice, the State could change the conditions in which those people found themselves. At that time, a colony began where prisoners lived in conditions of relative freedom on the island, living in small houses or being able to live in small houses on weekends, where they could receive conjugal visits, and tourism that shared the space with the people who were deprived of liberty at that time.

A certain amount of commerce developed on the island, with hundreds of head of cattle, poultry, and they engaged in agriculture during some months of the year, and despite the lands being quite arid due to the environmental conditions of the time, they could cultivate and sold the produce they grew to the neighbors of the Gulf of Nicoya who traveled to the island. When the book “La isla de los hombres solos” was published in 1963, great awareness was generated about the inhuman conditions those people were experiencing and had experienced especially before the penal agricultural colony, which led to important changes.

In 1974, the deputies issued Law No. 5469, which provided: 1- to transfer ownership of Isla San Lucas, located in the Gulf of Nicoya, to the Municipality of Puntarenas, 2- the Municipality had to use the island as a tourist center, for which it was authorized to contract the necessary infrastructure works, 3- the Municipality could carry out said operation by itself or by public tender, 4- on the island and for the purposes of that law, the operation of hotels and all those activities typical of a well-organized tourist operation was authorized, 5- the net profits yielded by the tourist operation of Isla San Lucas would be distributed as follows: a) 45% for the Municipality of the Central Canton of Puntarenas, for city modernization works; 15% for the Costa Rican Tourism Institute; and 10% for the development of the Penitentiary Reform; b) 10% for the National Children’s Hospital; c) 5% for the Joint Institute for Social Assistance; d) 5% for the Directorate of Social Adaptation, for the maintenance and repair of prisons in the province of Puntarenas; e) 5% for a nursing home for the destitute elderly of the entire province of Puntarenas; and f) 5% for an Alcohol Rehabilitation Center in Puntarenas; 6- the Costa Rican Tourism Institute had to technically study the territory of Isla San Lucas and its coastline, and prepare the corresponding Tourism Development Plan with the respective descriptive report establishing the priorities of the case, which the Municipality would be obligated to respect and execute; 7- solely for the purposes of this law, any legal provision opposing it was rendered without effect; and 8- its regulation was ordered by the Executive Branch with the interested Municipal Corporation and the Costa Rican Tourism Institute.

As a transitional provision, it was provided that the transfer referred to in Article 1 would take effect at the moment the existing penitentiary located on Isla San Lucas was transferred to another site, for which a two-year period was granted to the Executive Branch to find a new location for said penitentiary, in accordance with the laws in force. This law remained in effect until Law No. 9892 was enacted, the subject of this action.

That development of a hotel tourism project by concession never materialized, and it was not until 1991 that the penitentiary closed as such and ceased to be a prison forever.

By that time, the island was left in a critical state, without major functions, very few people, perhaps a guard, until, in 2001, Executive Decree No. 29277-MINAE was signed, which converted the island into a state-owned wildlife refuge, in accordance with the provisions of Article 82 of the Wildlife Conservation Law No. 7317 of October 30, 1992, and Articles 32 and 42 of the Organic Environmental Law No. 7554 of October 4, 1995, with the following grounds:

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

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

3º—That the Gulf of Nicoya constitutes a natural breeding ground for many marine species that are utilized by neighboring communities.

4º—That wetlands constitute an important site for feeding, refuge, and reproduction for a great variety of wildlife species, which is why their protection and conservation are especially important.

5º—That the rational, integrated management of marine resources contributes to satisfying regional needs for research, recreation, environmental education, scenic beauty, as well as the utilization of renewable natural resources, rationally exploited.’ This same decree established the following in Article 2:

‘Article 2º—A Coastal Marine Protection Zone is hereby declared in accordance with that established in Article 42 of the Organic Environmental Law, the marine area described according to IGN Cartographic Sheet named Golfo, Edition 3-IGNCR, bounded by: Point 1.- located at Punta Cirial of Isla San Lucas, with Lambert coordinates 213480 North (N) and 438650 East (1), to follow in a straight line to the point with coordinates 217850 N-445870 E (2), which on the ground coincides with vertex 5 of Cadastral Plan No. P-602653-85, continues along the western boundary of this property to reach vertex 23 of Cadastral Plan P-665031-2000, to follow the eastern and northern boundaries of this lot to reach vertex 8, to follow with a general southern heading approximately 38 meters and approximately 40 meters west to reach the lot described by Cadastral Plan P-665032-2000 at vertex 1 and following that northern and western boundary to reach No. 3, these plans describing the property that will house the facilities of the Puntarenas marine park, now property of INCOFER.

This last point with approximate coordinates 217750 N- 445500 E (3), to follow in a straight line to Punta Cocos of Isla San Lucas with coordinates 215000 N - 438400 E(4). It proceeds along the low tide line of Playa Coco until reaching the initial point of this description of the Marine Protection Zone, located at Punta Cirial with coordinates 213480 North (N) and 438650 East (1). Excluded from this description is the existing area between Punta Cirial and Punta Cocos of Isla San Lucas, encompassing waters up to 6 meters deep already included as part of the Isla San Lucas Wildlife Refuge described previously in Article 1 of this decree.’ Article 3 declared the Estero de Puntarenas as the Humedal del Estero de Puntarenas y Manglares Asociados, according to IGN Cartographic Sheets described therein.

And, Article 4 provided: ‘The Administration of the protected areas declared herein shall be the responsibility of the Ministry of Environment and Energy and the institutions established by the regulations in force. The management categories established in this decree shall be governed in accordance with the provisions established on the matter by the legislation in force. Marine species extraction activities shall be permitted based on the regulations established by the Institute of Fishing and Aquaculture (INCOPESCA).’ Meanwhile, by Executive Decree No. 30714 of August 13, 2002, the Executive Branch declared and incorporated into the Historical Architectural Heritage of Costa Rica the property named Isla San Lucas, in the province of Puntarenas.

On February 25, 2005, Decree 29277-MINAE was partially amended through Executive Decree 32349, repealing Article 2 cited above, and provided for the expansion and delimitation of the area of the Humedal Estero Puntarenas and Associated Mangroves, declaring the area comprising Isla San Lucas and the coastal marine area as a National Wildlife Refuge, stating, among other things, the following:

‘Article 1º- The boundaries of the Isla San Lucas National Wildlife Refuge, State property, are hereby maintained, whose area comprises:

A. The land portion consisting of Isla San Lucas, located in the Gulf of Nicoya, IGN Cartographic Sheet named Golfo, edition 3-IGNCR at north latitude 9° 56´ and west longitude 84° 54.5´, with an extension of 4.62 square km.

B. A coastal-marine area comprised of the waters surrounding Isla San Lucas to a depth of 6 m.’ Article 2º- The area of the Humedal Estero Puntarenas and Associated Mangroves declared by Executive Decree No. 29277-MINAE is hereby expanded and delimited, whose location is found according to the cartographic sheets of the National Geographic Institute named Golfo, edition 3-IGNCR and Chapernal edition 2-IGNCR, with an area of 4362 ha, whose description is as follows:…

Article 4º- Any infrastructure work to be constructed, be they docks, piers, fish collection centers, or any other related to fishing or tourism activity or of any other nature, within the current openings or within the buffer zone, which corresponds to the 20 m wide strip equidistant from the southern coastline along the Estero Puntarenas and running from point 1 coordinates 217 923 N - 442977 E to point 16 coordinates 218394 N - 450365 E, must be built on piles or floating docks, depending on its purpose, size, or load capacity.

Article 5º- The Administration of the protected areas declared herein shall be the responsibility of the Ministry of Environment and Energy and the institutions established by the regulations in force. The management categories established in this decree shall be governed in accordance with the provisions established on the matter by the legislation in force. Marine species extraction activities shall be permitted based on the regulations established by the Management Plan for these Protected Wildlife Areas, their Use Regulation, and the Costa Rican Institute of Fishing and Aquaculture (INCOPESCA).’ Subsequently, by Executive Decree No. 33327 of August 30, 2006, the boundaries of the Isla San Lucas National Wildlife Refuge, State property, declared by Executive Decree 29277-MINAE, published in La Gaceta No. 30 of Monday, February 12, 2001, and its amendment by Executive Decree 32349-MINAE published in La Gaceta No. 92 of Friday, May 13, 2005, were rectified, delimited, and expanded, establishing the following:

‘Article 3º- Any infrastructure work to be constructed, be they docks, piers, fish collection centers, or any other related to fishing or tourism activity or of any other nature, within the buffer zone, which corresponds to the strip between the southern limit of the Protected Wildlife Area Humedal Estero Puntarenas and Associated Mangroves and the coastline of the city of Puntarenas, running from point 1 coordinates 218500 N-443000 E to point 5 coordinates 218390 N-450480 E, must be built on piles or floating docks, depending on its purpose, size, or load capacity. To construct the aforementioned infrastructure, interested parties must request approval from the Maritime Port Division of the Ministry of Public Works and Transport; once said approval is obtained, the Municipality of Puntarenas shall proceed to grant the corresponding permit.

Article 4º- The Administration of the protected areas declared herein shall be the responsibility of the Ministry of Environment and Energy and the institutions established by the regulations in force. The management categories established in this decree shall be governed in accordance with the provisions established on the matter by the legal regulations in force. Marine species extraction activities shall be permitted based on the regulations established by the Management Plan for these Protected Wildlife Areas, their Use Regulation, and the Costa Rican Institute of Fishing and Aquaculture (INCOPESCA).

Article 5º- This decree does not limit or modify the condition of the Estero de Puntarenas as a means of transport or navigation. Free navigation through the same is maintained, and the labors deemed necessary to maintain it adequately so that it does not lose its navigability condition are authorized. Any other activity that needs to be carried out within the portion of the Estero de Puntarenas that forms part of the Protected Wildlife Area must have the respective permit from the Subregional Office of SINAC-MINAE located in Esparza de Puntarenas, subject to its judgment.

Article 6º- Any activity or project aimed at recovering and conserving the quality of the waters and natural resources of the Estero de Puntarenas, as well as their rational use, is hereby declared of public interest.’ On January 25, 2008, the Executive Branch issued Decree No. 34282-TUR-MINAE-C, which provided the following: in Article 1, a rectification, delimitation, and expansion of the refuge area, and otherwise the following:

‘Article 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 penitentiary on Isla San Lucas, is hereby declared of national interest and high priority. The dependencies of the Public Administration and the Private Sector, within the respective legal framework, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the Island.’ ‘Article 3º- A Permanent Commission is hereby created, composed of the Rector Ministers of Culture, Youth and Sports, Tourism, and Environment and Energy, or their representatives, and by the Mayor of Puntarenas or his representative, charged with ensuring the rational management of the lands under municipal administration. The Commission shall have a General Coordination Secretariat whose head shall be appointed by the President of the Republic.’ ‘Article 4º- The following is prohibited in the Municipal Administration Area:

• 1)The supply of fuels and their derivatives in order to avoid environmental pollution.
• 2)The use of water for tourism activities contrary to the technical norms dictated by the Water Department of MINAE in collaboration with the Costa Rican Institute of Aqueducts and Sewers, if required, in order to preserve the ecological flow necessary for the maintenance of the island’s ecosystem.
• 3)The use of the Cultural Heritage contrary to the technical norms dictated by the Ministry of Culture, Youth and Sports.
• 4)Fishing and hunting.
• 5)Other limitations established by the Permanent Commission in accordance with pertinent technical studies.’ ‘Article 5º- For the development of tourism activities in the municipal administration area and the preservation of the island’s cultural heritage, the ICT shall prepare a Master Plan for Sustainable Tourism Development, which shall include an analysis of the environmental impact and the technical norms 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)Zoning study, by which land uses (usos de suelo) are defined.
• b)Zoning regulations (ordenanzas y reglamentos) that define and establish the criteria and standards for land use, construction and use of buildings, facilities, public services, buffer zones, among others, necessary for the limited and sustainable tourism development and for the protection of the cultural heritage of the Island.
• c)Strategy plan for project execution, which establishes the programs, projects and activities, both by private initiative and by public investment, in the interest of sustainable development and protection of the cultural heritage.

The Sustainable Tourism Development Master Plan shall be submitted to the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental) of MINAE and to the Ministry of Culture, Youth and Sports for its approval, in accordance with the requirements and procedures established by the legal system.

The municipal administration area shall be regulated by the aforementioned Sustainable Tourism Development Master Plan and the Refuge Management Plan shall not be applicable to it, except for the pertinent general legal rules. MINAE shall adjust its Management Plan in accordance with the new dimensions of the refuge and the Sustainable Tourism Development Master Plan.

Article 6—Of the resources corresponding to the Municipality of Puntarenas pursuant to Article 5 of Law No. 5469, twenty-five percent shall be allocated by the Municipality of Puntarenas for the maintenance of the facilities and services provided by MINAE in the Isla de San Lucas National Wildlife Refuge.

Article 7—MINAE shall continue using the facilities it currently occupies on Isla de San Lucas, such as the offices, park ranger dormitories and any other building they currently occupy in their duties. They may be relocated provided they are given other facilities in equal or better conditions than the current ones.” Said decree was challenged before this Court, and by judgment No. 2010-13099, of 2:56 p.m. 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, solely insofar as it modified subparagraph A. of Article 1 of Executive Decree No. 33327-MINAE, except for the addition of the portion of water that was added to the Isla San Lucas National Wildlife Refuge and paragraph B, which remain in force. That is, the rest of its content was in force at the time Law No. 9892, the object of this action, was enacted.

Likewise, as a result of that described regulation itself, management plans (planes de manejo) prepared by SINAC already existed prior to the law since 2012, which, based on technical studies, define areas and activities to be carried out, and which were even updated prior to the approval of this law, and which, furthermore, are consistent with what is developed in it. Let us see, for example, some aspects of interest from the diagnosis of the update of the General Management Plan (Plan General de Manejo) of the Isla San Lucas National Wildlife Refuge (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 richness of ichthyofauna that could be used not only in fishing but also in tourism, since, in recent years, recreational activities such as diving and snorkeling have increased notably at the national level and, particularly on the Pacific coast… It is believed that mangrove areas could be used by crocodiles and land turtles as feeding and refuge sites, while some beaches with sandy substrate, as in the case of El Coco and Hacienda Vieja, are used for nesting by sea turtles, such as the olive ridley turtle (Alfaro S. com. per. 2006). Taking into account that semi-aquatic and aquatic reptiles such as land turtles, sea turtles, and crocodiles are some of the reptile species most demanded for commercial and tourism uses, these areas could be used for the development of tourism activities that do not alter the ecology or the behavior of the species…

2.3 Ecosystem services provided by the ASP The ecosystems of the RNVSISL provide a series of benefits to the communities and the country in general.

The report on the “Millennium Ecosystem Assessment, 2005” 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 the benefits obtained indirectly from ecosystems, as a result of their functioning, such as water purification, erosion control, climate control, 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 indicated categories.

2.4 SWOT Analysis Below are the results of the SWOT analysis applied in the first participatory workshop with key stakeholders and endorsed in the second participatory workshop.

2.4.1 Strengths - The legal framework of the ASP (Executive Decrees 29277-MINAE of February 12, 2001, No. 30714-C of September 26, 2002, No. 34282-TUR-MINAEC of January 25, 2008, No. 13099 of August 2010, Resolutions of Sala Cuarta Voto 08928 of August 18, 2004, Voto 13099 of August 4, 2010, the Biodiversity Law (Ley de Biodiversidad), among others), for site management and inter-institutional coordination (MINAE, ICT, Municipality of Puntarenas, Ministry of Culture).

- Existing rules that allow the development of non-essential services by local actors.

- The planning tools of the ASP (General Management Plan, specific plans, management effectiveness, among others).

- The forest cover (cobertura boscosa) of the refuge (vegetation cover, tropical dry forest, mangrove).

- The tourist, environmental and cultural attractiveness, of great historical, archaeological, 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 the development of actions for tourism use and forest fire control in the ASP.

- The conception of the refuge as a source of development, a generator of socioeconomic resources for the region.

- A site of importance for the shelter of Gulf users, in the event of climatological events that may occur.

- Installed management capacity (even if minimal, there is institutional presence (SINAC, fire management).

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

- The geographical location of the refuge, being an accessible island located 6 km from the coast of Puntarenas.

- The responsible fishing marine area as a buffer zone General Management Plan of the Isla San Lucas National Wildlife Refuge 2.4.2 Weaknesses - Lack of resources (human, equipment, materials, infrastructure, basic services) to adequately manage the Protected Wilderness Area (Área Silvestre Protegida).

- The loss of infrastructure in several sectors of the ruins of the former Presidio, lack of an attention plan on the part of Cultural Heritage, which would contemplate the island as a circuit.

- The existence of several sites of easy access to the island, which generate insecurity for visitors exposed to robberies and assaults, and which also hinder the work of prevention, protection and control of the natural, cultural, historical and archaeological resource.

- Pollution generated by unregulated visitors at unmonitored sites.

- The presence of invasive flora species on the site.

- The small marine extent belonging to the refuge.

- The limited knowledge of the marine resource of the refuge (information gaps).

- The limited knowledge of the site regarding the natural and archaeological resource among the different actors (Municipality of Puntarenas, ICT, SINAC and Ministry of Culture) and lack of dissemination of the existing information.

- The non-existence of physical demarcation of the marine area of the refuge, lack of technical definition of the regulation (6 meters in the marine area not included within the protected marine area).

- The lack of the public use regulation to regulate tourism activity in the refuge.

2.4.3 Opportunities - Access to marine tourism services in the Gulf of Nicoya.

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

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

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

- Academic interest in conducting research on different topics (marine resource, archaeological, flora, fauna, among others to fill information gaps).

- The existence of key actors (public sector, NGOs, chambers, private sector) to generate alliances.

- The possibility of agreements with different entities (Municipality of Puntarenas, NGOs, among others).

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

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

- The demand of national tourism to learn about the valuable historical, cultural and natural contribution of the ASP.

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

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

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

2.4.4 Threats - Vandalism (robberies, assaults).

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

- Looting (Huaquerismo).

- Pollution from solid waste that reaches the Island, Gulf of Nicoya.

- Invasive species (teak, mamón).

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

- Illegal tourism, use of the resource present on the Island (archaeological, cultural and natural by visitors).

- Climate change (cambio climático).

- Overexploitation of the marine resource.

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

The results of the above analysis allow us to know which aspects the actions to be implemented should prioritize in order to generate significant changes that positively affect the focal management elements of the RNVSISL. These actions are reflected within the goals and activities proposed in each of the Strategic areas. It is important to highlight that the existing weaknesses are the ones that must be prioritized, given that by making efforts, the capacity to reduce threats will be strengthened…

3. METHODOLOGICAL FRAMEWORK OF THE PROCESS FOR UPDATING THE PGM 3.1 Principles considered for updating the PGM The update of this General Management Plan was developed considering the policies and norms that govern the preparation thereof, and it also considered citizen participation as an integrating element between protection and development, as well as a way to learn about the traditional and ancestral practices that have been practiced in the ASP.

It also considers aspects such as the ecosystem approach in order to guarantee goods and services to meet needs over time.

It also considered aspects such as the objectives for the creation of the ASP and the need for the proposal to encompass sustainable conservation and development practices, all focused on the well-being of people and, of course, generating practices and strategies that promote the perpetuity of natural and cultural resources…

4 STRATEGIC FRAMEWORK FOR ASP MANAGEMENT 4.1 Vision of the RNVSISL “A protected wilderness area consolidated administratively, with an adequate structure that allows for its effective and efficient management, fulfilling conservation objectives, integrated at the Local and National level, with real participation mechanisms, that allow it to become a development hub and thus contribute to improving the quality of life of the inhabitants of the linked local communities of the Gulf of Nicoya.” The above will allow that:

- The National Wildlife Refuge regenerates from a biological point of view.

- The architectural historical resources of the ruins of the old Penitentiary are restored and properly maintained by the Ministry of Culture.

- The tourist attractions of the Refuge are developed and managed sustainably.

4.2 Mission of the RNVSISL “It is a protected wilderness area with a declaration of historical heritage, where the conservation and integral management of the cultural and natural heritage is carried out, which provides facilities for scientific research, management and recovery of wildlife, with options for ecological tourism and other activities related to the management category, thereby contributing to the improvement of the quality of life of the inhabitants of the surrounding local communities, driven by a participatory process of state institutions, non-governmental organizations, civil society and local businesses led by SINAC-MINAE.” 4.3 Focal management elements The focal management elements (elementos focales de manejo, EFM) consist of a process of selecting a reduced number of biodiversity resources that will be a priority for the management of the Isla San Lucas National Wildlife Refuge. The focal management elements guide the Refuge administration in the allocation and prioritization of resources.

As a result of the analysis in the participatory workshop, 4 Focal Management Elements were defined for this ASP, which are described below.

4.3.1 Remnant of tropical dry forest The RNVSISL possesses a remnant of the tropical dry forest, which together with the Tivives Protective Zone (Zona Protectora Tivives) is practically the last protected redoubt of the Central Pacific region. It is considered the terrestrial environment most threatened by human intervention and one of the most scarce in Central America (Janzen, 1988). Characteristic of this forest are two seasons, the dry season between the months of December and April and the rainy season from May to November. Very common flora species are 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 showy flowerings in the dry season…

The threats identified for this EFM are: Fires generated by illegal hunting activities; the introduction of exotic species by different means; and climate change, especially due to the variation in precipitation throughout the year that mainly causes prolonged droughts. It is important to indicate that this type of forest present on the Island in its entirety is secondary (ICONVIS-UNA, 2006). The main uses of sociocultural and economic importance that can be made of this Focal Management Element are: sustainable tourism, recreation, environmental education, research and photography.

4.3.2 Marine-coastal resource The RNVSISL possesses important marine-coastal resources characteristic of sandy beaches, rocky beaches, islets, cliffs and mangroves…According to studies by ICONVIS-UNA (2006), within the coastal marine zone of the Refuge, 63 species of fish were identified, where the most represented families were Haemulidae and Lutjanidae. Playa Hacienda Vieja, El Coco and Tumbabote are the sites that presented the greatest richness of ichthyofauna, therefore, they could be used for recreational tourism activities such as snorkeling and as management areas for the cultivation of species that can be commercially exploited in the Gulf.

The most common threats for this EFM are: Pollution from different types of waste that are carried by the currents of the Gulf of Nicoya and deposited in different parts of the marine coastal zone of the Refuge; the uncontrolled extraction of mollusks (shells and snails) and crustaceans; destruction of the seabed due to the use of unauthorized gear such as anchors, traps, and trammel nets.

The uses of sociocultural and economic importance that can be made of this EFM are: recreational and domestic fishing, sustainable tourism, recreation, education, research, recreational diving and photography.

4.3.3 The infrastructure of the former Presidio declared Architectural heritage By Executive Decree 24520-C of August 25, 1995, the ruins of the former presidio were declared Cultural Heritage, giving an unprecedented magnitude and renown to an ASP. It is considered that the architectural part and graffiti of the old Penitentiary is extremely important since it evidences the history of how the State controlled and repressed those deprived of liberty…

The threats for this Focal Management Element are: Deterioration and/or significant alteration in the buildings and their structure, due to lack of management by the public institutions responsible for National Cultural Heritage (Ministry of Culture, ICT, Municipality of Puntarenas), to restore and maintain the infrastructure in better conditions. There is no permanent restoration and maintenance plan; sporadic activities are carried out; crime and vandalism caused by people who do not have adequate knowledge and information about the historical and cultural legacy present in the refuge; and finally, unregulated tourism that transits through different sites causing deterioration of some structures and alteration of the existing graffiti.

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

4.3.4 The archaeological sites Between January 4 and 11, 2008, and May 24 and June 11, 2009, the Department of Anthropology and History of the National Museum of Costa Rica (Museo Nacional de Costa Rica) and the University of Miami carried out archaeological excavation tests in a sector of Playa Cocos where there is a cemetery, discovering that the small wall that surrounds the excavation is very recent, as it is superimposed on a stone path, similar to the access road to the administrative building, which in turn is on top of the human remains found. In the more elaborate horizontal excavations in the cemetery, in the first excavation of 4 x 7 meters, 48 buttons, a bullet, a buckle, a metal fragment, a bullet casing and human remains of 9 individuals were found. In the second excavation of 3 x 3 meters, there were landslide problems and 5 buttons, a metal pendant and human remains of 2 individuals were found.

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

The buttons with the coat of arms correspond to the period 1848-1906, they were used on dress uniforms of army officers... The main threat to this EFM is looting (huaquerismo) carried out by people looking for this type of archaeological resources for their own collections or for trafficking thereof.

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

4.4 Objectives of the RNVSISL For the RNVSISL, the following general objectives are defined, which respond to the justification for the ASP declaration as established in the Executive Decree creating the ASP:

• a)Conserve a 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 the inhabitants of local communities.

The above objectives were those envisioned for creating this wilderness area; it should be noted that they are well-founded; however, to exercise better management over the ASP and guarantee the perpetuity of natural resources, these must be linked to the objectives, strategies, actions and plans mentioned in this management plan.

4.5 General objective of the general management plan To guide the management of the RNVSISL towards the fulfillment of its long-term conservation objectives, based on strategic lines of action and management objectives for the natural and cultural resources of the ASP.

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

• b)Foster conditions for the adaptation of marine-coastal and terrestrial systems to climate change.
• c)Promote the awareness of visitors and local residents towards the conservation of the marine-coastal and terrestrial biodiversity present in the Refuge and the goods and services obtained.
• d)Offer the public opportunities for education and recreation compatible with the resources of the Refuge.
• e)Promote alliances with actors who support the development of actions in favor of the management objectives of the Refuge.

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

For the Isla San Lucas National Wildlife Refuge, 8 conservation strategies were defined, each with objectives, goals and actions proposed in order to fulfill the purpose of this plan.

4.6 Strategic lines These set out the changes intended to be achieved over a 10-year planning horizon, with a plan for periodic reviews every 2 years. They are aimed at reducing threats, restoration, increasing capacities, improving the sustainability of resources and generating information. For the Isla San Lucas National Wildlife Refuge, 8 conservation strategies were defined, each with objectives, goals and actions proposed in order to fulfill the purpose of this plan.

…4.7.1 Minimum or No Intervention Zone (ZMNI) The sectors of the ASP defined in this category have a minimum or null level of intervention. The objective or desired condition is to maintain an unaltered state or with an almost imperceptible impact.

In this type of zone, objectives oriented toward absolute protection are proposed, the development of a tourism activity of very low impact and intensity and of low frequency, as well as research and administrative use directed at control and protection.

This zone is composed of: the Cocineras, Aves and Pan de Azúcar islands, which are located at the southern limit of the ASP and serve as a refuge for several species of seabirds; the Wetland or mangrove area; the springs (nacientes) of the 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 (ZBI) In this category, it is proposed that interventions be of a very low level, although with greater possibilities for the development of management practices and other activities. It is expected to fulfill objectives oriented toward a strict level of sustainability in the management and use of some resources of the ASP.

Administrative use practices or special regulated use of resources and low-impact tourism may be permitted, but with somewhat more intensity and frequency than in the minimum intervention zone.

This zone is composed of the archaeological sites present in the RNVSISL; the marine area around 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, which corresponds to 90.1% of the total area of the ASP (Figure 15).

In the low intervention management zone, the following is permitted:

- Authorized scientific research or monitoring in accordance with current regulations.

- The management of flora and fauna species with biological restoration objectives is permitted, based on scientific knowledge for the fulfillment of the conservation objectives of the ASP, established in the regulations and protocols previously authorized by SINAC.

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

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

- Filming and photography are permitted for scientific purposes and for the dissemination of the attributes and values of the AP.

4.7.3 Medium Intervention Zone (ZMI) The space or sites defined for this category will have a possibility of interventions of medium intensity, frequency and impact in the practices and activities that can be developed.

The objectives are aimed at having spaces where resources can be used where the impact on them can be controlled, although with reasonable limits established by legislation.

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

The ZMI is composed of 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, which corresponds to 3.4% of the refuge territory…

In this management zone, the following is permitted:

- Authorized scientific research and monitoring in accordance with binding regulations.

- The management of flora and fauna species with biological restoration objectives is permitted, based on scientific knowledge for the fulfillment of the conservation objectives of the ASP, previously authorized by SINAC.

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

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

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

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

- The sustainable use of marine resources in accordance with current national environmental legislation and according to the specific resource management plans that are developed.

- The practice of traditional uses and exploitations in accordance with the current legal framework and the objectives of the management category.

4.7.4 High Intervention Zone (ZAI) The sectors of the ASP defined with this category would have a much higher level of intervention and use than in the other zones. The objective or desired condition will always be to remain within an environmental state in accordance with the management category established for the RNVSISL, but leaving more opportunity for the development of practices and activities typical of high intervention. As in the other zones, the conservation and development objectives are aimed at having spaces in which a permanent and more intensive sustainable tourism activity, productive activities or more open resource use can be maintained, without ceasing to have strict controls and standards.

Intervention for administrative and special use has greater possibilities of being developed as long as 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, the Sendero El Trogón; as well as the two sites for Prevention, Protection and Control infrastructure to be located in Tumbabote and Hacienda vieja. As well as the sites of the Teca plot and the new Guardaparques house.

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

In this management zone the following is permitted:

-Recreational and tourist activities: guided walks on authorized trails for the observation of flora, fauna and historical resources; non-commercial photography and video.

-The construction of infrastructure for visitor services (for example, visitor centers, sanitary facilities, trails, lookout points, platforms, cafeteria, 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, based on scientific knowledge for the fulfillment of the conservation objectives of the ASP, previously authorized by SINAC.

- The installation of equipment and constructions of scientific interest or for the management of the Refuge, previously authorized by SINAC, is permitted.

-Filming and photography for scientific and informational purposes regarding the attributes and values of the ASP are permitted.

-In this zone the installation and operation of non-essential services approved based on current regulations is also permitted…

4.9 Specific Plans The Specific Plans (Planes Específicos, PE) propose a more detailed level of planning, oriented mainly toward the implementation of the PGM, designed according to the prioritized conservation objectives; they may include more than one objective, as well as annual actions and activities for their fulfillment.

The activities of the PE must be projected in their scope for annual execution periods through operational plans (Plan Presupuesto), with their respective financing and the indicators required for monitoring the impact of their application (SINAC, 2016).

As a result of the update of the RNVSISL Plan General de Manejo, the following 14 specific plans are identified, based on the goals established in the conservation objectives of the Plan General de Manejo…” Now, given that what is questioned here is the lack of objective and technical basis that gave rise to the legislative proposal and culminated in the law in question, it is of the utmost importance to refer to the processing of legislative file no. 21.287.

b- Regarding legislative file no. 21.287, which gave rise to law no. 9892.

The factual and legal situation described in the previous section, the lack of budget and other adverse effects that have not allowed adequate protection of the zone, prompted the interest of several deputies to propose a bill to improve and better protect this zone in question, indicating the following in the statement of motives:

“…Due to its location in the Golfo de Nicoya, Isla San Lucas must be oriented toward wildlife protection and species conservation. Therefore, in 2001, Decreto Ejecutivo Nº 29277-MINAE was issued, through which Isla San Lucas is declared Refugio Nacional de Vida Silvestre, with the purpose of protecting it from pollution, overexploitation of marine resources and other forms of intervention in the ecological and hydrological system, population growth, urbanization and monitoring wetland ecosystems.

Decree of 2008 Additionally, a new Decreto Ejecutivo N.° 34282-TUR-MINAET-C of January 25, 2008, was issued, through which it modified the previous one, and rectifies, delimits and expands the boundaries of the Refuge; furthermore, it declares the sustainable tourism development of the island to be of national interest and high priority.

Among the main contents of said Decree, the following are found • It manifests concern for the deterioration of the structures of the former penal institution and indicates that these require immediate intervention for their proper restoration and conservation, as provided for in international conventions on the matter signed by Costa Rica.

• That it is the responsibility of the Instituto Costarricense de Turismo to prepare the planning for the tourism development of the Island as established in Article 6 of Ley 5469.

• That it is necessary to modify Decreto Ejecutivo N° 29277-MINAE to allow the protection and reconstruction of the buildings on Isla San Lucas declared Historic - Architectural Heritage by the Ministerio de Cultura.

• It establishes limited and sustainable tourism development and the protection of the cultural heritage of Isla San Lucas; for this, the boundaries of the Refugio Nacional de Vida Silvestre Isla San Lucas must be specified and expanded, thereby modifying just 5.5% of the current area for the protection of the cultural heritage existing there and limited sustainable tourism development consistent with the environmental rules dictated by legislation. In this way, 94.5% of the total area is conserved for wildlife protection.

• The boundaries of the Refuge are expanded to include the islets near Isla San Lucas, which have important biodiversity that demands protection, but which were excluded when the Refuge was established. With the above, the refuge area is expanded by 210.17 hectares, which include portions of water and the islets, important places for the nesting of birds native to the zone.

• A Permanente Commission is created, made up of the Governing Ministers of Culture, Youth and Sports, Tourism and Environment and Energy, or their representatives, and by the Mayor of Puntarenas or their representative, responsible for ensuring the rational management of the lands under municipal administration. It is contemplated that the Commission will have a General Coordination Secretariat whose head shall be designated by the President of the Republic.

• Prohibitions are established in the Municipal Administration Area, such as hunting, the supply of fuels to avoid environmental pollution, the use of water for tourist activities that go against the preservation of the ecological flow for the maintenance of the island's ecosystem, among others.

Regarding this decree, there are two considerations that are fundamental in justifying the need to establish new regulations that provide real and practical tools to facilitate the development of Isla San Lucas:

The first originates in the indisposition that this decree generated in some groups, which led them to file an action of unconstitutionality. The Sala Constitucional in its ruling 13099 of August 4, 2010, indicated that despite there being a clear environmental interest in maintaining the formal protection of the Protected Wild Areas, the reduction of the Refuge area that was intended for limited sustainable tourism development, can only be changed by Law.

“The surface area of protected wild areas, natural heritage of the State, whatever their management category, may only be reduced by Law of the Republic, after carrying out the technical studies that justify this measure” (ruling 13099-2010).

Hence, the Poder Ejecutivo cannot reduce these areas without observing the legislative procedure, reason for which the Chamber partially grants the claim to annul article 1° only insofar as it excludes from the protected area of the Refugio Nacional de Vida Silvestre Isla San Lucas, the “5.5% of the current area for the protection of cultural heritage,” the foregoing due to infringement of provisions of articles 11, 50 and 89 of the Constitution, and not regarding the addition of the marine sector and islets, since this is permitted for the Poder Ejecutivo to agree upon through Decreto Ejecutivo.

To issue this ruling, the members of the Constitutional Court conducted a judicial inspection on June 4, 2010, through which “the visible lack of maintenance of the buildings located on Isla San Lucas over the decades and the need to take actions to stop the advanced deterioration suffered by the infrastructure that exists there (and the wooden structures that existed in the place), and the imperative need to stop their imminent disappearance” was verified.

Furthermore, the Chamber indicates that “a type of rural tourism with low ecological impact respectful of environmental regulations is compatible with the Law of the Constitution, containing the international obligations widely developed in the precedents of the Chamber (to which this Chamber refers), and with article 89 of the Constitución Política when setting cultural objectives, among them: protecting natural beauties, conserving and developing historical heritage, and whose value is enhanced by the access that the population may have to it. Therefore, no incompatibilities are demonstrated between environmental protection and the conservation of cultural goods made available to humanity, with a project that must be developed integrally with the environment, which must be inclusive of all its components, not exclusive.” Finally, it is necessary to indicate that the ruling maintains without variations the establishment of the Permanente Commission for the administration and development of Isla San Lucas.

The second aspect is that this Commission only functioned in its first years. From 2014 to 2017, its members were not even appointed, which undoubtedly shows that, despite previous efforts through the issuance of executive decrees, there was omission in the care and safeguarding of the island.

The Situation of the Island In recent years, a series of acts of vandalism have occurred that have significantly undermined the history that San Lucas holds. In August 2017, a violent assault occurred against two guardaparques of the Sistema Nacional de Áreas de Conservación (SINAC), which led the entity to reduce surveillance on Isla San Lucas; since then, the System's agents visit the place only three days a week, sleep in camping tents and transport water in drums from Puntarenas.

In the assault, they stole weapons from the guardaparques, the electrical appliances from the cabin they inhabited, as well as cash corresponding to what was collected from tourist visits. They also damaged the infrastructure “to the point that it became unusable.” On the other hand, in November 2017, during the night, unknown individuals entered the Island and caused a fire in a three-story building, built in 1930, where the headquarters and administrative part of the former penal center operated. The fire consumed approximately 265 m2 of the architectural heritage.

The criminals took away part of the roof of the house inhabited by the guardaparques, stole the doors of the chapel that the Centro de Patrimonio had restored in 2014; they took the posts of the infirmary, tore down signs and caused general damage.

Due to this fire, the Centro de Patrimonio admitted that the property did not have a sustainable project that would guarantee public services, mainly due to the lack of water availability. The above, coupled with the lack of electricity, which motivated the headquarters not being occupied, causing deterioration in the infrastructure as homeless individuals use it as shelter.

The acts of vandalism that have occurred in recent years and the lack of potable water, resulting from the damage to the well, make the island a very vulnerable site; with each damage done to the place, the history that has been intended to preserve is being dismantled.

That is why there is a firm conviction to seek a solution to the Island's problems, in such a way as to provide it with adequate and comprehensive management, which allows research, recreation, the use of natural resources, such as: beaches, trails, flora and fauna of the tropical dry forest, the diversity of birds, mammals, and the enjoyment of the wide scenic beauty that the place possesses; which, together with adequate heritage preservation, can represent a source of attractions for the eco-touristic development of the Golfo de Nicoya and positively impact the province of Puntarenas.

Due to the aforementioned, with the certainty that the issued executive decrees established a first step for the protection of this territory and that at present it has been verified that this legal category is insufficient to provide better treatment of the place; and in the interest of granting greater safeguarding of the history and culture that Isla San Lucas harbors, protecting and conserving biological resources, it is proposed to create the Parque Nacional Isla San Lucas and grant it declaration by law as Historical Heritage. Additionally, the group of buildings of the former Presidio, will have the category of architectural Historical Heritage.

The initiative proposes the segmentation of the Island, so that the fundamental areas of preservation and tourist use are identified, with orderly development. The objective is for families to enjoy a “complete outing” that will entail the visit to the historical cultural center, the use of the natural space (such as the travel route or additional trails), and finally, the beach space. Additionally, the Parque Nacional Isla San Lucas, aims to be a complementary visit to the other Islands of the Gulf.

This is consistent with what was expressed by the Sala Constitucional:

«[…] the Chamber must analyze the specific case, given that both rights, natural environmental and urban environmental, must be balanced when Cultural Heritage is present, given that these are also constitutional values that cannot be legitimately excluded, from the rights of access and enjoyment of all individuals, nationals and foreigners, what is known as its enhancement» (voto 13099-2010).

Regarding the marine zone, both Playa Cocos and the surrounding areas have potential for sun and sand tourist activities, as well as controlled marine life observation using basic equipment (snorkeling), due to the abundance of species observed. The report also indicates that “controlled and low-impact use is compatible with the sustainability of the ecological processes that may exist in the zone.” According to the above, the Island combines two types of historical-cultural and natural attractions, which have not been enhanced but possess the necessary characteristics to become a source of attraction for national and foreign visitors that benefit not only the Island, but the rest of the islands of the Golfo de Nicoya.

In the historical-cultural part, the operation of the presidio until 1991 marks a milestone in the country's history. This is, without a doubt, the main attraction. The structures and the architectural ensemble that still stand offer the possibility of rescuing substantial elements of Costa Rica's historical past.

The natural attractions are mainly composed of the plant associations and associated fauna described earlier in this document. The development of trails and activities for recreation, enjoyment and environmental education would be the quintessential means to put this type of cultural values at the service of families.

To achieve the described objectives, the creation of a Junta Administradora is proposed, composed of five main actors that will balance preservation, conservation and the low-impact development required to have the necessary conditions for enjoyment. Furthermore, it is essential that this Board can have capacity for action, so that what is provided in this proposal is achievable in all its aspects.

For the reasons stated and with the purpose of positively impacting the development of Isla San Lucas and the province of Puntarenas, I submit this bill for the consideration of the deputies.” Having reviewed the legislative file in question, it was also possible to demonstrate what was pointed out by MINAE in the response to the hearing rendered before the Asamblea Legislativa on page 272 of legislative file no. 21.287, in the following sense:

“…We value the rescue and the interest in the zone and we are sure that with this initiative better maintenance will be given to the facilities and the more recent construction; as well as to the cleaning of trails and beaches on the island that manages to rescue and teach its unique historical value in the country…Regarding the articulated work on the island, we must mention that meetings have been held with the proponents of the Bill, but a linkage is necessary with different institutions that seek the good management of this possible Parque Nacional, such as: the Instituto Costarricense de Electricidad, the AyA, the Ministerio de Turismo, the Guardacostas personnel and the Fuerza Pública, the Ministerio de Cultura y Juventud, including the Museo Nacional, as well as a team from SINAC-MINAE to support the process. Should this bill be approved, adequate provision of water, telecommunications, electricity and security will be essential, fundamental for being able to think about developing the Área Silvestre Protegida from the planned tourist point of view.

The proposal could consider the operational strengthening of the Refugio Nacional de Vida Silvestre Isla San Lucas (RNVSISL), if the deputies see fit. This would allow positioning it as a unique Área Silvestre Protegida (ASP) that combines natural and cultural resources, and generating a financial mechanism with the objective of guaranteeing adequate management, especially in terms of adopting and implementing measures to combat climate change, due to its insular nature and for the maintenance of historical infrastructure: that it also possesses an inter-institutional coordination mechanism, and that supports the generation of socio-economic development in the zone of influence, which lacks sources of employment and links the economy of the other islands. In Article 6, it is proposed that all ASP zoning be the result of technical analysis of the Plan General de Manejo, which consists of a planning instrument that allows guiding the management of the ASP toward the fulfillment of its objectives.

We suggest that the definition of the tourist zone be the result of what the technical studies of the subsequent Plan General de Manejo reveal. In Article 7 on the creation of the Board of Directors of the Parque Nacional Isla San Lucas, it is recommended that it be a maximum deconcentrated body attached to the Ministerio de Ambiente y Energía and with instrumental legal personality for the exercise of its competencies. Also, that the positions be permanent and that it be presided over by MINAE. We also recommend that they be people with an ideal, technical and specialized profile, accompanied by a person as Executive Manager of the Board, who supports the management of the administration in specialized tasks such as the conservation and restoration of the island's cultural heritage…In Article 18, it is suggested to change the word “security” in the title to “Provision of personnel” to take advantage of other types of support personnel for activities such as sustainable tourism, environmental education, maintenance, among others…We are in the best disposition to hold meetings and joint work sessions, to strengthen the bill proposal in the interest of seeking an initiative that guarantees the conservation of the ecosystems of Isla San Lucas and at the same time turns it into an axis of socio-economic development for Puntarenas and the Golfo de Nicoya.” What was stated in the Unanimous Affirmative Ruling rendered by the Comisión Permanente Especial de Turismo of the Asamblea Legislativa that heard bill no. 21.287, which gave rise to the questioned law, reaffirms what was suggested and worked on, by pointing out, as relevant, the following:

“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 project with criteria and suggestions for improvements that were of great help to propose changes that allow precise content in the articles.

Additionally, taking into account the observations of the IGN, a working group was held to transfer the geographic coordinates, since the indications corresponded to a nomenclature that is in the process of being discontinued. With this contribution, greater accuracy is guaranteed and the information is updated.

On the other hand, a working group was established in which some of the proponents, Minae, the ICT, the Ministerio de Cultura and the office of the Primera Dama participated, the latter as mediator for the Poder Ejecutivo, so that the parties could establish agreements that facilitate the definition of the operation of the Parque Nacional Isla San Lucas, since what is proposed in the project requires a vision of the future by proposing a new management modality. Finally, the consultation process concluded with the contribution of several experts in the field, who also made various suggestions that have been taken into account to enrich the text with possible modifications.” During the discussion in the first debate, legislators promoting the legislative project that gave rise to the law in question here, such as former deputy Benavides, faced with the concern of some legislators regarding creating a national park with the already tight budget available to SINAC, indicated the following (pp. 55 to 65 of the minutes of the extraordinary session of the Asamblea Legislativa no. 37 of August 10, 2020):

“…and so you do not worry about the resources of Minaet, it is already in the hands of Minaet and its guardaparques since 2011, so no extraordinary effort will have to be made once we turn that island into a Parque Nacional and we are going to turn it into a national park by law, just as other national parks were also turned into law that did not go through the administrative procedures referred to previously and that is how Parque Nacional Barra Honda was created and that is how Parque Nacional Isla del Caño was created, and that is how Parque Nacional Braulio Carrillo was created, because this same Asamblea Legislativa wanted to make a Parque Nacional, especially in a territory like San Lucas, which is already a wildlife refuge. So there is no kind of incoherence nor is there any kind of technical or environmental challenge to give national park status to a territory that has been a wildlife refuge since 2001.

But here comes perhaps the part that drives the actions that have been taken since the presentation of this bill. And it is precisely the fact that the island, although it was declared a wildlife refuge, actually its management, its administration did not procure the protection of historical patrimonial assets. Despite the fact that since 2002 the group of buildings that were part of the prison was declared historical heritage, there was no kind of protection.

And it is also evident that neither Minae, and particularly the Sistema Nacional de Áreas de Conservación did not have, at least at that time, the technical specialization or the resources to protect the heritage buildings, nor the archaeological assets, and much less provide Isla San Lucas with basic services, not even sanitary facilities.

That is to say, today, today, so many years after being a wildlife refuge, after there being a declaration of historical heritage of the assets, there is not even a sanitary facility for those who visit the park. That is the reality.

And well, that is precisely the reality we are trying to change. In 2008, through an executive decree, an executive decree that I had the honor of drafting originally, accompanied by the Ministers of Culture of that era and of the Environment, but especially endorsed by Mr. President Óscar Arias Sánchez, who believed in this project as a way to combine nature protection, the conservation and restoration of our architectural buildings, of our architectural heritage, and the development of sustainable, low-impact tourism, as we have been able to achieve in national parks. But not exclusively in the hands of those who at that time administered it unsuccessfully for the purposes of protection.

And so a board of directors was formed by decree that included the Ministerio de Ambiente, the Ministerio de Cultura, but also the Ministerio de Turismo, the local municipality and another representative of the Poder Ejecutivo, so they could carry out those different tasks.

We made a mistake which was to reduce the size of the reserve area. Now I see it that way, because what we were trying to do was to manage that particular space and have the rest remain a wildlife refuge. But the objective was clear and it was correct; it was to give it the administrative and financial conditions so that what was happening until 2008 would not continue to occur. In the hands exclusively of Sinac, we lost the old library of the island, a school was lost, all heritage buildings. The commissary was lost and the entire neighborhood called Las Jachas was lost, which were the houses that inmates occupied in the penal colony, agricultural penal colony, during some periods. A large part of the heritage was lost and, therefore, in 2008 we dedicated ourselves to rescuing it through that executive decree that we signed with don Óscar Arias at the helm.

Several citizens, in their right, filed actions of unconstitutionality that were resolved in 2010. The Sala Cuarta, at that time, declared in two resolutions that the wildlife refuge had indeed not been reduced in accordance with the Constitución Política, that a protected wildlife area cannot be reduced by decree, only by law, and thus we complied. But it upheld the rest of the articles of the decree, so that the administration would continue to be joint with ICT, with Culture, with Environment, with local government.

And I am going to briefly read a passage from that 2010 resolution, trusting that later a colleague will give me a little of their time to continue developing these arguments.

The Chamber said: As indicated in the Chamber's criterion, the Poder Ejecutivo is enabled to dictate new norms to guarantee other relevant rights for the national and international community, in coordination even with minor entities, such as municipal corporations.

On the contrary, if the Chamber holds that a single administrative competence predominates over all others, as indirectly requested in the action of unconstitutionality, the solution would be a contradiction with prejudice to other human rights in the international obligations signed by our country previously regulated such as the enhancement of protected historical value monuments, as well as for their disaffection.

A type of rural tourism with low ecological impact, respecting environmental regulations, is compatible with the constitutional right that incorporates international obligations broadly developed in the precedents of this Chamber, which international obligations and Article 89 of the Political Constitution establish cultural objectives, among them protecting natural beauties, conserving and developing the historical heritage, the value of which is enhanced by the access the population may have to it.

Therefore, no incompatibilities are demonstrated between environmental protection and the conservation of cultural assets, made available to humanity through a project that must be developed integrally with the environment.

It is worth recalling from the supporting brief of the executive president of the Instituto Costarricense de Turismo, where he precisely places among the purposes the enhancement in value as a necessary aspect of access to the human manifestations on the island" (closing quote).

What the Sala Constitucional did was to definitively equate constitutional principles that are equivalent with respect to environmental protection and the protection of historical heritage and the right of Costa Ricans to freely visit and appreciate the nature of their territory, but also their patrimonial assets, and to healthily enjoy and derive economic benefit so that Costa Rican families may live better, as is precisely the case with tourism.

And that 2010 ruling was key for the island to begin rebuilding its heritage and slowly improving performance in terms of management and administration, as I will explain in the second part of my presentation…" "…And I thank my colleague and fellow Deputy Chan Mora, for the support she and her colleagues have expressed for this bill.

I continue by saying that, once those clouds were cleared in 2010 with the resolution of the Sala Constitucional, we set to work hard on seeing how we could obtain the resources to recover the historic buildings or at least a good part of them, given that the development of conservation or restoration activities on the island is extremely complex.

Imagine what it is like having to go make repairs on an island where you cannot stay overnight, where there is no abundant water, particularly no drinking water, and where there was also no electricity.

Going to carry out works, civil construction, is not simple, but we achieved it with an investment of almost two hundred…, no, in this case almost one hundred ten million colones, the Ministerio de Cultura completed the restoration of the commissary, the main building, in 2011.

We went there to hold the inauguration of that magnificent work; it restored everything, from the offices to the bathrooms, the meeting rooms, the spaces where the person who presided over the penal center, who directed the penal center in the years it existed, had his offices, a three-story building that was restored in its entirety in 2011. We went with the then minister, Mr. Manuel Obregón.

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

Because Mr. José León has also believed in this project to recover that island historically, alongside its current status as a national park, which will also dedicate its efforts to the conservation of the environmental heritage.

And it was later, in 2013, that we initiated the tender process with the financial backing of the Instituto Costarricense de Turismo and the Instituto Costarricense de Puertos del Pacífico, and nearly two hundred million colones were invested to recover the old chapel.

A truly marvelous chapel that was in pieces; not even the doors had remained from that period when no follow-up was given to the protection of the historical heritage. That is how in 2014 the chapel was inaugurated.

Unfortunately, in the years that followed, the island was treated with great disdain. The Ministerio del Ambiente was, let's say, having fewer personnel for the protection of the island, until in 2017 some vandals entered the island as if they owned it, as they usually did, and set fire to the commissary in which nearly two hundred million colones had been invested.

And nothing remained. Well, the structure remains there, somewhat burnt, but that investment was lost, precisely because of a state of poor administration.

And I must say that the island remained in that state of abandonment from 2014 to 2018 despite the Decreto Ejecutivo of 2008. So much so that from 2014 to 2015 or '16, the administrative board body for that island was not even formed, such was the neglect. Until the icing on the cake was that in 2017 they set fire to the commissary.

Fortunately, in this Administration it has been different; there has been coordination among institutions, based on the decree we signed during Mr. Óscar's Government in 2008, and with the coordination of the First Lady, multiple works have begun to be developed: the development of sanitary service blocks that will soon be inaugurated, the improvement of the park rangers' house, access to solar energy, the recovery again, attempting once more to rebuild the commissary and also the medical dispensary, a building that was about to collapse.

Thus, this bill —and now to land on what I want to conclude with— this bill will effectively create a different administration for a national park.

It will be a different administration, because it will also be joint; the Ministerio del Ambiente, the Ministerio de Cultura, the Ministerio de Turismo, the municipality, and a local representative will be present and represented there, plus another representative from the Poder Ejecutivo.

They may also submit the administrative and financial management of this new national park to a trust (fideicomiso) with a state bank. The vision is, indeed, different; it will be a national park where the environment must be protected, where the natural resource must be protected.

But we will not place in second or third place the protection of the historical heritage that belongs to our children; a historical heritage that does not have to be lost or allowed to be burned, or allowed to deteriorate daily, as unfortunately we lost several heritage buildings through pure abandonment.

But, in addition, it will be a different management regime to allow sustainable tourism to be developed, so we can have decent docks for tourists to arrive in first-class conditions to dock and disembark on that island, so they can enjoy the trails, so they can access some of its beaches, so they have a place to eat or drink during their stay on that island, so there can be first-class tourism and not second-class, as unfortunately many tourists must endure when they go to some of our national parks, because we have condemned them to roam in terrible conditions, without giving them what we must give them, because we have also not introduced administrative variables that guarantee technical criteria in tourism matters.

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

When Mr. Daniel promoted the national parks, he was also thinking about the development of our communities adjacent to the parks, through tourism development. And we have not defended that inheritance adequately, because we have allowed national parks to lack the adequate conditions for effective tourism and for it to permeate economically into our rural communities.

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

We will have our park rangers from the Ministerio del Ambiente there; the administration will be within a decentralized body of the Ministerio del Ambiente.

The Minister of the Ambiente will have a preferential vote or double vote within the Junta Directiva, as established in the Ley General de la Administración Pública. But we will have, within this logic, within this framework, sustainable tourism development as a fundamental objective of the Parque Nacional Isla San Lucas, so that the people of Puntarenas, the inhabitants of the islands, the inhabitants of the coast, the Nicoya peninsula, Paquera, Cóbano, Lepanto, the coastal zone, the cantón Central, the neighbors of Manzanillo, Costa de Pájaros, so that it permeates to Garabito, so that the people of the sea can even reconvert their fleets, and so that carrying tourism to the new Parque Nacional de Isla San Lucas has purpose and economic sense.

And we want to turn it into what Alcatraz means for San Francisco, California, in the United States. They receive over one million visitors a year. Perhaps San Lucas will not be able to, due to carrying capacity conditions, but we can produce a great deal of tourism, a great deal, with a different recipe, wherein nature is not only to be seen from afar, but also, with respect for it, for human beings to take advantage of it and to feed our people, our families, to give meaning to nature.

It is a most beautiful spot, and I invite you to go to San Lucas. Twenty minutes from the port of Puntarenas, an island full of nature, four hundred sixty-two hectares, with an old penal center, with secrets of history, where Beltrán Cortés was and where Mr. José León Sánchez was imprisoned, so you can go discover the disc where they put prisoners when they wanted to punish them, and they came out half dead from being dehydrated for days.

So you can get to know playa El Coco, the largest beach on San Lucas, and so you can venture into its trails and come to know the islands, the beaches of playa del Inglés and playa Tumbabote, and so you can take a tour around the islets surrounding the island, and so you can discover its fauna and all the natural riches that island holds, so that we can economically develop an impoverished and abandoned region in many senses, as is the region of the Golfo de Nicoya. And turn the Golfo de Nicoya into a jewel that allows us to carry out commerce, business, sustainable activity, with respect for nature, but with respect for the human being as the summit of that nature, and that is what we seek: a new management, an agile management, a management that will have the support of that trust (fideicomiso) indicated there, which will be zealously monitored by the Contraloría General de la República but will be granted to a Costa Rican state bank.

And, then, we Costa Ricans can try to avoid sad and even shameful chapters that we have had to live in other national parks where tourist attention has not been cared for, where there is no adequate infrastructure.

And on this island there will be concessions, service will be permitted by third-party private individuals; we will encourage that in that distribution of concessions and permits, the participation of local associations is promoted so they also have possibilities, but the possibilities will be immense inside and outside the park, as you know from the text; hotels are prohibited, games of chance are prohibited within the park; it will be for single-day visits, so that hopefully they stay overnight, hopefully they stay to sleep in the cabins and hotels there in the port, or in Jacó, or in Lepanto, or in Cóbano, or in Paquera, or in any of the other communities from which it will be easy to connect by sea to our Isla de San Lucas.

Today a national park is born, a new national park with a different administration that includes environment, architectural and historical heritage, and also includes sustainable development…" (The highlighting is not from the original).

Of interest, in relation to the extension of protection implied by this law, it is necessary to cite the intervention of Deputy Villalta Flórez-Estrada in that first debate on pages 71-76, pointing out the following:

"Deputy José María Villalta Flórez-Estrada:

Thank you, Mr. President, ladies deputies, gentlemen deputies.

We are discussing today this bill to create a new national park in our country.

I must confess first of all, and seeing some positions in this Asamblea Legislativa, I thought I would not attend in these four years the creation of a national park.

I thought it was likely that we would discuss in this Plenary bills to eliminate or reduce wilderness areas and national parks, but see how things are; we are discussing, with good chances of being voted on, a bill to create a new national park.

And this is important; national parks, according to international treaties that the country has signed, such as, for example, the Convenio para la protección de las bellezas nacionales de los países de América Central, the Convenio de diversidad biológica, and also according to our legislation, national parks are areas of absolute protection; they are the protected areas with the highest category of protection.

An area is declared a national park when it is a natural area that one wants to protect, that one wants to conserve, and where the richness, the particularity of the natural resources, the ecosystems, the species of flora and fauna found there, is such, is so important that it is considered deserving of special protection.

In our system of wilderness areas, there are different management categories.

The national park is the highest protection category, reserved for areas that have unique natural beauties, where there are ecosystems in danger of extinction, or highly threatened ecosystems, where there are unique valuable resources that are indispensable to protect in a special way.

Of course, Isla San Lucas meets, generically, or at least generally, and I state it here, it meets those parameters; it is an endemic ecosystem because it is an island, it is an island with great national beauty that was certainly intervened in the past, but which today has been marvelously reforested, where there are unique species.

But, in addition, it is true that San Lucas brings together that conjunction between biological heritage and cultural heritage, not only… and archaeological heritage; it is not only a natural beauty, it is also a central element of the historical and architectural heritage of our country, that old penal center and all the history related to it; it is also an archaeological site that requires greater protection and greater investigation.

And it is a place, an island, a privileged location in that Golfo de Nicoya that indeed has great potential for sustained tourism development; those three factors coinciding on the island are present.

Now then, what management category does San Lucas have today? Indeed, San Lucas is today a public wildlife refuge (refugio de vida silvestre, de propiedad pública), and it is also an island; therefore, today San Lucas is protected as part of the natural heritage of the State, but it does not have the management category of national park.

Those forests, those natural riches, those beauties today have a lower protection category. It was already under the administration of the Sistema Nacional de Áreas de Conservación and it is a wilderness area, except for the part of the historical architectural heritage, where the intervention of the Centro de Patrimonio of the Ministerio de Cultura prevails or should prevail, but it certainly has not worked well.

We have not achieved a coordination system where MINAE, for the wilderness area part, and the Centro de Patrimonio of the Ministerio de Cultura, for the protection of the historical, cultural, and architectural heritage, coordinate efforts to conserve that. And certainly the historical architectural heritage has deteriorated.

But well, this is the first thing I would like to highlight. With this bill, the protection category of the wilderness area that is today under MINAE administration is being increased; it will continue to be under MINAE administration, as a Junta Directiva figure as a decentralized body, similar to that existing in other protected areas, although with some differences, but it will continue to be a wilderness area if this law is approved, but with a higher protection category.

For my part, I would never approve a bill that modifies the protection category of a wilderness area to reduce that protection category, without all the technical studies established by Article 32 of the Ley Orgánica del Ambiente.

Any modification that implies greater intervention or a reduction of the management category must indeed comply with all those studies.

In this case, what is different is that we are approving a law that would imply increasing that protection category, and that is important to be clear about. The terrestrial part of the island today is the Refugio de Vida Silvestre San Lucas is four hundred sixty-two hectares; four hundred sixty-two hectares that are under the category of wildlife refuge (refugio de vida silvestre).

With this law, those four hundred sixty-two hectares would become a national park. Of that percentage, there is five point five percent of the island's territory, around five percent of the island's territory, that is declared a tourist zone in this law. But that was already declared in the executive decree that Deputy Benavides Jiménez just mentioned, Decreto Ejecutivo 34.282, of 2008.

That part that is a tourist zone will have a differentiated form of management, a differentiated form of management compatible with the wilderness area and compatible with sustainable tourism, to attract visitation 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 speaks of the delimitation of the wilderness area, Article 3 of this bill says, in the final paragraph: Inserted within the two previous areas, the maritime area and the terrestrial portion of the island, inserted within the two previous areas, there will exist a space of differentiated management dedicated to sustainable tourism activity.

Thus, the tourist zone that is recognized also forms part of the national park, and this is important. In some previous version of this bill, there was doubt or it was not entirely clear whether the environmental legislation governing wilderness areas would apply to the tourist zone, which will have differentiated management, but being part of the park, the rest of the environmental legislation must apply.

Well, fortunately, in the conversation and negotiation prior to 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 is the one that delimits and refers to how the national park will be managed.

At some point, there was a provision that seemed to hint that environmental legislation would not apply fully in the area called the tourist zone, or that sought somehow to exclude from application —perhaps that was not the objective, but it could be understood that way— exclude from the application of the law the Ley de Biodiversidad or the Ley Orgánica del Ambiente or other fundamental laws of environmental legislation.

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

Being a national park, an area of absolute protection, a series of activities are prohibited in that national park, such as, for example, the extraction, the exploitation of flora and fauna, hunting, logging, the exploitation of natural resources because the legislation governing national parks applies, for example, the Ley de Parques Nacionales, the Ley Orgánica del Ambiente, the Ley de Biodiversidad apply.

Those laws also apply in the tourist zone, which has differentiated management to enable and permit the development of tourist services, but these laws apply; for example, it could not be interpreted that in the tourist zone hunting or other natural resource exploitation activities are permitted, which are incompatible with the protection of a national park, and I believe this is important. Look, San Lucas today has this territory of four hundred sixty-two hectares, where five percent, almost six percent of the territory is comprised of the buildings of the old penal center, a slightly larger percentage.

What is the percentage now, Deputy Benavides? No… four hundred sixty-two hectares, where a small percentage is comprised of the area of the old penal center, the area that is historical architectural heritage, the trails, and the part that will form, will be destined or that already, currently, will be destined for the tourist zone, but the rest, the ninety-odd percent of the island is today forest lands, where there is forest, there are some small parts of primary forest and, above all, secondary forest in regeneration, a forest with great ecological value for being an insular ecosystem.

Therefore, by declaring it a national park with this law, we are ensuring the protection of that ninety-five percent of the island that is forest lands that are today a wildlife refuge (refugio de vida silvestre) and which we seek to consolidate with more robust protection under our environmental legislation; that is important.

Now, certainly, the scheme proposed in this law was, in some way, already foreseen in the decree thirty-four thousand… let's see, I lost it, 34.282, and to which the Sala Constitucional set the boundaries. I participated, at that time I was an advisor to former Deputy José Merino del Río and I participated in the drafting of the unconstitutionality action against the decree of the Arias Sánchez Administration, which reduced the area of the wildlife refuge (refugio de vida silvestre) and which, in that part, was declared unconstitutional by the Sala Constitucional, because it was a reduction via decree, without the studies.

But in that vote, certainly, the Sala Constitucional made a balancing of interests and a Solomonic solution that sought to reconcile the different interests at stake, and the vote maintained the validity of the articles of the decree that establish an obligation of inter-institutional coordination between the environmental part, SINAC, the heritage preservation part, the Ministerio de Cultura, and the sustainable tourism development part of the island; that is, there already exists a mandate, if you will, a boundary set by the Sala Constitucional for the management of the island.

In my opinion, what this bill does is, if you will, consolidate or enshrine in law that framework that today exists by decree, and which the Sala Constitucional set boundaries for, and at least, so that it is on record, the will or the interpretation of this legislator, I understand, and so it must be because constitutional jurisprudence is binding, I understand that what is proposed in this law must occur within the framework of that judgment of the Sala Constitucional, judgment 13.099-2010, which clearly set the boundaries of what can and cannot be done in that tourist zone or that area that today will be a national park, but that will have differentiated management to favor tourism. The Sala was very clear: the buildings that could be constructed had to be within the framework of promoting sustainable tourism, not large-scale buildings, nothing that damages, of course, that puts that architectural heritage at risk, quite the contrary, respecting the carrying capacity of the island; visitation must respect the island's carrying capacity; the buildings constructed will be strictly necessary to meet the basic needs of visitors and tourism development agents, without implying that they can extend beyond developments incompatible with the green philosophy or that are not in tune with the site's occupation capacity, all of which must be ensured in a sustainable manner, in accordance with science and technology; even the Sala speaks of rustic buildings, low-impact buildings.

Thus, the activity that can be carried out on the island to promote visitation, in my opinion, is already delimited by this judgment of the Sala Constitucional, which, in addition, validated the inter-institutional coordination model in which, it must be said, the authorities have failed because since this judgment was issued in 2010, in my opinion, the coordination to get this management of the island underway, where a particular situation exists because the purely environmental part coexists with the part of protecting archaeological heritage and the promotion of sustainable tourism, being a place of great tourist interest, that coordination of institutions has not been achieved to date; we hope that with this law inter-institutional coordination will be achieved, because San Lucas certainly has a potential for visitation and attractiveness that, if maintained within the framework of our legislation, is promoted, for example, based on the Ley de Biodiversidad, on productive linkages, with local organizations, with local communities, for those fishing villages, with those communities that could benefit more from tourist visitation, from services such as tourist cabotage, the transport of tourists, small-scale sport fishing; if that is linked, San Lucas certainly has great potential for the development of the entire Golfo de Nicoya region, for the development of the cantón Central of Puntarenas, and for the promotion of sustainable tourism.

That is why I do not see it as wrong that this bill creates a park administration model that also incorporates the architectural heritage part and the sustainable tourism part because of the particular nature of this protected area." (The highlighting is not from the original).

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

In conclusion, prior to this law, Isla San Lucas had already been declared a Refugio Nacional de Vida Silvestre, state-owned, with a part of it declared national historical architectural heritage, and the sustainable tourism development of the island had been declared of national interest and high priority, in terms consistent with a prior study, as well as conserving and restoring the buildings of the old penal center on Isla San Lucas. Tourist activities were also permitted in the municipal administration area and the preservation of the island's cultural heritage, for which the ICT was to prepare a Master Plan for Sustainable Tourism Development, which would include an environmental impact analysis and the technical standards necessary to achieve the objectives of economic, social, and environmental development.

c- Regarding the purposes and administration of the Parque Nacional Isla San Lucas.

It is important to note that there exists not only a duty of environmental protection of the zone in question, but also a conventional and constitutional duty to conserve the historical heritage found there. Having reviewed the normative context prior to the challenged law and the technical administration under SINAC, which this zone already held, the deficiencies and appropriate uses had been technically exposed, which, according to the areas of the zone in the update of the Plan General de Manejo, were applicable. Such data were in MINAE's possession prior to the approval of the law challenged here, as well as the uses and individualized areas according to SINAC's prior knowledge. In fact, the areas to be differentiated with the IGN were thus updated in the working groups, and they are currently maintained with the same or greater protection and the same area, so it is not considered that there is any constitutional or conventional environmental violation in relation to the challenged law. Quite the contrary, its protection has been expanded and reinforced. It is reiterated, the SWOT (Strengths, Weaknesses, Opportunities, and Threats) analysis conducted by SINAC that justified the update of the Plan Nacional de Manejo for this island from 2012, which existed prior to the approval of this law.

There, the needs and weaknesses of that place were made evident:

“2.4.1 Strengths - The legal framework of the PA (Decretos Ejecutivos 29277-MINAE of February 12, 2001, No.30714-C of September 26, 2002, No.34282-TUR-MINAEC of January 25, 2008, No.13099 of August 2010, Resoluciones de Sala Cuarta Voto 08928 of August 18, 2004, Voto 13099 of August 4, 2010, the Ley de Biodiversidad, among others), for site management and inter-institutional coordination (MINAE, ICT, Municipalidad de Puntarenas, Ministerio de Cultura).

- The existing rules that allow the development of non-essential services by local actors - The planning tools of the PA (Plan General de Manejo, specific plans, management effectiveness, among others) - The forest cover (cobertura boscosa) of the refuge (vegetation cover, tropical dry forest, mangrove) - The tourist, 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 network of trails that facilitate the development of actions for tourism use and wildfire control in the PA - The conception of the refuge as a source of development, generating socioeconomic resources for the region.

- A site of importance for the shelter of Gulf users, in case of climatological events that may occur.

- The installed management capacity (even if minimal, there is institutional presence (SINAC, fire management) - There is support from Pro-parques, INCOP, private tourism companies (tour operators), and local associations that collaborate with actions on the island.

- The geographical location of the refuge, being an accessible island located 6 km from the coast of Puntarenas.

- The responsible fishing marine area as a buffer zone Plan General de Manejo of the Refugio Nacional de Vida Silvestre Isla San Lucas 2.4.2 Weaknesses - Lack of resources (human, equipment, materials, infrastructure, basic services) to adequately manage the Protected Wild Area.

- The loss of infrastructure in several sectors of the ruins of the old Presidio, lack of an attention plan by Cultural Heritage that contemplated the island as a circuit.

- The existence of several easily accessible sites on the island, which generate insecurity for visitors exposed to theft and assault, and which also hinder prevention, protection, and control efforts over the natural, cultural, historical, and archaeological resource.

- Pollution generated by unregulated visitors in unwatched sites - The presence of invasive flora species on the site.

- The small marine extent belonging to the refuge.

- The limited knowledge of the marine resource of the refuge (information gaps) - The limited knowledge of the site regarding the natural and archaeological resource among the different actors (Municipalidad de Puntarenas, ICT, SINAC, and Ministerio de Cultura) and lack of socialization of existing information.

- The lack of physical demarcation of the marine area of the refuge, lack of technical definition of the regulation (6 meters in the marine area not immersed within the protected marine area) - The lack of the public use regulation to regulate tourism activity in the refuge.

2.4.3 Opportunities - Access to marine tourism services in the Golfo de Nicoya - The existence of the Fidecomiso of INCOP-ICT-BN - Cultural activities (sports, religious, local traditions).

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

- The academic interest in conducting research on different topics (marine resource, archaeological, flora, fauna, among others to fill information gaps).

- The existence of key actors (public sector, NGOs, chambers, private sector) to generate alliances.

- The possibility of agreements with different entities (Municipalidad de Puntarenas, NGOs, among others) - The existence of organized volunteer groups willing to collaborate in the PA.

- The updating of the Plan General de Manejo, with participation of key actors - The demand of national tourism to learn about the valuable historical, cultural, and natural contribution of the PA.

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

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

- The interest of multiple public and private entities to utilize and protect the resources of the refuge and surrounding area.

2.4.4 Threats - Vandalism (thefts, assaults) - Illegal hunting and fishing (existence of illegal hunters and fishers) - Looting of archaeological sites (Huaquerismo) - Solid waste pollution that reaches the Island, Golfo de Nicoya - Invasive species (teak, mammee).

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

- Illegal tourism, utilization of the resources present on the Island (archaeological, cultural, and natural by visitors) - Climate change - Over-exploitation of the marine resource - The existence of proposals or intentions for high-impact tourism development on the refuge.

The results of the above analysis allow understanding which aspects must be prioritized for actions to implement in order to generate significant changes that positively affect the focal management elements of the RNVSISL. These actions are reflected within the goals and activities proposed in each of the strategic Areas. It is important to highlight that the existing weaknesses are those that must be prioritized, given that by making efforts, the capacity to reduce the threats will be strengthened…” That is the public result of the study and monitoring that SINAC had given to that island as the responsible party and technical authority for the management of the Refugio Nacional de Vida Silvestre. It was a verifiable reality at the time the update of the Plan de Manejo was promoted, whose themes were also a matter of concern for all entities involved in the legislative process, since working groups were held in the legislative subcommittee and those groups collaborated in improving the initial legislative proposal, to resolve the noted threats and deficiencies. It is an undeniable reality; SINAC itself clearly pointed out in that study areas of the island that required greater protection than they had at that time and the uses that were technically consistent with the zone:

“…4.7.1 Minimum or No Intervention Zone (ZMNI) The sectors of the PA defined in this category have a minimal or null level of intervention. The objective or desired condition is to maintain an unaltered state or with an almost imperceptible impact.

In this type of zone, objectives aimed at absolute protection, the development of very low-impact, low-intensity, and low-frequency tourism activity, as well as research and administrative use directed at control and protection, are proposed.

This zone is composed of: the islets Cocineras, Aves, and Pan de Azúcar, which are located on the southern limit of the PA and serve as a refuge for several species of seabirds; the Wetland or mangrove area; the water springs (nacientes) of the Hacienda Vieja, Control, and Quebrada Coyol streams 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 (ZBI) In this category, interventions are proposed to be of a very low level, although with greater possibilities for the development of management practices and other activities. It is expected to meet objectives oriented towards a strict level of sustainability in the management and use of some resources of the PA.

Administrative use practices or specially regulated resource use and low-impact tourism may be permitted, but with slightly more intensity and frequency than in the minimum intervention zone.

This zone is composed of the archaeological sites present in the RNVSISL; the marine area around the PA; 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, which corresponds to 90.1% of the total area of the PA (Figure 15).

In the low intervention management zone, the following is permitted:

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

- The management of flora and fauna species with biological restoration objectives is permitted, based on scientific knowledge for the fulfillment of the conservation objectives of the PA, established in regulations and protocols previously authorized by SINAC.

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

- Visits for educational, scientific, prevention, protection, and control purposes, and any other activity defined by the PA administration, are permitted.

- Filming and photography for scientific and dissemination purposes of the attributes and values of the PA are permitted.

4.7.3 Medium Intervention Zone (ZMI) The space or sites defined for this category will have a possibility of interventions of medium intensity, frequency, and impact in the practices and activities that can be developed.

The objectives are aimed at having spaces where resources can be used, where the impact on them can be controlled, although with reasonable limits established by legislation.

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

The ZMI is composed of 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 extent of 15.2 Ha., which corresponds to 3.4% of the refuge's territory…

In this management zone, the following is permitted:

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

- The management of flora and fauna species with biological restoration objectives is permitted, based on scientific knowledge for the fulfillment of the conservation objectives of the PA, previously authorized by SINAC.

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

- The installation of equipment and infrastructure for administrative use for Refuge management is permitted, provided they are essential.

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

- Filming and photography for scientific and dissemination purposes of the attributes and values of the PA are permitted.

- The sustainable use of marine resources in accordance with current national environmental legislation and according to specific resource management plans that are developed.

- The practice of traditional uses and exploitation in accordance with the current legal framework and the objectives of the management category.

4.7.4 High Intervention Zone (ZAI) The sectors of the PA defined with this category would have a much higher level of intervention and use than in the other zones. The objective or desired condition will always be to remain within an environmental state consistent with the management category established for the RNVSISL, but allowing more opportunity for the development of practices and activities typical of high intervention. As in the other zones, the conservation and development objectives are aimed at having spaces where a permanent and more intensive sustainable tourism activity, more open productive activities or resource use can be maintained, without ceasing to have strict controls and standards. Intervention for administrative and special use has greater possibilities for development as long as it is duly planned and controlled (SINAC, 2016).

This zone comprises part of the marine area of Bahía San Lucas; the Infraestructura of the old 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, the Sendero El Trogón; as well as the two sites for Prevention, Protection, and Control infrastructure to be located at Tumbabote and Hacienda Vieja. As well as the sites of the Teak plot and the new Park Ranger house.

This zone covers an extent of 27 Ha., which corresponds to 6.1% of the refuge's territory.

In this management zone, the following is permitted:

- Recreational and tourism activities: guided walks on authorized trails for the observation of flora, fauna, and historical resources; non-commercial photography and video.

- The construction of infrastructure for visitor services (for example, visitor centers, restroom facilities, trails, viewpoints, platforms, cafeteria, craft shops).

- The construction of infrastructure for the Refuge administration.

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

- The management of flora and fauna species with biological restoration objectives is permitted, based on scientific knowledge for the fulfillment of the conservation objectives of the PA, previously authorized by SINAC.

- The installation of equipment and constructions of scientific interest or for Refuge management is permitted, previously authorized by SINAC.

- Filming and photography for scientific and dissemination purposes of the attributes and values of the PA are permitted.

- In this zone, the installation and operation of non-essential services approved based on current regulations is also permitted…” It is not a capricious proposal nor one that arises at random, but comes from the reality of the public domain asset. Even though at point 6 of that Plan General de Manejo it is indicated that the wild area declared as a national refuge is well categorized, it must be taken into account that said plan was made, as indicated in point 7 of the same, based on the existing regulatory and institutional framework at that time, evidencing a need for inter-institutional collaboration, given the insufficiency of its own technical and material resources that it itself demonstrates; and that, in any case, this does not preclude considering that the 2012 Plan refreshed in 2020 constituted a technical basis that did allow determining the state of the zone in question and projecting, eventually, greater and better environmental protection, which is consistent with the category granted by the law challenged here.

Costa Rica has international obligations to protect not only the environmental resource, but also the cultural architectural one, and so it was evidenced in judgment No. 2010-13099, when referring to the Decreto Ejecutivo No. 34282-TUR-MINAE-C, relating to Isla San Lucas, referenced in Considerando V. However, and despite the existence of the decree reviewed at that time, given the lack of budget, SINAC personnel, and their specialization in cultural heritage protection, as well as the lack of resources, part of that heritage, which our country is obliged to safeguard and conserve for present and future generations, was destroyed.

Based on the foregoing, each one of the allegations of the plaintiffs will be resolved individually.

VII.REGARDING THE ALLEGED REDUCTION OF THE SURFACE AREA OF THE PROTECTED WILD AREA AND THE CHANGE OF CATEGORY, WITHOUT TECHNICAL JUSTIFICATION. The plaintiffs point out that ordinal 3 of Law No. 9892 delimits the coastal marine area with a depth of up to three meters, which implies the reduction of the previous protection area of 3 meters, which had been added by Decreto Ejecutivo No. 34282-TUR-MINAE-C. They consider that the reduction in the protected area could alter vital cycles and valuable ecosystems that function together with the wetlands of the Estero de Puntarenas, affecting different life forms of the entire Gulf and a site considered a breeding ground for various marine species that reproduce in the zone. They argue that the argument of the reduction in protection affects the entirety of the challenged regulation, given that there cannot be protection if dozens of marine hectares are left out. They add that Decreto Ejecutivo No. 24282 included the islet Pan de Azúcar as part of the Refugio Nacional de Vida Silvestre Isla San Lucas; however, the challenged law does not indicate anything about it, so the plaintiffs propose that it was also excluded from protection. Likewise, they question that Isla San Lucas, which was a national wildlife refuge, changed its management category to a national park, without having technical studies to justify it.

According to what was stated in Considerando VI of this judgment, such allegations must be dismissed. This Tribunal considers that the officials of the Asamblea Legislativa who responded to the hearings granted in this action are correct in pointing out that this law reinforces even more the existing environmental protection in that area, conferring the status of national park on most of its extent and conserving in a smaller percentage the same environmental protection it already had. No area was removed from public domain protection, nor was the environmental protection area previously conferred by the cited regulations reduced, since the only thing repealed by this law were Articles 2 through 8 of Ley 5469, Ley de Traspaso de la Isla San Lucas a Municipalidad de Puntarenas, of April 25, 1974. Hence, the unconstitutionality alleged by the plaintiffs, indicating that the protected area previously declared by the mentioned decrees was reduced, is completely unfounded.

Indeed, by Decreto Ejecutivo No. 34282-TUR-MINAE-C of January 25, 2008, the limits of the Refugio Nacional de Vida Silvestre San Lucas were modified, in Article 1, as follows:

“Artículo 1º—Modify Article 1 of Decreto Ejecutivo No. 33327-MINAE, published in La Gaceta No. 172 of September 17, 2006, to read as follows:

Artículo 1º—…Add to the Refugio Nacional de Vida Silvestre Isla San Lucas a portion of water described by the following Costa Rica Lambert Norte coordinates: B. A marine-coastal area comprised by the waters around Isla San Lucas up to a depth of 6 m (…)” (bold text incorporated).

That territorial addition remained unaffected, as resolved by this Tribunal in judgment No. 2010-13099 at 14:46 hours on August 4, 2010. Thus, the limits of the Refugio Nacional de Vida Silvestre Isla San Lucas were, in effect, expanded by the addition of a “marine-coastal area comprised by the waters around Isla San Lucas up to a depth of 6 m”. Article 3 challenged by the plaintiffs provides as follows:

“ARTÍCULO 3- Delimitations. The Parque Nacional Isla San Lucas shall be composed of a terrestrial portion and a coastal marine area.

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

The coastal marine area shall be composed of the waters around the island, with a depth up to three meters (3 m). Inserted within the two preceding areas, there shall exist a differentiated management space dedicated to sustainable tourism activity, the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourism Zone (…)” (highlighting added).

Now then, the foregoing implies that, according to the challenged law, a part of the territory of Isla San Lucas ceased to have the management category of “national wildlife refuge”, to become a “national park”. However, that provision did not eliminate the Refugio Nacional de Vida Silvestre Isla San Lucas.

As was demonstrated in this file, Decretos Ejecutivos Nos. 29277-MINAE and 34282-TUR-MINAE-C remain in force, which implies that a part of the island in question (the one expressly claimed by the plaintiffs) has not lost the status of Refugio Nacional de Vida Silvestre Isla San Lucas, and the greater part of it has acquired superior protection, by being considered a national park. Likewise, what relates to the coastal marine area of the island, since the islet Pan de Azúcar and other surfaces continue to be natural heritage of the State, by being part of the state's Refugio Nacional de Vida Silvestre Isla San Lucas. Thus, geographically, there is no environmental removal from public domain protection. And, in accordance with the provisions of Article 7 of the same law challenged here, that area must be considered in the technical studies carried out, in order to establish, if applicable, the most protectionist environmental management that corresponds in each case.

On the other hand, even though this Tribunal maintains its criterion that even a downgrading of the level of environmental protection of a zone requires a prior technical study, the truth is that, in this particular case, that situation does not configure. Here we are not facing any condition of a regression of environmental protection, assessing the legal, real, and current situation of the island. Far from it, as demonstrated in Considerando VI, if this law were annulled and the previous regulations remained in force, the area would maintain a lower level of environmental protection, with the budgetary and administrative limitations that SINAC has already denoted in order to adequately safeguard not only the environmental area, but also the historical heritage, with the same tourism faculties, but with greater deficiencies to exercise the adequate control and development sought by the previous laws whose validity would also be maintained.

Furthermore, given the particularity of this case for everything previously cited, it is also not true that the law challenged here, processed by legislative file No. 21.287, is unconstitutional for lacking any technical study and objective basis. As was accredited, it is an area that was already administered and studied by SINAC, that is, the technical authority that determines the management plan to follow, according to the level of protection assigned had already issued and admitted some deficiencies in this regard. In this case, the law in question does not reduce its environmental protection at all; far from it, it increases it, by conferring the status of national park, in order to safeguard the threat situation that is warned by SINAC itself in the update of the management plan for that area, and whose reasons are also reflected in the statement of purpose of the legislative proposal in question that gave rise to Law No. 9892. In addition to the foregoing, this Tribunal, in relation to a case regarding Isla del Coco, stated the following:

“…V. In relation to 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 No. 3763, of October first, nineteen sixty-six - in relation to Constitutional Article 7, which, as relevant, states:

\"The Contracting Governments agree that the boundaries of national parks shall not be altered nor any part of them alienated except by action of the competent legislative authority. The riches existing in them shall not be exploited for commercial purposes.

The Contracting Governments 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 done by the park authorities or by order of or under the supervision of the same, or for duly authorized scientific investigations.\" These norms must be interpreted in a restrictive sense, so that the requirement to establish the limits of national parks through a law is only when it is to the detriment of the same, that is, when one wants to reduce its extent, and not when one wants to extend the limits of the protective zones of the State's forest heritage.” (Judgment No. 1993-5399, at 16:39 hours on October 26, 1993) In a similar vein, in judgment No. 2006-5975, at 15:14 hours on May 3, 2006, this Chamber indicated the following:

“VII.- Regarding the increase and reduction of protected wild areas.

In the filing brief of the unconstitutionality action, the plaintiff challenges – and points it out as a reason for unconstitutionality – the repeal of Decreto 23069-MIRENEM by Decreto 29019-MINAE because it tacitly reduced the extension of the Refugio de Vida Silvestre Gandoca-Manzanillo, given that the latter had expanded the limits of the Refuge.

Analyzing the decrees promulgated related to the Refugio Gandoca-Manzanillo, one observes how the Poder Ejecutivo has issued several in pursuit of regulating the situation of the same. In order to clarify the current situation, it is convenient to recount those related to the object of this action. We have in the first instance DE-16614-MAG of October 29, 1985, which creates the Refugio Nacional de Vida Silvestre Gandoca-Manzanillo (REGAMA). The legal basis of the decree is specifically in Article 2 of Law No. 4465, but especially in Article 18 of Law No. 6919, Ley de Conservación de la Fauna Silvestre, now repealed, but which at that time provided:

“Artículo 18.- Those that the Poder Ejecutivo declares as such are national wildlife refuges, for the protection and investigation of wild flora and fauna, especially those in danger of extinction. The Poder Ejecutivo is authorized to establish, within forest reserves and on private lands, areas under the classification of national wildlife refuges, which, for purposes of wildlife conservation, shall be under the administration of the Departamento de Vida Silvestre of the Dirección General Forestal of the Ministerio de Agricultura y Ganadería. (‘…)” Article 6° of Decreto 16614-MAG expressly excluded from that refuge the urban zone of Gandoca, Manzanillo, and Puerto Viejo. Subsequently, DE-23069-MIRENEM of April 5, 1994, was issued; Article 16 of that Decree repealed Art. 6 of DE-16614. The immediate consequence of that is that the urban areas of Gandoca, Manzanillo, and Puerto Viejo became part of the Refugio Gandoca-Manzanillo.

Later, Decreto DE-29019-MINAE of October 31, 2000, was promulgated, which, through Article 8°, repealed Decreto 23069-MIRENEM; with this, Article 6 of DE-16614 tacitly regained validity. At that moment, a tacit decrease of the territory of the reserve occurs by again excluding the urban areas of Gandoca, Manzanillo, and Puerto Viejo, which left things in the situation in which Decreto No. 16614-MAG would have provided them. However, later the Poder Ejecutivo issued DE-32753-MINAE of May 16, 2005, which expressly repealed Article 6 of DE-16614; again the urban zones of Gandoca, Manzanillo, and Puerto Viejo become part of the Refugio Nacional de Vida Silvestre Gandoca-Manzanillo, a situation that remains to date.

Regarding the increase and/or decrease of the territorial limits of the forest heritage, this Tribunal, in judgment No. 1999-5399 at 16:39 hours on October 26, 1993, in which the Chamber indicated:

“…if the Poder Ejecutivo is legitimized to designate the limits of its forest heritage, it will be through the regulatory route and not the legal one, with due compensation for the properties over which the forest heritage extends, since by virtue of Constitutional Article 9 and the theory of the separation of Powers, the Asamblea Legislativa is the only constitutional body empowered to issue laws. Therefore, when dealing with a public domain asset, it is illogical to think that the State is limited or unable to act in safeguarding the flora and fauna of our lands.

II.In this order of ideas, since this action is directed against a decree that expanded the limits of a national park - Isla del Coco - extending it for a distance of fifteen kilometers over the sea, measured from the low-tide line of the coast, it is important to determine that it does so in the full exercise of its faculties, both legal and constitutional, as it concerns a public domain asset. (…)

V.

Regarding the alleged violation of Article 3 of the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere – approved by Law Number 3763 of October 1, 1966 – in relation to Article 7 of the Constitution, which, as relevant, reads as follows:

"The Contracting Governments agree that the boundaries of national parks shall not be altered, nor any portion thereof be alienated, except by the competent legislative authority. The resources existing in them 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 the park authorities or by order of or under the supervision of the same or for duly authorized scientific research." These rules must be interpreted restrictively, such that the requirement to establish the boundaries of national parks through a law applies only when it is to the detriment of the park itself, that is, when one wishes to reduce its extent, and not when one wishes to extend the boundaries of the protective zones of the State's forest heritage (patrimonio forestal del Estado). This article must be read together with Article 40 of the Forestry Law (Ley Forestal), which states:

"The area of forest reserves (reservas forestales), protective zones (zonas protectoras), national parks, wildlife refuges (refugios de vida silvestre), and biological reserves of the forest heritage, may only be reduced by law of the Republic, following corresponding technical studies that justify such a measure." And this is so because the legal right being protected is the "forest resource," a term that "means the protection and preservation of the integrity of the natural environment" (ruling of the Constitutional Chamber number 2233-93, of nine thirty-six hours on May twenty-eighth) that exists in the zone declared a national park, and which is recognized by international legislation, by special laws enacted for this purpose, and by the texts of political charters. In this sense, it is Article 69 of the Political Constitution that speaks of "rational exploitation of the land," its protection constituting a fundamental principle (…)." (bold text not in original) Note what is indicated in these constitutional precedents, even though in this case we are faced with the discussion of two laws of equal rank, not even via decree, as is indeed the case in the precedent, "when dealing with a demanial property (bien demanial), it is illogical to think that the State is limited or unable to act in safeguarding the flora and fauna of our lands." And that is precisely the case here.

Not only because there is no reduction of protected area, but quite the opposite: protection is expanded, and because what is established is a minimum of differentiated management space, based on the very areas that, according to prior existing decrees and management plans, were already dedicated to sustainable tourism activity and the promotion and development of sites of historical, architectural, and environmental interest. One need only verify the normative and actual condition of the zone at that time.

It is reiterated, and was thus duly established in the hearing of this case file (expediente), held this past May 4, that the category of park, in our legislation, is superior to that of a national wildlife refuge. Therefore, in the sub examine, we are dealing with a property that already belongs to the State, which maintains full ownership, and the elevation of its category or management area does not, in any way, diminish its scope of protection or affect third parties. Thus, we are not facing the same situation as, for example, the Ostional National Wildlife Refuge, in ruling no. 2022-22606, where a reduction of environmental protection occurred due to disaffectation (desafectación), by moving from a public nature regime to a mixed one with the inclusion of private property. For the disaffectation or reduction of protected zones, this court does not modify its stance that they must have a specific prior study.

But this case is completely different; on the contrary, there is no disaffectation, but rather greater protection. In fact, the management plan prepared by SINAC, which was already available by 2020 and is based on various technical studies cited therein, had already warned of the need to protect certain areas with greater attention, the possibility of establishing other uses in others, and the unavoidable need to establish essential services within the zone. While it is true that the General Management Plan for the Isla San Lucas National Wildlife Refuge states in point 6: "Having analyzed the current regulations, the creation objectives of the ASP, the geographical and ecological context, zoning, and opportunities for sustainable and socioeconomic development, it can be concluded that the wild area declared a national refuge is well categorized," it must be considered that this Plan was made, as indicated in point 7 thereof, based on the regulatory and institutional framework existing at that time, evidencing a need for inter-institutional collaboration, given the insufficiency of its own technical and material resources that the plan itself demonstrates.

In any case, the foregoing does not preclude considering that the 2012 Plan, renovated in 2020, constituted a technical basis that did allow for determining the state of the zone in question and for projecting, eventually, greater and better environmental protection, which is consistent with the category granted by this law. Therefore, it is not true that the legislators lacked any technical basis at that time for making the decision adopted. It already existed and permits the legislative decision now adopted; what does not exist in this case is evidence indicating that environmental damage is being produced, or that the environment would be put at risk because its category of protection was elevated. In this sense, it is not evident, as the legislators stated at the time, that a deterioration or environmental risk in the protection of this zone has occurred through this law. Far from it, with this categorization, a new management plan can reinforce the environmental protection it already had, which, it is reiterated, would likewise have to include all the technical studies that this would imply, not only environmental ones, but also those seeking the protection of historical heritage with the due and obligatory intervention of the competent authority for those purposes, which would not happen if the law were annulled, as it would inevitably reduce its protection by returning it to that prior state and leaving its custody solely in the hands of SINAC, with the dangers noted in the foundations that postulated this law.

Under that stage, far from this jurisdiction seeking the enhancement of environmental protection, it would reduce it, based strictly on sub-legal regulatory norms, which is not reasonable in a systematic interpretation of the legal system and constitutional protection. Consequently, both grievances are dismissed.

VIII. REGARDING THE QUESTIONING OF THE EXISTENCE OF A TOURIST USE ZONE ON ISLA SAN LUCAS AND ITS DELIMITATION

The plaintiffs argue that sections 3 and 16, as well as the entirety of Law No. 9892, allow a wildlife refuge to be transformed into a park with a tourist zone, where docks, landings, food services, and various maritime facilities will be enabled; all in numerus apertus, as if it were a kind of amusement park, detracting from the objectives of conservation areas and thereby causing noise pollution in the marine ecosystem from the engines of the boats and launches arriving at the site, light pollution, pollution with oils and fuels, impact on the marine soil in wetlands, sedimentation, and reefs. They contend that the planned tourist and commercial use is incompatible with a national park, and that sections 3 and 6 of Law No. 9892 established a tourist zone of differentiated management, despite the lack of studies justifying its creation.

First, it must be stated that Isla San Lucas, prior to the issuance of this law, had already been declared in Article 2 of Decree No. 34282-TUR-MINAE-C, reviewed in ruling No. 2010-13099, "of national interest and high priority 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. The agencies of the Public Administration and the Private Sector, within the respective legal framework, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the Island." This is repeated by Article 2 of the challenged law: "The sustainable tourism development of the island under the terms of this law is declared of national interest and high priority, as well as the conservation and restoration of the buildings of the former prison of Isla San Lucas.

The agencies of the Public Administration and the private sector, within the respective legal framework, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the island." The difference lies in the fact that the law challenged here, beyond that decree, establishes a zone with greater protection in Article 3 challenged here, by declaring 462 hectares a national park and allowing a differentiated management plan only in the remaining area, which is much smaller, and which would be dedicated to sustainable tourism activity and the promotion and development of sites of historical, architectural, and environmental interest, under the same Refuge condition it already had. Areas that, as was established in the legislative file, were duly identified and updated with the National Geographic Institute (IGN).

For these purposes, and regarding tourism activity, Article 5 of that decree established that, for the development of tourism activities in the municipal administration area and the preservation of the island's cultural heritage, the ICT would prepare a Master Plan for Sustainable Tourism Development, which would comprise 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. This Tribunal reiterates what was indicated in ruling No. 2010-13099, which in this regard stated:

"…IX.- On the implications of sustainable development and tourism.- The cornerstone of development lies in 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 idea of the principles of environmental law lies in the rational use of natural resources, with the protection of the environment to ensure the sustainability of present and future generations. All economic or productive activity that intervenes in or uses the environment must respond to the philosophy of sustainable development according to the impact it has on it; in this sense, when the Executive Branch bases itself on these types of objectives for economic and social development, this Chamber considers that rural tourism as such must respond to those values that protect sustainable development, because it could not be the exception, and it is constitutionally relevant to control the repercussions it may generate on the environment.

An example of this is the Certification for Sustainable Tourism issued by the Costa Rican Tourism Institute (ICT) as a highly important component, which denotes progress in protecting the right to a healthy and ecologically balanced environment while simultaneously promoting economic diversity; this measure generates incentives in favor of companies dedicated to the tourist exploitation of natural and cultural resources. On the other hand, Law No. 8724, which is the Law for the Promotion of Rural Community Tourism, seeks to provide benefits to families and communities by using their localities as tourist destinations, and among its norms is 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 sense, the Global Code of Ethics for Tourism, adopted by resolution A/RES/406(XIII) of the thirteenth General Assembly of the UNWTO in Santiago, 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, establishes that:

'Article 3.

Tourism, a factor of sustainable development 1. All the agents of tourism development have the duty to safeguard the environment and natural resources, in the perspective of sound, constant 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 incentivize all forms of tourism development that allow for the saving of scarce and valuable natural resources, particularly water and energy, and that avoid, as far as possible, the production of waste.

…

4. Tourism infrastructure shall be designed and tourism activities programmed 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. The agents of tourism development, and in particular professionals in the sector, must accept limitations being imposed on their activities when these are carried out in particularly vulnerable spaces: desert regions, polar or high mountain areas, coastal areas, tropical forests or wetlands, which are suitable for the creation of natural parks or protected reserves.

5. Nature tourism and ecotourism are recognized as particularly enriching and valorizing forms of tourism, provided they respect the natural heritage and the local population and conform to the carrying capacity of the tourist sites.' For equitable access to development, the traditional idea that it only occurs in urban areas must be abandoned, when in rural areas other factors that make the place unique can be exploited, while naturally ensuring that these conditions are not threatened. There is no doubt that the exploitation of natural resources implies economic diversity; to that extent, the environment requires protection to withstand the burdens of human intervention, so it is necessary to ensure reasonable development in balance with the environment, such that the control that could be exercised would increase according to the impact it may have on it. Consequently, tourism development must not imply the destruction of public domain goods or the surroundings, because it depends on their preservation to achieve the economic improvement of rural communities within the parameters of sustainability.

Among the constitutional purposes of the State is to develop policies that reduce social and economic gaps, adjusted of course to the environments, whether natural, rural, or mixed, all of which arises from the provisions of Article 50 of the Constitution. Having access to development, in terms of job opportunities, or quality of life, and therefore, economic progress, forms part of the recognition and advancement of human rights, hence rural development through tourism should not mean individuals abandoning their traditional customs and ways of life to migrate to cities, but rather an adjustment of them to current needs and advances. In this sense, in the Chamber's opinion, the true challenge for human beings is to generate progress and – why not – happiness (material and spiritual) without threatening the resources available in the environment; the contrary would simply translate into social inequalities that impede progress toward a new stage of human development.

The Chamber recognizes that the balance is very delicate between one and the other, but for it to occur, without harming the environment, one must turn to science and technology to determine what burdens certain natural environments and their resources can bear, without violating the right of present and future generations. For all these reasons, the conflict between environmental protection and other rights derived from it, widely recognized in international human rights instruments, deserves these considerations from this Constitutional Tribunal. This Chamber considers that rural development, based on tourism directed at natural and cultural heritage, is constitutionally legitimate as long as it is sustainable. Hence, if science and technology suggest the imposition of certain limitations on the numbers of visitor groups, at certain times, etc., they could not be judged as unconstitutional, given that they respond to sustainability criteria, but without detracting from the various international provisions that safeguard the right to the enhancement of those goods that belong to national history, not only as goods of the national heritage but of all humanity, and their restriction from populations is not legitimate.

X.On the protection of the surroundings and landscapes of the natural and cultural heritage.- This Constitutional Tribunal has derived from Articles 7, 48, 50, and 89 of the Constitution, and the enunciated International Treaties, the environmental rights and principles, but at the same time, it recognizes the State's need to contribute with policies to promote economic diversity, together with the conservation and protection of cultural and natural assets, because without one or the other, it could not be understood that there is equitable human progress for all social sectors. The protection of the environment, economic diversification, and quality of life are legitimate objectives of the State, as it must implement development policies in urban and rural areas. But the type of progress in a rural environment must depart from a centralist development model, which assumes that this can only occur in urban areas, when it must exploit particularities and other specific needs.

However, rural development based on tourism must be founded on other particular axes: one of them is what the doctrine identifies as the conservation of the values inherent to rural spaces. This principle lies in the fact that rural spaces must be conserved sustainably. In this sense, the forest, the sea, the mountain, the volcanoes, the mangroves, wetlands, etc., provide different types of development scenarios according to the interests that may exist. In themselves, each constitutes a scenic value subject to constitutional protection. But the task of focusing and stimulating these types of rural development policies is a matter that corresponds to the Legislator and the Executive Branch in their constitutional functions. This Chamber must highlight that the conservation of the particular characteristics of rural environments or the natural or landscape surroundings is a value contained in Article 89 of the Constitution that requires protection and must be directed toward protecting the environment that enhances its worth, not only as a rural space but also as a tourist destination so that the positive effects may be felt in neighboring communities. In this sense, Article 35 of the Organic Environmental Law establishes that:

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

a…

…

• f)Protect the natural and landscape environments of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest of importance to culture and national identity.' The Political Constitution indicates as objectives of legal relevance not only the protection but also the conservation and development of the Nation's historical and artistic heritage. In the dictionary of the Royal Spanish Academy, 'protect' has the following meanings: 1.- To shelter, favor, defend.; and 2.- To guard a person, animal, or thing from harm or danger, placing something on it, surrounding it, etc. For its part, 'conserve' means: 1. To maintain something or care for its permanence; 2. To keep someone alive and unharmed; 3. To continue the practice of customs, virtues, and similar things; 4. To carefully guard something, among other meanings.

And 'develop', in the applicable meaning, is to increase, to give increment to something of a physical, intellectual, or moral order. In line with the foregoing, the Law authorizes as legitimate objectives the creation, conservation, administration, development, and vigilance of protected areas with historical, architectural, and archaeological sites or centers, which implies that in the management of cultural resources, human intervention is permitted for the maintenance, safeguarding, preservation, and care of the assets located in their environment, while development favors the rescue and enhancement of sites of interest that may exist in the place and its surroundings. Cultural interest assets require protection and conservationist measures in the environment where they are located, so that they can be distinguished as tourist resources, otherwise the State's omission would imply an illicit abandonment from a constitutional perspective and in light of the international treaties in force in the Republic.

In addition to the above, conserving implies the idea of ensuring protection and permanence, within the context of the values and customs inherent to urban and rural spaces, therefore sustainability criteria and practices must be admitted. The administration and development of the asset must protect and enhance the asset according to the characteristics of its environment, so that if it involves infrastructure created by humans, it will require technical management, which demands maintenance and investment measures to ensure its development when it is enhanced, as well as its conservation. In the case of Isla San Lucas, subsection f) of section 38 of the Organic Environmental Law applies insofar as there are not only elements of natural heritage, but as a site with historical and archaeological buildings, they are important for culture and national identity. Consequently, it is important to cite the Global Code of Ethics for Tourism, insofar as it states that:

'Article 4 Tourism, a user and enricher of the cultural heritage of humanity Tourism resources belong to the common heritage of humanity. The communities in whose territory 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 transmit to future generations. Particular attention shall be paid to the protection and rehabilitation of monuments, sanctuaries, and museums, as well as of places of historical or archaeological interest, which must be widely open to tourist visits. Public access to privately owned cultural goods and monuments shall be encouraged, with full respect for the rights of their owners, as well as to religious buildings, without prejudice to the needs of worship.

The resources generated 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.

Tourist activity shall be organized in such a way as to allow the survival and flourishing of traditional cultural and craft production, as well as folklore, and not lead to their standardization and impoverishment. (bold highlighting not from the original) Costa Rican legislation sparsely regulates the possible administration of these historical sites, but from isolated norms, the protection of natural and landscape environments can be derived, which admits human intervention, but with the aim of improving sites, not their destruction or abandonment. The Historical-Architectural Heritage Law of Costa Rica, Law No. 7555, establishes that:

'Article 9. Obligations and Rights The declaration of real property as a monument, building, or historical site entails the obligation on the part of the owners, possessors, or holders of real rights over the assets so declared:

To conserve, preserve, and adequately maintain the assets.

...

• j)[…] The State and the respective municipality shall have the right to expropriate the assets; they may exercise it for the benefit of other public entities. This right encompasses assets that harm environmental harmony or pose a risk to conserving those that have been declared of historical-architectural interest.

The Executive Branch and the respective municipality shall be obligated to prevent the total or partial demolition of a protected building. To guarantee that the use of protected assets does not alter their conservation and is also congruent with the characteristics inherent to the property. In any case, this use must not conflict with morality, good customs, or public order.' (bold highlighting not from the original) For the Chamber, it is also important to note that Articles 71 and 72 of the Organic Environmental Law clearly delimit the foregoing:

'Article 71.- Visual contamination. Actions, works, or installations that exceed, to the temporary or permanent detriment of the landscape, the maximum admissible limits established by the technical standards established or to be issued in the future shall be considered visual contamination.

Article 72.- Landscape conservation. The competent authority shall promote the participation of the public and private sectors in the conservation of the landscape.

When carrying out a work requires affecting it, the resulting landscape must be at least of equal quality to the previous one.' From the foregoing, not only the purposes of conservation, preservation, and development are extracted, but also the principle of sustainability in the use and development of the assets of the artistic, archaeological, and cultural heritage, to enrich their environment by improving their scenic beauty, and to provide access and security to the assets and persons, as advised by the technical and scientific standards in the respective matters. Furthermore, coupled with the need for rehabilitation, restoration, maintenance, and control of activities, are, at the end of the day, the social and economic benefits of many sectors that will depend on this activity…" In a similar vein, the challenged law in Article 7 provides:

"ARTICLE 7-Scope and restrictions. The Isla San Lucas National Park shall be governed by a master plan prepared based on technical criteria.

For the fulfillment of the purposes established in this law, in the tourist zone, concessions and permits may be granted for activities and installations distinct from the park service. Lodging services and gambling shall not be permitted in this zone.

In any case, the participation of local organizations in the granting of concessions shall be promoted.

Any conflict of jurisdiction shall be resolved by the Minister of Environment and Energy." Note that in Article 5 of the decree endorsed by this Tribunal and delimited under those conditions, the development of tourism activities in the municipal administration area and the preservation of the island's cultural heritage depended on the Master Plan for Sustainable Tourism Development that the ICT would develop. In this case, the law also establishes a Master Plan for the entire national park and a differentiated management plan for the sustainable tourism area, which is currently technically defined by a Board of Directors. Thus, Law No. 9892 does not innovate the declaration of national interest and high priority of sustainable tourism development on Isla San Lucas questioned by the plaintiffs, but rather repeats what was already previously established in Executive Decree No. 34282. On the other hand, as already indicated, this Tribunal in ruling No.

2010-13099, warned that the mere fact that the law contemplates the possibility of carrying out certain sustainable tourism activities and developing certain infrastructure does not necessarily constitute a violation of the environment and the cultural or natural heritage, under certain conditions:

"…The development of infrastructure must be compatible with the principles of environmental sustainability, its protection and conservation; on the contrary, they would be constitutionally questionable if works were carried out that did not take into account the protection regimes in force on the Island, such as the construction of large-scale infrastructure works, given that the validity of the regime as a protected area would imply a substantial land-use change (cambio de uso del suelo), and not because of the human works that existed long before the declaration of the Island as a Protected Wild Area and of historical-architectural heritage. Hence, the Chamber does not consider that Articles 2, 3, 4, 6 and 7 of Decreto Ejecutivo 34282-TUR-MINAET-C present defects of constitutionality, but understood with the following nuances. The declaration of national interest and high priority for sustainable tourism development, indicated in numeral 2, must be understood as constitutional as long as the conservation and restoration of the buildings of the former penitentiary and those built on the occasion of its existence are limited to the tasks of conservation, protection, and improvement of their surroundings.

The same must occur with the archaeological sites and the cemetery located at Playa Cocos, without prejudice, of course, to the archaeological and scientific studies that must be undertaken. Regarding the infrastructure intended for tourist use, it must be strictly limited to the areas of the historic complex and the road leading to Playa Cocos and to the latter itself; the facilities to be built shall be strictly necessary to meet the basic needs of visitors and tourism development agents, without the foregoing implying that it can be extended beyond developments incompatible with a 'green' philosophy, or that are not in harmony with the site's carrying capacity, all of which must be ensured in a sustainable manner according to science and technology. This Court recognizes that achieving the conservation and recovery of the Island's buildings, as well as their enhancement, including—for example—the wooden houses located in the place known as 'Las Jachas' and their surroundings, the Infirmary, the Chapel, the Administration Building, and other infrastructure necessary to offer limited nature tourism and eco-tourism services, is a true challenge, provided that sustainability criteria are met; otherwise, it would entail a constitutionally relevant clash with Articles 50 and 89.

As for subsections a) and b) of numeral 5, they must be understood as constitutional to the extent that what is intended in the Master Plan conforms to what is indicated by this Chamber, especially insofar as the zoning studies and zoning regulations are not based on a reduction of the protected wild area by 5.5% of the area" (The highlighting is not from the original.)

SINAC itself and the Ministry of Culture and Youth had already established the need to carry out certain interventions in the infrastructure of Isla San Lucas, in the Plan General de Manejo of the Refugio Nacional de Vida Silvestre Isla San Lucas of 2020:

"2.1 Diagnosis of cultural resources Report CICPC-DI-0126-2020 of the Ministry of Culture and Youth indicates that the area of the former penal center and all its buildings must be kept as intact as possible. It is desirable that the Old Dispensary be restored to prevent it from suffering the same fate as the other wooden buildings on the Island, that specific interventions be made at the dock (which requires total repair of the slab, beams, and support analysis tests on the columns to determine if reinforcement is necessary. Any other intervention made to the dock must be reversible in nature and not damage the existing structures in any way. It is important to intervene in the bastions of the entrance module and the bridge that connects them, as there is a risk of collapse, and to make minor repairs to the cobblestone pavement of 'Calle de La Amargura' to prevent its degradation and eventual irreversible deterioration.

In the area of the highest concentration of historical buildings, we recommend not making major modifications to either the landscape or the buildings, only those necessary to prevent their collapse. In the case of the Old Command Post (unfortunately disappeared due to a fire), we consider its reconstruction important, since, as the nerve center of the former penitentiary, it served as a focal axis and an obligatory reference point within the complex. Furthermore, there are fortunately detailed plans of what it was like; additionally, that site is ideal for a potential visitor reception and welcome area, with the due necessary comforts and amenities. We consider its reconstruction desirable to avoid another new construction that alters the site and distracts from the appreciation of the complex, in the manner closest possible to the period before the fire.

The cell area (whose structural reinforcement is about to begin) must be maintained as much as possible in its current state, making only the necessary repairs to prevent its disappearance, but we do not recommend carrying out major restoration or reconstruction works, as this would imply the loss of its historical fabric and its valuable murals, reflecting an important period in the site's history.

In general, it is recommended to take preventive actions to prevent the disappearance of the still-existing vestiges, but we do not recommend undertaking reconstructions of what has already disappeared and we request that no new constructions be made in areas immediately adjacent to the vestiges that remain, to avoid further deterioration.

Given that the Island has a large extension, and the zone with a historical-architectural declaration is relatively small, therefore, it is recommended, as much as possible, to distance all new constructions from the historic zone of the former penitentiary and to avoid altering its immediate landscape (…)

4.9.2 Specific infrastructure plan for management An efficient management of the ASP will depend on it having all the necessary physical facilities identified in the PGM and the different specific plans or management programs. Infrastructure refers, for example, to facilities for visitor services, staff housing, offices, guard posts, trails, signs, among others.

The main objective will be, 'to have the optimal and properly equipped infrastructure for the management of the area' (SINAC, 2016).

For its elaboration, the 'Methodological Guide for the Elaboration of Specific Infrastructure Plans in SINAC's Protected Wild Areas' must be applied.

4.9.3 Specific equipment and infrastructure maintenance plan Promotes the establishment of efficient, regular, and systematic maintenance for the equipment and infrastructure of the ASPs as a tool that can guarantee proper functioning and useful life according to manufacturing or construction specifications, as the case may be, as well as periodic reviews thereof to evaluate their condition.

It will be necessary to include the inventory of equipment and existing infrastructure in the ASP, in order to establish the degree of implementation of the activities aimed at their maintenance.

The main objective will be 'the preventive maintenance of the ASP's infrastructure and equipment, so that these are kept in good condition and functionality' (SINAC, 2016)." Although challenged Article 3 provides that there will be a differentiated management space dedicated to sustainable tourism activity, the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes will be called the Tourism Zone (Zona turística), whose areas are determined in ordinal 6 of the same regulation, it is also true that, as already stated in Considerando V, the management plan approved by SINAC in 2020 already contemplated such uses in those areas, according to the zone classification in section 4.7 (high, medium, low, or minimal or no intervention). For example, in the high intervention zone, the following is indicated:

"…This zone is composed of 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 the Corral de Piedra, the Trail to the 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 Trail Los Ceibos, the Trail Mirador de Islas, the Trail El Trogón; as well as the two sites for Prevention, Protection and Control infrastructure to be located in Tumbabote and Hacienda Vieja. As well as the sites of the Teca plot and the new Park Rangers' house.

This zone covers an area of 27 Ha., which corresponds to 6.1% of the refuge's territory.

In this management zone, the following is permitted:

* Recreational and tourist activities: guided walks on authorized trails for the observation of flora, fauna, and historical resources; non-commercial photography and video.

* The construction of infrastructure for visitor services (for example, visitor centers, restroom facilities, trails, viewpoints, platforms, cafeteria, craft shops).

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

* Authorized scientific research and monitoring in accordance with binding regulations.

* The management of flora and fauna species with biological restoration objectives, based on scientific knowledge for compliance with the ASP's conservation objectives, previously authorized by SINAC.

* The installation of equipment and constructions of scientific interest or for the management of the Refuge, previously authorized by SINAC.

* Filming and photography for scientific purposes and for the dissemination of the ASP's attributes and values are permitted.

* In this zone, the installation and operation of approved non-essential services based on current regulations is also permitted…" And, in any case, the delimitation of the Tourism Zone established in the Island's Master Plan and the permitted uses must also have the prior approval of the respective technical bodies.

Thus, numerals 2, 3, 4, 6, 7, and 16 of Law No. 9892 are not unconstitutional, since all tourism activities or those related to infrastructure that are authorized in the master plan must be supported by the respective technical criteria of the competent bodies, according to the final paragraph of Article 9 of this law, and must conform to the conditions stated above in ruling No. 2010-13099, according to which the infrastructure to be built will be strictly necessary to meet the basic needs of visitors and tourism development agents, without this implying that it can extend beyond developments incompatible with a 'green' philosophy, or that are not in harmony with the site's carrying capacity, all of which must be ensured in a sustainable manner according to science and technology.

IX. REGARDING THE PETITIONERS' CHALLENGE IN RELATION TO THE COMMERCIAL PURPOSES OF THE CHALLENGED LAW

The petitioners consider that the challenged law is unconstitutional, because it authorizes commercial purposes to be developed in the tourist area, which is incompatible with ordinals 8.15 and 12 of the Ley del Servicio de Parques Nacionales and with Article III of the 'Convention for the protection of the flora, fauna, and natural scenic beauties of the countries of America'.

The law in question, in Article 9, certainly indicates among the powers of the Junta Directiva of the Parque Nacional Isla San Lucas to '[d]efine environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island'. However, the matter of 'commercial' activities must be understood in the context of the entire law and not in isolation, because the law in question does not allude to commercial purposes in a broad sense, nor does it innovate in that field. As already evidenced above, the Plan General de Manejo of the Refugio Nacional de Vida Silvestre Isla San Lucas already foresaw, according to the regulations prior to the challenged law, the tourism purposes of a part of the island's zone, accompanied by the provision of essential and non-essential services. In this zone, Law No. 5469, in force at the time the challenged law was approved, already authorized the Municipality of Puntarenas to use the Island as a tourist center, for which purpose it had been authorized to contract the necessary infrastructure works, could operate it itself or through public bidding, and authorized the operation of hotels and all those activities proper to a well-organized tourism operation.

The challenged law, contrary to this, expressly prohibits lodging services on the island, and repeals in Article 20 precisely Articles 2 through 8 of Law No. 5469 that authorize the foregoing. Thus, it is reiterated, the challenged law, far from innovating and authorizing any work linked to tourism such as commerce, as the petitioners state, reinforces by law, and not by decree, as subsequently done by Decreto Ejecutivo No. 34282-TUR-MINAE-C to Law No. 5469, the delimitation of the works and uses that can be authorized on this island, linking them specifically to environmentally sustainable use. Let us look at what Article 5 of that Decreto Ejecutivo No. 34282-TUR-MINAE-C, in force at the time Law No. 9892 was approved, says:

"Article 5—For the development of tourism activities in the municipal administration area and the preservation of the island's cultural heritage, the ICT shall prepare a Master Plan for Sustainable Tourism Development, which shall include an environmental impact assessment (evaluación de 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 Master Plan for Sustainable Tourism Development shall contain at least the following elements:

• a)Zoning study, by which land uses are defined.
• b)Zoning regulations (ordenanzas y reglamentos) that define and establish the criteria and standards on land use, construction and use of buildings, facilities, public services, buffer areas, among others, necessary for limited and sustainable tourism development and for the protection of the Island's cultural heritage.
• c)Strategy plan for project execution, which establishes the programs, projects, and activities, both by private initiative and by public investment, for the sake of sustainable development and the protection of cultural heritage.

The Master Plan for Sustainable Tourism Development shall be submitted to the Secretaría Técnica Nacional Ambiental of Minae and to the Ministry of Culture, Youth, and Sports for their approval, in accordance with the requirements and procedures established by the legal system.

The municipal administration area shall be regulated by the aforementioned Master Plan for Sustainable Tourism Development, and the Refuge's Management Plan shall not be applicable to it, except for the pertinent general legal rules. MINAE shall adjust its Management Plan in accordance with the new dimensions of the refuge and the Master Plan for Sustainable Tourism Development." In this case, the law not only clearly separates the areas that will have greater environmental protection than they currently have, according to the prior technical criteria established in the 2020 Management Plan prepared by SINAC, but it also subjects tourism activity and everything related to it to the existence of a master plan that must be approved with technical studies, where it will be defined what those services are, among them, the commerce required only for those purposes. Thus, there is no violation of environmental principles, since everything that may eventually be ordered must be previously supported by the respective technical criteria.

It is not appropriate to decontextualize the concept of commerce from the rest of the law's content as the petitioners do, because that concept is strictly subject to the purpose of Law 9892, such that it deals only with that commerce necessary for the limited and sustainable tourism development and for the protection of the island's cultural heritage, which, in fact, already exists in some of our national parks (sanitary services, cafeterias, sale of crafts, for example). The rest of the articles of the challenged law delimit it as follows:

"ARTICLE 7-Scope and restrictions. The Parque Nacional Isla San Lucas shall be governed by a master plan prepared based on technical criteria.

For the fulfillment of the purposes established in this law, concessions and permits may be granted in the tourism zone for activities and facilities other than the park service. Lodging services and games of chance shall not be permitted in this zone.

In any case, the participation of local organizations in the granting of concessions must be promoted.

Any conflict of competencies shall be resolved by the Minister of Environment and Energy." "ARTICLE 9- Duties and powers. The Junta Directiva of the Parque Nacional Isla San Lucas shall have the following powers:

… d) To define environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island…

… In matters of conservation and preservation of the historical-architectural heritage, the criteria of the Centro de Investigación y Conservación del Patrimonio Cultural of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island's biodiversity, the technical criteria of the Sistema Nacional de Áreas de Conservación (Sinac) shall prevail. Upon request of the Junta Directiva, said entities shall provide their criteria as expeditiously as possible." As already indicated above, this Court, in ruling No. 2010-13099, had endorsed the provision of certain non-essential services, under certain conditions:

"…In addition to the foregoing, Isla San Lucas has a purpose of being used as a tourist center with financial benefits for various institutions of social good.

The development of infrastructure must be compatible with the principles of environmental sustainability, its protection and conservation; on the contrary, they would be constitutionally questionable if works were carried out that did not take into account the protection regimes in force on the Island, such as construction of large-scale infrastructure works, given that the validity of the regime as a protected area would imply a substantial land-use change (cambio de uso del suelo), and not because of the human works that existed long before the declaration of the Island as a Protected Wild Area and of historical-architectural heritage. Hence, the Chamber does not consider that Articles 2, 3, 4, 6 and 7 of Decreto Ejecutivo 34282-TUR-MINAET-C present defects of constitutionality, but understood with the following nuances. The declaration of national interest and high priority for sustainable tourism development, indicated in numeral 2, must be understood as constitutional as long as the conservation and restoration of the buildings of the former penitentiary and those built on the occasion of its existence are limited to the tasks of conservation, protection, and improvement of their surroundings.

The same must occur with the archaeological sites and the cemetery located at Playa Cocos, without prejudice, of course, to the archaeological and scientific studies that must be undertaken. Regarding the infrastructure intended for tourist use, it must be strictly limited to the areas of the historic complex and the road leading to Playa Cocos and to the latter itself; the facilities to be built shall be strictly necessary to meet the basic needs of visitors and tourism development agents, without the foregoing implying that it can be extended beyond developments incompatible with a 'green' philosophy, or that are not in harmony with the site's carrying capacity, all of which must be ensured in a sustainable manner according to science and technology. This Court recognizes that achieving the conservation and recovery of the Island's buildings, as well as their enhancement, including—for example—the wooden houses located in the place known as 'Las Jachas' and their surroundings, the Infirmary, the Chapel, the Administration Building, and other infrastructure necessary to offer limited nature tourism and eco-tourism services, is a true challenge, provided that sustainability criteria are met; otherwise, it would entail a constitutionally relevant clash with Articles 50 and 89.

As for subsections a) and b) of numeral 5, they must be understood as constitutional to the extent that what is intended in the Master Plan conforms to what is indicated by this Chamber, especially insofar as the zoning studies and zoning regulations are not based on a reduction of the protected wild area by 5.5% of the area." By virtue 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 INTEGRATION OF THE JUNTA DIRECTIVA THAT ADMINISTERS THE PARQUE NACIONAL ISLA SAN LUCAS.

In the petitioners' opinion, Article 10 of Law No. 9892 is unconstitutional, given that, regarding the integration of the Junta Directiva that administers the National Park, the challenged norm does not provide for the presence of the technical bodies in a binding manner.

Since ruling No. 2010-13099, this Court warned that, if public bodies and entities must fulfill constitutional purposes (Articles 50 and 89) based on the degree of specialization of functions, their coordination must be a priority aspect for solving the problems that arise in the exercise of their respective competencies, as may be the case here with the Ministry of Environment, Energy and Telecommunications in terms of governing the natural heritage, the Ministry of Youth, Culture and Sports in relation to the conservation policies of the historical-heritage patrimony, the Instituto Costarricense de Turismo in the enabling and conservation of historical and natural beauty sites for tourism, and the Municipality of Puntarenas in looking after the local interests of its community. According to numeral 8 of Law No. 9892, the Junta Directiva of the Parque Nacional Isla San Lucas is an organ of maximum deconcentration, attached to the Ministry of Environment and Energy, which has instrumental legal personality to exercise the governance and administration of the park. In the petitioners' opinion, the integration of that Junta lacks a technical composition that guarantees the approval of its decisions. Let us see:

"ARTICLE 10-Integration. The Junta Directiva of the Parque Nacional Isla San Lucas shall be composed of the following members:

• a)The Minister of Environment and Energy, who shall preside over it, with a Vice Minister of the portfolio able to act as a substitute.
• b)The Minister of Culture, with a Vice Minister of the portfolio able to act as a substitute.
• c)The Executive Presidency of the Instituto Costarricense de Turismo (ICT), with the person holding the management or a member of the Junta Directiva of said institute able to act as a substitute.
• d)A representative of the Executive Branch appointed by the Government Council, which body shall also appoint a substitute.
• e)The mayor of the Municipality of the Central Canton of Puntarenas, with a vice mayor able to act as a substitute.
• f)The president of the Cámara de Turismo de Puntarenas, with one of the members of the Junta Directiva of said chamber able to act as a substitute.

The president of the Junta shall hold the judicial and extrajudicial representation of the organ. Likewise, they shall have a tie-breaking vote in the terms of Article 49 of Law 6227, Ley General de la Administración Pública, of May 2, 1978. The members of the Junta Directiva shall not receive any per diem." According to what is transcribed, in that Junta, the higher authorities of each ministry and of the interested municipality are represented. The foregoing is relevant, given the particular characteristics of this island, in which three constitutionally and conventionally protected interests converge, namely the environment, cultural heritage, and low-impact tourism. Without a doubt, we are before an organ with a special nature, in which all the involved sectors must be represented and in which technical support is of utmost relevance when decisions must be adopted in these three interrelated matters, in this particular case. In consideration thereof, precisely the law in question provides the following:

"ARTICLE 9- Duties and powers. The Junta Directiva of the Parque Nacional Isla San Lucas shall have the following powers:

• a)To define the 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 the guidelines for the protection, restoration, and administration of the historical buildings, developing facilities and services for the rest and recreation of visitors, the enabling and accessibility of land and maritime routes, port constructions, and, in general, the provision of all basic services.
• d)To define environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island.
• e)To approve the strategic objectives for marketing and promotion necessary to publicize the Parque Nacional Isla San Lucas, both within and outside the country.
• f)To grant approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourism Zone.

In the case of works related to areas declared as heritage, coordination with the Ministry of Culture shall be required.

• 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 institutional management of the park.
• i)To approve, renew, modify, or revoke any trust relating to the Parque Nacional Isla San Lucas, as well as all types of contracts and agreements with entities and persons, public or private. It shall determine the entrance fees to the national park, as well as approve the contracts for the various reservation and purchase systems.
• j)To approve the use of the models of concession of public works with public service and mutual benefit contracts with non-profit entities.
• k)To carry out any other type of action necessary to ensure the proper functioning of the Parque Nacional Isla San Lucas and the achievement of its purposes.

In matters of conservation and preservation of the historical-architectural heritage, the criteria of the Centro de Investigación y Conservación del Patrimonio Cultural of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island's biodiversity, the technical criteria of the Sistema Nacional de Áreas de Conservación (Sinac) shall prevail. Upon request of the Junta Directiva, said entities shall provide their criteria as expeditiously as possible" (the bold text was added).

"ARTICLE 11- Term and organization. The six members of the Junta Directiva of the Parque Nacional Isla San Lucas shall remain in their positions while they hold the office that legitimizes them as members and, in the case of the representative of the Executive Branch, as long as they are not removed by the Government Council.

The Junta Directiva of the park may validly hold sessions with the composition of the substitute members, including in the event that the main titular position is vacant.

In matters not regulated in this law, the Junta Directiva shall be governed in its structure, organization, and functioning by Law 6227, Ley General de la Administración Pública, of May 2, 1978." (the bold text was added).

"ARTICLE 12- Sessions.

The Board of Directors shall hold ordinary sessions at least once a month and extraordinary sessions when required, in which case the Presidency shall issue the call.

All sessions of the Board of Directors must be formally documented.

The Board of Directors may invite technical staff and other persons it requires for decision-making to its sessions.” (bold added).

Based on the foregoing, it is noted that the law reinforces that the decisions of said Board regarding the conservation and preservation of the historical-architectural heritage and the protection of wildlife and conservation of the island's biodiversity must be adopted based on technical criteria. To this end, the aforementioned Article 12 states that technical staff may be invited to the sessions, and Article 9 provides that the criteria issued by the Cultural Heritage Research and Conservation Center of the Ministry of Culture and SINAC, in their respective fields, shall prevail. However, according to the plaintiffs, it is optional for the Board to request such technical criteria, which could jeopardize environmental protection in those cases where they do not request it. In this regard, it is pertinent to indicate what this Court, in judgment No. 2022-25307, of 1:40 p.m. on October 25, 2022, unanimously resolved on this particular point:

“…it is the Chamber's criterion that there exists a broad margin of legislative discretion in the creation and allocation of administrative competencies. This entails discretion in defining the administrative bodies responsible for carrying out a specific function regarding a particular matter. Thus, the mere allocation of a specific competence to a different body, in itself, does not constitute a violation of constitutional order. However, in the case of the right to environmental protection, as a consequence of the preventive and precautionary principles, it is necessary that a competence of a technical or scientific nature, aimed at establishing environmental viability or the impact of a specific activity or project on the environment, or in general, defining the type of technical-scientific tool to weigh such impacts on the environment and ecosystems, be assigned to a body of a technical nature and not of an eminently political one.

The foregoing, since the weighing and analysis of such matter demands and imposes that technical considerations support the approval or denial of such viability. Although political bodies could establish programmatic guidelines regarding such matter, ultimately, the concrete application of the scientific and technical variable leads to such functional orientation…” This Court considers that if the legislator granted binding character to the technical criteria of those technical bodies, it must be understood that it intended for the contribution of both, within their respective competencies, to always be requested by the respective Board. Otherwise, if it were not mandatory, there would be a serious risk that the purpose of such provision would not be achieved. Therefore, and given the eventual circumstance that such provision could be interpreted in the sense indicated by the plaintiffs and that decisions are adopted without being supported by specialized criteria that could damage the environment or the historical-cultural heritage, as it is a specially protected area, this Court, in consideration of the precautionary principle governing these matters, establishes that the composition of the Board of Directors regulated in Article 9 is not unconstitutional, provided that the last paragraph of the cited article is interpreted to mean that such criteria are not optional for the Board of Directors but required at all times to support the decisions it adopts regarding the conservation and preservation of the historical-architectural heritage and the protection of wildlife and conservation of the island's biodiversity, or that may affect these matters, which must be addressed by those bodies as expeditiously as possible; and shall be mandatory for the Board.

Note that the last paragraph of Article 9, recently cited, is categorical regarding the nature of these technical reports, by determining that concerning the conservation and preservation of the historical-architectural heritage, the criterion of the Cultural Heritage Research and Conservation Center of the Ministry of Culture shall prevail, while regarding the protection of wildlife and conservation of biodiversity, the technical criterion of the National System of Conservation Areas shall prevail, whereby, clearly, these technical criteria cannot be ignored by the Board of Directors but rather, necessarily, they must adhere to what is indicated in them on the stated matters.

XI. REGARDING THE ALLEGED UNCONSTITUTIONALITY OF LAW NO

9892, AS TO THE GRANTING OF CONCESSIONS.

In the plaintiffs' opinion, the challenged law is contrary to Article 8, subsection 15 of the National Parks Service Law, in relation to Article 12 of the same law, given that in national parks it is prohibited to grant concessions outside of facilities for the service of the park itself, and only ecotourism, research, workshops, and eventually the use of water resources are permitted, but without commercial purposes in docks, piers, and others.

Regarding this grievance, the Chamber observes that Law No. 9892 establishes:

“ARTICLE 7- Scope and restrictions. San Lucas Island National Park shall be governed by a master plan prepared based on technical criteria.

For the fulfillment of the purposes established in this law, concessions and permits for activities and installations other than park services may be granted in the tourism zone (zona turística). Lodging services and gambling shall not be permitted in this zone.

In any case, the participation of local organizations in the granting of concessions must be promoted.

Any conflict of competencies shall be resolved by the Minister of Environment and Energy (…)

ARTICLE 9- Duties and powers. The Board of Directors of San Lucas Island National Park shall have the following powers: (…)

• f)To grant approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourism Zone (…)
• j)To approve the use of the modalities of public works concession with public service and mutual benefit contracts with non-profit entities (…)

ARTICLE 17- Financing. San Lucas Island National Park shall have financial resources allowing it to exercise its mandates with agility and efficiency. These shall include the resources corresponding to it by law from the National System of Conservation Areas (Sinac), transfers from the Republic's budgets or donations from any individual or legal entity, as well as own funds generated from park entry, the use of its services, fees for concessions and permits and, in general, payment for activities carried out within the park.

The resources regulated in this law as well as all those produced by the park shall necessarily and exclusively be invested in the same national park.

Oversight shall be the responsibility of the Comptroller General of the Republic (…)”.

For its part, the Biodiversity Law determines the type of concession for non-essential services and activities that may be granted within protected wilderness areas (áreas silvestres protegidas).

“ARTICLE 39- Concessions and contracts. The National Council of Conservation Areas is authorized to approve contracts and concessions for non-essential services and activities within state protected wilderness areas, except for the exercise of the responsibilities that this and other laws entrust exclusively to the Executive Branch through the Ministry of Environment and Energy (Minae), such as protection and surveillance, the definition, monitoring of strategies, plans, and budgets of the conservation areas. These concessions and contracts may in no case include the authorization of access to biodiversity elements in favor of third parties or the exploitation of natural resources; nor the construction of private buildings.

Non-essential services and activities shall be: parking lots, sanitary services, the administration of physical facilities, food services, stores, the construction and administration of trails, visit administration, and others defined by the Regional Council of the Conservation Area, by means of a technical study justifying it.

These concessions and contracts may be granted only and exclusively to community development associations, cooperatives, microenterprises registered with the Ministry of Economy, Industry and Commerce (MEIC), or national non-profit social organizations that have objectives supporting the conservation of natural resources, that incorporate environmental management within the processes and concession area and have their legal status in force, provided they are integrated and directly controlled by inhabitants of the communities located in the zone of influence of the respective protected wilderness area.

The conservation areas must provide ample information to these communities about the services they decide to concession and establish a registry of local organizations to ensure the greatest possible participation in the contracting processes.

The National Learning Institute (INA), in coordination with other public educational entities and the respective municipalities, shall create training and technical instruction programs oriented primarily to the communities located in the zone of influence of the protected wilderness areas, so that they may take advantage of the benefits of this provision.

Concessionaires or permit holders must present satisfactory external audits, conducted in the last year; all at the judgment of the Regional Council of the Conservation Area.

(Thus amended by the sole article of Law No. 9766 of October 29, 2019)

(Note from Sinalevi: By the sole article of Law No. 10133 of March 14, 2022, this numeral was authentically interpreted to mean that: “…the authorized public concessions and contracts to which it refers may also be granted to Boards of Education and Administrative Boards of Public Educational Centers and the Costa Rican Red Cross, considering that they are local organizations.”)

ARTICLE 39 BIS- Contractual modalities. For the granting of concessions and contracts for non-essential services and activities within protected wilderness areas, the Administration shall use the contractual modalities that best satisfy 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 must be based on the strategies and plans approved in the first instance by the Regional Council and definitively by the National Council of Conservation Areas, in accordance with established laws and policies. The formulation of strategies and plans for protected areas shall in no case be affected by considerations that are not strictly technical” (bold supplied).

In relation to the cited regulations, it is worth bringing up the aforementioned judgment No. 2006-9563 of 4:06 p.m. on July 5, 2006:

“IX.- The constitutionality of Article 39 of the Law in question is also questioned, insofar as it authorizes the National Council of Conservation Areas to approve contracts and concessions, which the plaintiff states is an exclusive power of the President and the respective Minister. The challenged article provides:

\"Artículo 39.- The National Council of Conservation Areas is authorized to approve contracts and concessions for non-essential services and activities within state protected wilderness areas, except for the exercise of the responsibilities that this and other laws entrust exclusively to the Executive Branch through the Ministry of Environment and Energy, such as the definition, monitoring of strategies, plans, and budgets of the Conservation Areas. These concessions and contracts may in no case include the authorization of access to biodiversity elements in favor of third parties; nor the construction of private buildings.

Non-essential services and activities shall be: parking lots, sanitary services, the administration of physical facilities, food services, stores, the construction and administration of trails, visit administration, and others defined by the Regional Council of the Conservation Area.

These concessions or contracts may be granted to legal entities, with their legal status in force, that are non-profit organizations and have objectives supporting the conservation of natural resources; priority shall be given to regional organizations.

Concessionaires or permit holders must present satisfactory external audits, conducted in the last year; all at the judgment of the Regional Council of the Conservation Area.\" As indicated previously, the National Council is attached to the National System of Conservation Areas, an organ-person that has instrumental legal personality and a budget, precisely for the reasons of administrative speed and celerity that, as already indicated, it requires for the fulfillment of its purposes. Thus, it also needs to agilely contract material and human resources to efficiently fulfill its competencies. This contracting capacity was recognized by the Chamber in judgment No. 2005-3629:

\"…From the foregoing, it is clear that this Court had already ruled on the plaintiff's allegations and that on that occasion, whose criterion it still holds, it determined that it is not unconstitutional for the Civil Aviation Technical Council to be granted an instrumental legal personality through which it can manage funds and consequently contract, within the terms and delimitations that this Court indicated. The ownership of a patrimony implies patrimonial autonomy and, consequently, management autonomy to more efficiently carry out the public function it is called to perform. To deny its capacity to contract, as the plaintiff intends, would be unreasonable, as obtaining funds would be pointless without the possibility of administering them, which necessarily implies the capacity to contract. With patrimonial autonomy, the entity may carry out the necessary acts and contracts involving the management of said patrimony within the already established legal and constitutional delimitations, since due to the nature of some contracting, these shall be reserved to the President and the respective Minister, as it is a purely instrumental and non-essential contracting.

The State's administrative contracting cannot currently be conceived, understanding that all contracting for the purpose of fulfilling public management be formalized by the President and the respective Minister as the plaintiff intends, as this would imply administrative paralysis, given the growth of the public sector and the needs of the administered. On this aspect, the Chamber in judgment No. 2660-01, regarding the formal rigor of administrative contracting, stated:

\"In this Chamber's opinion, there are a series of elements that cannot be left aside in the analysis of the constitutional validity of the questioned norms. First, a simplistic or formal analysis cannot be the starting point, since administrative contracting is an extremely complex matter that unfolds in an environment of constant changes, often at a dizzying pace. In effect, the process of acquiring goods and services is immersed in and at the same time determined by market conditions and rules, whose variables can hardly be captured in the rigidity of a norm. For that reason, and taking into account that, as the Attorney General's Office well noted, contracting procedures have an instrumental character in relation to the satisfaction of public interests, they could never become an end in themselves, but must retain their nature as mere means for achieving the higher purpose. Under this reasoning, it is worth asking then whether it is feasible to foresee in a normative body all the possible grounds (sic) for exception that at a given moment could require a procedure like direct contracting.

The function of a constitutional court, entrusted with the task of discovering, clarifying, and declaring the meaning of the State's primary legal order, cannot disregard the environment, and, in this case, the realities and problems that the State may face in its contractual activity. That perspective, of course, must maintain a fair balance with the preservation and defense of Constitutional supremacy. Hence, in this difficult task of extracting the logical sense and spirit of constitutional norms, they must be situated in their context, because otherwise they could become provisions of a very limited or inoperative character, of little relevance and that could even impede the satisfaction of the public interest that the State must pursue.\" The law has had to deploy mechanisms that have established greater agility in contracting, such is the case of the Financial Administration Law of the Republic, the Administrative Contracting Law, and its regulations. The Financial Administration and Public Budgets Law, for example, provides in Article 106:

\"The heads of organs or entities of the public sector may delegate the signing of contracts associated with the contracting process, in accordance with the regulations established for that effect.\" Of course, understanding that such contracting pertains to an instrumental activity. In the case of the Civil Aviation Technical Council, that contractual capacity is instrumental and is subject to the legal system, therefore also to the oversight of the Comptroller General of the Republic.\" In this case, the same norm delimits the contracts and concessions that the National Council of Conservation Areas may approve, to those services and activities that are not essential: parking lots, sanitary services, the administration of physical facilities, food services, stores, the construction and administration of trails, visit administration, and others defined by the Regional Council of the Conservation Area. Even the article indicates that from said contracting power are excluded those matters that imply the exercise of responsibilities that this and other laws entrust exclusively to the Executive Branch through the Ministry of Environment and Energy, such as the definition, monitoring of strategies, plans, and budgets of the Conservation Areas. Consequently, the alleged constitutional violation is not substantiated” (emphasis added).

Additionally, it should be appreciated that SINAC issued in February 2021 “The ABCs of non-essential services and activities in protected wilderness areas (áreas silvestres protegidas),” in which it detailed:

“Non-essential services and activities (SANE) are those activities, such as guiding services, food services, visit administration in Protected Wilderness Areas, that national legislation enables to be administered by third parties under contracts or concessions, that is, a mechanism to foster Public-Private Partnerships (APP) between the Executive Branch and civil society. SANE offer possibilities for the communities in the zone of influence of Protected Wilderness Areas to benefit from economic activities directly enhanced by the establishment of Protected Wilderness Areas, as well as an effective way to generate sustainable employment in rural zones that also coincide (sic) in many regions with the areas of the country with the lowest development indices (…)

Prior to initiating a contracting process for non-essential services and activities, the protected wilderness area must have a duly formalized technical instrument, which may be the general management plan (plan general de manejo), sustainable tourism plan, or any other technical instrument that contemplates the need to contract out the identified non-essential services and activities (…)

The Technical Study is the analysis required to technically justify the non-essential services and activities defined by the CORAC, and that are not established in Article 39 of the Biodiversity Law. It also allows technically justifying the feasibility of the non-essential service and 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 ASPs. They must contribute to the objective of the creation of ASPs, applying good practices and promoting the equitable distribution of the generated benefits.

2. Improve the management and quality of tourism in ASPs. The quality of the visitor experience will be improved and diversified.

3. Institutional strengthening. They will allow SINAC officials to attend to the essential actions of the protected wilderness area; as well as improve income generation for the System, optimizing the institution's resources and improving the conditions of officials.

4. Contribute to local development. They will promote local strengthening through the equitable distribution of benefits in the communities located in the zone of influence of the protected wilderness area; as well as contribute to the strengthening of their capacities (…)

Advantages of granting Non-Essential Services and Activities within SINAC's Protected Wilderness Areas •Allows SINAC to concentrate on essential conservation and sustainable use tasks of the ASPs.

•Allows public participation of the communities located in the zone of influence of the ASPs, in their management and in the distribution of their benefits.

•Generate significant financial resources for the protection and development of the ASPs.

•Improve the operational, administrative, and financial management of the ASPs.

•Improve the visit experience within state ASPs”.

In summary, Articles 39, 39 bis, and 40 of the Biodiversity Law establish that:

• i)The National Council of Conservation Areas may authorize concessions, as well as the contractual modalities that best satisfy the public service for the provision of non-essential services and activities within protected wilderness areas, except for the exercise of responsibilities legally assigned to it, such as protection and surveillance, the definition, monitoring of strategies, plans, and budgets of the conservation areas.
• ii)The concessions and contracts granted for the provision of non-essential services and activities in conservation areas do not entail any authorization in favor of third parties i) for access to biodiversity elements; ii) for the exploitation of natural resources; nor iii) for the construction of private buildings.
• iii)The non-essential services and activities are: Parking lots, sanitary services, the administration of physical facilities, food services, stores, the construction and administration of trails and visit administration. Those defined by the Regional Council of the Conservation Area, by means of a technical study.
• iv)The granting of contracts and concessions for non-essential services may only be given to: Community development associations. Cooperatives. Microenterprises registered with the Ministry of Economy, Industry and Commerce. National non-profit social organizations that have objectives supporting the conservation of natural resources, that incorporate environmental management within the processes and concession area and have their legal status in force, provided they are integrated and directly controlled by inhabitants of the communities located in the zone of influence of the respective protected wilderness area.
• v)The conservation areas have the obligation to: Inform the communities about the non-essential services that will be concessioned. Establish a registry of local organizations to promote the greatest possible participation in the contracting processes.
• vi)The National Learning Institute, in coordination with other public educational entities and municipalities, shall create training and technical instruction programs oriented primarily to the communities located in the zone of influence of the protected wilderness areas, so that they may take advantage of the benefits of this provision.
• vii)Concessionaires or permit holders of non-essential services in protected wilderness areas must provide satisfactory external audits conducted in the last year, as indicated by the Regional Council of the Conservation Area.
• viii)The concessions and contracts for non-essential public services in protected wilderness areas must be based on strictly technical strategies and plans initially approved by the Regional Council of the Conservation Area and, definitively, by the National Council of Conservation Areas.

On the other hand, the Forestry Law (Ley Forestal) establishes a series of activities that are authorized to be carried out on the State's natural heritage:

“Artikel 18- Authorization of works. On the natural heritage, the State may carry out or authorize research, training, and ecotourism activities, as well as activities necessary for the use of water for human consumption, in accordance with Article 18 bis of this law, once approved by the Minister of Environment and Energy, who shall define, when applicable, the conduct of environmental impact assessments (evaluaciones del impacto ambiental), as established by the regulations of this law.

Article 18 bis Use of water for supplying populations. The Ministry of Environment and Energy (Minae) may authorize the use of water from surface sources and the construction, operation, maintenance, and improvements of water supply systems, on properties that form part of the State's natural heritage, following a declaration by the Executive Branch of public interest, specifically for imperative population supply and in favor of authorized public service provider entities, detailed below:

• a)The Costa Rican Institute of Aqueducts and Sewers (ICAA).
• b)The municipalities that still provide the public drinking water service under Law No. 1634, General Water Law, of September 18, 1953.
• c)The Public Services Company of Heredia (ESPH).
• d)The Associations of Aqueduct and Sewer System Administrators (Asadas), entities formed by users, duly constituted for that purpose and registered in accordance with Law No. 218, Law of Associations, of August 8, 1939, may administer and operate their community's aqueduct system through a delegation agreement signed with the ICAA.

All works or activities necessary for the fulfillment of the purposes established herein must be executed based on technical studies, seeking the least possible environmental impact according to the applicable environmental impact assessment (evaluación de impacto ambiental) instrument and in strict compliance with current environmental regulations, especially the provisions on technical criteria applicable for the intervention of protected wilderness areas (áreas silvestres protegidas) contemplated in Law No. 7788, Biodiversity Law, of April 30, 1998, and its regulations.

In the case of strictly protected wilderness areas, that is, national parks and biological reserves, the provisions of Article 38 of Law No. 7554, Organic Environmental Law, of October 4, 1995, must also be complied with.

Likewise, any technical studies carried out must demonstrate that no other alternative source is available to guarantee the water supply for the beneficiary population under adequate quality and quantity conditions, and the proposed activities must have the prior technical endorsement of the Costa Rican Institute of Aqueducts and Sewers (Instituto Costarricense de Acueductos y Alcantarillados, ICAA).

The service providers indicated in this article are authorized to carry out activities for the use of water from surface sources and the construction, operation, maintenance, and improvements necessary for the population supply system for human consumption, on lands that are part of the natural heritage of the State (patrimonio natural del Estado) and that are not part of protected wilderness areas (áreas silvestres protegidas) and that have been acquired by them or by some other provider of the public service of population supply for human consumption, for the purpose of protecting the water and ensuring the provision of this service to future generations. In these cases, the service providers must comply with the other requirements established in this article and in national regulations. The service providers will continue to administer these lands, which in all other aspects will remain subject to the conditions, limitations, and protections inherent to the natural heritage of the State, as provided in this law.

The Costa Rican Institute of Aqueducts and Sewers must ensure that the ecological flow essential for the functioning of the ecosystem is not altered, both within and outside protected wilderness areas, so that it is maintained under a scheme of sustainable use and management. The monitoring of this will be the responsibility of MINAE.

Annually, the authorized provider of the public service for population supply must submit, to the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, SINAC) and the Water Directorate, the report on the results of the capacity measurements (aforos), given the nature and environmental fragility of the protected wilderness areas.” In addition to the above, the Regulation to the Forestry Law states:

“Article 11.- On lands previously declared as Natural Heritage of the State, both within Protected Wilderness Areas and outside of them, only training, ecotourism, and research activities will be permitted; these activities will be subject to the provisions of the management plan for the Protected Wilderness Area and other regulations established in this regulation, as follows:

A- Within Protected Wilderness Areas In the case of Protected Wilderness Areas, except for National Parks and Biological Reserves, ecotourism activities may only be carried out exclusively in the zones established by the National System of Conservation Areas (SINAC), in accordance with the zoning of each Protected Wilderness Area.

B- Outside of Protected Wilderness Areas On lands of the Natural Heritage of the State located outside of Protected Wilderness Areas, all activities established in article 18 of the Forestry Law are permitted to be developed. Below is a detailed description of the type of permitted activity according to each category:

The ecotourism activities that may be developed are the following:

a. Rustic trails or paths. b. Camping areas. c. Viewpoints (miradores). d. Canopy tours. e. Climbing a tree that serves as a lookout (observation platforms in trees, provided the tree is not a breeding niche or den for any species). f. Hanging bridges. g. Rappelling. h. Rest areas. i. Lunch areas. j. Kayaking, canoeing. k. Recreational cycling. l. Fishing (this activity may not be carried out within National Parks and Biological Reserves, nor within wetlands found within these categories). m. Others compatible with the environment and the objectives of this decree. n. Lodges.

The research activities that may be developed are the following:

• a)Viewpoints for observing wild species or for control 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 the provisions of the Biodiversity Law No. 7788 and its regulations. e) Restoration, improvement and/or rehabilitation of wetlands and other ecosystems. f) Other related and duly authorized activities.

The following training activities may be developed:

• a)Demonstrative tours. b) Ecological classrooms. c) Environmental education programs. d) Other related and duly authorized activities.

SINAC will grant use permits within the Natural Heritage of the State, and these activities must be authorized by the Director of the corresponding Conservation Area. Any approved or denied use permit will be processed through a duly reasoned administrative resolution. Said permit may not be assigned, transferred, or donated; it will be granted in a precarious condition (condición precaria), and therefore does not imply any property right over the land, and may be revoked when the State so determines for reasons of convenience, opportunity, or public interest, in accordance with article 154 of the General Law of Public Administration, Law No. 6227.

The validity period for the use permits granted will be five years, and may be longer than this period when the need for the term for its execution has been legally and technically justified by the applicant and approved by the respective Conservation Area, which may not exceed 10 years. In all cases, and six months prior to the expiration of the permit, the respective Conservation Area will notify the interested party of the expiration of their use permit; for this purpose, the interested party must request the respective extension in writing and leave a record of it in the administrative file, with the warning that omission will imply the automatic expiration of the use permit. Extensions may be granted consecutively. Once the use permit has expired, and if no extension request has been made, it will have no validity for the administered party, who has the obligation to process it again, with the respective fulfillment of the requirements set forth by law and regulation.

Each Conservation Area must create a file, duly labeled, chronologically ordered, and paginated, for each use permit granted, and register them in a logbook, in which it will record the date of issuance, the number of the administrative resolution by which the permit is approved or rejected, the permit's validity period, the type of permit holder (whether an individual or legal entity), and the activity to be carried out.

For any use permit in areas of the Natural Heritage of the State, the following requirements must be met before the corresponding Conservation Area:

1. Written request indicating the full name, individual or legal entity identification number, address of the applicant, place or means for receiving notifications and telephone number, area of interest, activity to be carried out, location on a map sheet of the requested area. 2. Sketch or scale drawing of the area of interest. 3. Certified copy of the individual identification card or legal entity identification. 4. Preliminary draft (anteproyecto) of the activities to be developed.

The respective Conservation Area will have a maximum period of one month to approve or deny the request, once the administered party has fully complied with the requirements established herein.

In addition to the cited requirements, interested parties must comply with the following provisions:

• a)The infrastructure must have facilities to meet the needs of persons with disabilities (Law No. 7600). b) Any development must have the necessary equipment and a plan to act in case of emergency. c) Exterior lighting systems must be projected towards the ground, and on access routes (roads, trails) they must be at a height of 80 centimeters above the ground, always directing the light beam downwards. Under no circumstances will floodlights directed towards the forest or the beach be authorized. d) Excavation will not be permitted, and waste from any construction must be properly disposed of for its transfer or elimination. e) In duly justified cases, the pruning of branches or the felling of trees will be permitted when they represent a danger to people and the local fauna. f) The research activities to be developed must comply with the requirements and permits established in the Wildlife Conservation Law No. 7317 and its Regulations. g) The permit holder must guarantee the integrity of the assigned area, establishing effective control and protection means and mechanisms, which must form part of the management plan. h) Submit periodic reports on the execution of the plan. i) The Conservation Area (AC) will assess whether, in a given territory, the carrying out of two or three simultaneous activities in the same sector, or dispersed in time and space, can be authorized.

Once the request has been approved by the respective Conservation Area, the interested party must submit a Specific Project for the activities to be developed and the approval by the National Environmental Technical Secretariat (Secretaría Técnica Nacional Ambiental, SETENA) of the environmental viability (viabilidad ambiental) or environmental impact assessment (estudio de impacto ambiental), as applicable.

Depending on the activity to be carried out, the respective Project must contain at least:

• 1)Ecotourism activity a. Executive Summary of the project b. Introduction. c. Justification. d. Objectives e. Diagnosis and inventory of the natural resources of the area of interest and the surrounding zone, f. Development of the project proposal. g. Tourism carrying capacity (when applicable). h. Feasibility study. Cost-benefit ratio. 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. Justification. d. Objectives e. Development of the project proposal. f. Waste management plan (when applicable) g. Activity schedule 3) Research activity a. Research preliminary draft in accordance with Executive Decree No. 32553-MINAE, published in La Gaceta No. 197 of October 13, 2005.

The following cases will have priority for the granting of a use permit on lands of the Natural Heritage of the State, provided they meet the requirements established in this Regulation:

• a)Companies or individuals that are holders of a concession contract from the respective Municipality, as established by Law 6043 on the Maritime Land Zone over those lands prior to their transfer to the Natural Heritage of the State. b) Companies or individuals who are occupants of the parcel and have taken prior actions to obtain a concession contract or obtain a permit for use, care, and maintenance of the parcel before the respective Municipality. For all purposes, they must provide documentation proving said condition. c) Local residents or organizations.

SINAC will be the responsible body for establishing the amounts for the fees (cánones) according to the activities to be carried out. For the granting of the use permit, it will charge an annual fee corresponding to 2% annually on the value of the infrastructure works built within the use permit area and the value of the land according to the appraisal of the respective Directorate General of Direct Taxation. The fee to be paid by the permit holder must be deposited into the account of the National Parks Fund No. 41220-5 of the Banco Nacional de Costa Rica; and they must present proof of deposit to the respective Conservation Area to record it in the administrative file.

(Thus amended by article 2 of Executive Decree No. 35868 of March 24, 2010)” (highlighting added).

Ergo, the Forestry Law and its regulations provide for the possibility of authorizing, through permits, the private use of the natural heritage of the State, granted in a precarious condition in favor of private legal subjects, to carry out research, training, ecotourism activities, and access to potable water. However, of interest for the case at hand (sub lite), it must be noted that, in national parks, granting this type of authorization in relation to ecotourism is not permitted.

That said, it should be noted that, even though national parks are considered categories of absolute protection in which it is not permitted to authorize use permits for ecotourism activities, this does not mean that contracts cannot be concessioned or authorized for the provision of certain non-essential services. In fact, in the National Parks Service Law, what is prohibited are concessions for the exploitation of products from national parks, since article 12 stipulates that: “No concessions of any kind may be granted for the exploitation of products from national parks, nor may permits be granted to establish installations other than those of the Service.” In this regard, it should be pointed out that, today, there are concessions for the provision of non-essential services in several national parks; for example, Chirripó, Irazú Volcano, and Poás Volcano.

However, the foregoing does not mean that concessions can be granted without restriction in national parks, as the Chamber stated in ruling No. 2015012955 of 9:20 a.m. on August 21, 2015:

“VII.- Regarding the bidding for non-essential services, the placement of containers and structures in the park, and the absence of permits and authorizations for this. (…) Indeed, Manuel Antonio National Park was declared a national park by Law No. 5100. This implies not only that the territories it comprises became part of the Natural Heritage of the State, but that they are subject to a special protection regime. This regime is clearly visualized in the case at hand (sub examine), since the activity foreseen in the bidding would not usually require environmental viability from SETENA; however, the process for said viability is unavoidable in this case precisely because it takes place in an Environmentally Fragile Area. That said, the Chamber was able to consider it as proven, based on the statements of the parties, that the authorities in charge of the park allowed the entry of containers into the park, even though the project did not have environmental viability and the process before SETENA had not even been formalized.

The purpose of obtaining environmental viability, whether potential viability or a license, is to prevent the project or activity from causing damage to the environment, which implies that said viability must be processed prior to the start of the project (see article 2 of Executive Decree No. 31849, General Regulation on Environmental Impact Assessment Procedures). To that extent, the fact that the Administration of the national park allowed the entry and permanence of the containers that would serve the concession activities without SETENA having previously granted some type of viability 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 declares the point with merit and orders the respondent authorities to proceed to remove the mentioned containers from the National Park, until SETENA's approval is obtained.

The ruling is limited to the authorities in charge of the National Park, as they are the ones called upon to protect and administer it correctly. The appeal against the respondent companies is dismissed, as they are considered to have acted in good faith, protected by the authorization that the respondent authorities had granted them.” The foregoing coincides with the position expressed by this Court in ruling No. 2010-18702 of 3:27 p.m. on November 10, 2010:

“Certainly, each concession will require a prior environmental impact assessment evaluated by SETENA; notwithstanding the foregoing, some of these ecosystems, for example marine reserves, are areas that were protected precisely with the intention that no extractive activity be carried out in this zone, nor be affected by any type of pollution (engine leaks, noise pollution, light pollution, etc.), so that the flora and fauna can regenerate over time, until their populations reach the greatest number of specimens possible in that site; which is totally exclusive with the concession of a tourist marina due to the effects that will evidently alter it. Other cited ecosystems may not necessarily require an absolute ban on all activity, but any authorization in that regard must be assessed and anticipated. As already indicated, it is unreasonable to protect some areas and not others without a technical criterion to support it, as this violates the precautionary principle and the principle of progressivity of the scope of protection of fundamental rights.” More recently, in the aforementioned ruling No. 2022-22606 of 1:10 p.m. on September 28, 2022, this Chamber considered that, in consideration of the precautionary principle, there must be environmental impact assessments evaluated by the National Environmental Technical Secretariat prior to enabling the granting of concessions in the Ostional National Wildlife Refuge. Thus, unanimously, this Chamber indicated:

“(…) it also results in an unconstitutionality on the merits since, in compliance with the Precautionary Principle, it is required prior to changing the nature of the Refuge, its scope of protection, and enabling concessions, to have an environmental impact assessment evaluated by the Technical Environmental Secretariat, so as to demonstrate the type of damage and the measures that must be adopted, a study that is missing from this legislative initiative, since a refuge could not be left unprotected without technical criteria to support it (…)”.

In this way, some types of concessions are permitted in national parks, given that the National Parks Service Law focuses the prohibition on what is indicated in its article 12, which reads: “No concessions of any kind may be granted for the exploitation of products from national parks, nor may permits be granted to establish installations other than those of the Service.” However, in consideration of the principle of objectification of environmental protection, it is necessary that, prior to granting an authorization, use permit, or a concession—as established in article 9 of Law No. 9892—there be a study that allows for a technical and scientific determination that the environment will not be harmed. Furthermore, due to the impact on the environment that could result from the exploitation of a concession, an authorization, or a use permit in a protected wilderness area of absolute protection such as a national park, it is essential that sufficient and adequate measures be adopted to preserve the environment in accordance with the precautionary and preventive principles.

Concerning the case under examination (sub examine), it should be noted that with Law No. 5469, through which the ownership of Isla San Lucas was transferred to the Municipality of Puntarenas, it was established: “Article 3.- The Municipality may carry out said exploitation by itself or through public bidding. In the latter case, the award must necessarily be made to the best offer, in the judgment of the Municipality, received from companies of national capital.” Now, with the enactment of Law No. 9892, said article was repealed and, in its place, the possibility of granting authorizations, concessions, and use permits for activities and installations other than park services in the tourist zone is provided for—article 7 of the same law.

Consequently, this Court considers that article 7, as well as subsections f) and j) of article 9 of Law No. 9892, in relation to the authorization of concessions and permits on Isla San Lucas, are not unconstitutional, provided that, prior to the approval of such authorizations, concessions, and permits, there are prior technical studies that are sufficient, individualized, and necessary to determine i) the need to grant them and; ii) that no damage will be caused or danger posed to the environment or the cultural heritage.

XII. REGARDING THE ALLEGED UNCONSTITUTIONALITY OF LAW NO

9892, CONCERNING UNCERTAIN FINANCING.

The plaintiffs state that Isla San Lucas National Park lacks a budget. They consider that this situation contradicts article 36 of the Organic Environmental Law (in relation to article 50 of the Constitution), which establishes that, to create new areas, the financing to protect and manage it must be foreseen. They argue that the contested legislation created a national park with a tourist zone without having foreseen specific financing to develop the relevant aspects, which is irresponsible as it leaves this matter to the goodwill of institutions and companies. In the same vein, they question that article 5 establishes the state obligation to restore the architectural heritage located within the island, but does not indicate where those resources will come from. Finally, they consider that, if it is said that companies will donate maintenance and may even make investments, as stated in article 18 of the same law, it could be because they pursue commercial purposes to exploit the national park, which is perverse, given that it opens up a whole platform so that, in the sustainable tourism sector, the purpose of a national park is denaturalized.

Regarding this grievance, this Court verifies that the contested Law No. 9892 provides:

“ARTICLE 17- Financing. Isla San Lucas National Park shall have financial resources that allow it to exercise its mandates with agility and efficiency. These will include the resources legally corresponding to it from the National System of Conservation Areas (Sinac), transfers from the Republic's budgets, or donations from any individual or legal entity, as well as the own funds generated by park entrance fees, the use of its services, fees (cánones) for concessions and permits, and, in general, for the payment of activities carried out within the park.

The resources regulated in this law, as well as all those produced by the park, shall necessarily and exclusively be invested in the same national park.

Oversight will be the responsibility of the Comptroller General of the Republic.

ARTICLE 18- Authorization to donate and subsidize. The entire state and non-state public and financial sector is authorized to make donations, investments, and include budget subsidies in favor of Isla San Lucas National Park.

The Costa Rican Tourism Institute (Instituto Costarricense de Turismo, ICT) may transfer economic resources to the Board of Directors of Isla San Lucas National Park for the realization of its investments in development and ordinary activities; likewise, it may design and carry out the promotion and marketing for visitation to the park.

The Board of Directors may receive donations from international organizations and foreign governments interested in contributing to the park's goals.

ARTICLE 19- Authorization for credits and loans. To fulfill its objectives, the Board may arrange credits and/or loans with public or private entities, national or foreign, always subject to the controls and provisions of Law 8131, Law on Financial Administration of the Republic and Public Budgets, of September 18, 2001” (highlighting added).

In view of the above, note that the Organic Environmental Law imposes as a requirement for creating new protected wilderness areas to have “d) Minimum financing to acquire the area, protect it, and manage it.” It should also be noted that the Biodiversity Law regulates that:

“ARTICLE 35.- Financing. The National System of Conservation Areas must design financing mechanisms that allow it to exercise its mandates with agility and efficiency. Said mechanisms will include transfers from the Republic's budgets, or from any individual or legal entity, as well as the own funds generated by protected areas, including entrance fees, payment for environmental services (pago de servicios ambientales), debt swaps, fees established by law, payment for activities carried out within the protected areas, and donations.

ARTICLE 36.- Financial instruments. For the purposes of the preceding article, the System is authorized to administer the funds that enter the System by any means, through trusts or other instruments, whether these are for the entire System, or specific to each Conservation Area. The National Parks Fund, created by the Law for the Creation of the National Parks Service, No. 6084, of August 24, 1977, is transformed into the Protected Areas Trust, dedicated exclusively to the purposes for which it was created, from now on including the financing of protection and consolidation activities in the other categories of state-owned protected areas (…)

ARTICLE 38.- Self-financing. The System will use in the Conservation Areas, for its operation, the entirety of the funds generated by its activities, such as entrance fees to protected areas or concessions for non-essential services. These will be administered through the Protected Areas Trust. The funds generated by protected areas will be exclusively for their protection and development, in that order of priority. The National Council of Conservation Areas will be the body that defines the annual budgets, so that the System is strengthened in its integrity (…)

ARTICLE 41.- Existing funds and resources. Furthermore, for the faithful fulfillment of the aims and objectives of the Wildlife Conservation Law, No. 7317, of October 30, 1992; the Forestry Law, No. 7575, of February 13, 1976; the Law for the Creation of the National Parks Service, No. 6084, of August 24, 1977, and the Organic Environmental Law, No. 7554, of October 4, 1995, and to cover the expenses derived from them, the System will have contributions from the Republic's budgets and the resources of the funds already existing in the System, which may be administered under the figure of a trust or with the financial instruments that are defined.” Having said that, even though the plaintiffs consider that Law No. 9892 provides for uncertain financing in relation to Isla San Lucas National Park, it is no less true that, in reality, this regulatory body does establish the manner in which this protected wilderness area will have financial resources.

Note that article 17 of the same law regulates that, among such resources, it will have those corresponding to SINAC, as well as those from “any individual or legal entity, as well as the own funds generated by park entrance fees, the use of its services, fees for concessions and permits, and, in general, for the payment of activities carried out within the park.” Thus, prima facie, the alleged unconstitutionality of article 17 of Law No. 9892 lacks basis. Furthermore, what the plaintiffs claim, regarding the possibility that companies making donations or investments in Isla San Lucas National Park may pursue commercial purposes that denaturalize the purpose of a national park, is merely speculation. Consequently, this point of the action is declared without merit.

XIII. REGARDING THE ALLEGED UNCONSTITUTIONALITY OF LAW NO

9892, CONCERNING THE INCORPORATION OF PRIVATE SECURITY OFFICERS IN ISLA SAN LUCAS NATIONAL PARK.

The petitioners state that Law No. 9892, in its article 15, has a constitutional defect, as it authorizes private security personnel to be integrated to carry out surveillance duties in Isla San Lucas National Park, which even threatens its finances, as it is not indicated where the funds to cover the officers' salaries will come from. Furthermore, they affirm that surveillance work must be in the hands of SINAC park rangers, who have the knowledge, training, and sensitivity to act within a national park.

Regarding this grievance, article 15 of Law No. 9892 regulates matters concerning the surveillance and security of Isla San Lucas National Park as follows:

“ARTICLE 15- Surveillance and security.

For the surveillance and security of Isla San Lucas National Park, the necessary complement of park rangers (guardaparques) from the National System of Conservation Areas of the Ministry of Environment and Energy (MINAE) will be provided, without prejudice to the possibility that the Board of Directors, directly or through the corresponding administration trust, may contract the security it deems necessary; said personnel shall not have police authority nor may they exercise non-delegable functions exclusive to the administration. Likewise, it may resort to the assistance of the Ministry of Security in situations that warrant it” (emphasis added).

Additionally, the Wildlife Conservation Law establishes:

“Article 7.- The National System of Conservation Areas of the Ministry of Environment and Energy has the following functions in the exercise of its competence: (…)

• i)Create and manage the programs for management, control, surveillance, and research on wildlife (…)

Article 15.- To contribute to the application and enforcement of this Law, the Ministry of Environment and Energy shall appoint wildlife inspectors (inspectores de vida silvestre); honorary wildlife inspectors (inspectores ad honorem de vida silvestre); and natural resource vigilance committees (comités de vigilancia de los recursos naturales, COVIRENAS).

Wildlife Inspectors have police authority and must be duly identified with a card issued by the Ministry of Environment and Energy. To be eligible for an appointment of this nature, inspectors must be persons of good conduct, for which purpose, at the request of the Ministry of Environment and Energy, the Judicial Registry of Offenders must issue a certification of their background. The other entry requirements shall be set forth in the Regulation to this Law. Their appointments may be revoked at any time by the Ministry of Environment and Energy.

Article 16.- For the faithful fulfillment of the obligations established in this law, wildlife inspectors, forest inspectors (inspectores forestales), park rangers, and officials of SINAC duly accredited for those purposes and in the performance of their duties are empowered to detain, transit, enter, and conduct inspections within any property and vessel, as well as in the industrial and commercial facilities involved, and to seize (decomisar) organisms, parts, products, and derivatives of wildlife, together with the equipment used in the commission of a crime or activity prohibited by this law.

In the case of private domiciles, the permission of the competent judicial authority or of the owner must be obtained” (emphasis added).

For its part, the Forestry Law (Ley Forestal) provides in its section 54:

“ARTICLE 54.- Officials of the Forest Administration. The officials of the State Forest Administration shall have the status of police authority; as such and in accordance with this law, they must report violations committed to the competent authorities. The police authorities shall be obliged to collaborate with the officials of the State Forest Administration whenever they require it to fully comply with the functions and duties that this law imposes upon them. For the fulfillment of their powers, these officials, identified with their respective card, shall have the right to transit and conduct inspections on any rustic or forest-industrial property, except in the dwelling houses located therein; as well as to seize (decomisar) illegally harvested or processed timber and other forest products and to sequester, as security for a potential sanction, the equipment and machinery used in the illicit act. They shall also seize (decomisarán) the means of transport that serves as an instrument or facilitator for the commission of the crime, after the corresponding record is drawn up. All of the foregoing must be placed at the disposal of the competent judicial authority within a period not exceeding three days” (boldface added).

Likewise, note that section 35 of the Organic Law of the Environment establishes: “The creation, conservation, administration, development, and vigilance of protected areas shall have as objectives: (…) f) Protect the natural and landscape environments of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest, of importance for the culture and national identity”.

Now, it is worth bringing up what was indicated by this Court in judgment No. 2004-10492 at 15:28 hours on September 28, 2004, in which the concession of the public security service, specifically of the intra-prison type, was analyzed:

“X.- Powers of the concessionaire in relation to the provision of security services. Perhaps of all the aspects contemplated in the contracting procedure that is the subject of this action, the one referring to the provision of intra-prison security services by the concessionaire is the one most vehemently questioned by the plaintiffs, since it is precisely in this function that the State most habitually makes use of its sovereign powers (potestades de imperio) to impose on persons deprived of liberty compliance with the various rules of coexistence characteristic of an institutional care center, and thus ensure the fulfillment of the purposes of deprivation of liberty and guarantee the security of all inmates, the personnel in charge, and third parties. In this way, it is observed that 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 Tender Document, 2.1.1, 5.4, 6.2, 6.2.5, 6.3.1 of Document X of Anexo 1A, as well as documents X(b) and X(c) of Anexo 1A, describe in profuse detail the attributions and duties of the concessionaire regarding the provision of security services, management of persons deprived of liberty, and support activities for the authorities of the Directorate General of Social Adaptation.

Although the Tender Document provides that security within the internal perimeter of the Penitentiary Center corresponds to the concessionaire, while the State reserves perimeter surveillance functions (cf. clauses 2.4.1.c), 23.5.2.1, 6.3.1 of Document X of Anexo 1A, documents X(b) and X(c) of Anexo 1A), for these provisions to be congruent with Constitutional Law, they must be interpreted as follows: none of such clauses may be understood in the sense of allowing the concessionaire to impose its decisions or those of any other subjects on the persons deprived of liberty. The proportional use of force and direct coercion may only be validly employed as immediate reactions against the commission of crimes, or as defense for the protection of the concessionaire's own or third-party legal interests, be it the safety of persons within the Penitentiary Center (inmates, visitors, officials, etc.), be it to prevent the escape of persons deprived of liberty, the trafficking of prohibited substances or objects, the destruction or theft of property, etc. Thus, the use of force when necessary to enforce rules of coexistence, without affecting the aforementioned legal interests, cannot be carried out by the concessionaire, but by the authorities of the Directorate General of Social Adaptation posted at the Pococí Penitentiary Center.

Hence, the concept of “emergency situations” which, in accordance with the Tender Document (cf. clauses 25.4, 23.5.2.1, and 6.3.5.1 of Document X of Anexo 1A), warrant the intervention of the police authorities stationed on the external perimeter of the Center, must be interpreted as any situation in which the use of force becomes necessary to ensure adequate intra-prison coexistence, without us being before one of the already mentioned exceptional cases, in which the concessionaire may act on its own to stop a criminal act. In any other cases where situations arise that compromise adequate coexistence, the concessionaire must limit itself to observing what occurred, attempt to resolve it peacefully, report it to the authorities of the Directorate General of Social Adaptation so they may act, and prepare the corresponding reports for the authorities in charge of the assessment and disciplinary regime of the persons deprived of liberty, as well as provide support services to the Police agents that do not involve the direct exercise of sovereign powers.

For this, the Directorate General of Social Adaptation must permanently have on the external perimeter a sufficient contingent of officers in order to be able to adequately attend to the situations that may arise. Thus, as regards the mentioned functions, the Chamber considers that there has not been a transfer of competences reserved to the State, in the terms alleged by the Office of the Ombudsman of the Republic, as long as the clauses referring to security functions, management of persons deprived of liberty, and support activities for the authorities of the Directorate General of Social Adaptation are interpreted in the terms mentioned in this paragraph” (highlighting added).

In line with the foregoing and the ratio decidendi of the aforementioned ruling, in the instant case it is not arbitrary nor contrary to the Political Constitution that, in a protected wilderness area (área silvestre protegida), a private company may assist in the security service through a contract, provided that such provision does not imply the exercise of sovereign powers by the latter. On this point, it must be noted that this Court has already ruled on the functions that park rangers may perform in view of the police authority status they possess, as observed in judgment No. 2018-5836 at 9:30 hours on April 13, 2018:

“IV.- Analysis of the case. From what was reported by the competent appealed authority, it is clear that the denounced officials not only (sic) acted in fulfillment of their duty, in the face of an invasion and environmental damage to the Barra del Tortuguero National Wildlife Refuge, but because they have legal authorization in Articles 54 of the Forestry Law and 16 of the Wildlife Law:

“…ARTICLE 54.- Officials of the Forest Administration The officials of the State Forest Administration shall have the status of police authority; as such and in accordance with this law, they must report violations committed to the competent authorities.

The police authorities shall be obliged to collaborate with the officials of the State Forest Administration whenever they require it to fully comply with the functions and duties that this law imposes upon them.

For the fulfillment of their powers, these officials, identified with their respective card, shall have the right to transit and conduct inspections on any rustic or forest-industrial property, except in the dwelling houses located therein; as well as to seize illegally harvested or processed timber and other forest products and to sequester, as security for a potential sanction, the equipment and machinery used in the illicit act. They shall also seize the means of transport that serves as an instrument or facilitator for the commission of the crime, after the corresponding record is drawn up. All of the foregoing must be placed at the disposal of the competent judicial authority within a period not exceeding three days.

ARTICLE 16.- For the faithful fulfillment of the obligations established in this law, wildlife inspectors, forest inspectors, and park rangers, duly accredited and in the performance of their duties, are empowered to detain, transit, enter, and conduct inspections, as well as to seize, within any property, as well as in the industrial and commercial facilities involved, the products and by-products of prohibited activities, together with the implements used, as defined in the Regulation. In the case of private domiciles, the permission of the competent judicial authority or of the owner must be obtained…”. Consequently, ruling out the arbitrariness alleged in relation to the abuse of authority in the described actions, the appropriate course is to dismiss the appeal, as is hereby done” (highlighting incorporated).

In the sub iudice case, firstly, note that the vigilance and security of Isla San Lucas National Park does fall upon the National System of Conservation Areas, whose park rangers are authorized to exercise sovereign powers in the fulfillment of their police functions, which is in line with the Wildlife Conservation Law, which authorizes them to “(…) detain, transit, enter, and conduct inspections within any property and vessel, as well as in the industrial and commercial facilities involved, and to seize organisms, parts, products, and derivatives of wildlife, together with the equipment used in the commission of a crime or activity prohibited by it (…)”. Secondly, even though the challenged norm empowers the Board of Directors of Isla San Lucas National Park to contract private security personnel, it is no less true that this is restricted, since such personnel i) shall not have police authority; and ii) may not exercise non-delegable functions exclusive to the administration.

Indeed, it is considered plausible to consider the possibility of contracting private security on San Lucas Island, especially considering that in the past, acts of vandalism have occurred that have generated detriment to both the environment and the cultural heritage. For example, in the official communication SINAC-ACOPAC-D-485-2017 signed on August 18, 2017, by the regional director of the Pacific Central Conservation Area, it was stated that: “Last Wednesday, August sixteenth, two thousand seventeen, in the evening hours, personnel posted at the RNVSISL were victims of an armed robbery, which resulted in the loss of equipment and material resources, widespread damage to the infrastructure of the National System of Conservation Areas (SINAC) existing at the site, and physical and psychological harm to the official present, who was threatened and even tied up during the crime. With the purpose of safeguarding the safety of the personnel and also, because the site no longer meets minimum conditions for the permanence of officials, given the deterioration of the infrastructure, you are informed that SINAC withdrew the collaborators posted in the protected wilderness area, who will only carry out (sic) surveillance trips during the day, and will leave the RNVSISL at times suitable for safe navigation.

Likewise, that for the moment and until safety and habitability conditions at the site are guaranteed, permanent personnel or nighttime surveillance will not be posted (sic). The above is brought to your attention because the Pacific Central Conservation Area (ACOPAC) finds itself unable, for the reasons stated, to maintain the surveillance hitherto provided to the cultural heritage located in this protected wilderness area”. Additionally, in police report S.I.: 0096-DRP-2018 of January 12, 2018, it reads: “On November 26, 2017, the investigator (…) member of the O.I.J of Puntarenas in the company of (…) member of the K9 unit, together with the canine 'Nany', traveled on the coast guard vessel from Caldera to San Lucas Island, in order to conduct an Ocular Inspection of the place that was destroyed as a result of a fire, (…) locating the total destruction of a building constructed of wood, entirely consumed by the action of the fire, in which they determined that the greatest concentration of heat was on the east side wall, since metal material in the building was found bent by the intensity of the fire; in the review carried out by the canine 'Nany', it managed to locate traces of hydrocarbons in the lower corner of the door frame on the east side of chamber two; furthermore, they located two traces of latent footprints on a bottle located near the burned remains of the infrastructure, which were sent for analysis to the Criminal Archive of Puntarenas (…) On December 13, 2017, at 08:00 hours, the investigator of the case interviewed the complainant in the capacities known in the complaint, who ratified the reported facts, adding; that the first person who arrived on the Island was Mr.

Diego, with a group of volunteers, finding the fire in the main building, but because in August 2017 the guards at the place were victims of an assault, they decided not to leave officials there again at night, so from 4:00 p.m. the island is left without any person; later, in an inspection with fire department engineering personnel, they were able to determine the theft of sinks, sanitary fixtures, door handles, among other things, which at first they did not know (…) On January 11, 2018, at 10:45 hours, the investigator of the case interviewed Diego (…), an official of A.S.V.O., (…) who stated; that on the day of the events, he entered San Lucas Island with several volunteers, whose purpose was to maintain the facilities; the surprise was that upon arriving at the site, the main building had completely burned down, so he immediately notified Olger (…); he added that what was strange upon arriving was finding a large quantity of beer and liquor cans, as well as cigarette butts on the stairs, and an area of vegetation burned by the action of the fire, showing that someone prevented the fire from spreading into the vegetation. He concluded by saying that he had no further information to contribute”.

Ergo, the mere possibility of contracting private security based on the challenged norm does not imply that the personnel of the benefitting companies hold sovereign powers in the provision of the corresponding service. Within this context, for the purpose of providing greater certainty on the point, it is entirely plausible to interpret the referenced norm in accordance with the Constitution, in the sense that the private security shall not have police authority nor be empowered to exercise sovereign powers in the provision of the service in question.

XIV- CONCLUSION. As a corollary of all the foregoing, it is appropriate to declare this action without merit regarding the allegations of the plaintiffs, with the clarification that the composition of the Board of Directors regulated in the challenged section 9 is not considered unconstitutional, provided that the last paragraph of the cited article is interpreted in the sense that in those decisions that refer to environmental matters and the historical-architectural heritage, that collegiate body must consult beforehand the bodies cited therein, whose criteria –in their respective areas– shall be binding for the Board of Directors. Furthermore, it is clarified that any concrete decision relating to the administration or management of the national park may equally be challenged through ordinary legality channels, or through the constitutional channel, should it be deemed that, through those decisions, an injury to the fundamental right to a healthy and ecologically balanced environment may occur.

Justice Garro Vargas records a note. Justices Cruz Castro, Rueda Leal, and Garita Navarro issue a dissenting vote, declare the action with merit, and annul Law No. 9892 of August 24, 2020, called 'Law for the Creation of Isla San Lucas National Park', for violation 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. Justice Cruz Castro provides additional reasons.

XV. DOCUMENTATION PROVIDED TO THE FILE

The parties are warned that if they have provided any paper document, as well as objects or evidence contained in any additional electronic, computer, magnetic, optical, telematic device or one produced by new technologies, these must be withdrawn from the office within a maximum period of 30 business days counted from the notification of this ruling. Otherwise, all material not withdrawn within this period will be destroyed, in accordance with the provisions of the "Regulation on Electronic Files before the Judiciary", approved by the Full Court in session No. 27-11 of August 22, 2011, article XXVI, and published in the Judicial Gazette No. 19 of January 26, 2012, as well as in the agreement approved by the Superior Council of the Judiciary, in session No. 43-12 of May 3, 2012, article LXXXI.

Therefore:

By majority, the action of unconstitutionality is declared without merit. By majority, it is considered that the composition of the Board of Directors regulated in section 9 is not unconstitutional, provided that the last paragraph of the cited article is interpreted in the sense that in those decisions that refer to environmental matters and the historical-architectural heritage, that collegiate body must consult beforehand the bodies cited therein, whose criteria –in their respective areas– shall be binding for the Board of Directors. Justice Garro Vargas records a note. Justices Cruz Castro, Rueda Leal, and Garita Navarro issue a dissenting vote, declare the action with merit, and annul Law No. 9892 of August 24, 2020, called 'Law for the Creation of Isla San Lucas National Park', for violation 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. Justice Cruz Castro provides additional reasons. This ruling shall be summarized in the Official Gazette La Gaceta and published in full in the Judicial Gazette. Notify the Attorney General of the Republic, the plaintiffs, and the parties. Communicate to the President of the Legislative Assembly.

Fernando Castillo V.

President Fernando Cruz C. Paul Rueda L.

Luis Fdo. Salazar A. Jorge Araya G.

Anamari Garro V. Roberto Garita N.

File: 21-005756-0007-CO Res: 2023-012817 NOTE OF JUSTICE GARRO VARGAS I consider it necessary to point out 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 some considerations regarding the exercise of constitutional control and international instruments as a parameter for assessment. In this regard, in pertinent part and in summary, I have indicated the following:

“The function of controlling 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, yet it is not contrary to it, as it permits guaranteeing the effectiveness of Art. 7 CP. That function of controlling said conformity is a function distinct from that exercised by the Chamber by reason of Art. 10 CP –constitutional control– and from that established in Art. 48 CP –jurisdictionally guaranteeing constitutional rights and fundamental ones established in international human rights instruments–.

When this Chamber exercises its constitutional control function, it is not appropriate to resort to treaties and use them de facto as if they formed part of the constitutionality parameter. Such instruments, and only if they are duly ratified, can stand as a parameter of conformity for legal and infra-legal norms with themselves, by reason of the provisions of Art. 7 CP and 73.d) LJC. This is consistent with a systematic interpretation of the Constitution and the LJC and with respect for the separation of powers, a fundamental principle of any democratic State governed by the rule of law.” (The highlighting does not correspond to the original votes).

In the specific case, there is a reference to judgment No. 2010-13099 of 14:56 hrs. on August 4, 2010, in which resolution I did not participate, and in said precedent, allusion is made to the “Global Code of Ethics for Tourism” adopted in 1999 by the General Assembly of the World Tourism Organization and subsequently recognized by the United Nations General Assembly through resolution No. A/RES/56/212.

I consider that the reference to said instrument is pertinent if it is understood to be made solely for hermeneutic purposes and not because it is binding in itself.

Anamari Garro V.

File. 21-005756-0007-CO DISSENTING VOTE OF JUSTICES CRUZ CASTRO, RUEDA LEAL, AND GARITA NAVARRO, WITH DRAFTING BY THE SECOND.

In the sub lite case, with the usual respect, we differ from the majority opinion of this Court, we declare the action with merit, and we annul Law No. 9892 of August 24, 2020, called ‘Law for the Creation of Isla San Lucas National Park’, for violation 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, in accordance with what is developed below.

I.On protected wilderness areas and the right to a healthy and ecologically balanced environment. Regarding this right, in judgment No. 2022022070 at 9:20 hours on September 23, 2022, the Chamber stated:

“Concerning the nature of the grievances alleged in the sub lite case, this Court has repeatedly ruled on the right to a healthy and ecologically balanced environment. For example, in judgment No. 2021024807 at 9:20 hours on November 5, 2021, this Chamber stated:

“On repeated occasions, the jurisprudence of this Chamber has stressed that the right to a healthy and ecologically balanced environment is recognized at both the constitutional and conventional levels. Likewise, it has been indicated that the effective protection of this right requires that resources be used rationally, a context in which the State and the citizenry in general must act according to the principles governing environmental matters. In this vein, specialized doctrine has pointed out that the preventive principle demands that, when there is certainty of possible environmental damage, the affecting activity must be prohibited, limited, or conditioned upon compliance with certain requirements. In general, this principle applies when there are clearly defined risks 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 elements to foresee eventual negative impacts.

On the other hand, the precautionary principle states that, when there is danger of serious and irreversible damage, the lack of absolute scientific certainty should not be used as a reason to postpone the adoption of effective measures in light of the costs to prevent environmental degradation. From the foregoing, it is noted that the principle starts from reasonable scientific uncertainty together with the threat of serious and irreversible environmental damage. In general terms, a relevant difference between the preventive principle and the precautionary principle lies in the level of knowledge and certainty of the risks that an activity or work causes. While in the former such certainty exists, in the latter what is noted is a state of doubt resulting from scientific information or technical studies. Thus, the Costa Rican State is obligated to adopt measures that guarantee the effective defense and preservation of the environment in accordance with such principles.

Now, such an objective obligation does not inevitably entail a subjective right of individuals to demand, through jurisdictional bodies, that a specific measure be taken, but it does entail that those suitable for the protection of that right be adopted, in the face of openly negligent attitudes by the authorities or by natural and legal persons, according to the recognized theory of the horizontal effect of fundamental rights (Drittwirkung der Menschenrechte), among whose procedural manifestations is the amparo action against subjects of private law.

It is also important to highlight that the Inter-American Court of Human Rights, in Advisory Opinion OC-23/17 of November 15, 2017, developed matters related to State obligations regarding the environment, in the interest 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 enjoyment and effective development of human rights. In this sense, it stated:

“47.

This Court has recognized the existence of an undeniable relationship between environmental protection and the realization of other human rights, as environmental degradation and the adverse effects of climate change affect 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 “Protocol of San Salvador”) highlights the close relationship between the validity of economic, social and cultural rights—which include the right to a healthy environment (medio ambiente sano)—and that of civil and political rights, and indicates that the different categories of rights constitute an indissoluble whole based on the recognition of the dignity of the human person, and therefore require permanent protection and promotion in order to achieve their full validity, without ever justifying the violation of some for the sake of realizing others (…)

49. For its part, the Inter-American Commission has highlighted that several fundamental rights require, as a necessary precondition for their exercise, a minimum environmental quality, and are profoundly affected by the degradation of natural resources. In the same vein, the OAS General Assembly has recognized the close relationship between environmental protection and human rights (supra para. 22) and emphasized that climate change produces adverse effects on the enjoyment of human rights. 50. In the European sphere, the European Court of Human Rights has recognized that severe environmental degradation can affect individual well-being and, consequently, generate violations of persons' rights, such as the rights to life, respect for private and family life, and private property. Similarly, the African Commission on Human and Peoples' Rights has indicated that the right to a “general satisfactory environment favorable to development” is closely related to economic and social rights insofar as the environment affects the quality of life and security of the individual (…) 52.

Furthermore, there is broad recognition in international law of the interdependent relationship between environmental protection, sustainable development (desarrollo sostenible), and human rights. This interrelationship has been affirmed since the Stockholm Declaration on the Human Environment (hereinafter “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 necessary to improve the quality of life,” affirming the need to balance development with protection of the human environment. Subsequently, in the Rio Declaration on Environment and Development (hereinafter “Rio Declaration”), States recognized that “[h]uman beings are at the centre of concerns for sustainable development” and, at the same time, emphasized that “in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process.” Following the above, 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, States recognized the consideration that must be given to the possible relationship between the environment and human rights, including the right to development. 53. Furthermore, upon adopting the 2030 Agenda for Sustainable Development, the United Nations General Assembly recognized that the scope of human rights for all persons depends on the achievement of the three dimensions of sustainable development: economic, social, and environmental. In the same vein, several instruments within the inter-American sphere have referred to environmental protection and sustainable development, such as the Inter-American Democratic Charter, which provides that “[t]he exercise of democracy facilitates the preservation and proper stewardship of the environment,” and therefore “it is essential that the States of the Hemisphere implement policies and strategies to protect the environment, respecting the various treaties and conventions, to achieve 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) multiple other human rights are vulnerable to environmental degradation, all of which entails a series of environmental obligations for States for the purpose of fulfilling their obligations to respect and guarantee these rights. Precisely, another consequence of the interdependence and indivisibility between human rights and environmental protection is that, in determining these State obligations, the Court may make use of 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 derived from the American Convention in this matter (supra paras. 43 to 45) (…) 59.

The human right to a healthy environment has been understood as a right with both individual and collective connotations. In its collective dimension, the right to a healthy environment constitutes a universal interest, owed to both present and future generations. However, the right to a healthy environment also has an individual dimension, insofar as its infringement can have direct or indirect repercussions on persons due to its connection with other rights, such as the right to health, personal integrity, or life, among others. Environmental degradation can cause irreparable harm to human beings, and therefore a healthy environment is a fundamental right for the existence of humanity.” 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 March 23, 2021, at its 46th session, held:

“Recognizing also that sustainable development and the protection of the environment, including ecosystems, contribute to human well-being and to the enjoyment of human rights, in particular the rights to life, the enjoyment of the highest attainable standard of physical and mental health, an adequate standard of living, adequate food, safe drinking water and sanitation, and housing, and cultural rights.” Also, recently, in resolution A/HRC/RES/48/13, adopted on October 8, 2021, that Council stated:

“(…) Recognizing that sustainable development, 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, safe drinking water and sanitation, and participation in cultural life, for present and future generations (…)

Recognizing further that environmental degradation, climate change, and unsustainable development constitute 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 fundamental 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 (…)” (The highlighting is not from the original).

In this way, the particular relevance of the fundamental right to a healthy and ecologically balanced environment (ambiente sano y ecológicamente equilibrado) is reflected, the defense of which transcends the protection of this constitutional good in itself, since its preservation constitutes an essential factor for the effective safeguarding of other primordial human goods (such as life, health, property, equality), so that if the former fails, the effective safeguarding of the latter is not achieved.

Beyond the above, the Inter-American Court of Human Rights, in the aforementioned advisory opinion, recognized the right to a healthy environment as an autonomous right, susceptible to protection independently of any risk of harm to individual persons. In that 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 the components of the environment, such as forests, rivers, seas, and others, as legal interests in themselves, even in the absence of certainty or evidence of risk to individual persons. It is about protecting nature and the environment not only because of their connection to a utility for human beings or because of the effects that their degradation could cause on other rights of persons, such as health, life, or personal integrity, but because of their importance for the other living organisms with whom the planet is shared, also deserving of protection in themselves. In this sense, the Court notes a tendency to recognize legal personhood and, therefore, rights to nature not only in judicial judgments but even in constitutional orders. 63. Thus, the right to a healthy environment as an autonomous right is distinct from the environmental content that arises from the protection of other rights, such as the right to life or the right to personal integrity.” (The highlighting is not from the original).

This position was adopted in the judgment of February 6, 2020, regarding the case “Indigenous Communities Members of the Lhaka Honhat Association (Our Land) vs. Argentina,” in which, overcoming an anthropocentric approach, the Inter-American Court affirms that the right to a healthy environment, besides being fundamental for the very existence of the human being, constitutes an autonomous and universal right, so that the protection of various components of the environment (such as forests, seas, rivers, and others) constitutes a legal interest in itself. In the words of the Inter-American Court: “It is about protecting nature,” not only for its “utility” or “effects” with respect to human beings, “but because of its importance for the other living organisms with whom the planet is shared.” Given the significance of this statement, it is appropriate to transcribe this section of the referenced decision:

“203. The Court has already referred to the content and scope of this right, considering various relevant norms, in its Advisory Opinion OC-23/17, and therefore refers to that pronouncement. It affirmed on that occasion that the right to a healthy environment ‘constitutes a universal interest’ and ‘is a fundamental right for the existence of humanity,’ 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 of risk to individual persons. It is about protecting nature,’ not only for its ‘utility’ or ‘effects’ with respect to human beings, ‘but because of its importance for the other living organisms with whom the planet is shared.’ The foregoing does not, of course, prevent other human rights from being violated as a consequence of environmental damage.” (The highlighting is not from the original).

Based on the foregoing, this Chamber, as guarantor of fundamental rights, must ensure respect for the conventional and constitutional obligations that bind the State not only to recognize the rights enshrined therein, but also to impose the legal measures required for their safeguarding” (the highlighting is from the original).

In addition to the above, recently, the United Nations General Assembly adopted resolution No. A/RES/76/1-A/RES/76/300 of July 28, 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, businesses 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, policy-making and representative organ of the United Nations. Consequently, it constitutes a political commitment of a universal nature that must be valued as a source of soft law of the greatest relevance.

Precisely, resolution No. A/RES/76/1-A/RES/76/300 affirms that the right to a healthy and ecologically balanced environment has the nature of a human right. With this, it significantly contributes to its positivization, from which results its technical understanding as a “fundamental right.” Likewise, it strengthens the notion that environmental protection is an “autonomous” human right, that is, one that is valid in itself, so 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 object of protection transcends the human being, as it shelters the various components of nature due to their importance for preserving the existence of living organisms in general, regardless of their utility for human beings.

It also reiterates and, through that, strengthens the position that the right to a healthy and ecologically balanced environment is linked to other human rights, implying that its transgression can lead to the violation of health, life, democratic sustainable development, to cite just a few examples. The foregoing confers a particularly relevant legal significance to the right in question.

In addition, the UN General Assembly prescribes that the protection of the right to a healthy and ecologically balanced environment demands the full application of conventional rights related to the environment in accordance with the principles of international environmental law. From the above, its indispensable inclusion within the judicial review of constitutionality by this Chamber is inferred.

Finally, in harmony with the recognized theory of the horizontal effect of fundamental rights (Drittwirkung der Menschenrechte), resolution No. A/RES/76/1-A/RES/76/300 regulates that the obligation to safeguard the environment, beyond States, extends to international organizations, businesses, and other stakeholders, the latter term encompassing human beings in general. It is precisely in this sense that the Constitutional Jurisdiction Law (Ley de la Jurisdicción Constitucional) contemplates amparo against subjects of private law.

In sum, under the conceptual framework explained supra, this Constitutional Court, as guarantor of fundamental rights, must ensure compliance with the conventional and constitutional commitments that the Costa Rican State and society in general impose not only the obligation to recognize the rights, principles, and values of environmental matters, but also to implement all those measures and actions that are required to ensure the effective protection of those” (the highlighting is from the original).

Furthermore, protected wilderness areas (áreas silvestres protegidas) have been conceptualized by the World Commission on Protected Areas of the International Union for Conservation of Nature (IUCN) as a clearly defined geographical space, recognized, dedicated, and managed, through legal means or other effective means to achieve the long-term conservation of nature and its ecosystem services and associated cultural values. This implies that the surface area of protected wilderness areas includes terrestrial zones, inland waters, marine and coastal waters, or a combination of these, which has been recognized as such and, therefore, enjoys legal protection for its conservation. It should be noted that Costa Rica has been a member of the IUCN since 1980 by virtue of efforts made by the Ministry of Energy and Mines and the Ministry of Foreign Affairs and Worship. Likewise, through Article 1 of Law No. 7350 of July 6, 1993, entitled ‘Agreement with the International Union for Conservation of Nature and Natural Resources (I.U.C.N.) for the Establishment of its Regional Office for Mesoamerica,’ the Government of Costa Rica recognized such entity as having “full legal personality (personalidad jurídica plena) for the purposes of Costa Rican law.” In Costa Rica, according to section 58 of Law No. 7788 of April 30, 1998, ‘Biodiversity Law (Ley de Biodiversidad),’ protected wilderness areas are delimited geographical zones, constituted by lands, wetlands (humedales), and portions of sea, which have been declared as such due to their special significance for ecosystems, the preservation of threatened species, their impact on reproduction and other needs, and their historical and cultural significance.

Furthermore, such areas must be dedicated to the conservation and protection of biodiversity, soil, water resources (recurso hídrico), cultural resources, and ecosystem services in general. Also, according to that norm, the corresponding technical reports for establishing protected wilderness areas must contain the appropriate recommendations and justifications “to determine the most appropriate management category to which the proposed area should be subjected.” Regarding protected areas (áreas protegidas), it is important to mention that the ‘Convention on Biological Diversity and its Annexes’ adopted in Rio de Janeiro in 1992, approved by Costa Rica through Law No. 7416 of June 30, 1994, regulates:

“ARTICLE 1. Objectives The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding (…)

ARTICLE 2. Use of Terms For the purposes of this Convention:

"Protected area" means a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives (…)

ARTICLE 8. In-situ Conservation Each Contracting Party shall, as far as possible and as appropriate:

(a) Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity.

(b) Develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity.

(c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use.

(d) Promote the protection of ecosystems, 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 furthering protection of these areas.

(f) Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, 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 which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health.

(h) Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species.

(i) Endeavour to provide the conditions needed for compatibility between present uses and the conservation of biological diversity and the sustainable use of its components.

(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement 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) Develop or maintain 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 in-situ conservation outlined in subparagraphs (a) to (l) above, particularly to developing countries (…)

ARTICLE 10. Sustainable Use of 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.

(b) Adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biological diversity.

(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements.

(d) Support local populations to develop and implement remedial action 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 sustainable use of biological resources (…)

ARTICLE 12. Research and Training The Contracting Parties, taking into account the special needs of developing countries:

(a) Establish and maintain programmes for scientific and technical education and training in measures for the identification, conservation and sustainable use of biological diversity and its components and provide support for such education and training for the specific needs of developing countries.

(b) Promote and encourage research which contributes to the conservation and sustainable use of biological diversity, particularly in developing countries, inter alia, in accordance with decisions of the Conference of the Parties taken in consequence of recommendations of the Subsidiary Body on Scientific, Technical and Technological Advice. And (c) In keeping with the provisions of Articles 16, 18 and 20, promote and cooperate in the use of scientific advances in biological diversity research in developing methods for conservation and sustainable use of biological resources (…)

ARTICLE 14. Impact Assessment and Minimizing Adverse Impacts 1. Each Contracting Party, as far as possible and as appropriate, shall:

(a) Introduce appropriate procedures requiring environmental impact assessment (evaluación de 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 for public participation in such procedures.

(b) Introduce appropriate arrangements to ensure that the environmental consequences of its programmes and policies that are likely to have significant adverse impacts on biological diversity are duly taken into account.

(c) Promote, on the basis of reciprocity, notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to significantly adversely affect the biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral arrangements, as appropriate.

(d) In the case of imminent or grave danger or damage to biological diversity originating under its jurisdiction or control, notify immediately the potentially affected States as well as initiate action to prevent or minimize such danger or damage.

(e) Promote national arrangements for emergency responses to activities or events, whether caused naturally or otherwise, which present a grave and imminent danger to biological diversity and encourage international cooperation to supplement such national efforts and, where appropriate and agreed by the States or regional economic integration organizations concerned, establish joint contingency plans.

2. The Conference of the Parties shall examine, on the basis of studies to be carried out, the issue of liability and redress, including restoration and compensation, for damage to biological diversity, except where such liability is a purely internal matter” (emphasis added).

The sum of a country's protected areas, regardless of their management category or their management or governance system, is understood as the system of protected areas. Through this, the achievement of national conservation objectives is intended, and for such purposes, it possesses 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 or governance categories of protected wilderness areas have been created, which constitute an element of great relevance for fulfilling the specific management purposes of each protected wilderness area, given that they assist in organizing to achieve conservation objectives. Precisely, the Office of the Attorney General (Procuraduría General de la República), in opinion No. C-016-2002 of January 15, 2002, clarifies that: “(…) even though there is no technical definition of a protective zone (zona protectora) in our current legislation, the mere classification that Article 32 of Law No. 7554 makes of management categories necessarily leads one to think that there are indeed differences between them, since, otherwise, it would have sufficed to enunciate a single regime of protected wilderness areas. And it is logical that this is so, since each wilderness area has its own characteristics from a biological, edaphic, hydrological, etc. standpoint, which make it deserving of a particular treatment regime defined by the assigned management category” (the highlighting was added).

Thus, management categories have particular traits that differentiate them from one another, such as the specificities they possess from a biological, edaphic, and hydrological standpoint, as well as the various forms of administration, management (manejo), planning, uses, and prohibitions envisioned, all of which is related both to the level of authorized human intervention and to the level of protection granted to the corresponding geographic space.

In turn, the management categories of protected wild areas, when considered as such, pursue certain common objectives, for example: i) conserving biodiversity; ii) collaborating with regional conservation strategies; iii) maintaining the diversity of linked habitats, species, and ecosystems; iv) ensuring integrity and long-term maintenance in order to achieve conservation objectives; v) maintaining the imposed values; vi) respecting the assigned management plan; and vii) having a specific management system.

In Costa Rica, Article 35 of Law No. 7554 of October 4, 1995, called the ‘Ley Orgánica del Ambiente,’ specifies the objectives of the creation, conservation, administration, development, and surveillance of protected areas, which naturally encompasses all management categories of protected wild areas, namely: i) conserving representative natural environments of the different biogeographical regions and the most fragile ecosystems, to ensure the balance and continuity of evolutionary and ecological processes; ii) safeguarding the genetic diversity of wild species on which evolutionary continuity depends, particularly endemic, threatened, or endangered species; iii) ensuring the sustainable use of ecosystems and their elements, promoting the active participation of neighboring communities; iv) promoting scientific research, the study of ecosystems and their balance, as well as knowledge and technologies that enable the sustainable use of the country’s natural resources and their conservation; v) protecting and improving aquifer zones (zonas acuíferas) and watersheds, to reduce and avoid the negative impact that their poor management (manejo) may cause; and vi) protecting the natural and scenic surroundings of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest, of importance for culture and national identity.

For the achievement of such objectives, Decreto Ejecutivo No. 34433 of March 11, 2008, ‘Reglamento a la Ley de Biodiversidad,’ establishes that the “General Management Plan: It is the planning instrument that allows guiding the management (gestión) of a protected wild area toward the fulfillment of its long-term conservation objectives. It is based on medium-term strategic lines of action and on management objectives for the natural and cultural elements included within the area, as well as on the relationship of the latter with their socio-environmental surroundings. It is the basis for the development of other planning and regulatory instruments for Protected Wild Areas.” The aforementioned general management plan contemplates several management elements, including: the mission, vision, and conservation objectives of the protected wild area, an assessment of the wild area and the surroundings in which it is located, management programs, threat and risk analysis, as well as the organization of the surface area according to ecosystem characteristics, species, and prohibited and authorized activities.

Regarding the management or management (gestión) categories of protected wild areas, the IUCN has mentioned the following: ia) strict nature reserve (reserva natural estricta), ib) wilderness area (área silvestre), ii) national park (parque nacional), iii) monument (monumento), iv) habitat/species management areas, v) protected landscape (paisaje protegido), and vi) protected area with sustainable use of natural resources.

Strict nature reserves are understood as those “strictly protected areas set aside to protect biodiversity as well as geological/geomorphological features in which visits, use, and impacts are strictly controlled and limited to ensure the protection of conservation values. These protected areas can serve as indispensable reference areas for scientific research and monitoring.” Meanwhile, category ib) wilderness areas are defined as “large unmodified or slightly modified areas, retaining their natural character and influence, without significant or permanent human settlements, which are protected and managed to preserve their natural condition.” The IUCN conceptualizes national parks as “large natural or near-natural areas set aside to protect large-scale ecological processes, along 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.” Among the objectives assigned to this type of protected wild area are the protection of biodiversity and environmental processes, as well as the promotion of education and recreational use.

Category iii) monument or natural feature refers to protected areas that “are set aside 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 element such as an ancient grove. They are generally quite small protected areas and often have high visitor value.” In turn, habitat/species management areas have as their objective: “the protection of particular habitats or species and their management reflects that priority. Many Category IV protected areas will need regular active interventions to address the requirements of particular species or to maintain habitats, but this is not a requirement of the category.” For its part, the protected terrestrial/marine landscape is “A protected area where the interaction between human beings and nature has produced an area of distinctive character with significant ecological, biological, cultural, and aesthetic values; and where safeguarding the integrity of this interaction is vital to protecting and maintaining the area, the conservation of its nature, and other values.” Finally, protected areas with sustainable use of natural resources “conserve ecosystems and habitats, along with associated cultural values and traditional natural resource management systems.

They are normally extensive, with a majority of the area in natural conditions, where a portion is under sustainable natural resource management, and where low-level, non-industrial use of natural resources compatible with nature conservation is considered one of the main objectives of the area.” Specifically in Costa Rica, numeral 32 of the Ley Orgánica del Ambiente regulates the classification of management categories of protected wild areas in this manner: i) forest reserves (reservas forestales), ii) protective zones (zonas protectoras), iii) national parks (parques nacionales), iv) biological reserves (reservas biológicas), v) national wildlife refuges (refugios nacionales de vida silvestre), vi) wetlands (humedales), and vii) national monuments (monumentos nacionales). In development of this, the Reglamento a la Ley de Biodiversidad sets forth the conceptualizations of such categories.

Regarding the forest reserve, it comprises geographic areas formed by forests or lands of forest aptitude, whose main purpose is the protection of forest genetic resources to ensure the sustainable national production of forest resources in the long term, and by those forest lands that by their nature are especially suitable for that purpose.

On the other hand, protective zones refer to geographic areas formed by forests or lands of forest aptitude, in which the main objective is the regulation of the hydrological regime, the protection of soil, and watersheds. In accordance with ordinal 52 of the Ley Orgánica del Ambiente, this management category has among its purposes “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, in view of its characteristics, in this management category it is possible for private property to exist, given that it is not necessary for the State to effect its purchase or expropriation. Additionally, in the protective zone, owners are authorized a series of activities within their lands, including ecotourism, research, education, construction of public works, and the granting of concessions and permits, provided they are compatible with the general management plan of that management (gestión) category.

In turn, national parks are understood as geographic areas, terrestrial, marine, marine-coastal, freshwater, or a combination of these, of national importance, established for the protection and conservation of natural beauties and biodiversity, as well as for public enjoyment. These areas present one or several ecosystems, in which species, habitats, and geomorphological sites are of special scientific, cultural, educational, and recreational interest or contain a natural landscape of great beauty.

On this point, Article 2 of the ‘Convención para la protección de la flora, de la fauna y de las bellezas escénicas naturales de los países de América’ defines national parks as those regions intended for the protection and conservation of natural beauties and flora and fauna of national importance, which the public may better enjoy by being placed under official supervision. It also stresses that the riches existing in these protected wild areas cannot be exploited for commercial purposes, and that the States agree to prohibit “the hunting, killing, and capture of fauna specimens and the destruction and collection of flora specimens in national parks, except when done by the park authorities or by order or under the supervision of the same or for duly authorized scientific research.” In accordance with numeral 8 of Law No. 6084 of August 24, 1977, ‘Ley del Servicio de Parques Nacionales,’ in that category of protected wild area, visitors are prohibited from: i) felling trees and extracting plants or any other forest product; ii) hunting or capturing wild animals, as well as collecting or extracting any of their products or remains; iii) hunting turtles of any species and collecting or extracting their eggs or any type of product or remains; 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 indicated in ordinal 10; vi) collecting or extracting corals, shells, rocks, or any other product or waste from the sea; vii) collecting or extracting rocks, minerals, fossils, or any other geological product; viii) carrying firearms, harpoons, and any other instrument that may be used for hunting; ix) introducing exotic animals or plants; x) grazing and watering livestock or raising bees; xi) causing any type of environmental contamination; xii) extracting stones, sands, gravel, or similar products; xiii) giving food or drink to animals; xiv) constructing electrical or telephone transmission lines, aqueducts, or roads or railways; xv) carrying out any type of commercial, agricultural, or industrial activity.

Likewise, Article 11 eiusdem proscribes the constitution of easements (servidumbres) in favor of tenements, while, according to numeral 12, no concessions whatsoever may be granted for the exploitation of products of national parks, nor may permission be granted to establish facilities other than those of the Service.

Regarding sport and artisanal fishing in national parks, ordinal 10 eiusdem provides: “The Service may, upon affirmative opinion of the council, authorize sport and artisanal fishing in certain areas of national parks, when it is verified that they will not produce ecological alterations.” Concerning fishing activity, Law No. 8436 of March 1, 2005, ‘Ley de Pesca y Acuicultura,’ provides that:

“Article 9—The exercise of fishing activity for commercial purposes and sport fishing in national parks, natural monuments, and biological reserves is prohibited.

The exercise of fishing activity in the continental and insular part, in forest reserves, protective zones, national wildlife refuges, and wetlands, shall be restricted in accordance with the management plans, which the Ministry of Environment and Energy (MINAE) shall determine for each zone, within the scope of its attributions. To create or expand protected zones that cover marine areas, except those approved by the Legislative Assembly in accordance with current laws, the Ministry must consult the opinion of INCOPESCA, regarding the sustainable use of biological resources in these zones.

The opinion that INCOPESCA issues must be based on technical, social, economic, scientific, and ecological criteria, and be issued within a period of thirty calendar days, counted from the date of receipt of the consultation.

The surveillance of fishing in the protected wild areas indicated in this article shall correspond to MINAE, which may coordinate operations with the National Coast Guard Service.

Vessels shall be permitted to remain in protected areas with or without a marine portion, in cases of fortuitous event and force majeure, for the duration of such situations.

MINAE and INCOPESCA may jointly authorize the transit or anchorage of vessels in protected areas, when natural conditions strictly require it (…)

Article 13.—INCOPESCA shall exercise control over fishing and aquaculture activity carried out in marine and inland waters and shall provide technical assistance to aquaculture activity in continental and marine waters. In continental waters, the protection of aquatic resources shall correspond to MINAE. Within the latter shall be included rivers and their mouths, lakes, lagoons, and reservoirs, including areas declared as forest reserves, protective zones, national parks, mangroves, wetlands, biological reserves, national wildlife refuges, and natural monuments, in adherence to current legislation and the provisions of ratified international treaties, especially RAMSAR.

MINAE and INCOPESCA are empowered to, by mutual agreement, establish and approve joint management plans for marine resources of wetlands for the rational utilization of aquatic resources, except in those included in national parks and biological reserves (…)

Article 48.—Licenses to capture shrimp for commercial purposes in the Caribbean Sea shall be permitted in accordance with the technical and scientific criteria issued by the executing authority. Licenses shall not be given for capture in national parks and other protected areas.” Regarding biological reserves, these are geographic areas with terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination of these, and species of particular conservation interest. Among their main purposes, conservation, protection of biodiversity, and research are envisioned. Consequently, agricultural, tourist, commercial, and industrial activities are proscribed there.

Concerning national wildlife refuges, they are conceived as geographic areas that possess terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination of these. Among their main purposes are the conservation, research, increase, and management of wild flora and fauna, especially those that are in danger of extinction.

It should be noted that this type of management category may be: i) State-owned, therefore they are public domain assets and their administration corresponds exclusively to SINAC. Here, conservation, research, and management of wild flora and fauna prevail, especially of those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. Furthermore, only the execution of research, training, and ecotourism activities is permitted. ii) Privately owned, whose surface area belongs to private parties and its administration corresponds to its owners under the supervision of SINAC. In privately owned refuges, the aim is the conservation, research, and management of wild flora and fauna, especially of those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species.

Additionally, in this class of refuge, only productive activities may be carried out as established by the Reglamento de la Ley de Conservación de la Vida Silvestre. iii) Mixed ownership, in which the geographic space belongs partly to the State and partly to private parties, so that administration is shared. This class of refuge has as purposes the conservation, research, and management of wild flora and fauna, especially of those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. Due to its mixed nature, on State-owned lands, only the activities indicated for State-owned refuges may be carried out, while on privately owned lands, it is viable to develop the activities envisioned for privately owned refuges.

Regarding wetlands, they are geographic areas that embrace ecosystems of national importance dependent on aquatic regimes, natural or artificial, permanent or temporary, lentic or lotic, fresh, brackish, or saline, including marine extensions up to the posterior limit of marine phanerogams or coral reefs or, in their absence, up to six meters in depth at low tide, whose main function is the protection of those ecosystems to ensure the maintenance of their ecological functions and the provision of environmental goods and services. Furthermore, according to Article 41 of the Ley Orgánica del Ambiente, wetlands and their conservation are of public interest, regardless of whether or not they are protected by laws governing the matter. For its part, ordinal 7 of the Ley de Conservación de la Vida Silvestre contemplates among the functions of SINAC that of “Protecting, supervising, and administering, with an ecosystemic approach, wetlands, as well as determining their classification of national or international importance.” In this type of protected wild area, it is possible to carry out education, research, ecotourism, water use, forest extraction (aprovechamiento forestal) activities, among others.

Lastly, national monuments are geographic areas that comprise one or several natural elements of national or cantonal importance, created by MINAE and administered by the respective municipalities. Such management category includes natural places or objects that, due to their unique or exceptional character, their scenic beauty, or their scientific value, are considered necessary to incorporate into a protection regime.

From the foregoing, it follows that the various management or management (gestión) categories of protected wild areas share several objectives, among which conservation naturally stands out; however, they also have specificities that distinguish them and explain the reason for the classification, such as the particular purposes each one pursues (and that scientifically distinguish them from one another), as well as the regime of administration, planning, uses, and prohibitions they contemplate. Therefore, prior to defining the management category that should be assigned to a specific geographic space that will become a protected wild area, it becomes fundamental to consider its particular characteristics and protection requirements, as well as the main management objectives of the various categories, in order to establish which of these is most compatible with the zone intended to be affected. In other words, to establish the type of category to assign to a given surface, it is essential to previously analyze the compatibility of the particular management objective with aspects such as the needs and dangers of the ecosystem, as well as the species of the geographic space in question.

Precisely, the IUCN World Commission on Protected Areas has enumerated some issues that require technical studies before assigning a certain management category to a geographic space, such as, for example: i) studying the ecological needs of the ecosystem and species; ii) determining possible threats; iii) analyzing the objectives of the protected area and the international designations envisioned; iv) executing a review process of the management categories; v) avoiding negative consequences for the ecosystem and species; vi) assessing both the marine and terrestrial landscape; vii) considering the opinion of direct stakeholders; among others.

For its part, the Ley Orgánica del Ambiente contemplates these requirements for the creation of protected wild areas: i) carrying out preliminary physiogeographic, biological diversity, and socioeconomic studies that justify it; ii) defining the objectives and location of the area; iii) examining technical feasibility and land tenure; iv) having the minimum financing to acquire the area, protect it, and manage it; v) preparing the plans; and vi) issuing the corresponding decree or law.

Thus, for us it is fully accredited that the creation of protected wild areas and the assignment of the respective management plan does not respond to the free will of the State, but that it is unavoidable to respect a series of requirements that include environmental scientific studies, the determination of objectives and minimum financing, socioeconomic, geographic, geological, and topographical analysis, among others. The above is required in order to guarantee that the distinctive elements and specific objectives of a given zone are the decisive factors for defining the type of administration, planning, uses, and prohibitions to be imposed in the corresponding geographic space.

In accordance with the stated position and concerning the reduction of protected wild areas, this Tribunal indicated in judgment No. 2019000673 of 12:00 hours on January 16, 2019:

“V.—Jurisprudence on the reduction of protected areas, the sufficiency of technical reports, and due compensation.—Regarding the reduction of protected zones, from the jurisprudence of this Chamber, the following is noted:

1. Constitutional requirements for the reduction of a protected wild area (legal reserve and technical studies): In support of Article 38 of the Ley Orgánica del Ambiente (“the surface area of protected wild areas, natural heritage of the State, whatever their management category, may only be reduced by Law of the Republic, after carrying out the technical studies that justify this measure”), there has been a solid jurisprudential line, to the effect that for the reduction of a protected wild area, in any of its management categories (including national wildlife refuges), two essential requirements must be met: “by means of law and prior completion of sufficient technical studies that justify the measure.” (Sala Constitucional, votes numbers 13367-2012 and 010158-2013. In similar vein, judgments numbers 7294-1998, 11155-2007, 1056-2009, 18702-2010, and 14772-2010, among others). As stated in the aforementioned 1998 resolution:

““(…) once a certain area has been declared a protective zone by an act of the State, it cannot simply declassify it in whole or in part, 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. Now, the fact that a norm, of whatever rank, has declared a certain area a protective zone does not imply the constitution of a petrified zone, in the sense that its area can in no way be reduced by subsequent regulation. However, it must be kept in mind that the declaration and delimitation of a protective zone, in compliance with the provisions of Article 50 of the Constitution, implies a defense of the fundamental right to the environment and, therefore, the reduction of its area must not imply a detriment to that right, a situation that must be established in each specific case.

It is not necessarily unconstitutional for a later law to reduce the area of a protective zone, a forest reserve, a National Park, or any other site of environmental interest, provided that it is justified insofar as it does not imply a violation of the right to the environment. It could be that, due to various circumstances, a given site has lost, at least in part, the environmental interest that initially provoked it, which, upon the pertinent studies being performed, would justify its modification or reduction, all in application of the principle of constitutional reasonableness…” (vote No. 7294-1998).

Specifically regarding the legal reserve in this matter, in vote No. 14772-2010 it was stated:

(…) the public purpose of a public domain asset cannot be modified without a legislative act, that is, the reduction of the area of a protected zone is under the guarantee provided by the principle of legal reserve. Although, in accordance with Article 36 of the Ley Orgánica del Ambiente, the Executive Branch is authorized to constitute Protected Wild Areas by complying with the requirements established in that norm, thus, Corcovado National Park was constituted through Decretos Ejecutivos No. 5357-A of October 24, 1975, and 1148-A of February 5, 1980, its modification may only be carried out in accordance with the provisions of Article 38 of the Ley Orgánica del Ambiente, prior technical and scientific studies, and through a legislative act. (highlighting does not correspond to the original).

Likewise, in judgment No. 1056-2009 it was indicated that reduction is only possible via law:

“when the expansion of the boundaries of protective zones of the State’s forest heritage is involved, it is possible to do so via regulation, but when their reduction is involved, it can only be done via law, clearly, provided that there is a prior criterion that justifies the measure.” (Judgment of the Sala Constitucional No. 1056-2009) Which was applied when the Chamber declared unconstitutional the regulatory norm (Decreto Ejecutivo No. 32753-MINAE) through which the Executive Branch diminished the territory of the Gandoca-Manzanillo Refuge, removing from the area and from the protection regime the urban zone of the Refuge.

Furthermore, regarding studies, they must be prior, sufficient, necessary, and individualized—as indicated in the following section—. Thus, it was stated in that same 1998 resolution:

“In accordance with the foregoing, mutatis mutandi, if for the creation of a protective wild area the Legislative Assembly, by means of a law, established the fulfillment of specific requirements, in order to determine whether the affectation in question is justified, it is logical that, for its partial or total declassification, certain requirements must also be met—such as the performance of environmental technical studies—to determine that with the declassification the content of Article 50 of the Constitution is not transgressed. In this sense, we can speak of levels of declassification. Thus, not every declassification of a protected zone is unconstitutional, insofar as it implies detriment to the right to the environment or a threat to it. Hence, to reduce any protected wild area, the Legislative Assembly must do so based on sufficient and necessary technical studies to determine that no damage will be caused to the environment or that it will not be endangered and, therefore, that the content of Article 50 of the Constitution is not violated.

The principle of reasonableness, in relation to the fundamental right to the environment, obliges that the norms issued with respect to this matter be duly motivated by serious technical studies, even if no other legal norm expressly establishes it. In the judgment of this Constitutional Court, the requirement contained in Article 38 of the Ley Orgánica del Ambiente No. 7554, to the effect that to reduce a protected wild area by formal law, the technical studies justifying the measure must be carried out beforehand, is nothing other than the objectification of the principle of reasonableness in matters of environmental protection.” (highlighting does not correspond to the original).

2.

Technical study as a scientific and individualized analysis: The Chamber has referred to the sufficiency of the technical study, when through various decisions it has established that said study must be a scientific and individualized analysis. The following was stated:

“the requirement of technical studies is not a mere formality, but rather a material requirement, that is, it must be materially demonstrated, through a scientific and individualized analysis, the degree of impact of the corresponding measure on the environment, to propose recommendations aimed at reducing the negative impact on it, and to demonstrate how such measure implies development that meets the needs of the present without endangering the capacity of future generations to meet their own needs.” (Voto No. 13367-2012. See also No. 10158-2013).

From which it follows that, the technical study required by Article 38 of the Ley Orgánica del Ambiente and which is the objectification of the constitutional principle of reasonableness regarding environmental protection, requires a technical analysis that implies an individualized analysis, which must contain at a minimum the following measures:

The degree of impact of the corresponding measure on the environment; The recommendations aimed at reducing the negative impact on the environment; The demonstration of how the measure being taken implies development that meets the needs of the present without endangering the capacity of future generations to meet their own needs.

In summary, said prior study must demonstrate that the removal of protection (desafectación) is consistent with constitutional protection of the right to the environment, since as stated in voto no. 18702-2010 “the titling of areas of this nature cannot be permitted indiscriminately, as this would go against the very environmental conservation policies that the State has pursued by virtue of the duties mandated by the Political Constitution and the International Conventions it has signed." 3. Compensation measures: A protected area can only be reduced if done by law, if there are technical and scientific studies that rule out environmental damage, and if compensation is provided for the area removed with another of equal size. There is no doubt that all those norms in which there is a reduction of protected areas without the support of technical studies or any compensation are unconstitutional” (voto Nos. 12887-2014, 2773-2014, 2012-13367 and 2009-1056).

VI.Regarding the challenged regulations.- As observed, both the Ley para regular la creación y el desarrollo del puesto fronterizo Las Tablillas, Law No. 8803, and its Reglamento, are challenged in their entirety, basically for two reasons: for not having the technical study supporting the reduction of a protected area (in this case a national wildlife refuge), and for not establishing compensation measures. Each of these allegations is examined separately. REGARDING THE TECHNICAL STUDY: The claimant indicates that the challenged Law and its reglamento are segregating and reducing several hectares of the Refugio Nacional de Vida Silvestres of the border zone, without environmental studies existing that would justify that action. Indicates that the deputies took a simple recommendation that can never be considered a serious, profound, and comprehensive study that would allow doing what was done.

The Procuraduría General de la República in its report indicates that, already in the Legal Opinion of this Procuraduría No. O.J.-98-2009, issued on October 14, 2009, upon consultation by the Deputies, during the processing of the bill that culminated in Law No. 8803, it analyzed the technical study incorporated into the expediente at that time, considering it insufficient to justify it: “…respectfully it must be noted that said technical report does not meet the necessary requirements to support the bill being consulted. Note that it makes a study of the 236 hectares that were initially proposed and concludes that the bill is not viable from an environmental and social standpoint. However, said study does not explain in any way, for what reason that negative impact does not occur on the 13 hectares that are proposed, or in other words, there does not exist, to date, a technical criterion that refers to the reasons why the segregation of the 12.3 hectares established in the consulted bill is viable…”.

The Ministro de Ambiente y Energía indicates that there is no unconstitutionality. Adds that, the challenged law was not intended to remove from the public domain (desafectación del dominio público) the zone in question, but to authorize the use of a portion of the area for another purpose of public interest, which is the installation of a border and customs post, on the understanding that these are State constructions and not private ones. Thus, on September 28, 2007, the technical report prepared by the commission for the Tablillas case, called “Request for reduction of the area of the Refugio Nacional Corredor Fronterizo,” is issued, proposing an area to be removed from protection (desafectar) of 13 ha bordering the border line, because the officials of the Área de Conservación Arenal Huetar Norte considered the segregation of the indicated area of 236 ha unviable, the report concluding that: “13 hectares would be a more viable proposal from the standpoint of impact on the ecosystems present at the site and surroundings.” Said report considered biophysical aspects, socioeconomic aspects, security.

Concludes that, the cost-benefit balance of establishing posts that carry out control and management of migratory entry in said sector, contributes to regulating entry through the demanial strip coinciding with the Área Silvestre Protegida. The Ministros de la Presidencia and de Comercio Exterior indicate that, on folios 76 through 94 of the legislative expediente, the technical report prepared in September 2007 by MINAE is recorded. The identified site meets the suitable conditions for the development of the project of a Border Post since it had already been impacted by human action, a fact that is verified by the non-existence of important or fragile ecosystems, the non-presence of primary or secondary forest cover (cobertura boscosa), nor of wetlands or watercourses, but only of natural pastures and clean land for cultivation or ready for planting. Furthermore, the area is technically strategic for the location of the Border Post due to its proximity to the boundary line and the existence of communication routes for internal movement (roads) and a national highway connected to the route on the Nicaraguan side of the border.

In this regard, this Chamber concludes that, in effect, the Procuraduría General de la República is correct in its report, there does not exist a technical study that refers to the viability of this project, since the one that was carried out referred to a larger area, concluding that it was not viable from an environmental and social standpoint. Therefore, it should have been justified why the new proposal would not generate problems in the wetlands, in the species of the zone, in the aquifers, and would not produce social problems, as was detected in the initial proposal. The technical study referred to by the Ministers is evidently insufficient, as it does not explain in any way, for what reason that negative impact does not occur on the 13 hectares that are proposed, the degree of impact of the corresponding measure on the environment, the recommendations aimed at reducing the negative impact on the environment, nor the demonstration of how the measure being taken implies development that meets the needs of the present without endangering the capacity of future generations to meet their own needs.

On the other hand, while it may be true, as the Ministers say in their report, that the property is not leaving the public domain, it is true that it is being removed from protection (desafectada), environmentally speaking. It may also be true, as the Ministers say in their report, that besides the environmental interest in the border zone, there may be other relevant interests such as migratory security and others. However, that is precisely what the technical report should have contained in its reasoning. Note that, as the Ministers indicate, it may be true that certain environmental measures were being taken, this does not negate the fact of the lack of the technical report that the law should have had, which leaves those environmental measures without the required technical support. Thus, the alleged unconstitutionality of the challenged law –and by connection its reglamento– is evidenced, due to the lack of a sufficient technical report that supported the reduction of the Refugio Nacional de Vida Silvestre of the border zone.

REGARDING COMPENSATION MEASURES: The claimant indicates that timely compensation measures were not established in the law, given the ordered segregation. The Procuraduría General de la República in its report indicates that, an unconstitutionality for violation of this principle is not necessarily resolved by the annulment of the Law; if classified as an unconstitutionality by omission, it would suffice for the Sala Constitucional to order in the judgment the addition to the Refugio of the portion or portions that compensate the area removed, which could be done even by regulatory means. The Ministros de la Presidencia and de Comercio Exterior indicate that, the claim for demolition of the public infrastructure would cause the immediate lack of protection of order, peace, health, sustainable development, life, and human dignity. Furthermore, they consider that there is no obligation of the State to compensate an already deforested and impacted area with another, given that a reduction of forest or an impact on the environment that would justify the compensation measure never occurred.

In this regard, this Chamber concludes that, in effect, the challenged norms are also silent on the compensation measures. The segregation of approximately 13 hectares being evident, as indicated by Article 1 of the challenged law, and although these do not leave the public domain, they did leave an environmental management category, which obligated the establishment of legal compensation measures, which were not adopted, nor guaranteed, as observed from reading the entire law. Thus, the alleged unconstitutionality of the challenged law –and by connection its reglamento– is evidenced, due to the lack of compensation measures for the reduction of the Refugio Nacional de Vida Silvestre of the border zone.

VII.In conclusion.- From the reiterated jurisprudence of this Chamber, it is established that, for any reduction of a protected wilderness area (área silvestre protegida), in any of its management categories (including national wildlife refuges), three essential requirements must be met: legal reserve (that is, it can only be done by law), prior completion of sufficient technical studies that justify the measure, and establishing compensation measures. In this case, it was evidenced that the Ley para regular la creación y el desarrollo del puesto fronterizo Las Tablillas (Law No. 8803) and its Reglamento proceeded with the segregation, and consequent reduction, of the Refugio Nacional de Vida Silvestre of the border zone. However, although it was done by means of a law, a sufficient prior study was not carried out that: justified the measure, established the degree of impact of the corresponding measure on the environment, the recommendations aimed at reducing the negative impact on the environment, nor that demonstrated how the measure being taken implies development that meets the needs of the present without endangering the capacity of future generations to meet their own needs, or established in concrete and detail compensation measures.

From all of which the unconstitutionality by omission is evidenced. Proceeding in this case to declare the action with merit, with a dimensioning of this judgment, as indicated” (the highlighting was incorporated).

In other words, the reduction, qualitative or quantitative, of a protected wilderness area (área silvestre protegida) is constitutionally valid as long as: i) it is carried out by means of a law; ii) beforehand there are appropriate, sufficient, and individualized scientific studies; and iii) compensation measures are adopted.

It is worth noting that there is also the possibility that the management category assigned to a particular geographic space ceases to be compatible with the assigned conservation objectives and that, because of this, it becomes necessary to modify the type of category, for which purpose, as the UICN maintains, a strict process like that initially used to create the protected wilderness area (área silvestre protegida) that is the object of this action and the corresponding management category must be followed. In this regard, Article 59 of the Ley de Biodiversidad (no. 7788 of April 30, 1998) establishes that SINAC may recommend raising the category of protected wilderness areas (áreas silvestres protegidas), for which it must observe the provisions of the Ley Orgánica del Ambiente.

Therefore, it is viable to make changes to the management category granted to a protected wilderness area (área silvestre protegida), for which, when the aforementioned modification implies raising the management category, such increase can be made by means of an executive decree or a law; however, if what is intended is to generate a qualitative or quantitative reduction of the protected wilderness area (área silvestre protegida), it is unavoidable that the procedure be done by law and that the corresponding compensation be given.

Now, it should be indicated that, according to the Ley de Biodiversidad, the ownership of protected wilderness areas (áreas silvestres protegidas) can be state, municipal, private, or mixed. Furthermore, it is provided that, given the importance that protected wilderness areas (áreas silvestres protegidas) hold for the conservation and sustainable use of the country, both MINAE and public entities must encourage their creation, as well as monitor and contribute to their management. -see Article 60 of that regulatory body-.

Such is the magnitude of the importance of protected wilderness areas (áreas silvestres protegidas), that the legislator provided in Article 61 of the Ley de Biodiversidad, that MINAE together with the Ministerio de Hacienda must include in the Republic’s budgets the respective transfers to the trust or the financial mechanisms for protected areas in order to ensure, at least, the personnel and resources determined by SINAC as necessary for the operation and integrity of the state protected wilderness areas (áreas silvestres protegidas), as well as for the permanent protection of biological reserves, national parks, and other wilderness areas (áreas silvestres) owned by the State.

In addition to the above, it should be highlighted that Article 37 of the Ley Orgánica del Ambiente authorizes the Poder Ejecutivo to: i) include within the limits of the protected wilderness areas (áreas silvestres protegidas) all or part of private properties that are necessary to fulfill the objectives provided in the legal system and in the management plan; and ii) create legal easements (servidumbres) in order to guarantee ecological protection and compliance with the law. It is also provided that, in the case of national parks, biological reserves, or state national wildlife refuges, the lands shall be acquired by purchase, expropriation, or both, upon prior compensation, since their conservation and management objectives are not compatible with private property.

In the case of forest reserves, protective zones, mixed wildlife refuges, and wetlands, the purchase or expropriation of lands is authorized, unless the owner voluntarily submits them to the forestry regime. In addition, that norm clarifies that: "Private properties affected according to the provisions of this article, for being located in national parks, biological reserves, wildlife refuges, forest reserves, and protective zones, shall be included within the state protected areas (áreas protegidas) only from the moment they have been legally paid for or expropriated, except when they voluntarily submit to the Forestry Regime. In the case of forest reserves, protective zones, and wildlife refuges, and if the payment or expropriation has not been made and while it is being carried out, the areas shall be subject to an environmental planning plan that includes the environmental impact assessment (evaluación de impacto ambiental) and subsequently, to the plan for management, recovery, and restoration of the resources".

It should be noted that, regarding protected marine areas, a private property regime does not exist, since the sea is a demanial asset, so the State is responsible for the administration of the assets and resources of that zone and, consequently, it is necessary to regulate its use and exploitation.

In short, protected wilderness areas (áreas silvestres protegidas) can be classified into management categories, each of which pursues different conservation objectives according to their particular qualities. Consequently, in assigning a type of category to a specific geographic space, its connection with the achievement of the primary objectives of the corresponding category must prevail, and in consideration of such qualities, for which purposes it becomes unavoidable to have respective scientific studies, especially since although management categories promote conservation, the truth is that not all are compatible with the characteristic traits of each specific geographic space.

II.Regarding cultural heritage. In the first place, note that Article 89 of the Carta Magna establishes: "Among the cultural purposes of the Republic are: protecting natural beauties, conserving and developing the historical and artistic heritage of the Nation, and supporting private initiative for scientific and artistic progress." Secondly, it is underlined that the 'Convención para la Protección del Patrimonio Mundial, Cultural y Natural', approved by Law no. 5980 of November 16, 1976, establishes:

"Article 1.-For the purposes of this Convention the following shall be considered as 'Cultural Heritage':

Monuments: architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, 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 man or the combined works of nature and man, 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 as 'Natural Heritage':

Natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view.

Geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation.

Natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation of natural beauty (…)

Article 4.-Each State Party to this Convention recognizes that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage situated on its territory, belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain.

Article 5.-To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavor, in so far as possible, and as appropriate for each country:

• a)To adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes; b) To set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions; c) To develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage; d) To take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage; and e) To foster the establishment or development of national or regional centres for training in the protection, conservation and presentation of the cultural and natural heritage and to encourage scientific research in this field.

Article 6.- 1.-Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property rights provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.

1. 2The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage referred to in Article 11, paragraphs 2 and 4, if the State on whose territory it is situated so requests.
2. 3Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention.

Article 7.-For the purpose of this Convention, international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international co-operation and assistance designed to support States Parties to the Convention in their efforts to conserve and identify that heritage" (the highlighting was incorporated).

This implies that the Costa Rican State committed itself to the protection of cultural and natural heritage; to that end, it must, among other things, carry out the necessary actions to "identify, protect, conserve, present and transmit to future generations the cultural and natural heritage." In other words, the State must execute actions aimed at guaranteeing the protection and conservation of cultural and natural heritage, as well as its rehabilitation, all with the purpose of achieving its preservation.

For its part, by means of Law no. 6360 of September 5, 1979, the 'Convención Defensa Patrimonio Arqueológico Artístico Naciones Americanas' was approved, which regulates:

"ARTICLE 1 The purpose of this Convention is the identification, registration, protection, and vigilance of the goods that make up the cultural heritage of the American nations, in order to: a) prevent the illicit export or import of cultural goods, and b) promote cooperation among the American States for mutual knowledge and appreciation of their cultural goods.

ARTICLE 2 The cultural goods referred to in the preceding article are those included in the following categories:

• a)monuments, objects, fragments of dismembered buildings, and archaeological material belonging to American cultures prior to contact with European culture, as well as human, faunal, and floral remains related to them; b) monuments, buildings, artistic, utilitarian, ethnological objects, whole or dismembered, from the colonial period, as well as those corresponding to the 19th century; c) libraries and archives; incunabula, books and other publications, iconographies, maps, and documents published up to the year 1850; d) all those goods originating after 1850 that the States Parties have registered as cultural goods, provided they have notified such registration to the other Parties to the Treaty; e) all those cultural goods that any of the States Parties declare or expressly manifest to include within the scope of this Convention (…)

ARTICLE 7 The property regime of cultural goods and their possession and alienation within the territory of each State shall be regulated by its internal legislation. In order to prevent the illicit trade of such goods, the following measures shall be promoted:

• a)registration of collections and of the transfer of cultural goods subject to protection; b) registration of the transactions carried out in establishments dedicated to the purchase and sale of said goods; c) prohibition of importing cultural goods from other States without the corresponding certificate and authorization.

ARTICLE 8 Each State is responsible for the identification, registration, protection, conservation, and vigilance of its cultural heritage; to fulfill such function it undertakes to promote:

• a)the preparation of legislative and regulatory provisions needed to effectively protect said heritage against destruction by abandonment or by inadequate conservation work; b) the creation of technical organisms specifically charged with the protection and vigilance of cultural goods c) the formation and maintenance of an inventory and a registry of cultural goods that allow their identification and location; d) the creation and development of museums, libraries, archives, and other centers dedicated to the protection and conservation of cultural goods; e) the delimitation and protection of archaeological sites and places of historical and artistic interest; f) the exploration, excavation, research, and conservation of archaeological places and objects by scientific institutions that carry them out in collaboration with the national organism in charge of archaeological heritage" (the highlighting was incorporated).

The foregoing reflects that with the 'Convención Defensa Patrimonio Arqueológico Artístico Naciones Americanas' the Costa Rican State committed to adopt measures in order to guarantee the identification, registration, protection, and vigilance of the goods that make up cultural heritage.

In the case of Law no. 4711 of January 6, 1971, called 'Conservación Bienes Culturales por Ejecución Obras Públicas o Privadas', the Recommendation on the conservation of cultural property endangered by public or private works, signed in Paris on November 22, 1968, was approved and it was established that:

"1. For the purposes of this recommendation, the expression 'cultural property' shall apply to:

a. Immovable property, such as archaeological, historical, or scientific sites, buildings or other constructions of historical, scientific, artistic, or architectural value, religious or secular, including groups of traditional buildings, historic districts of urban and rural urbanized areas, and vestiges of past cultures that have ethnological value. It shall apply both to immovable property of the same character that constitutes ruins above ground level and to archaeological or historical remains found beneath the surface of the earth. The term 'cultural property' also includes the setting surrounding such property.

b. Movable property of cultural importance, including that found within immovable property or recovered from it, and that which is buried and may be found in places of archaeological or historical interest or elsewhere. (…)

2. General Principles 3. Measures for the conservation of cultural property should extend not only to certain monuments or sites, but to the entire territory of the State.

4. Inventories should be carried out for the protection of important cultural property, whether registered or not as such. When such inventories do not exist, priority should be given, in establishing them, to the thorough and complete examination of cultural property in areas where such property is endangered as a consequence of the execution of public or private works.

5. Due account should be taken of the relative importance of the cultural property in question when determining the necessary measures:

a. To conserve the entirety of an archaeological site, a monument, or other types of immovable cultural property against the consequences of public or private works:

b. To salvage cultural property when the area in which it is situated is to be transformed for the execution of public or private works and when such property or parts of it are to be conserved and relocated.

The measures to be taken shall vary according to the character, size, and location of the cultural property, and according to the nature of the dangers threatening it.

7. The measures aimed at conserving or saving cultural property should be both preventive and corrective.

8. Preventive and corrective measures should have the purpose of protecting or saving cultural property endangered by public or private works that may deteriorate or destroy it, for example:

a. Urban expansion and renewal works, in which, although registered monuments are respected, less important structures are modified, thereby destroying the connections and the historical setting surrounding the monuments in historic neighborhoods; b. Similar works in areas where traditional groups of cultural value may be in danger of destruction because no registered monument exists there:

c. Inopportune modifications or repairs of historical buildings; d. The construction or modification of roads that constitute a serious danger for sites, monuments, or groups of monuments of historical importance; e. The construction of dams for irrigation purposes, electric power generation, and flood prevention; f. The construction of oil pipelines and electric power transmission lines; g. Agricultural works such as deep plowing of the land, drainage and irrigation works, land clearing and leveling, and reforestation; h. Works required by industrial development and the technical progress of industrialized societies, such as the construction of airfields, the exploitation of mines and quarries, and the dredging and improvement of canals and ports, etc.

9. Member States should give priority to the measures necessary for the in situ conservation of cultural property endangered as a result of public or private works, in order to thereby maintain the continuity and historical connections of such property. When economic or social circumstances require the transfer, abandonment, or destruction of cultural property, the works aimed at saving it should always include a detailed study of the cultural property in question and the complete recording of data of interest.

10. The results of studies of scientific or historical interest carried out in connection with works intended to save cultural property, especially when all or a large part of the immovable cultural property has been abandoned or destroyed, should be published or otherwise made available to future researchers. (...)

13. To conserve or save cultural property that the execution of public or private works may endanger, resort should be had to means corresponding to the following precise measures, in accordance with the legal and organizational system of each State:

• a)Legislation, b) Financing, c) Administrative measures, d) Methods of conservation and salvage of cultural property, e) Sanctions, f) Reparations, g) Rewards, h) Advice, i) Educational programs.

(...)

21. When preliminary studies are carried out on construction projects in a locality of recognized cultural interest, or in which it is probable that objects of archaeological or historical value will be found, it would be advisable, before a decision is made, to develop various alternatives for such projects, on a regional or urban scale. The choice among those alternatives should be based on a comparative analysis of all elements, in order to select the most advantageous solution, both from the economic standpoint and with regard to the conservation or salvage of cultural property.

Methods of conservation and salvage of cultural property:

22. Sufficiently in advance of the execution of public or private works that may endanger cultural property, detailed studies should be carried out to determine:

a. The measures to be taken to conserve important cultural property in situ; b. The extent of the necessary salvage works, such as the selection of archaeological sites where excavations must be carried out, the buildings to be moved, the movable cultural property to be saved, etc.

23. Measures aimed at conserving or saving cultural property should be taken sufficiently in advance of public or private works. In important areas from the archaeological or cultural point of view in which there are important monuments, such as cities, towns, places, or neighborhoods of historical value, which should be protected by the legislation of all countries, all new construction should be subject to mandatory preliminary archaeological excavations. If necessary, the construction should be postponed to allow time for the measures intended to conserve or save the cultural property in question to be taken (...)" (emphasis added).

In turn, through Law No. 8560 of November 16, 2006, called 'Convention for the Safeguarding of the Intangible Cultural Heritage,' the scope of cultural heritage protection was broadened by taking intangible cultural heritage into consideration. In this regard, it was stated:

"Article 2—Definitions. For the purposes of this Convention, 1. 'Intangible cultural heritage' means the practices, representations, expressions, knowledge, and techniques—together with the instruments, objects, artifacts, and cultural spaces that are inherent to 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, and provides them with a sense of identity and continuity, thus contributing to promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as 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 inter alia in the following domains:

• a)oral traditions and expressions, including language as a vehicle of the 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 jurisprudential level, this Court indicated in judgment No. 4350-97 of 2:54 p.m. on June 24, 1997:

"SECOND: OF THE ARCHAEOLOGICAL HERITAGE OR CULTURAL HERITAGE. Cultural property is the product and testimony of the different traditions and spiritual achievements of the past and constitutes the fundamental element of the personality of peoples; therefore, it is essential to conserve it, and this is a fundamental task of the State. The foregoing means that the historical and artistic heritage is different from economic patrimonial property, because it is not a matter of means of production, but rather of the archaeological heritage, whose legal regime obeys another order of ideas and purposes and a different category of values that, therefore, cannot be examined with a criterion of economic policy, because no doctrine of that kind is applicable to it. The notion of 'patrimony,' certainly, includes any property that has a monetary value, as the Civil Code indicates; patrimony is the entire set of property and rights of a person or, also, that all the property constituting the patrimony of a person is liable for the payment of his 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 evidences, whether made of clay, stone, or metal. Some of these objects may be of scant physical value or of little significance as an artistic work, but even so they are valuable for their origin and as elements 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 there. But those goods, before and now, constitute a common patrimony that past generations bequeathed to the present ones, and it is up to the latter to pass it on to future generations as a display of knowledge of the human events that identify or characterize a past of our own.

For all of this, archaeological objects originating from the aboriginal races that populated the continent in the pre-Columbian era, prior to or contemporary with the establishment of Hispanic culture, have value, and it is because of that value that many persons seek and acquire those pieces. For that same reason, the individual interest that each person may have in the possession or ownership of those objects does not prevail over the public interest, both because of their historical value and because, within the culture of peoples, the study of what the human groups that inhabited the same territory did is essential; a study that is facilitated by making it possible for the greatest number of people to have access to those sources of knowledge, and nothing is more in keeping with that public interest than that archaeological property remain in national territory, in the possession of museums and under the ownership of the State or its institutions.

It must then be emphasized that the most important aspect is not the material value of the referred objects, but their historical, scientific, and cultural value. That interest is nothing more than a majority desire oriented toward obtaining the intended values; that is, of the majority of coinciding individual interests. It is an interest, because it is oriented toward the achievement of a value, benefit, or utility resulting from that upon which such majority coincidence falls. It is public, because it is assigned to the entire community, as a result of that coinciding majority, because it is of or belongs to the people, to the community in general. Thus, it is a public interest, because it is not exclusive or proper to a few persons, but rather insofar as such a number of persons, components of a given community, participate or coincide in it, that it can come to identify it as that of the entire group, including with respect to those who, individually, may or may not share it.

That is to say, values of a historical and cultural nature, as bearers of a message, contribute to identifying a specific historical moment, a real and tangible testimony of the evolution and transformation experienced by society and its natural environment through time, which constitute, before, today, and for the future, a common patrimony as an expression of the majority of coinciding individual interests, that is, of a public interest.

THIRD: OF THE CONSTITUTIONAL LEGAL REGIME OF THE NATIONAL ARCHAEOLOGICAL PATRIMONY. Among the essential aims of the State, the Constituent of 1949 established, for the purpose of transmitting that material legacy, which constitutes the link that joins the present with the future, those premises in Article 89 of the Political Constitution. This makes it necessary to mention its antecedents, in which, during its approval, reference was made to the historical or artistic heritage; in other words, to the cultural heritage in general. Indeed, in the Constituent Assembly of 1949, the text of Article 89 of the Political Constitution that was approved originated from a motion by Licenciado Fernando Baudrit Solera and other Deputies, in the following terms:

'Among the cultural aims of the Republic are: to conserve, develop, and nationalize the historical and artistic wealth, and to support private initiative for the scientific and artistic progress of the country.' From the proposed text, however, because it was objected to, the expression 'nationalize' was suppressed, and in its discussion, respect for the property of private collections was made clear, as individual interests that had to be protected, because it was not intended to dispossess anyone of their legitimate belongings, but considering that if it were necessary or convenient to expropriate, the State could do so in accordance with the Constitution and the laws. In the respective act, among other interventions, the following appears:

'Lic. Baudrit Solera explained that the idea of recording the possibility of nationalizing artistic or historical wealth was precisely for its conservation in the country, preventing it from being exported. Right now it is necessary to enact a series of laws that prevent individuals from disposing of their artistic and historical wealth to sell it to foreign countries. That is why reference was made to nationalizing the wealth, on the understanding that if it were necessary to expropriate, it would be done in accordance with the Constitution and the laws. No one intended to dispossess anyone. However, since he has no interest in maintaining the term 'nationalize,' he accepts the suggestion of colleague Chacón (Licenciado Alvaro Chacón Jinesta) provided that the other signers of the motion are in agreement, all the more so since if it is an obligation of the State to 'conserve,' it will thereby have the basis to expropriate, in a legal manner, the historical and artistic wealth, whenever it deems it convenient.' For this reason, the proposed text was modified, and Article 89 of the Political Constitution was approved as follows:

'Among the cultural aims of the Republic are: to protect the natural beauties, to conserve and develop the historical and artistic patrimony of the Nation, and to support private initiative for scientific and artistic progress.' Such constitutional provision derives from the original constituent, who deemed that archaeological or cultural property—historical patrimony—belonged to the State as a product of its archaeological patrimony. And, with regard to this article, the developed constitutional jurisprudence states:

'This Chamber has repeatedly stated in its jurisprudence the importance that living in a healthy and ecologically balanced environment has for the development of the human being, as well as the protection by the State of the landscape, nature, and the historical patrimony of the country. Aspects contemplated in what are now Articles 50 and 89 of the Political Constitution. ... The case before us refers specifically to the provisions of Article 89, which reads:

'Among the cultural aims of the Republic are: to protect the natural beauties, to conserve and develop the historical and artistic patrimony of the Nation, and to support private initiative for scientific and artistic progress.' Archaeology and History are two intimately linked sciences, having as one of their objectives to clarify and reconstruct the events of the past. Historical reconstruction is based fundamentally on the interpretation of written documents, while Archaeology bases its studies on the data it obtains through the material objects left by human action in societies that have since disappeared, by means of their relationship to one another, the form of the find, and their connection with the environment. Every preserved object, every vestige of the life and activity of man from past societies, represents a testimony that makes possible the total or partial knowledge, as the case may be, of those testimonies, and, therefore, of forms of life that are already nonexistent and unknown in the present, but whose knowledge is of singular importance, as they form part of the cultural identity of the society in which one lives; of course, to the extent that they are an important testimony for the reconstruction and knowledge of the events of the past.

The National Archaeological Patrimony consists basically of immovable and movable property, the product of indigenous cultures prior to or contemporary with the establishment of pre-Hispanic culture in the national territory, as well as human, flora, and fauna remains related to these cultures. From the foregoing arises the interest in protecting and conserving those finds.' (See judgments No. 2706, 10:42 a.m., March 26, 1995, and No. 0729, 9:15 a.m., February 9, 1996).

FOURTH: OF THE LEGAL REGIME OF THE NATIONAL ARCHAEOLOGICAL PATRIMONY. At the national level, two regimes have essentially been adopted to make possible, as international law does, the protection, defense, and recovery of cultural property, as the product and testimony of the different traditions and spiritual achievements of the past, which thus constitute the substantial element of the personality of peoples that makes it essential to conserve them. In that interest—which in the international sphere is recognized in texts such as Convention 107 of the International Labour Conference, concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries, approved by Law No. 2330 of April 8, 1959, which in its Articles 4, subsection a), and 18, subsection 2, obliges taking into consideration the values and cultural heritage of said populations; the Recommendation on the Conservation of Cultural Property Endangered by Public or Private Works, signed in Paris on November 22, 1968, approved by Law No. 4711 of January 6, 1971; the Convention for the Protection of the World Cultural and Natural Heritage, signed in Paris on November 23, 1972, approved by Law No. 5980 of November 16, 1976; and the Convention on the Defense of the Archaeological, Historical, and Artistic Heritage of the American Nations, also called the Convention of San Salvador, approved on June 16, 1976, at the Sixth Regular Session of the General Assembly of the Organization of American States (OAS) in Santiago, Chile, and which was ratified by Law No. 6360 of September 5, 1979, which in Article 2 includes within the cultural heritage or cultural property, the monuments, buildings, fragments of buildings, objects, and archaeological material belonging to American cultures prior to contact with European culture; those from the colonial period and after it, property that, in accordance with Article 3, must be the object of maximum protection at the international level, its export and import being considered 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 No. 7 of October 6, 1938, which, although it does not properly refer to 'archaeological patrimony' or historical (and artistic) patrimony, as the current Constitution does, established the following legal regime:

1st. It attributed to the State the ownership of all archaeological objects existing in the soil of Costa Rica, prior to the Spanish conquest, that is, corresponding to the pre-Columbian era, not yet included in private patrimony.

2nd. It did not recognize in favor of the State the ownership of archaeological objects from the colonial period; and 3rd. It denied validity to the transfer of any archaeological property, corresponding to the pre-Columbian era or the colonial period, if such property was not registered and inventoried in the Registry and authorization was not obtained from the Museum.

From these premises, two fundamental principles were derived:

1st. All archaeological objects existing in the soil of Costa Rica prior to the Spanish conquest, as well as monuments of the same kind that may be found, are the property of the State; and 2nd. Archaeological objects included in private patrimony at the time that Law was enacted are private property, thereby establishing the ownership regime for future finds and respecting previously acquired rights. On the other hand, Law No. 6703 of December 28, 1981, the subject of this action, was approved, which substantially modified the situation existing under the previous Law, which it repealed (in everything that contradicts it), and which recognizes, like the former, private ownership of archaeological objects included in private patrimony prior to the enactment of that previous Law. This Law established the following legal regime:

1st. Archaeological objects from the pre-Columbian era, found and transferred before the 1938 Law, are private property.

2nd. Property from the same era, found before but transferred after the 1938 Law, was subject to authorization by the Museum.

3rd. Objects from the same pre-Columbian era, found after the 1938 Law, are the property of the State; and 4th. Objects from the colonial period, with respect to which the 1938 Law did not establish any right of ownership in favor of the State, remained subject to control and restrictions.

The foregoing, in other words, means that the State was attributed ownership of objects from the pre-Columbian era found after that Law—the 1938 Law; with respect to those found before but transferred afterwards, the acquirer has no legitimate title of acquisition, since the transfer was conditioned on authorization from the Museo Nacional, and the State has a preferential right to acquire them; those found afterwards belong to the State, regardless of whether, being in the possession of private individuals, they were registered or not in the Museum; and with respect to those from the colonial period, any transfer effected before constitutes a legitimate title of acquisition, since they are property that were and continued to be private property under the validity of that Law, and insofar as it requires authorization to transfer archaeological objects, it refers only to transfers made from that point onward; but, with regard to property transferred afterwards, the acquirers of such property cannot claim a legitimate title of acquisition, even less so if the find occurred subsequently. All these aspects confirm the status of the heritage property found in the possession of private individuals, as that first Law recognized it (...)

EIGHTH: CONCLUSIONS. In the sub-judice, the essential basis upon which the declaration of unconstitutionality of Articles 3, 8, 17, 20, 26, and 29 of the 'Law of National Archaeological Heritage,' No. 6703 of December 28, 1981, is requested is the fact that, by imposing limitations (or deprivations or restrictions) on property that also redound to the detriment of freedom of commerce, its approval should have been by a qualified affirmative vote of thirty-eight deputies, as mandated by the second paragraph of Article 45 of the Political Constitution, which did not occur, since according to the attendance record, the vote—which was nominal—had the approval of thirty-one (31) affirmative votes and eight (8) negative ones. From the analysis of the considerations indicated, regarding the foundations underlying the 'archaeological heritage' as property of the State, it is necessary to conclude that such property, although like any thing it was at some time susceptible to appropriation, the truth is that at present, as of 1949, by constitutional mandate, it is different from economic patrimonial property, because it constitutes heritage property that the State must protect, conserve, and develop under the terms of Article 89 of the Political Constitution, which also recognizes private initiative for scientific and artistic progress.

Thus, as also stated, the limitations referred to in the second paragraph of Article 45 of the Constitution are those deriving from the '... principle of social solidarity, with which our constitution is imbued, (which) permits the encumbrance borne by all in favor of all, or even by a few in favor of many, but with the requirement that the natural use of the immovable property not be affected to the limit of its value as a means of production, or of its market value. That is to say, the attributes of property may be limited insofar as the owner retains for himself the possibility of normally exploiting the property, excluding, of course, the part or function affected by the limitation imposed by the State. Outside those parameters, if social welfare demands sacrifices only from one or some, it must be compensated.' (...) 'The limitation on property will withstand constitutional analysis depending on the impact on the essential attributes of property, which are those that permit the natural use of the thing, within the current socioeconomic reality.' (...) 'The damage may be general, rendering a large part of the property useless or affecting the best part of the property.

It could also be a limitation that makes the use of the thing impossible, because the State imposes authorization or approval requirements so complex that they imply, in fact, the impossibility of enjoying the use of the property. In these cases of special severity, the limitation produces three identifiable effects: a-it produces special damage because it affects a specific number of properties. b-It is abnormal, in that the impact is so serious in relation to the full enjoyment of the right and operates unequally vis-à-vis other owners outside the affected zone, and c-the damage is economically assessable. Consequently, if the limitation is of such a degree that it withdraws the property from its economic value and withdraws it from the commerce of immovable property, the State must compensate for the harm caused.' (See judgment No. 7418, 9:57 a.m., December 16, 1994).

Therefore, cultural property, more than property of social interest that tends to satisfy exigencies and requirements proper to public needs, that is, for the attainment of general welfare, is property that makes up the 'national archaeological heritage,' whose ownership by the State, as the representative of the entire community, is unobjectionable. From this it follows that it is not possible to deprive anyone of what belongs to the State, and therefore, consequently, the Law of National Archaeological Heritage, No. 6703 of December 28, 1981, by providing that archaeological heritage property is the property of the State (Article 3), prohibiting its commerce and export (Article 8), and that its possessors are obligated to lend it to the National Archaeological Public Registry for its registration (Article 17), does not create limitations—deprivations or restrictions—on private property that require a qualified vote as claimed.

That said, the foregoing does not signify a detriment to acquired patrimonial rights or consolidated legal situations, as was recognized both by the previous law and by the current legal regime to which reference has been made, and which the cited pronouncement of the Corte Plena, acting as a Constitutional Court, confirmed. For that very reason, the authorization referred to in the second paragraph of Article 45 of the Constitution is not for imposing all kinds of limitations on property, but only those of 'social interest,' but it is clear that within those we cannot include cultural property or archaeological heritage property, which have another origin and fulfill another mission. This is stated, finally, without prejudice to our understanding, even if that is not the hypothesis under discussion in this action, that even cultural property (belonging to the historical heritage) legitimately in the hands of private persons may be expropriated if the legal provisions governing the matter are duly complied with.

As a consequence of what has been said, there is no incompatibility of Articles 3, 8, and 17 of the Law of National Archaeological Heritage, in the terms that the Corte Plena interpreted them in its extraordinary session No. 19, at nine o'clock on March twenty-fifth, nineteen hundred eighty-three, the minutes of which were approved in the session of April fourth following, with the Political Constitution and the other constitutional norms and principles invoked. Likewise, Articles 20, 26, and 29 are not unconstitutional, since, as indicated, they are a development of and stem from the validity of those other challenged norms. Thus, all those norms are not illegitimate either when argued as unconstitutional, because their approval was carried out without the qualified vote mandated by the cited Article 45 of the Constitution. Consequently, it is appropriate to dismiss the action of unconstitutionality on those points" (bold text added).

Subsequently, in judgment No. 2002005245 of 3:20 p.m. on May 29, 2002, it was specified:

"VI.- Archaeological property in the constitutional system.

Article 89 of the Political Constitution establishes that among the cultural purposes of the Republic are:

"... to protect natural beauty, conserve and develop the historical and artistic heritage of the Nation, and support private initiative for scientific and artistic progress." The protection of historical heritage is thus framed within the broader scope of the State's duty to preserve the common culture that transforms its people into a Nation. The Dictionary of the Royal Spanish Academy of the Language, as relevant, defines culture as:

"... the set of ways of life and customs, knowledge, and degree of artistic, scientific, or industrial development, in an era or social group" (Twenty-Second Edition. Volume I. 2001) Archaeological heritage is a species of the broader genus constituted by cultural heritage, a precision that has important practical implications insofar as the State's role in promoting and guaranteeing archaeological assets must always be part of a comprehensive policy of protection and promotion of autochthonous cultural production. For the rights derived from the constitutional norm in question to be effectively realized, it is required of public authorities not only to create the necessary normative framework, but also to act concretely, through suitable protection mechanisms based on the unavoidable premise that a Nation that despises its historical inheritance, by destroying it or avoiding by all lawful means its loss or deterioration, is destined to fail as a society, since it is precisely the vision of the past that allows understanding the present and planning the future.

Archaeological heritage—in the Costa Rican case—has been commonly defined as the set of immovable and movable property, products of indigenous cultures prior to or contemporaneous with the establishment of Hispanic culture in the national territory, as well as human, plant, and animal remains related to these cultures, constituting one of the principal means to effect precise knowledge of the historical origins of our societies, insofar as it allows understanding the germ of our current forms of thought and cultural expression, in addition to providing highly useful data for other fields of knowledge, such as ecology, pharmacotherapy, zoology, etc. On the intrinsic importance of archaeological heritage within the social system, this Chamber has pronounced itself in the following terms:

"Archaeology and History are two intimately linked sciences, having as one of their objectives to clarify and reconstruct the events of the past. Historical reconstruction is based, fundamentally, on the interpretation of written documents, whereas Archaeology bases its studies on data obtained through material objects left by human action in already vanished societies, by means of their relationship to each other, the form of the find, and their connection with the environment. Every preserved object, every vestige of life and activity of man from past societies, represents a testimony that makes possible the total or partial knowledge, as the case may be, of those testimonies, and, therefore, of forms of life already nonexistent and unknown in the present, but whose knowledge is of singular importance, since they form part of the cultural identity of the society in which one lives; of course, insofar as they are an important testimony for the reconstruction and knowledge of past events." (Judgment number 729-96 of nine hours fifteen minutes on the ninth of February, nineteen ninety-six) It is not that knowledge of the past holds particular interest for reasons of mere historiographical curiosity, but rather that its study allows one to approach a global understanding of current social and cultural phenomena.

The protection of archaeological assets must then be understood as a form of safeguarding culture in general, as a good that transcends the ownership of any individual, constituting a value of national importance, whose recognition and effective defense form part of the set of interests guaranteed in articles 50 and 74 of the Political Constitution.

VII.Archaeological heritage in International Law. Costa Rica, as a subject of International Law, has signed and ratified various instruments aimed at protecting archaeological heritage. Thus, we may cite the following: A) The Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague Convention), of the fourteenth of May, nineteen fifty-four, and its Regulations, which recognize the importance of archaeological heritage, obliging States involved in a warlike conflict to respect that of those they occupy, placing their cultural property under good safeguard, far from the zone of conflict. B) The Recommendation on International Principles Applicable to Archaeological Excavations, of the fifth of December, nineteen fifty-six, obliges States Parties to subject archaeological excavations carried out in their territories to strict supervision and prior authorization by a competent authority (principle 5).

• C)The International Charter for the Conservation and Restoration of Monuments and Sites, which recognizes the inseparability of the monument and the history it attests to, in addition to the prohibition of moving the monument except for its conservation (article 7); the obligation to protect those sites (14), and the need to preserve the identity of the monument, avoiding essentially altering its appearance or nature (15). D) The Convention on the Defense of the Archaeological, Historical, and Artistic Heritage of the American Nations (Convention of San Salvador), approved by Law number 6360 of the fifth of September, nineteen seventy-nine, which includes within cultural property archaeological material belonging to American cultures prior to contact with European culture (article 2); recognizes State ownership over such objects (6); provides that each State undertakes to promote the exploration, excavation, investigation, and conservation of places and objects by specialized organisms in association with the public institutions charged with safeguarding archaeological heritage (8).
• E)The Recommendation concerning the Preservation of Cultural Property Endangered by Public or Private Works, signed on the twenty-second of November, nineteen sixty-eight, approved by Law number 4711, of the sixth of January, nineteen seventy-one, within its recitals establishes that contemporary civilization and its future evolution rest on the tradition of peoples and the creative forces of humanity, as well as on their social and economic development, and that cultural property is the product and testimony of the different traditions and spiritual achievements of the past, and thus constitutes the fundamental element of the personality of peoples, for which reason it determines the need to extend the protection of cultural heritage to the entire territory of the State, and not only to sites formally declared as such (article 3); measures must be both preventive and corrective (7) against any type of work, public or private, capable of deteriorating them (8); it also provides that detailed studies must be carried out sufficiently in advance to determine the measures to be adopted in situ, as well as the magnitude of the necessary rescue work (22).
• F)The Convention concerning the Protection of the World Cultural and Natural Heritage, signed on the twenty-first of November, nineteen seventy-two, approved by Law number 5980 of the sixteenth of November, nineteen seventy-six, orders States Parties to identify, protect, conserve, rehabilitate, and transmit to future generations the cultural heritage (article 4). G) The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, signed on the nineteenth of September, nineteen seventy, approved by Law number 7526 of the tenth of July, nineteen ninety-five, which includes within the concept of cultural heritage those of ethnological, archaeological, and natural value (article 5).

It is unnecessary to clarify that all the instruments cited in the preceding paragraph constitute a source of Law in Costa Rica, susceptible of being applied directly by this Constitutional Chamber for the resolution of the present matter, as dictated by article 48 of the Constitution. In the case of those approved by the Legislative Assembly, by express provision of article 7 of the Political Constitution. Regarding those that do not enjoy such status, they constitute at least sources of interpretation for the approved instruments. Nor does this Chamber recognize the existence of mere recommendations in matters of human rights, for if States decide to self-limit, recognizing the existence of certain human rights, even when they appear denominated with the name of "recommendations." The foregoing leads to the understanding that the Recommendation on International Principles Applicable to 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 endowed with full normativity in the Costa Rican constitutional order, without being able to be considered simple enumerations of objectives and goals to be achieved.

VIII.The legal regulation of archaeological heritage. In addition to the constitutional norms that protect archaeological heritage and the commitments assumed in the same sense by Costa Rica before the international community, various internal norms regarding the subject matter of this action have been issued. A) Law number 7 of the sixth of October, nineteen thirty-eight, grants archaeological assets the condition of public domain property (article 1), in addition to ordering the immediate communication of the discovery of objects to public authorities, who must take the necessary measures for their protection (article 17). B) Law 6793, of the twenty-eighth of December, nineteen eighty-one, National Archaeological Heritage Law, which, in addition to reiterating the provisions of Law number 7, creates the National Archaeological Commission, a body to which it grants the power to authorize excavations by previously registered scientists and to supervise them (articles 12 and 15); it confers upon the National Museum the competence to define the manner in which assets shall be rescued in the event of discovery by a third party (article 13).

• C)The Mining Code, Law number 6797, of the fourth of October, nineteen eighty-two, whose article 102, subsection h), obliges the completion of environmental impact studies regarding the effects on the archaeological and cultural wealth of the country for the conduct of mining activities. D) Law number 7555, of the fourth of October, nineteen seventy-five, Law on the Historical-Architectural Heritage of Costa Rica, which defines an archaeological site as that containing objects important from a historical, aesthetic, ethnological, anthropological, or environmental point of view (article 6); numeral 7, for its part, establishes the procedure for the incorporation of an asset into the historical-architectural heritage by means of Decree, which entails the impediment of demolishing the immovable property.

IX.The importance of archaeological assets. Archaeological assets, understood as those objects that allow the researcher access to historical knowledge, possess an intrinsic importance, for constituting a suitable and difficult-to-replace instrument to acquire that knowledge, in which the environment surrounding them also acquires special relevance. For the effective protection of archaeological assets, the State must actively participate in all procedures aimed at their detection, rescue (when applicable), study, registration, and conservation. Only in this way will the duties arising from the constitutional mandate, as well as those assumed through the signing of the cited international instruments and the promulgation of the mentioned laws, be fully complied with. Notwithstanding this marked importance, the protection of archaeological assets has been affected by the confluence of various factors, such as collecting, the trade in objects, and their indiscriminate destruction due in part to the construction of buildings in areas where archaeological sites exist.

This confluence of interests, by reason of the constitutional obligation of the State to ensure the protection of archaeological heritage, makes necessary the establishment of legislative and administrative mechanisms aimed at guaranteeing the protection of the archaeological legacy, in the face of the need for economic development. This prevalence was already recognized by the Full Court when, exercising functions of constitutional controller, it held:

"It is obvious that archaeological assets also have an appreciable value in money, whether for the material of which they are made (gold, for example), or for their fine craftsmanship and their beauty, even if they are of clay or stone. Some of those objects may be of scant physical value or of little artistic significance; but even so, they are valuable for their origin and as elements of study to investigate the culture of peoples of other eras, their beliefs and customs, or the nature of the environment in which they lived, according to the traces or representations that may be found there. For all this, archaeological objects originating from the aboriginal races that populated the continent in the pre-Columbian era or prior to or contemporaneous with the establishment of Hispanic culture are valuable; and it is for that value that many acquire these pieces, some for spiritual enjoyment or scientific interest, and others perhaps to profit from them.

But over the individual interest that each may have in the possession or ownership of those objects, the public interest predominates, both for the historical value of such assets, and because, within the culture of peoples, there is the study of what human groups that inhabited the same territory did, a study that is facilitated by making it possible for the greatest number of people here to have access to those sources of knowledge; and nothing is more consistent with that public interest than that archaeological assets remain in national territory, in the possession of museums and under the ownership of the State or its institutions, as part of the historical heritage that the Political Charter denominates 'of the Nation,' in article 89. It must therefore be underlined that the most important aspect is not the material value of the referred objects, but the historical and cultural value, and that in no way could the economic doctrine on productive assets and freedom of enterprise be applicable to those objects." (Resolution of thirteen hours on the twelfth of May, nineteen eighty-nine) It is then clear that the relevance of archaeological assets is not exhausted in venal aspects.

Quite the contrary, their greatest importance lies in the data they can offer to adequately understand the origins of national identity, in addition to the vast information they offer for other no less important fields of scientific knowledge. Thus, even assets of few aesthetic qualities, of daily use, or even in a poor state of conservation may be of great importance for archaeological knowledge. Moreover, the protection of archaeological heritage is also a matter of worldwide relevance. The Preliminary Report on the Legal Means for the Protection and Conservation of the Historical and Artistic Heritage of the American Countries of the Organization of American States established in this sense:

"There is no exclusively local interest on the part of states in protecting and conserving the objectified testimonies of art and culture of past eras located in their respective territories; that interest is shared by the entire international community, which justifiably considers that those constitute a cultural heritage belonging to the whole of humanity and, therefore, deserve to be the object of its concern and protection.

In this manner, the protection and conservation of cultural heritage currently transcends the sphere of national jurisdictions to be complemented, legally through international instruments, and materially through the solidary cooperation of the countries forming the international community to make effective such duty of protection and conservation." The preservation of a people's archaeological heritage is not seen, then, as a matter of mere local interest, but rather as a significant contribution to the preservation of world culture.

X.Archaeological heritage as a public domain asset. It is evident that archaeological assets, in accordance with the terms of the cited norms, form part of the public heritage, of the so-called public domain assets (bienes demaniales), the ownership of which pertains to the Nation, insofar as they are affected to fulfill a purpose of general interest. The use and tenure of public domain assets always forms part of a special regime, characterized by the fact that such objects must be employed only in a manner that does not contradict their purpose, in some cases solely by the Administration; in others also by private individuals, but strictly adhering to the limitations that their public character implies. This Chamber has defined public domain assets in the following terms:

"...The public domain is composed of assets that manifest, by express will of the legislator, a special destiny to serve the community, the public interest. They are the so-called dominical assets, demanial assets, public goods or things, or public assets, which do not belong individually to private persons and which are destined for a public use and subject to a special regime, outside the commerce of men. That is, affected by their own nature and vocation. Consequently, those assets belong to the State in the broadest sense of the concept, they are affected to the service they render and which is invariably essential by virtue of an express norm. Characteristic notes of these assets are that they are inalienable, imprescriptible, unattachable, cannot be mortgaged nor be susceptible to encumbrance in the terms of Civil Law, and administrative action substitutes for interdicts to recover ownership.

As they are outside commerce, these assets cannot be the object of possession, although a right to use may be acquired, though not a right to property. The use permit is a unilateral juridical act issued by the Administration, in the exercise of its functions, and what is placed in the hands of the private individual is the useful domain of the asset, the State always reserving direct dominion over the thing..." (Judgment number 2306-91 of fourteen hours and forty-five minutes on the sixth of November, nineteen ninety-one) Previously, the Full Court, exercising constitutional control, determined:

"Well then, if before the Law of 1938 there was no due legislation on archaeological heritage, it is very much in reason that the legislator attend to it in that Law and in that of 1981, to avoid what had occurred under the prior regime. XIX.- Those two laws recognize individual ownership of archaeological assets that were in private hands; but at the same time provided that, thereafter, assets that were the object of discovery would belong to the State. No acquired right was harmed, since the private property existing until then was maintained... No special norm is required in the Constitution for concrete prohibitions to be established in ordinary laws, if they have support in article 28, such as those that exclude discovery as a legitimate title to acquire the private ownership of archaeological assets... XX.- In article 89 the public interest that the Constitution protects in number 28, paragraph two, is reflected, for there it says that 'Among the cultural purposes of the Republic are: ...to conserve and develop the historical and artistic heritage of the Nation.' With this, the existence of a heritage different from that of assets of an economic nature was recognized, and at the same time the duty to seek its conservation was established.

The cultural and historical public order permits interpreting that rule broadly, and relying upon it to reaffirm State ownership of archaeological assets discovered in the future, as provided by the Law of 1938. Those assets, before and now, constitute 'a common heritage that past generations bequeathed to later ones'... XXI.- From all the foregoing it follows: a) That the ownership regime instituted in article 1 of the Law of 1938 is legitimate, since it has support in articles 28 and 89 and does not contravene article 45 of the Political Charter itself; and b) That, consequently, articles 3, 5, 7, 9, and 17 of Law No. 6703 of 1981 cannot be contrary to the Constitution either, insofar as they are applicable to archaeological objects discovered after Law No. 7 of 1938, since those assets belong to the State, in accordance with article 1 of that Law of 1938, which is not unconstitutional." (Resolution of thirteen hours on the twelfth of May, nineteen eighty-nine)

XI.The preventive principle in archaeological matters. The importance of archaeological assets and their character as public domain assets (bienes demaniales) creates in the State's charge a series of obligations directed at their effective protection, a common element of so-called third-generation rights. In matters of such relevance and delicate protection, it cannot be conceived that administrative authorities intervene once the damage has been caused, since the damages may be irreversible and of very great proportions. In the case of archaeological assets, there is a single possibility: their effective protection or their irremediable loss. In order to gauge the moment and the actions that the State must undertake for the protection of archaeological heritage, some important considerations must be made that were outlined in the previous recitals. Archaeological assets, individually considered, while it is true they may constitute key elements for understanding the historical-cultural past of the country, their relevance may be diminished if they are not considered integrally with respect to the context in which they were found.

Archaeological research cannot then be limited to the study of objects that have been totally or partially destroyed, or to assets removed from their context without the prior performance of exhaustive field analyses aimed at understanding them within the environment where they were found, since in such cases a labor that by constitutional imperative (articles 50, 74, and 89) should be conceived as one of scientific rigor, could become little more than a simple task of collecting and artistic contemplation, in contravention of the fundamental order" (emphasis added).

From the transcribed precedent, the importance of the preventive principle in archaeological matters emerges. This implies the protection of objects or places considered of cultural relevance, which demands the performance of pertinent scientific studies, in order to guarantee their protection and preservation. Mutatis mutandis, taking into account that cultural heritage comprises various types of heritage (such as archaeological —see judgment no. 2002005425 of 16:20 hours on the 29th of May, 2002—), the foregoing position becomes fully applicable in the case of the historical heritage referring to San Lucas Island.

In turn, in judgment no. 2003003656 of 14:43 hours on the 7th of May, 2003, this Constitutional Chamber referred to cultural heritage in these terms:

"C.- ON THE CONSTITUTIONAL PROTECTION OF CULTURAL HERITAGE. ARTICLES 50 AND 89 OF THE POLITICAL CONSTITUTION.

XVI. DELIMITATION OF THE SCOPE OF APPLICATION AND LEGAL-CONSTITUTIONAL SUPPORT

The importance of protecting cultural heritage, at the national, regional, and international level, is beyond discussion, precisely due to the transcendence that this collection represents for the necessary maintenance and strengthening of the identity of peoples (population and/or nation), that is, in the historical, social, geographical, and cultural spheres. It is known by all that understanding the past —linkage with roots— implies understanding the present time and establishes the possibilities for the future material and psycho-social development of individuals and human groups. It concerns the recognition of a value, understood as the incorporation of an economic potential, or value that is realized in function of a transcendent purpose (spiritual, cultural, or artistic value). It is for the foregoing that the concept of historical-architectural heritage has evolved, and with it the criteria for its protection, such that it is no longer justified on a 'romantic' ideal, but rather as a condition of the identity of peoples, as an integral part of their history and their culture, attending to reasons of social-economic and urbanistic-environmental or urbanistic-ecological development, and which has a more human basis.

It is thus that protection by States becomes necessary, permitting effective and efficient action, based on a scientific construction coherent 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, the Theory of Restoration, and Law, among others; and which takes into consideration the country's own circumstances, such as its degree of underdevelopment and economic dependence. It is thus that the protection of this heritage must be actively integrated into the social and economic resources of the country, so that it does not constitute a burden for the State, nor for the population (owners, possessors, or holders of any real right over the assets incorporated into this special protection regime), such that it is configured as another resource that generates social well-being.

XVII.The protection of cultural heritage is framed within Urbanistic Law, which lately has come to be understood within the broader framework of Environmental Law, which finds its legal-constitutional support in articles 50 and 89 of the Political Constitution, as they textually provide:

'The State shall strive for the greatest well-being of all inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth.

Every person has the right to a healthy and ecologically balanced environment. Therefore, they are entitled to denounce acts that infringe that right and to claim reparation for the damage caused.

The State shall guarantee, defend, and preserve that right. The law shall determine the corresponding responsibilities and sanctions' (article 50); and 'Among the cultural purposes of the Republic are: to protect natural beauty, conserve and develop the historical and artistic heritage of the Nation, and support private initiative for scientific and artistic progress' (article 89).

This latter norm provides directives for public authorities to promote the protection of the environment, understood in an integral manner, that is, not understood in its traditional sense that has been limited to the sphere of natural resources, what is commonly known as 'the green,' insofar as it has been understood to comprise natural resources (forests, water, air, minerals, flora and fauna, etc.), but also in relation to the surroundings in which one lives, which comprises not only the scenic beauties of nature, such as the landscape, but also everything relating to cities and urban and rural conglomerates, that is, the concept of the urban. It may well be affirmed that these are two complementary aspects of one reality, like two sides of the same coin: the natural environment and the urban environment. It is thus that a more human environment is sought, that is, an environment that is not only healthy and ecologically balanced, but also a symbolic referent and giver of national, regional, or local identity.

Thus, the fundamental right to a healthy and ecologically balanced environment—extensively developed by constitutional jurisprudence—shall comprise both its natural parts and its artificial parts, understood as such, the human habitat, that which is built by man, that is, the urban, in a manner that they remain free of all contamination, both for the effects and repercussions it may have on the health of persons and other living beings, and for the intrinsic value of the environment.

By pollutant element one must understand "[...] any element, compound or substance, its association or composition, chemical or biological derivative, as well as any type of energy, radiation, vibration or noise that, incorporated in a certain amount into the environment for a more or less prolonged period, may negatively affect or be harmful to life, health or the well-being of man or flora and fauna, or cause a deterioration in the quality of air, water, soil, 'natural scenic beauties' or resources in general, which, in summary, constitute quality of life" (judgment number 3705-93, of fifteen hours on the thirtieth of July, nineteen ninety-three).

Thus, the protection of cultural heritage, and specifically, the historical-architectural heritage, becomes a necessary precept when seeking a better quality of life—a determining element in the conception of the environment—and its effective guardianship; hence, its regulation falls within Environmental Law.

XVIII.It is from constitutional Articles 50 and 89 that an obligation arises for the State to protect the surroundings in which the life of the nation's population develops, and which encompasses these two spheres: the natural and the urban; so that the guardianship of cultural heritage, and more specifically, of the historical-architectural heritage, is situated within urban planning regulations. In light of the foregoing considerations, it may well be affirmed that the conservation of cultural heritage contributes to maintaining the environmental balance necessary in urban development, by requiring, for its effective guardianship, respect for urban scale, structure, and dimensioning, regulating physical load capacity, questioning urban functions and services, which results in a better environmental quality; in addition to contributing to maintaining the city's own image or perceptual concurrence, which gives it identity or formal cohesion.

XIX. NORMATIVE DEVELOPMENT OF ENVIRONMENTAL PROTECTION

Both facets of the environment, namely the natural environment and the urban environment, are subject to protection and guardianship by the State, as derived from the obligations imposed in the constitutional provisions transcribed, and which are developed in regulations of various categories, such as international treaties, among which the following may be cited: the Convention for the Protection of Flora, Fauna, and Natural Scenic Beauties of the American Countries, ratified by Law number 3763; the Convention for the Conservation of Biodiversity and Protection of Priority Wilderness Areas in Central America, ratified by Law number 7433; the Ramsar Convention, relating to 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 Convention of the Central American Commission on Environment and Development, ratified by Law number 7226; in the natural environmental field; the Convention for the Protection of Cultural Property in the Event of Armed Conflict, its Regulations and Protocol, approved at the International Conference of States convened by UNESCO in 1954, and signed by Costa Rica on March 3, 1996; the Recommendation defining the international principles to be applied to archaeological excavations, approved at the UNESCO General Conference in 1956; the Recommendation concerning the protection of the beauty and character of places and landscapes, approved at the UNESCO General Conference in 1962; the International Charter on the conservation and restoration of monuments and historical-artistic complexes, approved by the International Council of Monuments and Sites (ICOMOS) in 1965; the Norms of Quito, approved at the Meeting of Latin American Presidents in 1967; the Recommendation concerning the protection at the national level of cultural and natural heritage, approved at the UNESCO General Conference in 1968; the Recommendation concerning the conservation of cultural property endangered by public or private works, approved at the UNESCO General Conference in 1968, ratified by Law number 4711; the Convention on the measures to be taken to prohibit and prevent the illicit import, export, and transfer of ownership of cultural property, approved at the UNESCO General Conference in 1970, ratified by Law number 7526; the Convention concerning the Protection of the World Cultural and Natural Heritage, approved at the UNESCO General Conference in 1972, ratified by Law number 5980; the Convention on the Defense of the Archaeological, Historical, and Artistic Heritage of the American Nations, approved by the General Assembly of the Organization of American States (OAS) in 1976, ratified by Law number 6360; the Recommendation concerning the safeguarding of historic complexes and their role in contemporary life, approved at the UNESCO General Conference in 1976; the Recommendation on the international exchange of cultural property, approved at the UNESCO General Conference in 1976; the Recommendation on the protection of movable cultural property, approved at the UNESCO General Conference in 1978; the ICOMOS International Charter for the protection of historic cities, approved in 1987; and the Recommendation on the safeguarding of traditional and popular culture, approved at the UNESCO General Conference in 1989.

In our country, various laws have been enacted in environmental matters, such as the Organic Law of the Ministry of Environment and Energy, number 7152; the Organic Law of the Environment, number 7554; the Biodiversity Law; the Forest Law, number 7575, and its Regulations; the Wildlife Conservation Law, number 2790, and its Regulations, Executive Decree number 26.133-MINAE; the Water Law, number 276; the Maritime-Terrestrial Zone Law, number 6043; and the General Health Law, number 5395; and in the matter of cultural heritage protection, the following: the Law for the Protection of Archaeological Heritage, number 6730, and the Law of Historical-Architectural Heritage, number 7555. Within the set of regulatory norms, in environmental matters, one may cite the Special Regulations regulating the extraction of materials from public-domain watercourses, Executive Decree number 21.910-MIRENEM; Executive Decree number 30.480-MINAE, which establishes the principles governing national policy on water management; the Regulations on SETENA Procedures, Executive Decree number 25.705-MINAE; The principles, criteria, and indicators for forest management and certification in Costa Rica, Executive Decree number 27.388-MINAE; On regency functions, Executive Decree number 26.870-MINAE, in addition to the executive decrees declaring or creating protected zones; as well as the Regulations of the National Archaeological Commission, Executive Decree number 19.016-C, in the case of cultural heritage, and all those decrees by which properties and their buildings are incorporated into the historical-architectural heritage.

XX. CONCEPTUALIZATION OF THE GUARDIANSHIP OF CULTURAL HERITAGE AS A FUNDAMENTAL RIGHT

The process of cultural development of society and the exchange of cultural goods and expressions give rise to a context of rights and obligations linked to social, political, and economic situations in the world, such as the growing sociocultural needs of the population, the ever-increasing importance of culture as an essential element of nationality (national identity), the problems of survival of traditional, artisanal, and folk cultures, and the importance of the values and expressions of cultural heritage as a fundamental factor of national integration, which demonstrates the need for adequate regulation that involves the interests at stake. Under this context, the guardianship or protection of cultural heritage emerges as the responsibility of the State, since it is framed within the configuration of the Social State of Law, with all its implications, by virtue of which it is conceptualized as a true fundamental right, deriving from the right to culture; and therefore it is demandable before the public authorities responsible for this guardianship, which translates into the enforceability of effective and concrete actions by the Administration that protect cultural heritage.

This right is grounded in the essential dignity of the human person, and in the need to integrate this element with the development of the community; so that it encompasses not only the right of the person to their personal self-fulfillment, but also the right of the community—the population—to shape its cultural identity, since it constitutes an essential element that contributes to this important task, and therefore also has implications for the cultural sovereignty of States, specifically with regard to safeguarding the country's cultural personality and the requirement of international cooperation that may and should occur in this regard. It is a right of the third generation, underpinned by the principle of solidarity), and is thus classified in the category of social rights, having evident transcendence insofar as it impacts life in society, since by virtue of it, a right is configured for every individual—as a requirement of their essential dignity—to participate in the heritage and cultural activity of the community to which they belong; and it generates the duty—responsibility—for public authorities to provide adequate means for effective participation to guarantee access to and exercise of this right, to the extent that available resources permit.

In this way, culture becomes 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 intellectuals and artists, the promotion of international exchange, the protection of cultural heritage, the promotion of the development of the arts, artistic education, and the promotion of the book. Thus, every person has a right to culture, just as they do to education, work, and freedom of expression, fundamental rights with which it is directly related. In this sense, there are countless international resolutions and declarations that formally recognize the right to culture. Thus, in Resolution IX approved by the Inter-American Conference on Problems of War and Peace (held in Mexico from February twenty-first to March eighth, nineteen forty-five), in section 13, the States of America expressly recognize:

"Among the rights of man, the first is equality of opportunity to enjoy all the spiritual and material goods that our civilization offers, through the lawful exercise of one's activity, industry, and ingenuity." The American Declaration of the Rights and Duties of Man (approved at the Ninth International American Conference, on May fifth, nineteen forty-eight, in Bogotá, Colombia) recognizes the right to the benefits of culture:

"Every person has the right to participate in the cultural life of the community, to enjoy the arts, and to benefit from the results of intellectual progress, especially scientific discoveries.

They likewise have the right to the protection of the moral and material interests resulting from the inventions, literary, scientific, or artistic works of which they are the author." The considerations in the Preamble of this Declaration are interesting, as they contain certain statements linked to culture, allowing for a better interpretation of that provision:

"All men are born free and equal in dignity and rights and, endowed as they are by nature with reason and conscience, must conduct themselves fraternally toward one another" (first paragraph); "It is the duty of man to serve the spirit with all his powers and resources, for the spirit is the supreme purpose of human existence and its highest category" (fourth paragraph); "It is the duty of man to exercise, maintain, and encourage by all means within his reach culture, for culture is the highest social and historical expression of the spirit" (fifth paragraph).

The 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, expression, and dissemination of thought by any medium." In connection with this right, the right recognized in Article 15—the right to rest and its enjoyment—is related. For its part, the Universal Declaration of Human Rights (approved on December tenth, nineteen forty-eight) recognizes the right to culture in its Article 27.1, which has the same content as Article 13 of the American Declaration—previously transcribed. This right must be understood within the complex framework of human rights recognized in this international Declaration. It is important to highlight that the right to education is positioned as an indispensable prerequisite for guaranteeing the right to culture. Cultural rights led to the approval of the International Covenant on Economic, Social, and Cultural Rights, by the United Nations in nineteen sixty-six—ratified by Law number 4229, of December eleventh, nineteen sixty-six. 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 to:

• a)Participate in cultural life; b) Enjoy the benefits of scientific progress and its applications; c) Benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he 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, the development and the diffusion 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 to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields." The Charter of the Organization of American States (OAS)—of nineteen sixty-seven—ratifies the foregoing principles in its Article 48:

"The Member States [...] shall ensure the enjoyment of the benefits of culture for all of the population and shall promote the use of all means of dissemination to fulfill these purposes." Reference to this norm is made in Article 26 of the American Convention on Human Rights, ratified by Law number 4543, of February twenty-third, nineteen seventy, which provides:

"Progressive Development The States Parties undertake to adopt measures, both internally and through international cooperation, especially economic and technical, with a view to achieving progressively the full realization of the rights derived from the economic, social, and educational, scientific, and cultural standards contained in the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, to the extent of available resources, through legislative and other appropriate means." These international instruments have focused their efforts on three fundamental aspects: the development and encouragement of culture, international cultural cooperation, and the right to culture, which acquire full coerciveness by deriving from human rights treaties duly ratified by our country.

XXI. DEFINITION OF THE OBJECT OF PROTECTION

THE "CULTURAL ASSET (BIEN CULTURAL)" AS A PROTECTED LEGAL INTEREST. The denomination and conception of the objects protected by the historical heritage has evolved in legal science, so that it now extends to various categories of property, namely: immovable property of cultural interest—including monuments, natural scenic beauties, sites—; movable property not incorporated into or affected by executive decree to the Nation's cultural heritage, but having singular relevance, especially based on the international regulations to be analyzed below; archaeological property—which is in the public domain—; ethnographic, scientific, technical, industrial, anthropological, and bibliographic heritage; whereby protection also encompasses customs, folklore, rites, beliefs, festivals, and gastronomy. All of these goods have been grouped under the denomination of "cultural asset (bien cultural)". This new, much broader conception of the reality protected by the legal system was born in Italy, and is grounded in the ultimate reason motivating the protection and guardianship of the good, namely the cultural value immanent in these goods, that is, insofar as it brings us closer to the history of civilization, to the various ways of living, to the thought and feeling of people in time and space.

Cultural value can have many manifestations, such as the historical, artistic, scientific, archaeological, paleontological, ethnographic, or technical references present in goods of various kinds. An interest worthy of conservation is required, in its individuality or in connection with other goods, which is the case of the protection of urban ensembles, macro-ensembles, or itinerant ensembles. The essence of protection is constituted by the intrinsic interest or value of the good, insofar as it is representative of the history, art, science, or industry of a people, and therefore contributes to the identity of the nation.

XXII. ON INTERNATIONAL REGULATIONS IN THE MATTER

Regarding the development of the protection of cultural assets, as derived from the right to culture, it is important to mention the large production of international norms that the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the Organization of American States (OAS) have approved with the aim of ensuring, among the States Parties, the effective guardianship and protection of the world and national cultural heritage, which encompasses, as noted above, the historical-architectural heritage, movable property, natural heritage, archaeology, and folklore. It concerns a series of Conventions and Recommendations on the matter that constitute regulation and a source of law in Costa Rica, capable of being directly applied by this Constitutional Chamber for the resolution of this matter. In cases where they have been ratified by our country, they are normative bodies incorporated into our legal system, with a higher value than statutes, by express provision of Article 7 of the Political Constitution.

And in cases where they have not undergone the procedure established for their due incorporation, they are a source of law, under the terms provided in constitutional Article 48. In this regard, it must be borne in mind that the majority of these Conventions and Recommendations were approved 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 to which Costa Rica is a Party, and as such, they are framed within the norms of the United Nations Charter, taking into account that one of the objectives of the creation of this organization is precisely to "Achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;" (Article 1.3 of the United Nations Charter); for which purpose, the General Assembly is empowered to promote studies and recommendations to achieve this end (Article 13.1.b of the Charter). In Articles 55, 57.1, 57.2, and 58 in relation to 63, the linkage of the specialized agencies with the Organization is recognized, and especially, Article 64.1, which states verbatim:

"1. The Economic and Social Council may take appropriate steps to obtain regular reports from the specialized agencies. It may make arrangements with the Members of the United Nations and with the specialized agencies to obtain reports on the steps taken to give effect to its own recommendations and to recommendations on matters falling within its competence made by the General Assembly." Likewise, it must be taken into account that Articles 5 and 7.2.c of the Vienna Convention on Treaties (ratified by Law number 7615, of July sixteenth, nineteen ninety-six) recognize the normative value of instruments adopted within the framework of international organizations. Regarding the Conventions, Charters, or Recommendations approved by the International Council of Monuments and Sites (ICOMOS), it must be taken into account that it is a dependency of UNESCO, and therefore the binding force and coerciveness of its provisions derive from the international organization to which it is subordinate.

Finally, in relation to the Norms of Quito, it must be noted that their binding force derives from the provisions of subsections 10) and 12) of Article 140 of the Political Constitution and Article 7.2.a of the Vienna Convention on Treaties, since they were agreed upon at the meeting of Latin American Presidents in nineteen sixty-seven, insofar as the President of the Republic exercises their role as co-conductor of international policy (judgment number 6624-94, of nine hours on November eleventh, nineteen ninety-four). So that, for this Chamber, these are not merely simple recommendations in matters of human rights, because if States voluntarily decide to self-limit or assume a series of obligations and commitments to make a fundamental right effective, these constitute a normative source of the Law of the Constitution, for they are acts endowed with full normativity in the Costa Rican constitutional system, and cannot be considered mere enumerations and goals to be achieved.

XXIII.In light of the foregoing considerations, the following binding and interpretive principles can be derived from the international regulations on the matter in order to guarantee effective guardianship 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 Protocol, approved at the International Conference of States convened by UNESCO, on May fourteenth, nineteen fifty-four, and signed by Costa Rica on March third, nineteen ninety-six: respecting cultural heritage becomes an international obligation—consisting of movable and immovable property, monuments of architecture, art, or history, whether religious or secular, archaeological sites, historic ensembles, as well as scientific collections, books, archives, or reproductions—whatever their origin or legal ownership, in times of war (enemy countries); in times of peace, each country must foster the due protection of these goods; the theft, pillage, misappropriation, or vandalism is prohibited, and the implementation of preventive measures to avoid these situations is sought; the commitment of States Parties to send reports to UNESCO every 4 years on the measures implemented; it recognizes the importance of archaeological heritage; b.— from the Recommendation defining the international principles to be applied to archaeological excavations: approved at the UNESCO General Conference, in New Delhi, on December sixth, nineteen fifty-six: it obliges States Parties to subject archaeological excavations carried out in their territories to strict supervision and prior authorization from the competent authorities, and to adhere to technical principles when carrying out excavations; c.— from the International Charter on the conservation and restoration of monuments and historical-artistic complexes: approved by the International Council of Monuments and Sites (ICOMOS), in Venice in nineteen sixty-five; it is the text of greatest resonance and international significance, in force and recognized internationally, whose definition of monument encompasses both the isolated artistic creation and the urban or rural site that bears witness to a particular civilization, a representative phase of evolution or process, or a historical event, as well as the grand and the modest works that have acquired cultural significance over time; it recognizes the inseparability of the monument from the history it testifies to; it establishes that the protection and conservation of the monument also implies that of a scaled setting, that is, the protection of the surroundings; it prohibits new constructions, demolitions, or alterations that may alter the relationships of volumes, colors, and styles of buildings incorporated into the cultural heritage; it establishes the principle that restoration is of an exceptional nature, with the aim of conserving and revealing the aesthetic and historical values of the moment, and its respect for ancient elements and authentic parts, and to that effect, a distinction is made between conservation and restoration; it establishes the obligation to protect sites and urban ensembles, and the need to preserve the identity of the monument, preventing essential alteration of its appearance or nature; it establishes the need to create inventories and catalogs; the need to keep buildings in their site, rooted to the ground; and the need to conserve the original movable property of the immovable property; d.— from the Recommendation concerning the protection of the beauty and character of places and landscapes: approved at the UNESCO General Conference at the 12th.

session, in Paris, on December 12, 1962: it seeks to ensure the preservation of original natural and rural sites, the urban landscape, and other settings created or not by man, as well as 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 primary factor in the general living conditions of peoples; the need to implement preventive control measures over activities and operations that may affect them, such as special provisions in urban and regional development plans and zoning programs; the need to establish and maintain nature reserves and parks, as well as the acquisition of land for the community; the need for specialized services, with broad powers, to be responsible for preservation measures; and it emphasizes educational activities to raise public awareness regarding the importance of this protection; e.- the Quito Standards (Normas de Quito): approved at the Meeting of Latin American Presidents in 1967: it 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; it recognizes the importance of protecting historic centers and their social function, under the formula of promoting tourism; it concludes that State guardianship must extend to the urban context of the monument, the natural setting that surrounds it, and the cultural property it contains; that is, everything related to the protection of the environment (entorno); it establishes the importance of protecting movable property (bienes muebles) and other valuable heritage objects; and the urgency of the problem, which requires international cooperation due to the significant importance of recovering cultural heritage, insofar as it represents an economic value capable of being an instrument of progress (principle of "enhancement (puesta en valor)"); f.- the Recommendation concerning the Protection at National Level of the Cultural and Natural Heritage: Approved at the UNESCO General Conference at its 17th session, in Paris, on November 16, 1968: it seeks to induce States to protect all components of the cultural and natural heritage; it includes identification, study, conservation, restoration, physical appearance, and integration within contemporary society, for which the keeping of up-to-date inventories and the preparation of appropriate maps and documentation are required; it establishes the obligation of States Parties to design conservation and preservation programs for the national cultural heritage, to conserve its traditional appearance, and to restore areas of cultural heritage damaged by man, under the charge of 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 15th session, in Paris, on November 20, 1968: it sets the guideline that the preservation of cultural heritage must harmonize with the advancement of socio-economic technology; it reiterates the need to prepare inventories of cultural property, in which priority must be given to those endangered by public or private works, for use in research and study; the importance of implementing provisional measures, so as to facilitate and enable specialized assistance in order to prevent negative repercussions in the works that may affect the protected property; it advocates conservation "in situ", that is, in their original location, of the cultural property; however, if socio-economic conditions require their transfer—such as abandonment or possible destruction—their relocation must be carried out, based on appropriate scientific studies; it lays down the principle that the preservation of the property must come from special budgets, or from the public or private works that cause the damage (a principle inherent to Environmental Law: "the polluter pays"); 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 the 16th session, in Paris, on November 14, 1970; ratified by Costa Rica by Law No. 7526 of July 5, 1995: it includes within the concept of cultural heritage all those properties of ethnological, archaeological, natural, artistic, and technical value; it recognizes that the export of illicitly owned cultural property constitutes one of the main causes of the impoverishment of cultural heritage, and therefore commits the States Parties to combat these practices, through the promotion of international cooperation and the creation of the necessary protection services: such as the promulgation of the respective regulations, the establishment and maintenance of inventories and catalogs, the promotion and development of specialized scientific and technical institutions—such as museums, libraries, archives, workshops, laboratories—necessary to ensure the conservation and enhancement of cultural property, the control of archaeological excavations, the conservation "in situ" of cultural property, the reservation of certain zones for research, the promotion of educational action, appropriate publicity in cases of disappearance of cultural heritage, the establishment of impediments, both for the exit of property lacking the appropriate certificate and for the import of stolen cultural property, and the taking of necessary measures for its seizure and restitution; i.- the Convention for the Protection of the World Cultural and Natural Heritage: approved within the framework of the UNESCO General Conference, at the 17th session, in Paris, on November 23, 1972; ratified by Law No. 5980 of October 26, 1976: whose object of protection is cultural heritage, comprising monuments—monumental architectural works, sculptures, or paintings, elements or structures of an archaeological nature, cave inscriptions, and groups of elements—as well as groups of buildings—isolated or grouped together—and sites, of outstanding universal value from the historical, aesthetic, ethnological, or anthropological point of view; natural heritage; it recognizes the duty of the international community to cooperate in the protection of cultural property, therefore it establishes the legal framework and institutionalizes practices regarding international cooperation for the protection of the cultural heritage of Humanity, which includes natural heritage, to be carried out through a fiduciary fund with various sources of income (the obligatory and voluntary contributions of the States Parties, contributions from UNESCO, contributions from international organizations, as well as from public and private institutions, upon justified request of the States); all States Parties recognize that the responsibility for the conservation of heritage of universal value located in their jurisdiction (territory) falls primarily to each of them, for which they undertake to take the necessary measures; it reiterates the requirement to prepare inventories of properties in their territory; and that the assistance of the States is also manifested in the form of studies, services of specialized personnel, training of professionals, equipment, favorable loans, and non-reimbursable subsidies; and it institutes educational and informational programs on the value of heritage, the threats it faces, and the implementation activities of the Convention; j.- the Convention on the Defense 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, Chile, on June 16, 1976; ratified by Law No. 6360 of August 20, 1979: whose object is cultural heritage in its various categories: namely monuments, objects, fragments of dismembered buildings, archaeological material, buildings, artistic, utilitarian, ethnological objects, libraries, archives, books, maps, and documents).

The purposes of this convention are the identification, registration, protection, and surveillance of the properties that make up the cultural heritage of the American nations, preventing the illicit import and export of cultural property, and promoting international cooperation for the mutual knowledge and appreciation of their cultural property. It is thus promoted that each State Party establish the pertinent internal regulation, which shall promote at least the following measures: the registration of public and private collections and the transfer of cultural property subject to protection, the registration of transactions of establishments dedicated to the purchase and sale of this type of property, and the prohibition of importing cultural property from other States without the corresponding certification and authorization. It promotes the creation and implementation of registers of the nation's cultural property, the control of archaeological excavations, as well as international cooperation for the recovery and restitution of stolen property, and for the promotion of mutual knowledge and appreciation of cultural values—exchange and exhibition of cultural property and information—; k.- the Recommendation concerning the Safeguarding of Historic Ensembles and Their Role in Contemporary Life: approved within the framework of the UNESCO General Conference, at its 19th session in Nairobi, on November 26, 1976: it invites countries to adopt a general safeguarding policy for the preservation of archaeological, paleontological, urban, and rural constructions of historical, archaeological, architectural, aesthetic, or sociocultural value within their territories, for which they must establish: a specific system for the protection of cultural heritage (historic areas, ensembles) at the legal, technical, economic, and social level, which must influence national, regional, and local planning, guide urban planning, and be concretized in the formulation of objectives and programs; the designation of a specialized body or institution responsible for carrying out this work; the implementation of inventories of the properties to be protected (such as buildings—public or private—, open spaces, as well as their vegetation), with complementary analytical summaries of each one, insofar as they constitute an irreplaceable universal heritage; the obligation of safeguarding and integration into collective life or economic-social revitalization of historic areas, both for governments and for their citizens: that is, to promote commerce, craftsmanship, the development of cultural activities, residential use, and tourism within them (principle of "enhancement (puesta en valor)"); the comprehensive protection of cultural heritage, and especially of historic ensembles, thereby extending to all the elements that compose it, comprising both the buildings, the spatial structure and surrounding zones, and the human activities, however modest they may be (environment (entorno)); the effective guardianship of cultural heritage translates into the prevention of all types of physical deterioration, especially those resulting from inappropriate use, the addition of parasitic structures, and abusive or insensitive transformations that damage its authenticity, as well as those caused by any form of pollution; it reiterates the principle that restoration is exceptional in character, which, if carried out, must be based on scientific principles; state aid in the conservation of this heritage, which translates into planning and programming, specialized technical assistance, the granting of donations, tax advantages, subsidies, or favorable and adequate loans for these purposes to private owners and their users, which are subordinated to the respect of certain conditions imposed in the public interest, such as guaranteeing the integrity of the buildings, the possibility of visiting the properties, having access to parks, gardens, or sites, taking photographs, conducting inspections, etc.; the promotion of the creation of foundations and non-profit associations as advisory bodies in the matter; the promotion of systematic research and study in order to train specialists and artisans, in the aspects of urban planning and land-use planning, the alteration of materials, the application of modern techniques to conservation work, and the artisanal techniques indispensable for the safeguarding of this heritage, as well as education (school, post-school, and university) to raise awareness among citizens in general of the importance of this guardianship; and the commitment to international cooperation in this matter, both with respect to other States and to international, intergovernmental, and private organizations, and in particular with the UNESCO Documentation Center (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 November 26, 1976: it is based on the consideration that all cultural property forms part of the common cultural heritage of Humanity, and that each State has a responsibility in this regard, not only for the benefit of its nationals, but also for the international community, thus promoting the circulation of these properties among cultural institutions of different countries, in order to enrich the international cultural heritage and promote its better use; for which the States undertake to implement legal measures to eliminate tariff and customs obstacles, in order to facilitate the disinterested bilateral or multilateral exchange of cultural property; the creation or implementation of registers of the demands and offers available for exchange; it establishes the operational principles of this type of exchange (insurance, economic aid, determination of the legal status of these properties, the assistance of specialized bodies); the need for international cooperation to carry out this task; and the necessary mechanisms to combat the illicit trafficking of cultural property; m.- the Recommendation for the Protection of Movable Cultural Property (bienes culturales muebles): approved at the UNESCO General Conference, at its 20th meeting, in Paris, on November 28, 1978: it obligates States to intensify measures for the prevention and management of risks to which movable cultural property of archaeological, artistic, scientific, or technical value, artisanal, of anthropological and ethnological interest—such as manuscripts, handicrafts, books, documents of special interest, maps, furniture, tapestries, carpets, costumes, musical instruments, specimens of zoology, botany, or geology—may be subjected, in order to guarantee effective protection of these properties and reduce the cost of coverage of the corresponding risks; it lays down the principle that the protection and prevention of risks are much more important than compensation in the event of deterioration or loss of the property, since the essential purpose is to preserve cultural heritage and not to replace irreplaceable objects with sums of money; the need for the systematic establishment of inventories and directories relating to movable cultural property, in which their characteristics and identifying specifications are recorded—with the greatest precision and using modern methods; to stimulate museums and similar institutions, public and private, to reinforce risk prevention through the adoption of practical security systems and devices (insurance of the properties, storage, exhibition, and transport conditions); the granting of credits and economic facilities, as well as incentives and/or tax benefits, for these purposes; the necessary training and specialization of the personnel of these institutions; the establishment of an official body responsible for the advice and organization of museums; to promote the education and information of the population in this regard, to raise awareness about the importance and value of cultural property and the need for its protection; the adoption of sanctions (criminal, civil, administrative); as well as the promotion of international cooperation (coordination) to combat damages, thefts, kidnappings, and other illicit acts that endanger cultural property; n.- the ICOMOS International Charter for the Protection of Historic Towns: approved in Washington, in 1987: it defines the principles and objectives, methods and instruments of action proper to maintaining the quality of life of historic towns, so as to harmonize individual and social life with the objective of perpetuating the ensemble of properties that constitute the memory of humanity; it promotes the protection of large and small towns, neighborhoods with their environment (entorno), which, in addition to their historical value, manifest values inherent to traditional urban civilizations, or are threatened by degradation, destruction, or destructurization; it lays down the principle of careful planning, forming part of a coherent policy of economic development, carried out by a multidisciplinary team of professionals so that the rescue of towns and neighborhoods is effective; the values to be preserved are the historical character of the town and the ensemble of material and spiritual elements that express its image; the main objective of protective action is the improvement of the habitat, understood as the urban environment; the plan for permanent maintenance of the infrastructure begins with the implementation of preventive or provisional measures, to subsequently establish the special protection plan; preservation admits contemporary elements provided they do not harm the harmony of the ensemble and contribute to its enrichment; it establishes the principle of regulating traffic within historic towns and neighborhoods, and the absolute prohibition of building highways within them; and finally, the need to implement preventive measures against natural disasters and potential dangers, such as noise, pollution, contamination, garbage, traffic, etc.; o.- the Recommendation on the Safeguarding of Traditional Culture and Folklore: approved at the UNESCO General Conference, at its 25th session, in Paris, on November 15, 1989: it is based on the principle that traditional and popular culture forms part of the universal heritage of humanity, as a powerful means of bringing together existing peoples and social groups and of cultural identity, and as an expression of living culture, and that States must play a decisive role in the safeguarding and dissemination of traditional and popular culture, regarding the taking of actions for its promotion and encouragement; reason for which language, literature, music, dance, games, mythology, rites, customs, handicrafts, architecture, and other arts are protected, among others. It establishes the need to promote a general framework for the classification, identification, and registration, both of institutions and of traditional and popular culture.

XXIV. DEFINITION OF THE HISTORICAL-ARCHITECTURAL HERITAGE

In light of the foregoing considerations, the historical-architectural heritage (patrimonio histórico-arquitectónico) falls within the classification of cultural property, and is therefore configured as a special type of property, characterized by a specific regime of state intervention aimed at the conservation of the object. This character is given by the very nature and objective circumstances of the property. It comprises the ensemble of cultural property of an architectural character, whether isolated buildings or ensembles thereof, 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 are therefore the result of the collective experience of a given society, community, or ethnic group; and thus, givers of group, popular, or national identity. Its determination is associated with relevant historical or cultural conjunctures, or with significant socio-cultural patterns of the community, region, or country.

Likewise, they present a contribution to technical, constructive, and/or functional development in architecture, and therefore, possess significant architectural, historical, or artistic value. They may also present formal characteristics of a typological, stylistic, and urban-planning nature that contribute to the distinctive traditional character of the immediate environment. For this reason, the determination of the historical-architectural heritage (patrimonio histórico-arquitectónico)—as such—is an indeterminate concept for legal science, and implies the conjunction of the diverse interests at play, namely, the need for a value judgment based on the contribution of non-legal disciplines that are of a technical nature, such as archaeology, architecture, science, technology, history, or art—, in order to determine the cultural value (artistic, scientific, etc., proper to that property).

In this way, the Administration does not act in a discretionary manner, but rather it implies an objective-evaluative process. It is important to highlight that the determination of the historical-architectural property (bien histórico-arquitectónico) comprises both the delimitation of the property and the environment (entorno) necessary for its due protection and enhancement (puesta en valor), and which precisely justify its protection; as well as comprising the geographical area to which it belongs, namely, the natural site that forms its environment (entorno) (integral conception of the environment).

XXV.For the purposes of this study, the quote by the French writer Victor Hugo, apart from any legal technicality, is significant:

"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 its destruction." Thus, in these properties, the enjoyment of the collective interest is involved, and it is the utmost expression of the social function of property, we, the scholars of Law, add. In this sense, the definition of architectural heritage is framed, insofar as it is a material construction, and therefore, with an evident material value, present or potential, of the land and what is built; to which is granted an additional value or price of an immaterial nature, which is the cultural value of the building, derived from its historical and artistic attributes, and from the symbolic force of the social imaginary and collective memory; of difficult or impossible pecuniary determination. By reason of the foregoing, the Law of Historical-Architectural Heritage (Ley de Patrimonio Histórico-Arquitectónico), number 7555, expressly declares of public interest "[...] the investigation, conservation, restoration, rehabilitation, and maintenance of the historical-architectural heritage (patrimonio histórico-arquitectónico)" (second paragraph of Article 2 of the Law); which denotes the importance and significance that the legislator gives to cultural heritage, which is a recognition of the duties derived from the constitutional norms cited above, namely, in Articles 50 and 89.

XXVI. ON THE PROTECTION OF THE SURROUNDINGS

In this aspect, elements that may be considered consubstantial to the buildings, and form part of them or their adornment, and which, if separated, would constitute a perfect whole easily applicable to other constructions or uses different from the original, even if their separation does not visibly harm the historic-artistic merit of the immovable property to which they are attached, are also of significance. Likewise, protection—in most legislations—extends to the environment (entorno), the final necessary achievement in the normative evolution of this sector, which is defined as the space that, without being the bearer of a cultural value in itself, exerts a direct influence on the conservation and enjoyment of the areas that do possess it; that is, one moves from the monument to the ensemble, and from there to the environment (entorno), which consists of a wider space in which they are inserted.

It is a space of prevention or reserve, for the defense and conservation of the proper environment of monuments and historic ensembles, and which in French legislation has been denominated "ambiance of the monument". Thus, the legal protection and administrative action deployed over these areas are based on the adequate conservation of the cultural spaces they serve. The importance of the cultural value of the environment (entorno) is such that its non-protection breaks the cultural value of the monument. It is for this reason that the urban planning regulations issued to safeguard the cultural property are not only valid and legitimate, but above all necessary, such as those related to the unification of the colors of facades, the architectural style that may be used, the height of constructions, and others; and which are the competence of the municipalities—exclusive urban competence, based on constitutional jurisprudence (in this sense, see, among others, judgments No. 2153-93; of nine twenty-one hours on May 21, 1993; 5305-93, of ten oh six hours on October 22, 1993; 6706-93, of fifteen twenty-one hours on December 21, 1993; 3494-94, of July 12, 1994; 4205-96, cited above, and No. 5445-99, of fourteen thirty hours on July 14, 1999)—which must act in coordination with the Ministry of Culture, Youth, and Sports in this matter.

It is thus that the techniques at the service of territorial planning and urban planning have the duty to proceed, from their own sphere, to the adoption of as many measures as necessary to preserve the space in which the monuments, sites, ensembles, or historic centers are located. An example of this protection is constituted by Article 7 of Law 5160, of December 21, 1972, which establishes a protection of the environment (entorno) in relation to the National Theater:

"The facades of the buildings constructed on the block where the National Theater is located must have the approval of the Department of Urbanism of the National Institute of Housing and Urbanism and of the Board of Directors of the National Theater." (Subsequently, it will be determined which (sic) are the public bodies or institutions responsible for the guardianship of this right, as it implies both competences of an urban nature, which constitutional jurisprudence has indicated are of local order—primarily and exclusively—, corresponding to the municipalities; as well as by reason of the matter in question, insofar as by legal provision, the Ministry of Culture, Youth, and Sports is attributed the development and promotion of the country's culture, thereby instituting it as the national advisory body for this matter).

XXVII.Regarding this point, it is illustrative to mention the French legislation (French Law on Historic Monuments—Loi sur les monuments historiques, du 31 décembre de 1913—) and the Spanish legislation (Law 16, of June 25, 1985), in which regulations are established for constructions located near buildings of historical, artistic, or archaeological character, requiring the obligation to harmonize with them. Specifically, in the case of the French regulations, buildings aligned or situated within the visible field of a classified building, located within a perimeter not exceeding five hundred meters, whose extension may be extended—if necessary—by executive decree (subsection c) of Article 1°), are generally protected.

From the foregoing, the necessary integration of cultural heritage into the broader space surrounding it is clear, as embodied in the UNESCO Recommendation concerning the Safeguarding of the Beauty and Character of Landscapes and Sites of 1962, the ICOMOS International Charter for the Conservation and Restoration of Monuments and Sites of 1964, the conclusions of the meeting of Latin American Presidents known as the Norms of Quito of 1967, the UNESCO Recommendation concerning the Protection, at National Level, of the Cultural and Natural Heritage of 1972, the ICOMOS International Charter for the Conservation of Historic Towns of 1987, and the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore of 1989—all international regulations in which the setting was defined, encompassing both immediately adjoining properties and those adjoining or distant, provided that an alteration to them could affect the intrinsic values of the asset in question, its contemplation, appreciation, or study; and it includes the subsoil, and the built or unbuilt space that provides environmental support to the asset. It is linked to the monument in such a way that its preservation is inseparable from the treatment afforded to those surroundings, which is what justifies its treatment.

XXVIII. THE REGIME FOR REMOVING PROTECTION FROM CULTURAL HERITAGE (RÉGIMEN DE DESAFECTACIÓN DEL PATRIMONIO CULTURAL)

It is of the utmost importance to clarify that even though incorporation into the nation's historic-architectural heritage, and consequently, its designation or assignment of a public function—in this case, its purpose for contemplation and enrichment of the nation's cultural heritage—is generally carried out by executive decree of the Ministry of Culture, Youth and Sports, since nothing prevents it from being done by Law of the Republic, the removal of that protection cannot derive from a regulatory-level instrument. Therefore, as an integral part of the environment, as previously explained, it must be done by means of a law enacted for that purpose, following a prior technical and objective study verifying that the building in question has lost the cultural value—whether historical, artistic, scientific, or archaeological—that justified its designation, under the terms set forth in Article 38 of the Organic Environmental Law. This clarification is made so that the authorities and officials of the Ministry of Culture, Youth and Sports take note of it, as applicable.

XXIX. ON THE OWNERSHIP (TITULARIDAD) OF HISTORIC-ARCHITECTURAL HERITAGE

In this regard, it is important to emphasize that—like the environmental regime, a subject with which it has great parallels, as previously noted—it encompasses both property owned by the State, which, by the mere declaration of incorporation (designation), acquire the characteristics of public domain property (bienes demaniales), as they are destined for a specific public service or function, in this case the contemplation of the building, since the objective of the protection, conservation, and preservation of this type of asset is to ensure the greatest public access to the contemplation and enjoyment of these assets, which are the heritage of the collective capacity of a people (culture), and which, due to their special nature as public domain assets, are imprescriptible, inalienable, and unattachable; as well as property owned by private individuals, where the declaration of incorporation into the national heritage in no way implies the transfer of ownership to the State (which did occur under the repealed legislation, Law No. 5397).

Instead, while ownership remains with a private individual, it confirms that the particular building has a historic-architectural interest that justifies its maintenance and conservation for the benefit of the national community. Thus, for this type of asset, the essential content of the right of property is respected, under the terms set forth in Article 45 of the Political Constitution, such that they can be mortgaged, transferred, acquired by adverse possession (usucapión), as well as alienated or their dominion transferred, with the sole caveat that in all cases, the designation under the cultural heritage regime is transferred, which translates into an obligation for the possessor or owner to maintain and conserve the building or construction located on the immovable property. These are assets with a “sui generis” legal regime, normally dual, because their material substrate is susceptible to public or private holding, as provided in the Law on the Historic-Architectural Heritage of Costa Rica, No. 7555 of September 27, 1995, which in Article 2, first paragraph, literally states:

“Historic-architectural heritage The immovable property of public or private ownership with cultural or historical significance, declared as such by the Ministry of Culture, Youth and Sports in accordance with this law, forms part of the country’s historic-architectural heritage.” The foregoing implies that the center of gravity of this protection lies not in the ownership regime, but in their condition as assets with spiritual value of significance, intended for collective enjoyment, which their holders must facilitate, without prejudice to other uses and utilities compatible with the asset. It is also important to consider that it is absolutely and materially impossible, even for developed countries, to expropriate all cultural heritage so that the State assumes the responsibility of maintaining and conserving these types of assets. First, due to the lack of public economic resources to carry out such a project, and second, because it would generate the phenomenon known as the “museumification” of cultural heritage, which violates one of the basic principles of the stewardship of these assets, precisely the “enhancement of the asset (puesta en valor del bien),” which translates into the incorporation of the historic-architectural asset into economic and social activity, as will be explained in the following Recitals.

XXX. THE PROTECTION REGIME FOR HISTORIC-ARCHITECTURAL HERITAGE

As previously noted, assets incorporated into the nation’s cultural heritage that are State-owned acquire the characteristics of public domain property (bienes demaniales), also called dominical property. That is, they are assigned to a public function, in this case, the contemplation of the particular building, since the objective of the protection, conservation, and preservation of this type of asset is to ensure the greatest public access to the contemplation and enjoyment of these assets, as they are the heritage of the collective capacity of a people (culture). Due to their special nature as public domain assets, they are imprescriptible, inalienable, and unattachable, under the terms set forth in Articles 261 to 263 of the Civil Code. Their legal nature was previously summarized by this Court in judgment No. 2306-91 of 2:40 p.m. on November 6, 1991:

“The public domain is comprised of assets that manifest, by the express will of the legislator, a special purpose of serving the community, the public interest. They are called dominical assets, public domain assets (bienes demaniales), public assets or things, which do not belong individually to private individuals and are destined for public use and subject to a special regime, outside the commerce of men. That is, designated by their nature and vocation. Consequently, these assets belong to the State in the broadest sense of the concept; they are assigned to the service they provide and which is invariably essential by virtue of an express provision. Characteristic features of these assets are that they are inalienable, imprescriptible, unattachable, cannot be mortgaged nor be subject to liens under the terms of Civil Law, and administrative action replaces possessory interdicts to recover dominion.

As they are outside commerce, these assets cannot be the object of possession, although a right to use can be acquired, but not a right of ownership. The use permit is a unilateral legal act issued by the Administration in the exercise of its functions, and what is placed in the hands of the individual is the usufructuary domain of the asset, with the State always reserving the direct dominion over the thing. The precariousness of any right or use permit is inherent to the figure and alludes to the possibility that the Administration may revoke it at any time, whether due to the State’s need to fully occupy the asset, for the construction of a public work, or for reasons of safety, hygiene, aesthetics, all to the extent that if a conflict of interests arises between the purpose of the asset and the permit granted, the natural use of the public thing must prevail. Consequently, the national regime for public domain assets [...] places them outside the commerce of men, and therefore the permits granted will always be on a precarious basis and revocable by the Administration unilaterally when reasons of necessity or general interest so dictate.” With regard to privately owned assets incorporated into the cultural heritage, this special protection regime translates into a series of social interest limitations on that property, permitted under the terms of Article 45 of the Political Constitution.

That is, the essential content of the right of property is maintained, such that they can be mortgaged, transferred, acquired by adverse possession (usucapión), as well as alienated or their dominion transferred, and their economic and social utility exploited, with the sole caveat that in all cases, the designation under the cultural heritage regime is transferred, because this regime must be recorded in the Public Property Registry, and it translates into a series of obligations for the possessor or owner aimed at guaranteeing the maintenance and conservation of these assets. This implies, first, the absolute prohibition of partial demolition, and even less so, total demolition of the construction, as well as the obligation to conserve and maintain it, and, if necessary, to restore it, in order to facilitate the best exhibition or contemplation of the building to the general population, which constitutes the main objective of this legal stewardship, as previously noted.

Of course, this maintenance entails the prohibition of undertaking works, internal or external, that directly affect the structure, style, or contemplation of the building, or its setting, without prior authorization from the competent body, the Ministry of Culture, Youth and Sports, as well as the prohibition of placing commercial or advertising signs or notices, signals, or symbols on the facades of buildings incorporated into the protection regime that obstruct their contemplation, without prior authorization from those authorities. The owner or possessor is also obligated to allow or facilitate inspection of the immovable property by the competent authorities—specialized personnel from the Ministry of Culture, Youth and Sports. Finally, it must be noted that the use of these assets is subordinate to not endangering the values that recommend their conservation. It is Article 9 of Law 7555 that establishes the obligations that the incorporation as cultural heritage entails for the owners, possessors, or holders of real rights over the assets, namely:

• a)To adequately conserve, preserve, and maintain the assets.
• b)To report on their condition and use to the Ministry of Culture, Youth and Sports, when required to do so.
• c)To permit the placement of signage elements regarding the declaration of the asset.
• e)To permit the periodic inspections to be carried out by accredited officials of the Ministry, and to collaborate with them, to the extent possible, to determine the state of the immovable property and how its protection and conservation are being addressed.
• f)To include, in the ordinary annual budget, the necessary items to comply with the obligations prescribed in this law, when the holder of the right is a public entity.
• g)To comply with the prohibition on installing plaques and advertising signs of any kind that, by their dimension, placement, or message content, hinder or disturb its contemplation.
• h)To obtain authorization from the Ministry of Culture, Youth and Sports before repairing, building, restoring, rehabilitating, or executing any other type of work that affects the buildings or their appearance.
• i)To suspend the processing of permits for land subdivision (parcelación), construction, or demolition. If carrying out the requested works does not harm the historical or architectural value of the asset, and if the Ministry of Culture, following a report from the Commission, so communicates to the authority processing the permits, these may be granted.” These obligations (burdens or duties) imposed on property will be constitutional as long as they meet the conditions that legitimize limitations on private property, explained in Recital IX of this judgment. That is, first, that they are established by a law approved by a qualified majority, specifically with the approval of two-thirds of the total members of the Legislative Assembly (thirty-eight votes), as is the case of the Law on Historic-Architectural Heritage—a point that will be analyzed in detail later. Second, the limitations imposed must be general, that is, affecting a generality of persons, which implies not only their addressee but also the factual premise of the law’s application.

Third, they must respect the natural use of the immovable property, so that it maintains its productive identity or economic value, enabling the owner to exercise the essential attributes of property; that is, they must allow the owner to normally exploit the asset, excluding, of course, the part or function affected by the limitation imposed by the State (judgments No. 979-91, 5893-95, 2345-96, and 4605-96, all cited above). Therefore, in addition to being useful, the burden must be necessary, reasonable, and opportune, and must imply the existence of a compelling social need that sustains it, and therefore be exceptional in nature. Hence, they must be intended to satisfy an imperative public interest. The reasonableness of the limitation translates into its adequacy to the purpose and the interest (value) that justifies it. As a corollary to the foregoing, burdens or duties imposed for the stewardship of cultural heritage that affect the essential attributes of property will be unconstitutional, and therefore compensable.

These are the attributes that allow the natural use of the thing within the current socio-economic reality, and cause the nature of the asset to disappear or make the use of the thing impossible, by preventing the “commercial use of the property” or its “economic and social value,” as they would constitute true de facto expropriations, consequently violating the constitutional precept of Article 45. Likewise, burdens imposed that are singular or concrete in nature will be unconstitutional, as they are equivalent to true expropriations. In any case, the regulations governing cultural heritage must be interpreted in the sense most favorable to facilitating and making effective the conservation of cultural assets. However, this does not preclude that the burdens suffered by the owners due to the condition of a historic asset must always be adjustable and suitable to the relevance of the public purpose at stake and the respect for the fundamental rights involved.

In any event, it must be considered that the limitations on property of historic-architectural interest have the mission of ensuring their conservation, to enhance and promote the goals of national art, history, and culture, whose origin stems from the need to establish a just social balance between individual interests and those of the community.

XXXI. THE STATE’S RESPONSIBILITY IN THE STEWARDSHIP OF CULTURAL HERITAGE

THE ADMINISTRATION’S OBLIGATION TO PARTICIPATE, PROMOTE, AND COOPERATE IN THE STEWARDSHIP FUNCTION OF CULTURAL HERITAGE (REGIME OF COMPENSATION AND INCENTIVES). Within this special stewardship regime, the role played by State authorities is of fundamental importance, in their condition as guarantors of the conservation and enrichment of cultural heritage, in order to facilitate the access of all citizens to the assets encompassed by it. Thus, state action is justified by the fact that historic-architectural heritage, like all types of cultural heritage, is by its very nature dual, that is, individual and social at the same time. Thus, this fundamental third-generation right, which is shaped within the framework of a Social State under the Rule of Law, implies that the State’s respect for it is not limited to the obligation of not affecting the right or not interfering in the private sphere of the individual—a conception typical of the liberal orientation—but rather translates into the adoption of concrete actions and provisions by public authorities.

Faced with this reality, the State’s position cannot be—nor has it been—indifference, since public powers must respond to new needs through institutional and administrative expressions, among which cultural legislation must obviously be cited. Therefore, protecting cultural heritage against illicit export and spoliation, as well as facilitating its recovery when it has been illegally exported, promoting diffusion for the knowledge of this type of assets, promoting and fostering international cooperation and exchange of information and cultural, technical, and scientific assets, and fostering economic aid and advice so that private individuals can fulfill the obligations imposed by the incorporation of their immovable property into the cultural heritage regime, all constitute obligatory actions for the public powers. Likewise, it must prevent any action or omission that endangers the values of the assets that make up the heritage, or disturbs the fulfillment of the social function recognized in this type of asset.

This translates into regulations regarding the placement of commercial and advertising signs, the adoption of security systems in institutions where cultural assets are exhibited (insurance policies), the training of personnel, both in museums and in the public administrative entities responsible for the stewardship of this right, and the granting of economic facilities, such as soft loans and tax exemptions, for example. In this vein, it is important to mention the system of incentives (or compensation) provided for in the Law on Historic-Architectural Heritage of Costa Rica, No. 7555 of September 27, 1995, which expressly establishes a series of incentives for owners or possessors of assets incorporated into the cultural heritage (Chapter III, Articles 13 to 17). These include exemption from payment of the real property tax and the tax on sumptuary constructions, as well as the stamps required for construction permits (Article 14); authorization for public institutions to make donations and investments for works and acquisitions by the State (Article 15); and it establishes the obligation for the Ministry of Culture, Youth and Sports to negotiate soft lines of credit for private individuals or public or private entities, in order to finance conservation, restoration, maintenance, and rehabilitation works on assets declared of historic-architectural interest (Article 17).

In this regard, it must be borne in mind that through subsection k) of Article 22 of the Tax Simplification Law, No. 8114 of April 4, 2001, Articles 13 and 22 of Law 7555 were repealed. These articles recognized an exemption from income tax for “[...] deductible expenses for income tax purposes, donations, and investments intended for the purposes of this law, as well as improvements that the owner, possessor, or holder of real rights makes to an immovable property declared of historic-architectural interest, provided they have been previously authorized by the Ministry of Culture, Youth and Sports”; and “u) improvements made by the owner, possessor, or holder of real rights to an immovable property declared of historic-architectural interest, as well as the amounts of donations or investments intended for the purposes of this law, following a favorable report from the Ministry of Culture, Youth and Sports.” The Court notes that although it has minimum content, this compensation regime falls within the requirements established in the relevant international Conventions and Recommendations—outlined above.

However, it deems that they are not sufficient or adequate to provide effective stewardship and protection of the Nation’s cultural heritage. In other legal systems (such as the French or Spanish), tax exemptions are total, recognizing not only exemption from property tax but also from municipal services, and of course, from income tax. State aid also translates into the allocation of a series of important resources for the proper conservation and maintenance of these assets, such as expert advice or the effective granting of favorable credits to carry out the relevant works. It will be up to legislators to provide the necessary mechanisms and instruments so that this compensation and incentive regime is sufficiently adequate to achieve a true balance in relation to the burdens and limitations imposed on the owners and possessors of assets incorporated into the historic-architectural heritage.

These individuals are obligated to make an asset they own available for the benefit of the Nation as a whole, so it is not only just but also necessary for society (the State) to recognize a series of benefits in their favor, in compensation for the “sacrifice” imposed on them. This would reverse the lack of protection in which our country’s cultural heritage is maintained, which results in the practically instantaneous demolition of constructions and buildings that are intended to be incorporated into the historic-architectural heritage, as noted by architect Roberto Villalobos Ardón at the Property, Environment, and Urbanism Seminar held in 1995:

“A colleague told me at some point that there was no easier, more effective, more direct, faster, more expeditious, less complicated way to get rid of an old building, meaning a heritage building, than to declare it heritage. The State’s inability to compensate the owner leads to almost immediate deterioration, and I have come across cases where, within two years, something that was more or less standing ended up demolished—a house in Curridabat, Escazú, Santo Domingo, etc. ...”

XXXII.Likewise, the State is obligated to carry out proper planning in this matter, that is, the establishment of adequate protection policies within the National Urban Development Plan, defining the specific objectives and tasks, as well as the provision and forecasting of the necessary resources to carry them out. In this sense, the Ministry of Culture, Youth and Sports is constituted as the body responsible for this matter, as the advisory and responsible organ, firstly, for the conservation and maintenance of the country’s historic-architectural heritage, under the terms set forth in Article 3 of Law No. 7555, and as “the highest authority in the matter,” it is obligated to “[...] provide the necessary advice to the owners, possessors, or holders of real rights over the assets that form that heritage, so that the purposes of this law are fulfilled.”

In any case, the competence of local governments regarding urban planning must not be forgotten, which obviously includes the protection and stewardship of cultural heritage, but no longer as the responsible institution, but as a collaborator of the Ministry of Culture, Youth and Sports. In this sense, what is indicated in judgments No. 55445-99 of 2:30 p.m. on July 14, 1999, and No. 2001-05737 of 2:41 p.m. on June 27, 2001, regarding the duty of coordination imposed on municipalities with institutions having assigned competence at the national level, gains meaning. In this case, the coordination of local governments with the Ministry of Culture, Youth and Sports, which has been assigned a special role in the protection and preservation of cultural heritage, in order to avoid the supposed conflict of prevalence between the national interest versus the local interest. This is why the obligation of coordination among the various public agencies arises, so that the superior interest of the Nation prevails.

The foregoing implies that local governments must implement, in their regulatory plans, the necessary measures to contribute to the protection of these assets, as occurs in European countries—such as Spain and France—so that they make effective the relevant regulations regarding the placement of commercial signs and notices, as well as traffic regulation, or the maintenance of public ornamentation and hygiene in the respective cantons, in order to preserve an ecologically balanced and healthier and more participatory urban environment. This translates into tasks such as garbage collection, traffic control, the ornamentation and maintenance of parks, or the promotion of cultural and educational programs; all of this, of course, with the advice of the responsible personnel of the Ministry of Culture, Youth and Sports.

XXXIII.THE CONSTITUTIONAL PRINCIPLE OF THE “ENHANCEMENT (PUESTA EN VALOR)” OF THE MONUMENT, WHICH FRAMES THE PROTECTION OF HISTORIC-ARCHITECTURAL HERITAGE. This principle is essential and characteristic of the stewardship of historic-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 in the ICOMOS International Charter for the Conservation and Restoration of Monuments and Sites (1965), but its development as such occurred starting with the Norms of Quito (in 1967). There, it addressed precisely the particular conditions of the Latin American continent, characterized by an underdeveloped economy and culture, by virtue of which it was—and is—necessary and obligatory to frame any action for the conservation of cultural heritage within this reality, so that it is consistent with it. Subsequently, this principle was included in the UNESCO Convention concerning the Safeguarding of Historic Ensembles in Contemporary Life (1976) and in the ICOMOS International Charter for the Conservation of Historic Towns (1987).

It is the response to the phenomenon known as the “museumification” of cultural heritage, by which it is intended that these assets pass into the exclusive domain of the State for their conservation and maintenance, which would generate their extraction from the daily life of society. On the contrary, the application of this principle translates into the fact that the stewardship of cultural heritage must foster its proper economic and social utility, but in such a way that it does not put its cultural value at risk. That is, it seeks to foster the utility of these buildings, in a manner that allows their participation and permanence in the economic and social activity of society, while at the same time maintaining and conserving their spiritual value (artistic, architectural, historical, technical, archaeological, etc.) that motivated and justifies the special stewardship regime. Thus, the principle is established that monuments are destined to fulfill a social function, namely, to contribute to national culture and identity.

That is, it seeks to reassess monumental heritage in the interest of the public and for the benefit of the nation, without thereby affecting the rights of the private individuals involved in them (right of property or freedom of commerce, for example), since the aim is to erect these buildings as instruments of progress and development, first, for their owner, and second, as a multiplier effect for the economic development of the country.

Through this, the aim is to incorporate into an economic potential a current value, to bring unexploited wealth into productivity through a process of revalorization (revalorización), which, far from diminishing its purely historical or artistic significance, enhances it, transferring it from the exclusive domain of erudite minorities to the knowledge and enjoyment of the popular majorities. The starting premise is that monuments are part of the economic resources of nations, and of course, of their owners or holders of some real right, which is why efforts must be mobilized toward securing their best use, as an indirect means of fostering the country’s development; that is, as a facilitating element for tourism, commerce, or even for residential use. In many countries, through the application of this principle, popular housing programs have been established. In any case, the use given to this type of buildings must encompass activities that maintain the cultural value of the asset, that is, activities that do not endanger the asset as such.

Putting into value (puesta en valor) is equivalent to inhabiting the building under objective and harmonious environmental conditions that, without distorting its nature, highlight its characteristics and allow its optimal use; it therefore entails a systematic, eminently technical action, aimed at using each and every one of those assets in accordance with their nature, emphasizing and exalting their characteristics and merits, until placing them in a position to fully fulfill the new function to which they are destined; that is, the social function they perform, at the objective urbanistic level and at the meta-functional level. In this way, conservation and development are not contradictory, but intimately linked, and the latter presupposes the former, insofar as the heritage brings great tourist benefits, or serves as an excellent option for housing programs, allowing a significant construction economy (up to 35% of the total value of a new work), and produces a better distribution of labor and capital, thereby contributing to the social and economic regeneration of that sector.

Likewise, putting into value (puesta en valor) exerts a beneficial reflective action on the urban perimeter, since the diversity of monuments and buildings of marked cultural, historical, artistic, and architectural interest located in cities form part of the urban landscape, that is, of the environment—according to the integral meaning explained previously—so that they exert a multiplier effect on the rest of the area that is revalued as a whole and as a consequence of the valorization and urban renewal plan (urban planning). It is clarified that this principle is not exclusive to historic ensembles (conjuntos históricos), but applies to all historical-architectural heritage; however, as an example of its application, it is clearer in the former, such as the city of Colonial Havana, or Old San Juan in Puerto Rico, or Antigua Guatemala, places where daily economic and social activity of an urban center has been fostered, where commercial, artisanal, tourist, and also residential activities take place; with the sole difference that the buildings making up these centers are subject to a special regime, by which their demolition, total or partial destruction, is prevented, and their holders are obliged to their conservation and maintenance, as well as to subjection to traffic regulations—which are much stricter and more controlled—and to ornamentation regulations, among which are included those relating to the placement of signs and advertising advertisements” (emphasis not in original).

More recently, in resolution No. 2017016787 of 9:20 a.m. on October 20, 2017, this Tribunal resolved:

“VII.—On the protection of cultural heritage. As this Tribunal has indicated, cultural assets are the product and testimony of the different traditions and spiritual achievements of the past, and constitute a fundamental element of the personality of peoples, which is why it is essential to conserve them. This is a fundamental task of the State, stemming from Articles 50 and 89 of the Political Constitution and from other international instruments. Initially, said protection was limited to a concept of heritage materialized in some asset. The Chamber, in judgment No. 1997-4350 of 2:54 p.m. on July 24, 1997, stated the following:

“The notion of ‘heritage’ (patrimonio), certainly, encompasses any assets that have a monetary value, as indicated in the Civil Code; heritage is the total aggregate of the assets and rights of a person or, also, that all the assets that constitute the heritage of a person are liable for the payment of their debts. It is obvious that archaeological or cultural assets also have appreciable monetary value, whether because of the material they are made of, their fine craftsmanship or beauty, or the historical testimony they evidence, whether of clay, stone, or metal. Some of those objects may be of scant physical value or of little significance as an artistic work, but even so they are valuable for their origin and as elements of study to investigate the culture of peoples of 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 there.

But those assets, before and now, constitute a common heritage that past generations bequeathed to the present ones and it falls to the latter to do so for future ones as a sample of knowledge of the human deeds that identify or characterize a past of ours. For all these reasons, archaeological objects from the aboriginal races that populated the continent in the pre-Columbian era, prior or contemporary to the establishment of the Hispanic culture, are valuable, and it is because of that value that many people seek and acquire such pieces.” However, from that moment on, another important element to be protected was appreciated: the knowledge and techniques used to construct or elaborate said material heritage:

“For that very reason, the individual interest that each person may have in the possession or ownership of those objects is not above the public interest, both because of their historical value and because, within the culture of peoples, lies the study of what was done by the human groups that inhabited the same territory, a study that is facilitated by making it possible for the greatest number of people to have access to those sources of knowledge, and nothing is more consistent with that public interest than that the archaeological assets remain in national territory, in the possession of museums and under the ownership of the State or its institutions. It must therefore be underscored that what is most important is not the material value of the referred objects, but their historical, scientific, and cultural value.” (judgment No. 1997-4350) Thus, by highlighting the historical importance that such representations hold, allusion was made, for example, to the testimonies that formed part of that cultural legacy as an integral part of the cultural identity of society:

“Archaeology and History are two intimately linked sciences, having as one of their objectives to clarify and reconstruct the events of the past. Historical reconstruction is based fundamentally on the interpretation of written documents, while Archaeology bases its studies on the data obtained through material objects left by human action in already-disappeared societies, by means of their relationship among themselves, the form of the find, and their connection with the environment. Every conserved object, every vestige of life and activity of humans in past societies, represents a testimony that makes possible the total or partial knowledge, depending on the case, of those testimonies, and, therefore, of forms of life now nonexistent and unknown in the present, but whose knowledge is of singular importance, as they form part of the cultural identity of the society in which one lives; of course, to the extent that they are an important testimony for the reconstruction and knowledge of past events.

The National Archaeological Heritage consists basically of immovable and movable property, product of indigenous cultures prior or contemporary to the establishment of the pre-Hispanic culture in the national territory, as well as human, flora, and fauna remains related to these cultures. From the foregoing arises the interest in the protection and conservation of those finds.” (judgments No. 1995-2706 and 1996-0729).

The Chamber emphasized that the interest in safeguarding this heritage was due to a majority will aimed at obtaining the intended values; that is, the majority of coinciding individual interests. It was described as an interest because it is oriented toward achieving a value, benefit, or utility resulting from that over which such majority coincidence falls. Furthermore, it has a connotation of public interest, since it is assigned to the whole community, as a result of that coinciding majority, because it is of or belongs to the people, to a community in general. Thus, it is not exclusive or proper to a few persons, but rather insofar as a number of persons, components of a given community, participate or coincide in it, such that it can come to be identified as referents of the entire group, including with respect to those who, individually, may or may not share it. Heritage was considered, from then on, as composed of values of a historical and cultural character, bearers of a message, which contribute to identifying a determined historical moment, a real and tangible testimony of the evolution and transformation experienced by society and its natural environment over time, which constitute, before, today, and for the future, a common heritage as an expression of the majority of coinciding individual interests, that is, of a public interest.

However, its conception remained tied to a material concept. Traditionally considered “cultural heritage” were: monuments, architectural works, monumental sculptures or paintings; inscriptions, caverns, and groups of elements of an archaeological character, which held exceptional universal value from the point of view of history, art, or science, as well as places constructed by nature. This traditional conception also stemmed 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 as ‘cultural heritage’:

- monuments: architectural works, works of monumental sculpture or painting, elements or structures of an archaeological nature, inscriptions, caverns, and groups of elements, 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 man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological, or anthropological point of view.” Currently, the concept of cultural heritage has been broadened by the Convention for the Safeguarding of the Intangible Cultural Heritage in 2003:

“Article 2: Definitions For the purposes of this Convention, 1. The ‘intangible cultural heritage’ means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts 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, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements 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 inter alia in the following domains:

(a) oral traditions and expressions, including language as a vehicle of the 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 Law No. 8560 of November 16, 2006 and published in La Gaceta No. 237 of December 11, 2006. With the entry of the concept of intangible cultural heritage, new spectra of protection were opened that are safeguarded by our Political Constitution in numeral 89, in relation to the provisions of Article 7. Hence the importance of safeguarding said heritage against theft, looting, transport, trafficking and/or illicit commercialization that some countries are suffering, among them Costa Rica and Ecuador. In fact, our country already approved another convention in a similar sense with Peru, called ‘Agreement on the Protection and Return of Cultural Property between the Republic of Peru and the Republic of Costa Rica’, which was analyzed by this Tribunal in judgment No. 2015-7175 of 2:30 p.m. on May 19, 2015, as indicated below:

“IV.—On the Draft Law submitted for consultation. According to the explanatory statement of the legislative file under study, this draft law aims not only to strengthen the cultural ties existing with the Contracting Parties, but also to address the problems occurring in both countries in relation to the theft and illicit export of objects belonging to the cultural heritage. This initiative is inspired by the multilateral legal principles adopted in that regard by both States in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, and the 1976 Convention of San Salvador on the Defense of the Archaeological, Historical, and Artistic Heritage of the American Nations. By virtue of the foregoing, the Agreement establishes rules that prohibit the entry into their respective territories of cultural property originating from the other Party that has been the object of illicit appropriation or export (Article 1).

To that end, numeral 2 of the Agreement defines what shall be understood by both States as cultural property. Likewise, it provides for the exchange of information to give notice and identify these goods when there is suspicion of their illegitimate removal (Article 4), empowers measures that allow the recovery of said goods (Article 3), for purposes of achieving their protection and conservation; and finally, facilitates the return of these goods, exempting them from the payment of customs duties and other corresponding taxes. Such objectives are consistent with the international commitments previously acquired by our country and with the provisions of numeral 89 of the Political Constitution, regarding which this Tribunal has pronounced as follows:

“SECOND: ON ARCHAEOLOGICAL HERITAGE OR CULTURAL HERITAGE. Cultural assets are the product and testimony of the different traditions and spiritual achievements of the past and constitute the fundamental element of the personality of peoples, which is why it is essential to conserve them, and this is a fundamental task of the State. The foregoing means that the historical and artistic heritage is different from that of economic patrimonial assets, because these are not production goods, but rather archaeological heritage whose legal regime responds to another order of ideas and purposes and to a different category of values that, therefore, cannot be examined with a criterion of economic policy, because no doctrine of that kind is applicable to it. The notion of ‘heritage’ (patrimonio), certainly, encompasses any assets that have a monetary value, as indicated in the Civil Code; heritage is the total aggregate of the assets and rights of a person or, also, that all the assets that constitute the heritage of a person are liable for the payment of their debts.

It is obvious that archaeological or cultural assets also have appreciable monetary value, whether because of the material they are made of, their fine craftsmanship or beauty, or the historical testimony they evidence, whether of clay, stone, or metal. Some of those objects may be of scant physical value or of little significance as an artistic work, but even so they are valuable for their origin and as elements of study to investigate the culture of peoples of 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 there. But those assets, before and now, constitute a common heritage that past generations bequeathed to the present ones and it falls to the latter to do so for future ones as a sample of knowledge of the human deeds that identify or characterize a past of ours. For all these reasons, archaeological objects from the aboriginal races that populated the continent in the pre-Columbian era, prior or contemporary to the establishment of the Hispanic culture, are valuable, and it is because of that value that many people seek and acquire such pieces.

For that very reason, the individual interest that each person may have in the possession or ownership of those objects is not above the public interest, both because of their historical value and because, within the culture of peoples, lies the study of what was done by the human groups that inhabited the same territory, a study that is facilitated by making it possible for the greatest number of people to have access to those sources of knowledge, and nothing is more consistent with that public interest than that the archaeological assets remain in national territory, in the possession of museums and under the ownership of the State or its institutions. It must therefore be underscored that what is most important is not the material value of the referred objects, but their historical, scientific, and cultural value. That interest is nothing more than a majority will aimed at obtaining the intended values; that is, the majority of coinciding individual interests.

It is an interest because it is oriented toward achieving a value, benefit, or utility resulting from that over which such majority coincidence falls. It is public because it is assigned to the whole community, as a result of that coinciding majority, because it is of or belongs to the people, to the community in general. So it is a public interest because it is not exclusive or proper to a few persons, but rather insofar as a number of persons, components of a given community, participate or coincide in it, such that it can come to be identified as pertaining to the entire group, including with respect to those who, individually, may or may not share it. That is, values of a historical and cultural character, as bearers of a message, contribute to identifying a determined historical moment, a real and tangible testimony of the evolution and transformation experienced by society and its natural environment over time, which constitute, before, today, and for the future, a common heritage as an expression of the majority of coinciding individual interests, that is, of a public interest.” (judgment No. 1997-4350) Consequently, far from the approval of this Agreement constituting a violation of the Constitution’s Law, it strengthens our constitutional guarantee of protection of cultural heritage, and promotes the respective international cooperation for both State Parties in that purpose…

V.In conclusion and under the terms indicated, the Chamber finds no objections of a constitutional nature, in substance or form, to the draft law processed in legislative file 18.138.”

Said precedent refers to a positive legal article very similar to the agreement under study.” At the legal level, Law No. 7555 of October 4, 1995 ‘Historical-Architectural Heritage of Costa Rica’ states:

“ARTICLE 2.- Historical-architectural heritage. The immovable property, publicly or privately owned, having cultural or historical significance, declared as such by the Ministry of Culture, Youth and Sports in accordance with this law, forms part of the country’s historical-architectural heritage.

The research, conservation, restoration, rehabilitation, and maintenance of the historical-architectural heritage are declared of public interest.

ARTICLE 3.- Advisory services. The State has the duty to conserve the historical-architectural heritage of the country. The Ministry of Culture, Youth and Sports is the highest authority on the matter and shall provide the necessary advice to the owners, possessors, or holders of real rights over the assets that form that heritage, so that the purposes of this law are fulfilled (…)

ARTICLE 5.- National commission of historical-architectural heritage. The National commission of historical-architectural heritage is created, which shall advise the Ministry in the fulfillment of this law. It shall be composed as follows:

• a)The Minister of Culture, Youth and Sports or their representative, who shall preside over it.
• b)The highest-ranking official at the Center for Research and Conservation of Cultural Heritage.
• c)A representative of the Colegio de Arquitectos, appointed by its Board of Directors.
• d)The President of the Academy of Geography and History.
• e)The President of the Costa Rican Association of the International Council of Monuments and Sites.
• f)A representative of the Procuraduría General de la República.
• g)A representative of the Defensoría de los Habitantes, with voice but no vote.

The obligation of the last two shall be to protect the interests of private individuals affected by the application of this law. The members of the Commission mentioned in subsections a), b), d), and e) shall exercise their functions as long as they hold the office that brought them to it; those mentioned in subsections c), f), and g) shall be appointed for four years. In the event of resignation or death, the substitute shall be appointed for a full term (…)

ARTICLE 8.- Executive Decree. The Executive Decree that incorporates a specific asset into the historical-architectural heritage shall include the following items:

• a)The registration data of the immovable property in the Property Registry and the clear and precise description of the buildings it contains, particularly those that gave rise to the declaration.
• b)A detailed and substantiated analysis of the historical or architectural reasons supporting the declaration.
• c)A recommendation to initiate expropriation proceedings for immovable properties in accordance with the respective law, when the material protection or the better cultural or visual use of the asset requires the involvement of other adjacent or neighboring immovable properties (…)” (the bold text has been added).

Likewise, Article 35 of the Organic Environmental Law establishes: “The creation, conservation, administration, development, and surveillance of protected areas shall have the following objectives: (…) f) To protect the natural and landscape settings of the historical and architectural sites and centers, of the national monuments, of the archaeological sites, and of the places of historical and artistic interest, of importance for the culture and national identity.” This implies that the management of cultural resources allows human intervention for the maintenance, keeping, preservation, and assets located in their surroundings, as well as the actions deployed to favor their rescue and preservation. In turn, Articles 71 and 72 of the same law prescribe:

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

The Executive Branch shall dictate the appropriate measures and promote their execution through the relevant bodies, public entities, and municipalities, to prevent this type of pollution.

Article 72.- Landscape conservation. The competent authority shall promote the participation by public and private sectors in the conservation of the landscape. When the carrying out of a work requires affecting it, the resulting landscape must be at least of equal quality to the previous one.” Consequently, in relation to cultural heritage, not only are purposes of conservation, preservation, and development pursued, but, as was recorded in pronouncement No. 2010013099 of 2:56 p.m. on August 4, 2010, “also the principle of sustainability in the use and development of the assets of the artistic, archaeological, and cultural heritage, to enrich their surroundings by improving their scenic beauty, and to give access and safety to the assets and persons, as guided by the technical and scientific standards in the respective matters.” In this way, in consonance with constitutional jurisprudence, the protection of cultural heritage imposes itself as a constitutional obligation arising from Articles 50 and 89 of the Magna Carta, without prejudice to the national and international legal order governing the subject.

Now, the preservation of cultural heritage that is, moreover, located in a protected wilderness area (área silvestre protegida), implies that, prior to the adoption of any legislative decision affecting both it and its surroundings, there must be technical studies that support its preservation. The foregoing is indispensable so that the interaction among the cultural heritage, the environment, and the human being is studied, and so that it is determined whether it is possible to achieve an adequate balance among such elements.

III.On the alleged unconstitutionality of Law No. 9892 of August 24, 2020 for changing, without prior scientific studies, the management category of a territorial area of the protected wilderness area ‘Isla San Lucas’.

Before resolving what is legally appropriate, it is worth noting that, by means of Law No. 5469 of April 25, 1974, San Lucas Island was transferred to the Municipalidad de Puntarenas with the purpose of designating it as a tourist center. Subsequently, through Law No. 6043 of March 2, 1977, called ‘Law on the Maritime Terrestrial Zone’, it was regulated that the referred island “shall preserve its current legal status under the administration of the Municipalidad de Puntarenas.” On the other hand, by means of Executive Decree No. 24520 of July 27, 1995, the buildings of the San Lucas Penitentiary were declared of historical-architectural interest. In turn, through Executive Decree No. 29277-MINAE of January 11, 2001, the Isla San Lucas National Wildlife Refuge was created.

Then, through Executive Decree No. 30714-C of September 26, 2002, the buildings on that island were incorporated into the historical-architectural heritage of Costa Rica, considering: “1st—That on San Lucas Island evidence of pre-Hispanic occupation of the Sapoa-Ometepe Period (800-1500 A.D.) is recorded, and buildings that testify to its use as a penal center in the 1930s, which confers upon it the denomination of San Lucas Island Historical Site. 2nd—That the archaeological sites located on the Island reflect knowledge of navigation, extraction, and use of resources linked to marine and coastal environments. 3rd—That there are few archaeological sites on the islands of the Golfo de Nicoya, and as these are non-renewable and finite, they must be protected. 4th—That the former penitentiary is an architectural ensemble characterized by a physical structure, recognizable as representative of the historical social reality of the 1930s and 1940s. 5th—That in the architectural ensemble of the Island the technique of reinforced concrete and the rationalist influence were used in a cultural setting of marked historicist influence. 6th—That it is the duty of the State to safeguard the Cultural Heritage of the country.” Now, Law No. 9892, challenged in the sub iudice, establishes:

“ARTICLE 1—Creation.

Isla San Lucas National Park is created, which, in addition to its status as a protected wilderness area, shall be a historical-architectural heritage site and a zone of sustainable tourism use, in the specific areas determined in this law (…)”.

In view of the foregoing, it is worth reiterating what was indicated above regarding protected wilderness areas (áreas silvestres protegidas), which constitute delimited geographic spaces, made up of lands, wetlands, and portions of the sea, that represent special significance due to their ecosystems, the existence of threatened species, their impact on reproduction and other needs, and their historical and cultural significance. These protected wilderness 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 system of protected areas is composed of various management or handling categories. Certainly, these pursue common purposes, such as those provided for in Article 35 of the Organic Environment Law; however, they also have distinctively relevant characteristics. On this subject, in the above-cited opinion No. C-016-2002 of January 15, 2002, the PGR explained: “(…) even (sic) though there is no technical definition of a protected zone in our current legislation, the mere classification that Article 32 of Law No. 7554 makes of the management categories necessarily leads one to think that differences do exist among them, since, otherwise, it would have sufficed to enunciate a single regime for protected wilderness areas. And it is logical that this is so, given that each wilderness area has its own characteristics from a biological, soil, hydrological, etc., standpoint, which make it deserving of a particular treatment regime defined by the assigned management category” (emphasis supplied).

In this way, it is evident that alongside protected wilderness areas enjoying a particular safeguard “for representing special significance due to their ecosystems, the existence of threatened species, their impact on reproduction and other needs, and their historical and cultural significance” (Article 58 of the Biodiversity Law), each of the different management categories has its distinctive qualities, which inexorably imposes the requirement of having scientific studies for the purposes of supporting the decision of what type of management category is the most appropriate for each area, as the aforementioned rule provides: “During the process of fulfilling requirements to establish state protected wilderness areas, the respective technical reports must include the pertinent recommendations and justifications to determine the most appropriate management category to which the proposed area must be subjected” (bold added).

In that sense, the IUCN was emphatic in pointing out to this Court that: “The (sic) assignment of the management category of a protected wilderness area must be the product of an analysis that considers the objectives for the area’s creation, the natural, cultural, and other values of the area, the current condition of these values, the uses that could be contemplated, among others. Said assessment must be carried out jointly with stakeholders, authorities, and local communities.” In the sub examine, with Law No. 9892, a portion of Isla San Lucas went from being a ‘national wildlife refuge’ —as defined in Executive Decree No. 29277-MINAE of January 11, 2001— to a ‘national park’. Note that, according to Article 32 of the Organic Environment Law, both ‘national wildlife refuge’ and ‘national park’ represent different management categories in relation to a more general type of geographic zone called a ‘protected wilderness area’, so that, precisely because they are distinct management categories, their corresponding lands demand differentiated regulatory needs.

That is, the protected wilderness area is subdivided into various management categories, each of which has specific geographic zones whose particular qualities precisely justify and obligate the diverse measures necessary and tailored to such characteristics for the purpose of safeguarding the environment in an effective and efficient manner. Such categorization and, of course, its eventual alteration are not arbitrary nor do they respond to whims, but rather are based on prior, duly-supported scientific studies, which is consistent with Articles 38 of the Organic Environment Law, 58 and 59 of the Biodiversity Law, 71 and 72 of the regulations to this latter regulatory body, 2 of the ‘Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere’, 10 and 14 of the ‘Convention on Biological Diversity and its Annexes’, as well as with the principles of progressivity and non-regression in environmental matters, the precautionary, preventive, and objectification principles of environmental protection, as well as the logical-legal principle of non-contradiction.

In the stated sense, Law No. 7317 of October 30, 1992, called the ‘Wildlife Conservation Law’, regulates national wildlife refuges in this way:

“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, especially those that are in danger 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 comprised within national wildlife refuges fall under the exclusive competence and management of the National System of Conservation Areas () of the Ministry of Environment and Energy (*), as determined in this Law and its Regulations (…)

Individuals or legal entities wishing to carry out development activities or projects and exploitation of natural resources, comprised within type b and c refuges, shall require authorization from the National System of Conservation Areas (*). Said authorization must be granted with conservation criteria and strict “sustainability” in the protection of natural resources and shall be analyzed through the presentation of an impact assessment of the action to be developed, following the technical-scientific methodology applied in this regard. This assessment shall be paid for by the interested party and shall be prepared by competent professionals in the field of natural resources (…)

In state-owned and mixed refuges, only activities defined in the management plan prepared for the protected area shall be permitted, upon prior presentation of the corresponding environmental impact assessments (…)

Article 83.- The extraction of wildlife (*), continental and insular, in national wildlife refuges is prohibited, with the exception of management and extraction for nurseries or breeding farms, upon prior completion of the corresponding technical-scientific studies.

The National System of Conservation Areas (*) shall have the powers and duties established by Law No. 6043, regarding National Wildlife Refuges that include areas of the maritime-terrestrial zone (…)” (emphasis added).

In turn, in the Regulations to the Biodiversity Law, this management category of protected wilderness area is defined as follows:

“e) National Wildlife Refuges: Geographic areas that possess terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination of these. Their main purposes shall be the conservation, research, increase, and management of wild flora and fauna, especially those that are in danger of extinction. For classification purposes, there are three classes of national wildlife refuges:

e.1) State-owned refuges. These are those in which the areas declared as such belong entirely to the State and are public domain. Their administration shall correspond exclusively to SINAC. Their main objectives are: the conservation, research, and management of wild flora and fauna, especially of those species that are officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. Because they are part of the State’s natural heritage, only research, training, and ecotourism activities may be developed.

e.2) Privately-owned refuges. These are those in which the areas declared as such belong entirely to private individuals. Their administration shall correspond to the owners of the properties and shall be supervised by SINAC. Their main objectives are: the conservation, research, and management of wild flora and fauna, especially of those species that are officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. On the lands of privately-owned refuges, only (sic) productive activities may be developed in accordance with what is stipulated in the Regulations of 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 those in which the areas declared as such belong partly to the State and partly to private individuals. Their main objectives are: the conservation, research, and management of wild flora and fauna, especially of those species that are officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. Their administration shall be shared between the private owners and SINAC, such that on lands that are State property, only (sic) the activities previously indicated for state-owned refuges, indicated in subsection i), may be developed, while on privately-owned lands, the activities indicated for privately-owned refuges, indicated in subsection ii), may be developed, respecting the respective criteria and requirements.

Regarding the dimensions and permitted characteristics for the different types of activities and projects to be developed within privately-owned refuges and the private portion of mixed-ownership refuges, refer to the Regulations of the Wildlife Conservation Law.” For its part, in ruling No. 1999002988 of 11:57 a.m. on April 23, 1999, this Constitutional Court stated the following regarding national wildlife refuges:

“The primary purpose of said sites is the protection of endangered flora and fauna species and they possess, among other values, great scientific value, hence the interest in conserving them. Their conservation aims to guarantee the perpetuity of wildlife species, their populations, and habitats, and to provide opportunities to carry out scientific, educational, and recreational activities, when these do not detract from the objectives of each refuge. Within National Wildlife Refuges, the biota can be very varied depending on the diversity of natural associations existing within the refuge, according to the variety of local geographic conditions, which means appreciating the differences that come from a diversity in geological, soil, topographic conditions, and animal and human activity, hence the legal protection of these areas and other constituent parts of forest agricultural property becomes necessary” (highlighting added).

In addition to the above, the National System of Conservation Areas has clarified that the national wildlife refuge is equivalent to category IV of conservation established by the IUCN, namely, the habitat/species management area, whose primary purpose is the protection of specific habitats or species, and therefore aims for their maintenance, conservation, and restoration. This type of management category is generally used in geographic zones that have undergone significant modifications and that, therefore, need protection, which may occur with or without human intervention. Furthermore, it has been noted that in the aforementioned category, human uses, such as scientific research, may occur; however, this cannot constitute its primary purpose, as the measures adopted must primarily tend toward the protection of habitats and species.

On the other hand, according to Article 1 of the ‘Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere,’ a national park is to be understood as: “Areas established for the protection and preservation of superlative scenery, flora and fauna of national significance which the general public may enjoy when placed under public supervision (…)”. Likewise, it provides that:

“ARTICLE 3 The Contracting Governments agree that the boundaries of national parks shall not be altered, nor any portion thereof alienated, except by the competent legislative authority. The resources of these areas shall not be subject to commercial exploitation.

The Contracting Governments agree to prohibit hunting, killing, and capturing of specimens of fauna and the destruction or collection of specimens of flora in national parks, except when done by park authorities or by order or under the supervision of the same, or for duly authorized scientific investigations.

The Contracting Governments further agree to provide the national parks with facilities for public recreation and education, in accordance with the purposes pursued by this Convention (…)” (highlighting added).

Furthermore, as indicated above, the Regulations to the Biodiversity Law conceptualize national parks as “Terrestrial, marine, marine-coastal, freshwater geographic areas, or a combination of these (sic), of national importance, established for the protection and conservation of natural beauty and biodiversity, as well as for public enjoyment. These areas present one or several ecosystems in which 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, according to the IUCN, as stated in the previous whereas clause, national parks correspond to management category II and refer to large natural or near-natural areas established to protect large-scale ecological processes, along with the complement of species and ecosystems characteristic of the area, which also provide the foundation for environmentally and culturally compatible spiritual, scientific, educational, recreational, and visitor opportunities. This type of management category has as its primary purpose the protection of natural biodiversity, the underlying ecological structure, and supporting environmental processes, as well as the promotion of education and recreation.

Additionally, the IUCN has pointed out differentiations between national parks —category II— and habitat/species management areas —category IV— (known in the country as national wildlife refuges) by indicating that: “Category IV protected areas aim to protect particular species or habitats, and consequently they are defined and managed relatively less for other elements of the ecosystem, whereas category II protected areas aim to protect functioning ecosystems. Category II and IV can therefore look very similar in some circumstances and the distinction is based in part on the question of objectives – e.g., whether the objective is to protect the ecosystem as a whole as far as possible (category II) or whether it focusses on protecting a few key species or habitats (category IV)” (Guidelines for applying protected area management categories, IUCN, 2018; bold added).

Moreover, regarding the challenged regulatory body, the PGR issued legal opinion No. OJ-082-2020:

“Under the provisions of Article 18 of the Forestry Law (Ley Forestal), Article 11 of its Regulations (Executive Decree No. 25721 of October 17, 1996) establishes that, in protected wilderness areas, except in national parks and biological reserves, ecotourism activities may be authorized, only in the areas designated for that purpose by SINAC, and that SINAC may authorize the carrying out of permitted activities through the granting of use permits and the charging of the respective fee.

According to that same regulation, ecotourism activities such as rustic trails or paths, camping areas, viewpoints, canopy, hanging bridges, rappelling, rest areas, lunch areas, kayaking, canoeing, recreational cycling, and fishing may be developed; research activities such as viewpoints for observing wild species or for control and protection, trails, installation of camera traps, and collection of biodiversity samples; and training activities, such as demonstration tours, ecological classrooms, and environmental education programs; and other related and duly authorized activities that are compatible with the environment.

In turn, in accordance with those limitations, Article 82 of the Wildlife Conservation Law establishes that in state-owned wildlife refuges, resource development and natural resource exploitation projects cannot be carried out, which is reiterated in Article 70 of the Regulations to the Biodiversity Law (Decree No. 34433 of March 11, 2008) which provides that, in these refuges, only training, research, and ecotourism activities may be carried out.

Regarding the activities that may be developed in national parks and biological reserves, Article 58 of the Biodiversity Law establishes that the prohibitions in this regard are those established by the Law Creating the National Parks Service (No. 6084 of August 24, 1977). Said law, in Articles 8, 10, and 12, provides that in those spaces it is prohibited to carry out any type of commercial, agricultural, or industrial activity, that fishing activity is limited to artisanal and sport fishing when it is proven not to cause ecological alterations, and that no concessions of any kind may be granted for the exploitation of products, nor may permits be granted to establish other facilities, other than those of the National Parks Service.

In this regard, what is provided in Article 3 of the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (approved by Law No. 3763 of October 19, 1966) is relevant, to the effect that the resources existing in national parks may not be exploited for commercial purposes.

Based on these latter provisions, it has been indicated that National Parks and Biological Reserves are wilderness areas of absolute conservation. (Constitutional Chamber, ruling No. 16975-2008 of 2:53 p.m. on November 12, 2008. In addition, see our pronouncements Nos. C-228-1998 of November 3, 1998, C-297-2004 of October 19, 2004, OJ-236-2003 of November 17, 2003, OJ-093-2004 of July 19, 2004, OJ-069-2008 of August 12, 2008, and OJ-027-2018 of February 28, 2018).

Furthermore, in accordance with Article 39 of the Biodiversity Law, in protected wilderness areas, the National Council of Conservation Areas is empowered to approve contracts or concessions for non-essential services and activities, such as parking lots, sanitary services, administration of physical facilities, food services, shops, construction and administration of trails, visitor management, and others defined by the Regional Council of the respective Conservation Area. Those concessions may not include the exercise of responsibilities pertaining to MINAE, such as the definition and monitoring of strategies, plans, and budgets of the Conservation Areas; nor can they include the authorization of private buildings.

In principle, all protected wilderness areas must be administered and used in accordance with the above provisions. And, although these regulations and use limitations are set forth in legal and regulatory norms, it must be kept in mind that “from the time of their declaration, the intention is to endow these geographic zones with the conservationist and protectionist vocation necessary to fulfill their function.” (Constitutional Chamber, rulings Nos. 21258-2010 of 2:00 p.m. on December 22, 2010, 16938-2011 of 2:37 p.m. on December 7, 2011, and 2752-2014 of 9:15 a.m. on February 28, 2014. The highlighting is not from the original). And that, by virtue of this, protected wilderness areas are framed “within a planning context that has the purpose of preserving the natural resource.” (Constitutional Chamber, ruling No. 16938-2011 already cited).

Consequently, the modification of the norms referring to a protected wilderness area in which use conditions and regulations on its administration are established, different from the regime applicable to the generality of those protected spaces, could imply a detriment in the level of protection of the area and, consequently, the violation of constitutional principles.

In that sense, on other occasions, we have indicated that:

“‘From said article [Article 18 of the Forestry Law] it is inferred that, at present, the uses legally permitted in the State's natural heritage are reduced to research, training, and ecotourism activities, which must also be approved by the Ministry of Environment, Energy, and Telecommunications. Such restrictions do not have constitutional rank, so it is clear that they could be modified by a norm of the same nature, as is the case with the project that is intended to be approved, since there is no principle of ‘immutability of the legal system.’ However, it must be reiterated that, in the case of reducing protection guarantees, such as authorizing other activities that are currently not permitted, it is essential that technical criteria exist to justify it, since otherwise, the decision would become arbitrary and violative of the Constitution, specifically the right to enjoy a healthy and ecologically balanced environment. Along the same lines, any activity that is authorized to be carried out in the refuge cannot be incompatible with the environmental protection that its creation is intended to guarantee, as this would be denaturing its reason for being.

Thus, to expand the range of permitted activities in the Ostional Wildlife Refuge, not only (sic) must there be technical studies to justify it, but also, the activities to be carried out cannot be incompatible with the environmental vocation of the lands nor put the spawning of turtles in the place at risk. Only (sic) with the fulfillment of these requirements could it be achieved that the collective interest and the social problem sought to be protected is not at the expense of the environment, as a superior legal interest.’ (Legal opinion No. OJ-014-2010 of March 26, 2010. In a similar sense, see opinions Nos. OJ-033-2011 of June 13, 2011, OJ-156-2014 of November 17, 2014, OJ-084-2015 of August 6, 2015, OJ-088-2018 of September 18, 2018) (…)

(…) if what is desired is to expand that enabling regulatory framework, the legislator must ensure that the activities or developments to be enabled are in accordance with what is provided by the Constitutional Chamber, that is, that they will be compatible with environmental protection, and that they are in tune with the carrying capacity of the place, which, in any case, as that jurisdictional body provided, must be ensured in a sustainable manner according to science and technique.

Therefore, although the bill indicates that commercial, transportation, sports, artistic, or cultural activities would be enabled, which encourage tourist attraction and visitation to the island, and that in the tourist zone permits will be granted to carry out works and services of all kinds, the truth is that the authorization of those activities must depend on what is technically determined as viable in the corresponding planning instrument for the protected wilderness area or in the corresponding environmental impact assessments. For, otherwise, the general enabling set forth in the legal initiative would have no scientific and technical support to back the non-affectation of the natural and historical-architectural heritage of the island, as expressly required by the Constitutional Chamber.

Another aspect that must be assessed is the advisability of transforming the current wildlife refuge into a National Park, as proposed by the bill, since, as already stated, national parks, together with biological reserves, are considered spaces of absolute conservation, and, consequently, the activities to be developed in them are more limited.

Indeed, as noted, the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere provides that the resources existing in national parks may not be exploited for commercial purposes, and this could represent an obstacle for the activities projected to be developed on the island (…)

(…) the proposed delimitation of the protected wilderness area should be reviewed, as it appears that the 210 hectares of marine area and islets, which were added to the Wildlife Refuge by Decree 34282 and which the Constitutional Chamber upheld as part of the protected area in ruling No. 13099-2010, would not be included.

The foregoing could imply, at least, a serious conflict in the application of regulations, because if the bill is approved as it is, it could be understood that Isla San Lucas and the surrounding marine area of six meters in depth would be a national park, and that the rest of the area not contemplated would maintain its nature as a wildlife refuge, to which the provisions of the Decree of its creation would continue to be applied.

Another possible interpretation, which would bring with it the unconstitutionality of the norm, would be that the approval of the law, by not contemplating the indicated space, implies the reduction of the protected wilderness area without having the technical studies required for that purpose. (In this regard, see the rulings of the Constitutional Chamber Nos. 1056-2009 of 2:59 p.m. on January 28, 2009, 13367-2012 of 11:33 a.m. on September 21, 2012, 12887-2014 of 2:30 p.m. on August 8, 2014, 673-2019 of 12:00 p.m. on January 16, 2019, among others)” (highlighting added).

Now then, it is reiterated that, even though both national wildlife refuges and national parks constitute management categories of protected wilderness areas, it is no less true that they harbor distinctive and unique characteristics, given that each pursues specific management objectives with its own conservation goals. Indeed, each category is distinguished by a specific degree of protection in accordance with its particular biological, soil, hydrological, physiographic, ecological, climatic factors, among others, which in turn defines the level of admissible human intervention.

In conclusion, the fact that protected wilderness areas have diverse management categories implies that each of these has different characteristics from the biological, soil, hydrological, physiographic, ecological, climatic standpoint, among others, and, therefore, diverse conservation objectives, which obliges specific regulatory norms and administrative provisions for each category; otherwise, not only from an environmental standpoint but also from a logical-legal one, the classification among different management categories made in Article 32 of the Organic Environment Law would be superfluous. Stated differently, even though the protected wilderness area as a whole responds to a series of objectives —see Article 35 eiusdem—, it is no less true that each of the management categories in particular pursues different conservation purposes according to its own qualities, which entails specific forms of administration, management, planning, uses, and prohibitions.

Note that environmental protection must not occur in an isolated manner, but rather must be carried out within a system, in such a way that other involved constitutional interests are taken into consideration.

In that regard, it must be considered that San Lucas Island also has special protection in relation to the cultural heritage it safeguards, which was already the subject of analysis by this Court in the aforementioned ruling no. 2010013099 of 14:56 hours on August 4, 2010:

“VII.- On the protection of cultural heritage.- This Chamber has the function of being the guarantor of constitutional supremacy, of the rights and fundamental freedoms contained in the Political Constitution, and of human rights and those instruments of a fundamental nature applicable in the Republic, pursuant to what was set forth in the preceding whereas clause, the legal issues addressed by the actions of unconstitutionality are not exhausted with the previous declaration of unconstitutionality, because it brings with it other fundamental rights that must be protected. In the judicial inspection on June 4, 2010, this Constitutional Court, as well as the parties and the coadjuvants appearing in the proceeding, verified the visible lack of maintenance of the buildings located on San Lucas Island due to the passage of decades and the need to take actions to halt the advanced deterioration suffered by the existing infrastructure there (and the wooden structures that existed on the site), and the urgent need to stop their imminent disappearance. On the other hand, the historical testimony of archaeological sites of cultures that lived on the island, and whose protection is owed not only with regard to the historical function assigned to it as a penitentiary center. The Chamber on this issue reiterates what was resolved in ruling No. 2003-03656, insofar as it established that:

“C.- OF THE CONSTITUTIONAL PROTECTION OF CULTURAL HERITAGE. ARTICLES 50 AND 89 OF THE POLITICAL CONSTITUTION.

XVI. DELIMITATION OF THE SCOPE OF APPLICATION AND LEGAL-CONSTITUTIONAL SUPPORT

The importance of protecting cultural heritage, at the national, regional, and international levels, is undisputed, precisely because of the significance that this heritage represents for the necessary maintenance and strengthening of the identity of peoples (population and/or nation), be it in the historical, social, geographical, and cultural spheres. Everyone knows that understanding the past—connection with roots—implies understanding the present time and establishes the possibilities for the future material and psycho-social development of individuals and human groups. It is about recognizing a value, understood as the incorporation of economic potential, or value that is realized for a transcendent purpose (spiritual, cultural, or artistic value). It is for this reason that the concept of historical-architectural heritage has evolved, and with it the criteria for its protection, so that it is no longer justified by a "romantic" ideal, but rather as a condition of the identity of peoples, as an integral part of their history and culture, addressing reasons of social-economic and urban-environmental or urban-ecological development, which has a more human foundation.

Thus, protection by States is necessary, allowing for effective and efficient action, based on a scientific construction consistent with reality, both in the field of territorial and architectural theories, and in the legal field, as it interacts with other disciplines and knowledge, such as History, Anthropology, Architecture, Restoration Theory, and Law, among others; and which takes into consideration the country's own circumstances, such as the degree of underdevelopment and economic dependency. Thus, the protection of this heritage must be actively integrated into the social and economic resources of the country, so that it does not constitute a burden for the State, nor for the population (owners, possessors, or holders of any real right over the assets incorporated into this special protection regime), in such a way that it becomes another resource that generates social well-being.

XVII.The protection of cultural heritage is framed within Urban Planning Law, which has recently come to be understood within the broader framework of Environmental Law, which finds its legal-constitutional support in Articles 50 and 89 of the Political Constitution, as they literally state:

"The State shall procure the greatest well-being for all the inhabitants of the country, organizing and stimulating production and the most adequate distribution of wealth.

Every person has the right to a healthy and ecologically balanced environment. Therefore, they are entitled to denounce acts that infringe upon that right and to claim reparation for the damage caused.

The State shall guarantee, defend, and preserve that right. The law shall determine the corresponding responsibilities and sanctions" (Article 50); and "Among the cultural aims of the Republic are: to protect natural beauties, to conserve and develop the historical and artistic heritage of the Nation, and to support private initiative for scientific and artistic progress" (Article 89).

This last norm provides guidelines for public authorities to promote environmental protection, understood in an integral manner, that is, not understood in its traditional sense that has been limited to the scope of natural resources, what is commonly known as "the green," insofar as it has been understood to comprise natural resources (forests, water, air, minerals, flora and fauna, etc.), but also in relation to the environment in which one lives, which comprises not only the scenic beauties of nature, such as the landscape, but also everything related to cities and urban and rural conglomerates, that is, the concept of the urban. It can be rightly affirmed that these are two complementary aspects of one reality, like two sides of the same coin: the natural environment and the urban environment. Thus, a more human environment is sought, that is, an environment that is not only healthy and ecologically balanced, but also serves as a symbolic referent and giver of national, regional, or local identity.

Thus, the fundamental right to a healthy and ecologically balanced environment—broadly developed by constitutional jurisprudence—shall comprise both its natural parts and its artificial parts, the latter being understood as the human habitat, what is built by humankind, that is, the urban, so that they remain free from all contamination, both due to the effects and repercussions this may have on the health of people and other living beings, and due to the intrinsic value of the environment.” In light of the foregoing, the Chamber must analyze the specific case, given that both rights, natural environment and urban environment, must be balanced when Cultural Heritage is present, given that these are also constitutional values that cannot be legitimately excluded from the rights of access and enjoyment of all individuals, nationals and foreigners, what is known as its enhancement (puesta en valor).

But the Chamber holds that the aspiration that human development can only be achieved in an urban environment must be demystified. Faced with this situation, the Chamber would face a dilemma: although Executive Decree 34282-TUR-MINAE-C contains provisions that clearly contravene Article 50 of the Political Constitution, and which is so declared in this ruling, there are others that do find their basis in national and international legislation, which cannot be eliminated because they precisely find their support in norms of higher legal rank, in addition to being consistent with their status as a fundamental right (see Whereas Clause XX of ruling 2003-03656). In such cases, based on the fundamental right to a healthy and ecologically balanced environment, it is not appropriate to sacrifice the protection of National and Cultural Heritage.

VIII.Continued: Protection of National and Cultural Heritage. Applicable International Legislation. The importance of this action lies precisely in determining to what degree the protection and conservation of National and Cultural Heritage must be guaranteed, and how it must be reconciled with the right to a healthy and ecologically balanced environment. For these purposes, the Chamber deems it necessary to transcribe the international legislation that refers to cultural value and the protection it deserves from the various States of the world. To begin, the countries of the Central American region established, through the "Convention for the Conservation of Biodiversity and Protection of Priority Wilderness Areas in Central America," the following:

“Article 19.- National strategies shall be developed to execute the plans for Systems of Protected Wilderness Areas, guaranteeing basic economic functions for local, regional, and global development, and the strengthening of institutional presence in the mentioned areas, for which national and international financing shall be sought for their effective execution.” “Article 22.- Environmentally compatible development practices shall be promoted through all 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.- Actions to stimulate ecotourism in the region are supported, as a mechanism through which the economic potential of Protected Areas is valued; part of their financing is guaranteed; and it contributes to improving the quality of life of the populations adjacent to said regions.

To this end, migratory and infrastructure facilities shall be implemented to favor ecotourism in border areas.” Numeral 37 of this Convention establishes that the interpretation of the Convention shall not affect the rights and obligations of the Central American States derived from the existence of prior international conventions related 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 “stimulate ecotourism,” it refers not only to the commitment to protect wilderness areas but also to human development. This Constitutional Chamber reiterates that, in no way, can these be interpreted as a departure from the constitutional criteria that must be inferred from the doctrine of Articles 50 and 89 of the Political Constitution, that the only true development is that which is compatible when founded on environmental sustainability.

The foregoing implies, of course, preventing legislation or measures of another nature that States could adopt from entailing setbacks in environmental guarantees and other guarantees established by the Convention, but it is clear that it allows the development of environmentally sustainable activities.

The Convention Concerning the Protection of the World Cultural and Natural Heritage, approved by Law No. 5980, establishes that:

“Article 1 For the purposes of this Convention, the following shall be considered as “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 man or the combined works of nature and man, 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 as “natural heritage”:

- natural features …

- geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation, - 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 identifying, protecting, conserving, rehabilitating, and transmitting to future generations the cultural and natural heritage situated on its territory belongs primarily to that State. It will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific, and technical, which it may be able to obtain.” “Article 5 To ensure that effective and active measures are taken for the protection, conservation, and presentation (revalorizar) of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavor, insofar as possible, and as appropriate for each country:

• a)to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programs; b) to set up within its territories, where such services do not exist, one or more services for the protection, conservation, and presentation (revalorización) of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions; c) …
• d)to take the appropriate legal, scientific, technical, administrative, and financial measures necessary for the identification, protection, conservation, presentation (revalorizar), and rehabilitation of this heritage; and e)…” “Article 6 Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property rights provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate. The States Parties undertake, in accordance with the provisions of this Convention, to give their help in the identification, protection, conservation, and presentation (revalorizar) of the cultural and natural heritage referred to in paragraphs 2 and 4 of Article 11 if the State on whose territory it is situated so requests.

Each State Party to this Convention undertakes not to take any deliberate measures which might damage directly or indirectly the cultural and natural heritage referred to in Articles 1 and 2 situated on the territory of other States Parties to this Convention.” “Article 12 The fact that a cultural and natural heritage has not been included in either of the two lists mentioned in paragraphs 2 and 4 of Article 11 shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists.” The Chamber 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, within which our country must not only honor them but also commits to exercising positive or affirmative measures such as “identifying, protecting, conserving, rehabilitating, and transmitting to future generations the cultural and natural heritage.” As obligations to act, the State must primarily adopt measures that involve efforts in locating and situating assets regulated under the protection of the Treaty, which means that the State must not only seek the cultural and natural heritage within its territory for the future nomination of possible assets, but its commitment must translate into actions that imply their protection and conservation, as well as the rehabilitation of areas containing assets that form part of that cultural and natural heritage of a State.

For this Chamber, the obligation established in Article 4 of the Convention is not exhausted by the formal declaration of sites under a specific legal regime (national or international), but implies an assertive and progressive function of the State, without prejudice to eventually obtaining the financial, artistic, scientific, and technical benefits through the mechanisms provided for in the Convention; therefore, the operationalization of cultural assets is possible through their rehabilitation, that is, their enhancement (puesta en valor) as a source of financial resources. Article 5 of the Convention requires adequate legal, scientific, technical, administrative, and financial measures to achieve the purposes of Article 4, so by identifying, protecting, and conserving, as well as enhancing (revalorizar) and rehabilitating the heritage, the Convention uses the terms “most actively” and the need for “adequate administrative and financial measures,” all of which, in the Chamber's opinion, denotes a requirement of efficacy, which would allow these obligations to be translated into concrete actions such as inter-institutional coordination and budgetary measures.

The foregoing, then, must be understood as not being patently limited to the adoption of mere legal measures but rather to concert assertive measures by the States individually. Finally, if the assets mentioned in Articles 1 and 2 of the Convention are declared world heritage and constitute the obligation of the States Parties to “co-operate” in their protection, according to Article 6, this implies prohibiting all measures that are detrimental to them, or even omissions that have the same result, so that it is not lawful, in light of the convention, to take intentional measures to damage, directly or indirectly, the cultural and natural heritage, which in our view radiates the primary obligations of the States, reiterated in paragraph 2 of Article 6 when it reaffirms the obligation to identify, protect, conserve, and enhance (revalorizar) that heritage which is regulated internationally through 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 what is provided in Article 11, so that assets that are not yet under the regulations of the mentioned paragraphs must always be conserved and protected by the States due to their potential value, as assets that do not yet qualify but which are not excluded from the World Heritage List in the future, as the criteria of the World Heritage Committee evolve. Not to deduce a primary obligation of the States to identify and locate cultural and natural assets in their territories would be a contradiction to the foundations of the Convention when it affirms noting “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 also considering that “the deterioration or disappearance […] constitutes a harmful impoverishment of the heritage of all the nations of the world,” in addition to considering that protection is in many cases incomplete.

As can be seen, the legal coverage of international instruments is the same for natural and cultural heritage; consequently, anything that falls outside these standards will be illegitimate, which includes neglect that aggravates the conditions of cultural assets. In accordance with the foregoing, it is incumbent upon the Chamber to analyze whether it is also a legitimate aim of States to promote development through policies that allow the exploitation of archaeological, natural, cultural, or mixed heritage sites, so that they are enhanced (puestos en valor), according to what is intended with Executive Decree 34282-TUR-MINAET-C.

The Convention for the Conservation of Biodiversity and 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.” Precisely in Article 25 of this international agreement, within the regulatory framework, it expresses the interest in integrating different 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 Convention for the Protection of the World Cultural and Natural Heritage of UNESCO, and indicates that all guarantees for their internal compliance must be provided. In this regard, there must be concrete effects of international regulations in the internal order.

So, the crux of the discussion in the action must not be based solely on the issue of conserving the natural heritage on San Lucas Island (understood only as ecological and environmental aspects). The Chamber has verified that the passage of decades has allowed the regeneration of the secondary forest, so that in this aspect, the declaration as a Protected Wilderness Area obtained the necessary protection from the Ministry of Environment, Energy, and Telecommunications for the recovery of spaces that were previously used for cattle ranching, for example. But the palpable lack of maintenance of the historical center, its progressive deterioration, and the threat to the historical and cultural assets existing on San Lucas Island must not be taken lightly. With the Executive Branch's intention to develop ecotourism in the region, as a measure to provide protection to cultural heritage, it opens a new field of discussion that would consequently allow reaffirming concepts and assets that are equally protected internationally and that are incorporated into the obligation contained in Article 89 of the Political Constitution, by indicating among the cultural aims, the protection of natural beauties, conservation, and development of the historical and artistic heritage of the Nation.

Precisely, the Convention on the Defense of the Archaeological, Historical, and Artistic Heritage of the American Nations (Convention of San Salvador), approved by Law 6360, applies equally to the case, given that Executive Decree No. 30.714 of the Ministry of Culture issues the administrative act that protects the archaeological sites related to the Sapoa-Ometepe culture (800-1500 AD), although it does not cite it as a legal basis. In this same sense, the Treaty establishes that:

“Article 1 The purpose of this Convention is the identification, registration, protection, and safeguarding of the assets that make up the cultural heritage of the American nations, in order to: a) prevent the illegal export or import of cultural property, and b) promote cooperation among the American States for the mutual knowledge and appreciation of their cultural assets.” “Article 2 The cultural assets referred to in the preceding article are those included in the following categories:

monuments, objects, fragments of dismembered buildings, and archaeological material belonging to American cultures existing prior to contact with European culture, as well as human, faunal, and floral remains related to them; monuments, buildings, artistic, utilitarian, ethnological objects, whole or dismembered, of the colonial period, as well as those corresponding to the 19th century; …

all those cultural assets that any of the States Parties declare or expressly manifest to include within the scope of this Convention.” In this regard, the Chamber considers that the Convention also covers the provisions of Executive Decree 34828-TUR-MINAET-C, insofar as it seeks to protect the assets protected by the Convention. Therefore, the Convention likewise demands efforts from the State to identify, register, protect, and safeguard the assets described in Article 2, in which case it would concern not only the mentioned archaeological sites but also the buildings from the period corresponding to the 19th century, so that protection would fall upon the entire complex and the presidio on San Lucas Island which began on February 28, 1873. To conclude, the Chamber is convinced that the protection of cultural, historical, and architectural assets allows for the possibility of developing and accessing them so that they fulfill a social function of utmost importance, which is to transmit the values of the past and present of a Nation, subject only to restrictions that do not respond to the principles of reasonableness and proportionality, or that are not based on technique and science; anything to the contrary must be considered an infringement of the Political Constitution (…)

IX.On the implications of sustainable development and tourism. - The cornerstone of development is environmental sustainability, its objective being 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 core idea of the principles of environmental law lies in the rational use of natural resources, with the protection of the environment to ensure sustainability for present and future generations. Any economic or productive activity that intervenes in or uses the environment must respond to the philosophy of sustainable development according to the impact it has on it; in this sense, since the Executive Branch bases itself on these types of objectives for economic and social development, this Chamber considers that rural tourism as such must respond to those values that protect sustainable development, because it could not be the exception, and it is constitutionally relevant to control the repercussions it may generate on the environment.

An example of this is the Certification for Tourism Sustainability issued by the Costa Rican Tourism Institute as a component of utmost importance, which denotes progress in protecting the right to a healthy and ecologically balanced environment while simultaneously promoting economic diversity; this measure generates incentives for companies dedicated to the tourism exploitation of natural and cultural resources. On the other hand, Law No. 8724, which is the Law for the Promotion of Rural Community Tourism, seeks to benefit families and communities by using their localities as tourist destinations, and among its norms is 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 sense, the Global Code of Ethics for Tourism, adopted by resolution A/RES/406(XIII) of the thirteenth General Assembly of the UNWTO in Santiago, 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, establishes that:

“Article 3.

Tourism, a factor of sustainable development 1. All the agents of tourism development have the 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 will favor and incentivize all forms of tourism development that make it possible to save scarce and valuable natural resources, particularly water and energy, and to avoid, as far as possible, the production of waste.

…

4. Tourism infrastructure shall be designed and tourism activities programmed 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. The agents of tourism development, and in particular professionals in the sector, must agree to the imposition of limitations on their activities when these are exercised in particularly vulnerable areas: desert, polar, or high mountain regions, coastlines, tropical forests, or wetlands, which are suitable for the creation of natural parks or protected reserves.

5. Nature tourism and ecotourism are recognized as particularly enriching and valorizing forms of tourism, provided they respect the natural heritage and local populations and conform to the carrying capacity of the sites visited." For equitable access to development, the traditional idea that development only occurs in urban areas must be abandoned, when in the rural environment other factors can be exploited that make the place unique, while seeking, of course, not to threaten those conditions.

There is no doubt that the exploitation of natural resources implies economic diversity; to that extent, the environment requires protection to withstand the burdens of human intervention. It is therefore necessary to ensure reasonable development in balance with the environment, such that the control that may be exercised would increase according to the impact it may have on it. Consequently, tourism development must not entail the destruction of public domain assets or the surroundings, because it depends on their preservation to achieve the economic improvement of rural communities within the parameters of sustainability. Among the constitutional purposes of the State is that of developing policies that reduce social and economic gaps, adjusted of course to environments, whether natural, rural, or mixed, all of which arises from the provisions of Article 50 of the Constitution. Access to development, in terms of employment opportunities or quality of life, and thus economic progress, forms part of the recognition and advancement of human rights; hence, rural development through tourism should not mean that individuals must abandon their traditional customs and ways of life to migrate to cities, but rather an adjustment of them to current needs and advances.

In this regard, in the view of this Chamber, the true challenge for human beings is to generate progress and—why not—happiness (material and spiritual) without threatening the resources available in the environment; the opposite would simply translate into social inequalities that prevent advancement toward a new stage of human development. The Chamber recognizes that the balance between the two is very delicate, but in order to achieve it without degrading the environment, one must turn to science and technique to determine the burdens that certain natural environments and their resources can bear, without violating the rights of present and future generations. For all these reasons, the conflict between environmental protection and other rights derived from it, widely recognized in international human rights instruments, merits these considerations from this Constitutional Court. This Chamber considers that rural development based on tourism directed at natural and cultural heritage is constitutionally legitimate as long as it is sustainable.

Hence, if science and technique suggest imposing certain limitations on numbers of visitor groups, at certain times, etc., they could not be judged unconstitutional, since they respond to sustainability criteria, but without detracting from the various international provisions that safeguard the right to the enhancement (puesta en valor) of those assets belonging to national history, not only as national heritage assets but as assets of all humanity, and their restriction to the 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 international treaties cited, but at the same time, it recognizes the State's need to contribute policies to promote economic diversity, together with the conservation and protection of cultural and natural assets, because without one or the other, it could not be understood that there is equitable human progress for all social sectors. The protection of the environment, economic diversification, and quality of life are legitimate objectives of the State, which must implement development policies in urban and rural areas. But the type of progress in a rural environment must depart from a centralist development model that assumes this can only occur in urban areas, when it should exploit particularities and other specific needs.

Now, rural development based on tourism must be founded on other particular axes: one of them is what the doctrine identifies as the conservation of the values inherent to rural spaces. This principle lies in the fact that rural spaces require sustainable conservation. In this sense, the forest, the sea, the mountain, the volcanoes, the mangroves, wetlands, etc., provide different types of development scenarios depending on whatever interests may exist. Each one in itself constitutes a value of scenic appreciation subject to constitutional protection. But the task of focusing and stimulating these types of rural development policies is a matter for the Legislature and the Executive Branch in their constitutional functions. This Chamber must emphasize that the conservation of the particular characteristics of rural environments or the natural or landscape surroundings is a value contained in Article 89 of the Constitution that requires protection and must be directed at protecting the surroundings that enhance its worth, not only as a rural space but also as a tourist destination so that the positive effects are felt in the neighboring communities. In this sense, Article 35 of the Organic Law of the Environment (Ley Orgánica del Ambiente) establishes that:

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

a…

…

• f)To protect the natural and landscape surroundings (entornos naturales y paisajísticos) of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest of importance for the national culture and identity." The Political Constitution designates as objectives of legal relevance not only the protection but also the conservation and development of the historical and artistic heritage of the Nation. In the dictionary of the Real Academia Española, protecting has the following meanings: 1.- To shelter, favor, defend.; and 2.- To safeguard a person, animal, or thing from harm or danger, placing something over it, surrounding it, etc. For its part, conserving means: 1. To maintain something or care for its permanence; 2. To keep someone alive and unharmed; 3. To continue the practice of customs, virtues, and similar things; 4.

To carefully keep something, among other meanings. And developing, in the applicable meaning, is to increase, to give increment to something of a physical, intellectual, or moral order. In line with the foregoing, the Law authorizes as legitimate objectives the creation, conservation, administration, development, and monitoring of protected areas with historical, architectural, and archaeological sites or centers, which implies that in the management of cultural resources, human intervention is permitted for the maintenance, safeguarding, preservation, and care of the assets located in their surroundings, while development simultaneously favors the rescue and enhancement of sites of interest that may exist in the place and its surroundings. Assets of cultural interest require protection and conservation measures (medidas conservacionistas) in the environment in which they are found, so that they can be singled out as a tourist resource; otherwise, the State's omission would imply an illicit abandonment from a constitutional standpoint and in light of the international treaties in force in the Republic.

Coupled with the above, conserving implies the idea of ensuring protection and permanence, within the context of the values and customs inherent to urban and rural spaces; therefore, sustainability criteria and practices must be admitted. The administration and development of the asset must be protected, as well as enhancing the asset according to the characteristics in its environment; thus, if it involves infrastructure created by humans, it will require technical management, demanding maintenance and investment measures to ensure its development at the time of enhancement (puesta en valor), as well as its conservation. In the case of Isla San Lucas, subparagraph f) of Article 38 of the Organic Law of the Environment applies insofar as there are not only elements of natural heritage, since as a site with historical and archaeological buildings, they are important for the national culture and identity. Consequently, it is important to cite the Global Code of Ethics for Tourism, as it states that:

"Article 4 Tourism, a factor for the use and enrichment of the cultural heritage of humanity Tourism resources belong to the common heritage of humanity. The communities in 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 must be protected and transmitted to future generations. Particular attention shall be given to the protection and rehabilitation of monuments, sanctuaries, and museums, as well as places of historical or archaeological interest, which must be widely open to tourist visitation. Access by the public to privately owned cultural assets and monuments shall be encouraged, with full respect for the rights of their owners, as well as to religious buildings without prejudice to the needs of worship.

The resources derived from the visitation of 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 so as to allow the survival and flourishing of traditional cultural and artisanal production, as well as folklore, and not lead to their standardization and impoverishment. (bold highlighting not in the original).

Costa Rican legislation sparsely regulates the possible administration of these historical sites, but from the isolated norms, the protection of natural and landscape surroundings (entornos naturales y paisajísticos) is derived, which admits human intervention, but with the aim of improving sites, not their destruction or abandonment. The Law on Historical-Architectural Heritage of Costa Rica (Ley de Patrimonio Histórico-Arquitectónico de Costa Rica), Law No. 7555, establishes that:

"Article 9. Obligations and Rights The declaration of immovable property as a monument, building, or historical site entails the obligation on the part of the owners, possessors, or holders of real rights over the property so declared:

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 it for the benefit of other public entities. This right encompasses property that threatens environmental harmony or poses a risk to conserving those declared of historical-architectural interest.

The Executive Branch and the respective municipality shall be obliged to prevent the total or partial demolition of a protected building. Guarantee that the use of the protected property will not alter its conservation and will also be consistent with the inherent characteristics of the property. In all cases, such use must not conflict with morality, good customs, or public order." (bold highlighting not in the original) For the Chamber, it is also important to note that Articles 71 and 72 of the Organic Law of the Environment clearly delineate the foregoing:

"Article 71.- Visual contamination. Actions, works, or installations that exceed, to the temporary or permanent detriment of the landscape, the maximum limits admissible by established or future technical standards shall be considered visual contamination.

Article 72.- Landscape conservation. The competent authority shall promote that public and private sectors participate in landscape conservation.

When performing a work requires affecting the landscape, the resulting landscape must be at least of equal quality to the previous one." From the foregoing, not only the purposes of conservation, preservation, and development are extracted, but also the principle of sustainability in the use and development of artistic, archaeological, and cultural heritage assets, to enrich their surroundings by improving their scenic beauty, and to provide access and security to the assets and people, as advised by technical and scientific standards in the respective matters. Moreover, coupled with the need for rehabilitation, restoration, maintenance, and control of activities, there are, ultimately, the social and economic benefits of many sectors that will depend on this activity" (underlining in the last paragraph is added).

In view of the above, it bears reiterating that Article 89 of the Political Constitution establishes as cultural purposes, among others, the protection, conservation, and development of the historical heritage of the State. Furthermore, the 'Convention for the Protection of the World Cultural and Natural Heritage' stipulates in its Article 5, subparagraph c), as part of the obligations of the States Parties, the duty to "Develop scientific and technical studies and research and to work out such operating methods as will make the State capable of counteracting the dangers that threaten its cultural or natural heritage; d) Take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, revalorization (revalorizar) and rehabilitation of this heritage". Additionally, Article 6 of the same convention provides that the States Parties must not deliberately adopt measures that could cause direct or indirect damage to cultural and natural heritage.

Coupled with the foregoing, it must be noted that, even though this Constitutional Court has recognized that the safeguarding of cultural heritage encompasses the possibility of access, for the purposes of guaranteeing the transmission of the values of the past and the present, it is no less true that this must occur in accordance with the principle of reasonableness and proportionality.

On this topic, it bears reiterating that, in judgment No. 2003003656 of 14:43 hours on May 7, 2003, this Chamber developed the constitutional principle of the enhancement (puesta en valor) of cultural heritage, stating that:

"the application of this principle translates into the fact that the protection of cultural heritage must foster its due economic and social utility, but in such a way that it does not put its cultural value at risk; that is, the aim is to promote the utility of these buildings, in such a way that their participation and permanence in the economic and social activity of society is allowed, but at the same time, maintaining and conserving their spiritual value (artistic, architectural, historical, technical, archaeological, etc.) that motivated and justifies the special protection regime. In this way, the principle is established that monuments are destined to fulfill a social function, namely, to contribute to national culture and identity; that is, the aim is to revalorize monumental heritage in the public interest and for the benefit of the nation, without thereby affecting the rights of the private individuals involved in them (property rights or freedom of commerce, for example), since the intention is to erect these buildings as instruments of progress and development, first, for their owner, and second, as a multiplier effect of the country's economic development.

With this, the aim is to incorporate into an economic potential a current value, to bring an unexploited wealth into productivity through the process of revalorization (revalorización), which, far from diminishing its purely historical or artistic significance, increases it, passing it from the exclusive domain of erudite minorities to the knowledge and enjoyment of the popular majorities. It is based on the premise that monuments are part of the economic resources of nations, and of course, of their owners or holders of some real right, which is why efforts should be mobilized toward seeking their best use, as an indirect means to promote the country's development; that is, as a facilitating element for tourism, commerce, or even for residential use. In many countries, through the application of this principle, popular housing programs have been established. In any case, the use given to these types of buildings must include activities that maintain the cultural value of the asset, that is, that do not endanger the asset as such.

Enhancement (puesta en valor) is equivalent to inhabiting the building under objective and harmonious environmental conditions that, without distorting its nature, highlight its characteristics and allow its optimal use; therefore, it implies a systematic, eminently technical action, directed at using each and every one of those assets according to their nature, highlighting and exalting their characteristics and merits, until placing them in conditions to fully fulfill the new function for which they are destined; that is, the social function they perform, at an objective urbanistic level and at a meta-functional level. Thus, conservation and development are not contradictory, but are intimately linked, and the second presupposes the first, insofar as heritage brings great tourism benefits, or as an excellent option for housing programs, which allows a significant construction economy (up to 35% of the total value of a new work), and produces a better distribution of labor and capital, thereby contributing to the social and economic regeneration of that sector.

Likewise, enhancement (puesta en valor) exerts a beneficial reflexive action on the urban perimeter, since the diversity of monuments and buildings of marked cultural, historical, artistic, and architectural interest located in cities form part of the urban landscape, that is, of the environment—according to the integral meaning explained above—so that they exert a multiplier effect on the rest of the area that is revalorized as a whole and as a consequence of the valorization and urban sanitation plan (urban planning). It is clarified that this principle is not exclusive to historical ensembles, but to all historical-architectural heritage; however, as an example of its application, it is clearer in these, such as the city of Colonial Havana, or Old San Juan, in Puerto Rico, or Antigua Guatemala, places where the daily economic and social activity of an urban center has been promoted, where commercial, artisanal, tourism, and also residential activities are carried out; with the only difference being that the buildings that make up these centers are subject to a special regime, by which their demolition, total or partial destruction, is prevented, and their owners are obligated to their conservation and maintenance, as well as submission to traffic regulation—which are much stricter and controlled—and to ornamentation rules, among which those relating to the placement of signs and advertisements are included" (highlighting not in the original).

In other words, the safeguarding of historical-architectural heritage entails, on the one hand, the protection of cultural value and, on the other, the promotion of its economic and social utility. In that sense, although this type of heritage stands out for its cultural importance, it is also considered a means of facilitating economic development, for example, through commerce or tourism. However, the primary purpose is the conservation and preservation of cultural heritage, which is why activities or uses therein must not endanger it, which can only be prevented if there are prior technical studies that enable its protection. The foregoing is exemplified by what was set forth in the above-cited judgment No. 2003003656, where it is emphasized that in the recommendation concerning the safeguarding of historical ensembles and their role in contemporary life, approved within the framework of the UNESCO General Conference, "the principle is reiterated that restoration is exceptional in character, which, if carried out, must be based on scientific principles." Thus, the preservation of the cultural heritage found on Isla San Lucas implies that, prior to the adoption of any legislative decision involving it and its surroundings, there must be technical studies supporting its preservation.

The foregoing is essential in order to study the interaction between cultural heritage (in this case, of the historical-architectural type), the environment, and human beings, and to determine whether it is possible to achieve an adequate balance among these elements. Specifically, the technical studies must determine the type of intervention that can be carried out at the site, for the purposes of: i) guaranteeing the protection, conservation, revalorization (revaloración), and rehabilitation of the aforementioned heritage; and ii) verifying that the measures to be applied will not cause direct or indirect damage to such heritage.

In this regard, in the cited judgment No. 2010013099, this Court stated: "if science and technique suggest imposing certain limitations on numbers of visitor groups, at certain times, etc., they could not be judged unconstitutional, since they respond to sustainability criteria, but without detracting from the various international provisions that safeguard the right to the enhancement (puesta en valor) of those assets belonging to national history, not only as national heritage assets but as assets of all humanity, and their restriction to the populations is not legitimate," as well as that: "Assets of cultural interest require protection and conservation measures (medidas conservacionistas) in the environment in which they are found, so that they can be singled out as a tourist resource; otherwise, the State's omission would imply an illicit abandonment from a constitutional standpoint and in light of the international treaties in force in the Republic.

Coupled with the above, conserving implies the idea of ensuring protection and permanence, within the context of the values and customs inherent to urban and rural spaces; therefore, sustainability criteria and practices must be admitted. The administration and development of the asset must be protected, as well as enhancing the asset according to the characteristics in its environment; thus, if it involves infrastructure created by humans, it will require technical management, demanding maintenance and investment measures to ensure its development at the time of enhancement (puesta en valor), as well as its conservation" (emphasis added).

In accordance with the foregoing, based on the jurisprudence set forth in Section II of this dissenting opinion, the transcendence of the preventive principle in matters of cultural heritage is evident—judgment No. 2002005245 of 15:20 hours on May 29, 2002—and the importance that the protection given by the State to that heritage be "on the basis of a scientific construction 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 knowledge, such as History, Anthropology, Architecture, and the Theory of Restoration, and Law, among others; and that it takes into consideration the country's own circumstances, such as the degree of underdevelopment and economic dependence"—judgment No. 2003003656 of 14:43 hours on May 7, 2003.

In line with the foregoing, it should be recalled that, in the aforementioned Law No. 4711, by which the recommendation on the conservation of cultural property that the execution of public or private works may endanger, signed in Paris on November 22, 1968, was approved, it was indicated that: "With sufficient advance notice before the execution of public or private works that may endanger cultural property, thorough studies should be carried out to determine: a. The measures to be taken to conserve important cultural property in situ; b. The magnitude of the necessary salvage operations, such as the selection of archaeological sites where excavations are to be carried out, the buildings to be relocated, and the movable cultural property to be saved, etc." Concerning the sub iudice, it must be highlighted that, with the issuance of Law No. 9892, a portion of Isla San Lucas ceased to be a national wildlife refuge and became a national park, that is, a higher management category was granted.

Hence, as a matter of principle, when an increase in management category occurs, a reinforcement of environmental defense is generated, which implies that prior technical studies are not necessarily required to justify such a decision; however, for this, there must be no doubt whatsoever that it is, in fact, an increase in the level of protection; otherwise, technical studies become essential to guarantee that the proposed change does not, in practice, rather signify a worsening.

In the present case, we are dealing with a particular situation, because Isla San Lucas not only constitutes a protected wild area but has also been declared cultural heritage. Such a confluence of circumstances dictates that, given the particular characteristics—environmental and cultural—of the island, it is essential to have technical studies that analyze the implications of the interrelationship proposed in the law between cultural heritage, the environment, and human beings, and, in addition, determine whether the referred change constitutes an adequate balance among these elements.

This Constitutional Court has recognized that on Isla San Lucas, a double special protection converges in relation to the right to a healthy and ecologically balanced environment and the right to access and enjoyment of cultural heritage. This implies that, in the sub examine, such rights must be guaranteed in a harmonious manner, so that the protection of one does not entail the injury of the other. In this regard, it is reiterated that, in judgment No. 2003003656, this Chamber emphasized that: "the conservation of cultural heritage contributes to maintaining the environmental balance necessary in urban development, by requiring, for its effective protection, respect for urban scale, structure, and dimensioning, regulating the capacity for physical loads, questioning urban functions and services, which results in better environmental quality; in addition to contributing to maintaining the proper image or perceptive concurrence of the city, which gives it identity or formal cohesion." Hence, in view of the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental), for a change in the management category of a protected wild area (which also has declared cultural heritage zones) to be constitutionally valid, there must be duly supported scientific backing that justifies the modification and protects the environment and cultural heritage against direct or indirect impacts.

Specifically, Article 35 of the Organic Law of the Environment states: "The creation, conservation, administration, development, and monitoring of protected areas shall have the following objectives: (…) f) To protect the natural and landscape surroundings (entornos naturales y paisajísticos) of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest, of importance for the national culture and identity." Now, such scientific studies, for the purposes of their legal validity as a requirement for the variation of the management category under analysis, must be prior, sufficient, individualized, and duly supported in order to reasonably determine that no damage will be caused nor will the environment or cultural heritage be endangered; therefore, they must examine at a minimum: i) the degree of impact of the corresponding measure on the environment and cultural heritage; ii) recommendations aimed at mitigating the negative impact on the environment and cultural heritage; and iii) the demonstration of how the adopted measure implies a development that meets the requirements of the present without endangering the capacity of future generations to meet their own needs—see judgment No. 2019000673 of 12:00 hours on January 16, 2019.

The foregoing is in accordance with the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental), regarding which this Court has indicated:

"Regarding the environment, the object of the fundamental right set forth, our Magna Carta also requires that it be 'healthy.' The requirement 'healthy' leads us to 'regenerative capacity' and 'succession capacity' to guarantee life. From both requirements: 'healthy' and 'balanced' arises the need for sustainable and enduring development; quality of life and environmental quality depend on this. Now, with the concepts of 'environment,' 'healthy,' 'ecologically balanced,' the constitutional norm introduced science and technique into environmental decisions, whether legislative or administrative, such that, in terms of Articles 16 of the General Law of Public Administration (Ley General de la Administración Pública) and 38 of the Organic Law of the Environment, state actions in environmental matters must be based on and cannot contradict the unequivocal rules of science and technique in order to achieve the full and universal enjoyment of a healthy and ecologically balanced environment and, moreover, a 'greater well-being for all the inhabitants of the country'." Regarding the subjection of legislative and administrative decisions to the univocal rules of science and technique, the Chamber has called it the principle of objectivization of environmental protection (principio de objetivación de la tutela ambiental): "The objectivization of environmental protection (...) is a principle that in no way can be confused with the previous one [precautionary principle or 'principle of prudent avoidance'], as, derived from the provisions of articles 16 and 160 of the General Law of Public Administration, it translates into the need to support decision-making in this matter with technical studies, both in relation to acts and to provisions of a general nature—both legal and regulatory—, from which derives the requirement of linkage to science and technique, thereby conditioning the discretionary power of the Administration in this matter.

So that, in light of the results derived from those technical studies—such as environmental impact assessments (estudios de impacto ambiental)—, if an objective technical criterion is evidenced denoting the probability of evident damage to the environment, natural resources, or people's health, it becomes mandatory to reject the proposed project, work, or activity; and in the case of a 'reasonable doubt' it becomes mandatory to make decisions in favor of the environment (pro-natura principle), which can translate into the adoption of both compensatory and precautionary measures (medidas compensatorias como precautorias), in order to adequately protect the environment." (Judgment of the Constitutional Chamber Nos. 21258-10, 17126-06, 14293-05)" (the highlighting was added). (Resolution no. 2012-13367 of 11:33 a.m. on September 21, 2012).

Such criterion is observed in many pronouncements of this Chamber, for example, in judgment no. 2011016938 of 2:37 p.m. on December 7, 2011:

"IV.- WILD PROTECTED AREAS (ÁREAS SILVESTRES PROTEGIDAS). A protected area is 'a defined geographic area, terrestrial or coastal-marine, which is designated, regulated, and managed to fulfill specific conservation objectives, that is, to produce a series of specific goods and services (in situ conservation)' (see article 9 of the Convention for the Conservation of Biodiversity and Protection of Priority Wild Areas in Central America, approved by Law No. 7433 of September 14, 1994). Likewise, domestic legislation defines 'official areas for the conservation of wild flora and fauna' as 'wild protected areas under any management category, water resource protection areas, and any other land forming part of the forest heritage (patrimonio forestal) of the State' (see article 2 of the Wildlife Conservation Law, No. 7317 of October 30, 1992). For its part, the legislator has defined wild protected areas as follows:

'ARTICLE 58.- Wild protected areas Wild protected areas are delimited geographic zones, constituted by lands, wetlands (humedales), and portions of the sea. They have been declared as such because they represent special significance for their ecosystems, the existence of threatened species, the repercussion on reproduction and other needs, and for their historical and cultural significance. These areas shall be dedicated to conservation and protecting biodiversity, soil, water resources, cultural resources, and ecosystem services in general.

The objectives, classification, requirements, and mechanisms to establish or reduce these areas are determined in the Organic Law of the Environment, No. 7554, of October 4, 1995. The prohibitions affecting natural and legal persons within national parks and biological reserves are determined in the Law Creating the National Parks Service, No. 6084, of August 24, 1977.

During the process of fulfilling requirements to establish state wild protected areas, the respective technical reports must include the pertinent recommendations and justifications to determine the most appropriate management category to which the proposed area must be subjected. In any case, the establishment of areas and categories shall take very much into account the rights previously acquired by indigenous or peasant populations and other natural or legal persons, underlying or adjacent to it' (see Biodiversity Law, No. 7788 of April 30, 1998).

In the same manner, statutory law provides a series of objectives and requirements for the formation of wild protected areas:

'ARTICLE 35.- Objectives The creation, conservation, administration, development, and surveillance of protected areas shall have as objectives:

• a)To conserve representative natural environments of the different biogeographic regions and of the most fragile ecosystems, to ensure the balance and continuity of evolutionary and ecological processes.
• b)To safeguard the genetic diversity of wild species on which evolutionary continuity depends, particularly endemic, threatened, or endangered species.
• c)To ensure the sustainable use of ecosystems and their elements, fostering the active participation of neighboring communities.
• d)To promote scientific research, the study of ecosystems and their balance, as well as knowledge and technologies that permit the sustainable use of the country's natural resources and their conservation.
• e)To protect and improve aquifer zones and hydrographic basins, to reduce and avoid the negative impact that their poor management may cause.
• f)To protect the natural and landscape surroundings of historical and architectural sites and centers, national monuments, archaeological sites, and places of historical and artistic interest, of importance for national culture and identity.

ARTICLE 36.- Requirements to create new areas To create wild protected areas owned by the State, whatever the management category it establishes, the following must be previously fulfilled:

• a)Preliminary physiogeographic, biological diversity, and socioeconomic studies justifying it.
• b)Definition of objectives and location of the area.
• c)Technical feasibility study and land tenure (tenencia de la tierra).
• d)Minimum financing to acquire the area, protect it, and manage it.
• e)Preparation of plans.
• f)Issuance of the respective law or decree' (see Organic Law of the Environment, No. 7554 of October 4, 1995).

From the foregoing citations and the analysis of the normative instruments indicated by the plaintiff, it follows that the declaration of a wild protected area requires a series of requirements and studies; the mere manifestation of will by the Administration is not enough (...)

Furthermore, from the examination of the norms of the domestic environmental legal order, both those proper to the Legislative Branch and those of international law approved by it (sic), including regulations to those laws, it can be observed that a wild protected area has a special legal efficacy, insofar as it obeys special, clearly defined reasons, is supported by scientific and technical studies, is grounded in specific normative instruments, implies a series of obligations for the Administration, and is framed within a planning context that has the purpose of preserving the natural resource. In this regard, see a representative sample of legal norms that demonstrate the foregoing:

'2.- National Reserves shall be understood as: The regions established for the conservation and utilization, under official supervision, of natural riches, in which flora and fauna shall be given all protection compatible with the purposes for which these reserves are created' (see Convention for the Protection of Flora, Fauna, and Natural Scenic Beauties of the Countries of America, approved by Law 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 wetlands included in the 'List' and, as far as possible, the rational use of wetlands in their territory' (see Convention on International Wetlands as Habitat for Waterfowl, approved by Law No. 7224 of April 9, 1991).

'Wildlife management areas: Wild areas that provide some degree of management and protection to wildlife' (see Wildlife Conservation Law, No. 7317 of October 30, 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 preparations for adaptation to the impacts of climate change; develop and elaborate 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 Law No. 7414 of June 13, 1994).

'ARTICLE 8. In situ Conservation Each Contracting Party shall, as far as possible and as appropriate:

• a)Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity' (see Convention on Biological Diversity and Annexes [Rio de Janeiro, 1992], approved by Law No. 7416 of June 30, 1994).

'ARTICLE 19.- National strategies shall be developed to execute the plans for Systems of Wild Protected Areas, being guarantors of basic economic functions for local, regional, and global development, and of the strengthening of institutional presence in the mentioned areas, for which national and international financing shall be managed for their effective execution' (see Convention for the Conservation of Biodiversity and Protection of Priority Wild Areas in Central America, approved by Law No. 7433 of September 14, 1994).

'ARTICLE 42.- Delimitation of protected zones The Ministry of Environment and Energy, in coordination with the competent institutions, may delimit protection zones for certain marine, coastal, and wetland areas, which shall be subject to management and zoning plans (planes de ordenamiento y manejo), in order to prevent and combat the contamination or degradation of these ecosystems' (see Organic Law of the Environment, No. 7554 of October 4, 1995).

'i) Wild protected area: Space, whatever its management category, structured by the Executive Branch to conserve and protect it, taking into consideration its geographic, biotic, social, and economic parameters that justify the public interest' (see article 3 of the Forestry Law (Ley Forestal), No. 7575 of February 13, 1996).

'ARTICLE 61.- Protection of wild protected areas The State must give priority attention to the protection and consolidation of state wild protected areas located within Conservation Areas. For these purposes, the Ministry of Environment and Energy, in coordination with the Ministry of Finance, must include in the budgets of the Republic the respective transfers to the trust (fideicomiso) or financial mechanisms for protected areas to ensure, at least, the personnel and necessary resources determined by the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación, SINAC) for the operation and integrity of state-owned wild protected areas and the permanent protection of national parks, biological reserves, and other wild protected areas owned by the State' (see Biodiversity Law, No. 7788 of April 30, 1998).

'35. Management plan (Plan de manejo) in a wild area: Set of technical and scientific norms that regulate the activities to be developed in the wild area and its surroundings' (see article 2 of the Fisheries and Aquaculture Law, No. 8436 of March 1, 2005).

'p) General management plan: It is the planning instrument that allows orienting the management of a wild protected area toward the fulfillment of its long-term conservation objectives. It is based on medium-term strategic lines of action and on management objectives for the natural and cultural elements included within the area, as well as on the relationship of the latter with their socio-environmental surroundings. It is the basis for the development of other planning and regulatory instruments for Wild Protected Areas' (see article 3 of the Regulation to the Biodiversity Law, Executive Decree No. 34433 of March 11, 2008; the underlining in the previous texts is not from the originals).

In view of the information contained in all those norms, the response given in this matter by the Minister of Environment, Energy, and Telecommunications (folio 87) is not admissible, when he states that 'the legislation is clear, the Maritime Terrestrial Zone Law establishes that Mangroves form part of the Public Zone of the Maritime Terrestrial Zone (ZMT), moreover, since 1977 all the mangroves of the national territory have been declared Forest Reserves, therefore the mangroves of Golfo Dulce are declared Wild Protected Areas.' Specifically, from that statement it is not acceptable that all mangroves (which are public zone) are declared as wild protected areas. This is because, as can be deduced from the regulations that have been set forth, a series of requirements and scientific, technical, legal, administrative, and budgetary elements are required to create those areas (...)" (the highlighting was supplied).

Even, recently, unanimously, this Court issued judgment no. 2022022606 of 1:10 p.m. on September 28, 2022, in which it declared the unconstitutionality of Law No. 9348 of February 8, 2016, called 'Law of the Ostional National Wildlife Refuge', due to the lack of technical support:

"-The challenged law, in its various norms, releases (desafectan) and reduces the degree of protection of the Ostional Wildlife Refuge: As the plaintiff points out, the legislator established several provisions that imply a release of the area to be protected and reduce the degree of protection that had been conferred upon it. The foregoing, without having been justified by a technical study, as this Court has repeatedly indicated. Article 5, for example, changed its legal nature from a refuge of a merely public nature to a mixed one, establishing that, from that moment on, it would no longer be comprised only of lands owned by the State, but also by lands owned by private parties that have been registered in the respective registry, and, although the norm warns that this will occur provided that both forms of ownership are subjected to uses compatible with their objectives of conservation and environmental protection, under an integral conservation approach, the truth is that in subsequent articles it authorizes activities for which there is no prior technical study showing that, through these, the purpose for which it was constituted would not be affected.

Article 8 here questioned provides that, in 'the areas of public domain nature of the Refuge, concessions may be granted to current occupants,' with the exception of those located in a protection area of fifteen meters around the estuaries and mangroves of the Refuge; forests, forest lands, wetland ecosystems, the fifty meters of the public zone of the maritime terrestrial zone counted from the ordinary high tide, the areas that are uncovered during low tide, islets, crags, and other small areas and natural formations that protrude from the sea. That numeral indicates that the Conservation Area may grant concessions when the study carried out for the specific case technically determines that they are not incompatible with the objectives and scopes established in the General Management Plan (Plan general de manejo), for the following uses potentially compatible with the conservation objectives of the Refuge: '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) Infrastructure for scientific or cultural research and training. f) Installations for community and social welfare services. g) Research and operation of community projects.' And article 12 even establishes a payment of fees for the exercise of those activities.

That is, with those provisions the refuge not only loses part of its territory by changing its nature and establishing that there will be lands of a private nature within it, but also, without a prior technical study verifying the eventual impacts on the environment, as the precautionary principle (principio precautorio) would require, diverse activities are authorized that are different from those established by the Forestry Law for this type of mixed-nature refuges (for example: the agricultural, residential, and commercial use contemplated in the challenged article 8). Ordinal 9 of the same law also innovates by authorizing land-use permits to public institutions to provide public services that are outside the scope of protection, without there being a technical study that, beforehand, likewise justifies why not only are certain protection areas released, but the degree of environmental protection of these has also been reduced, since previously all those activities were not permitted, and now they are authorized in the law, without previously proving that they will not cause damage to the environment.

In a similar sense, numeral 10 of this law opens the possibility for the Tempisque Conservation Area to grant land-use permits within the Refuge to private universities, research centers or institutes, and local community organizations, for research and development of community projects. Furthermore, in these two numerals, the areas that are excluded for the granting of concessions are not excluded, as the General Attorney's Office correctly states in its report. Indeed, the public zone, wetlands, forest area, forest lands or lands with that attitude and other areas excepted in articles 8 and 11 of the law are not safeguarded, which violates numerals 50 and 89 of the Fundamental Charter. Certainly, the challenged law establishes in ordinal 11 that a General Management Plan must be issued prior to the granting of concessions in the Refuge, determining that the uses were oriented toward the conservation objectives of the Refuge, with the environmental technical limitations and potentialities of each zone or subzone; however, given the particularities of this case, where it is reiterated, a higher normative protection already existed and not only part of its territory was released, with purposes even diverse from environmental protection, but also the degree of protection it had with respect to certain areas was diminished, in order to resolve an occupation problem within this area, which is extraneous to its purpose, the origin of the legal reform required being supported by a technical study that justified such changes and compensated 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, 'Law of Community Coastal Territories,' in judgment no. 2013-10158 of 3:46 p.m. on July 24, 2013. Nevertheless, once again it is missing.

-Absence of technical support: In legislative file No. 18939 that gave rise to Law No. 9348, it is not apparent that the requirement of technical support was fulfilled, in the terms already indicated by this Chamber in the mentioned vote of 2013-010158. Clearly, from the statement of motives of the bill it is extracted that, at that time, they did not have the supporting technical reports, when it is indicated: 'The technical studies to which the Constitutional Chamber refers are highly advanced... They will be presented to the legislative process in due course.' Although the Minister of Environment indicates in his report that there will be a General Management Plan as a prerequisite for the granting of the concessions, and that there will also be a specific study in each case, this does not substitute the PRIOR technical studies that must exist as a basis for the bill that in essence entails the reduction of the Ostional Wildlife Refuge.

This is because such studies are not a mere formality, nor can they be substituted by subsequent or specific studies, but rather, allowing land uses beyond those related to the conservation of a Wildlife Refuge is to denature the reason for being of the refuge, to reduce in any case the area of the refuge, and thereby to violate the right to the environment. Regarding what was indicated by the coadjuvant that the technical report of the law is the one carried out by Dr. Allan Astorga, called 'Strategic Environmental Assessment Report of the Ostional Management Plan,' it must be indicated that this Chamber was able to observe said report, and it is concluded that clearly this is not the report that technically justifies the law, basically for three reasons: the date of the report, the justification, and its content. Said report dates from 2009, the bill was presented in 2013 and is contributed to the legislative file in June 2015.

A base technical report for a bill must be presented attached to the bill. Furthermore, note that when this Chamber heard the matter in consultation, in the vote of 2013, nothing was said at that time about this technical report from 2009 as the basis for the bill. Moreover, the justification of said report has no relation to the bill, since what is indicated is that: It is a base study for the elaboration of the Management Plan of the Refuge ('The objective of the study is to develop a zoning of Environmental Fragility Indices (IFA) for the Ostional National Wildlife Refuge... with the purpose of establishing a technical basis for the Management Plan of this set of important ecosystems.'). Finally, its content does not refer to what a technical report that supports a bill reducing the level of protection of a wildlife refuge should refer to, since it does not indicate specifically why it is reduced, how it is reduced, or what compensation measures are established.

-Environmental public domain (demanialidad ambiental) entails a special protection regime: The declaration of public domain for environmental reasons entails a special sphere of protection, to the extent that it configures a special domain regime, regulated by intense norms of public law that seek to safeguard the fulfillment of a purpose of protection of the right to a healthy and ecologically balanced environment. In light of said constitutive reasons and for the sake of the benefits underlying its teleological dimension, any determination of total or partial release (desafectación), or of recomposition of its legal nature, demands and imposes the due technical analyses that weigh the environmental variable in the decision-making, as a derivation of the principles of non-regression, progressivity of the environment, precautionary, preventive, and pro-natura. The special constitutional protection of the environment imposes an exhaustive study of the reasons supporting that type of determinations, in the context of the diverse levels that compose ecosystems, as well as the relationships of the environment with the anthropological surroundings and within this, the social, economic incidences, among others.

In this way, the absence of that type of technical rigor in the variation of the nature of the environmental public domain leaves aside and violates, even by risk, the substantial content of that right. The same must be warned regarding the permissibility of carrying out human activities within those territorial spaces, without the due weighting of the impact that those may produce on the environment, for which it is necessary to consider the primary regime of use of the asset, the typology of ecosystems converging in that area, the existence or not of special use regimes imposed by legal norms. Indeed, the variation of use of an asset to which an environmental protection regime has traditionally been conferred requires technical assessments of the consequences that those new anthropic incursions will produce on the ecosystem, as well as whether they are congruent with the environment, under a context of environmental sustainability.

This implies weighing permitted conducts, corrective actions and procedures, mitigation measures, compensatory actions, among another series of considerations that are missing in this file. Such deficiency, as has been stated, entails substantial injuries that this Chamber cannot overlook if it is understood that public patrimony, from the conceptual plane, refers to the set of assets that by law (or superior norm) are subject to a public use and purpose. Although its use regime is not totally incompatible with privative exploitation by third parties, prior express administrative authorization, which must be expressly regulated by a legal source, when dealing with an environmental public domain, the assessment of this framework of permitted activities demands a meticulous, cautious, technical analysis, taking into account the conditions and characteristics proper to the environment, as a protected legal interest and its undeniable significance for the sphere of contemporary human rights and future generations.

It is that purpose of protection that imposes the type of special considerations of a technical nature to which reference has been made, in pursuit of fulfilling the constitutional obligation to safeguard the right to a healthy and ecologically balanced environment (...)" (the highlighting was incorporated).

Thus, it becomes evident that this specialized Chamber has reiterated in multiple pronouncements the importance of the principle of objectivization of environmental protection, with the purpose of guaranteeing that decisions in environmental matters have support in scientific studies, thereby conditioning or restricting the discretionary power of the Administration in such matter. In this regard, in relation to the natural and urban environment, it is detailed in the mentioned judgment no. 2003003656 of 2:43 p.m. on May 7, 2003: "This latter norm gives guidelines for public authorities to promote the protection of the environment, understood in an integral manner, that is, not understood in its traditional sense that has been limited to the sphere of natural resources, what is commonly known as 'the green', insofar as it has been understood to comprise natural resources (forests, water, air, minerals, flora and fauna, etc.), but also in relation to the environment in which one lives, which comprises not only the scenic beauties of nature, such as the landscape, but also everything related to cities and urban and rural conglomerates, that is, the concept of the urban.

It can well be affirmed that these are two complementary aspects of one reality, like two sides of the same coin: the natural environment and the urban environment. This is how a more humane environment is sought, that is, an environment that is not only healthy and ecologically balanced, but also as a symbolic referent and giver of national, regional, or local identity. Thus, the fundamental right to have a healthy and ecologically balanced environment - broadly developed by constitutional jurisprudence - will comprise both its natural parts and its artificial parts, understood as such, the human habitat, that built by man, that is, the urban, so that they remain free from all contamination, both because of the effects and repercussions it may have on the health of people and other living beings, and because of the intrinsic value of the environment" (the highlighting was added).

Based on the foregoing, it is concluded that, in the case at bar (sub examine), with the promulgation of Law No. 9892, a portion of the wild protected area 'Isla San Lucas' passed from the management category 'national wildlife refuge' to that of 'national park'; however, it is not apparent from the record that, prior to such alteration and given the particular nature of San Lucas Island, Parliament had relied on prior, duly supported scientific studies that from a technical and objective point of view justified the legislative decision. Especially since, as indicated ut supra, there exists cultural heritage on the island that may be affected due to the change of management category that took effect.

Note that, with the law challenged here, a modification was produced in the regime of the wild protected area of San Lucas Island that entails a differentiated zoning (a novel aspect with respect to the previous protection regime). That is, it is not simply a change in the name of the area, but rather, according 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-architectural heritage and a zone of sustainable tourism use, in the specific areas determined in this law.” As can be observed, San Lucas Island now has zones of differentiated management; however, no technical study is verified demonstrating that there will be no environmental impact requiring equivalent compensation. Nor is any technical basis apparent to support the differences in management of San Lucas Island with respect to the general regime of protected wilderness areas. All of the foregoing, in reality, constitutes a downgrade in the level of environmental protection of the island, since there are no technical criteria justifying the reduction in the wildlife refuge or the zoning proposed in the new national park. Precisely, the technical support for the subdivision (fraccionamiento) implemented is not observed, demonstrating that no damage has been caused or will be caused to the entirety of the ecosystem or to the integral protection of the island.

It is necessary to point out that national wildlife refuges focus on the conservation, research, enhancement, and management of wild flora and fauna, especially those that are endangered. According to the IUCN, this management category focuses on the protection of specific habitats or species, meaning its management is focused on specific and more reduced habitats or species. Furthermore, in the case of state-owned national wildlife refuges—such as San Lucas Island—only the activities defined in the corresponding management plan may be carried out, after examination of the pertinent environmental impact assessments (evaluaciones de impacto ambiental) and, in accordance with ordinal 70 of the Regulation to the Biodiversity Law, “only research, training, and ecotourism activities may be developed.” On this matter, Executive Decree No. 32633 of March 10, 2005, ‘Regulation to the Wildlife Conservation Law for Fishing and National Wildlife Refuges,’ defines what activities may be developed 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 within the limits of Mixed-Property Refuges and Privately-Owned Refuges, in accordance with the sustainable development principles set forth in the management plans, the following activities:

• a)Agricultural use.
• b)Residential use.
• c)Recreational tourist housing.
• d)Tourist developments, including hotels, cabins, lodges, or others carrying out similar activities.
• e)Commercial use (restaurants, shops, others).
• f)Extraction of quarry materials (sand and stone).
• g)Scientific (sic) or cultural research.
• h)Other purposes of public or social interest and any other activity that SINAC deems pertinent and compatible with the policies of Conservation and sustainable development.” For their part, national parks possess other types of 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 set aside to protect large-scale ecological processes, along 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.” In that sense, as indicated supra, the ‘Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America’ establishes that national parks are placed under official supervision—Article 1—, that the boundaries of this management category of protected wilderness areas cannot be altered except by legislative authority, and that the Contracting Governments must provide facilities “for public enjoyment and education, in accordance with the purposes pursued by this Convention”—ordinal 3.

Additionally, although national parks seek the protection and conservation of natural beauties and biodiversity, it is no less true that public enjoyment is also promoted, and the restricted granting of certain concessions and permits is allowed, under the terms set forth in ordinal 12 of the National Parks Service Law. Furthermore, in this management category, the exploitation of existing resources for commercial purposes is prohibited.

Likewise, numeral 8 of the National Parks Service Law contains a series of prohibitions for visitors to national parks, namely:

“ARTICLE 8.—Within national parks, visitors are prohibited from:

• 1)Felling trees and extracting plants or any other type of forest products.
• 2)Hunting or capturing wild animals, collecting or extracting any of their products or remains.
• 3)Hunting sea turtles of any species; collecting or extracting their eggs or any other product or remains.
• 4)Scratching, marking, staining, or causing any type of damage or deterioration to plants, equipment, or installations.
• 5)Sport, artisanal, or industrial fishing, except in the case provided for in article ten.
• 6)Collecting or extracting corals, shells, rocks, or any other product or waste from the sea.
• 7)Collecting or extracting rocks, minerals, fossils, or any other geological product.
• 8)Carrying firearms, harpoons, and any other instrument that may be used for hunting.
• 9)Introducing exotic animals or plants.
• 10)Grazing and watering livestock or raising bees.
• 11)Causing any type of environmental contamination.
• 12)Extracting stones, sands, gravel, or similar products.
• 13)Feeding or giving drink to animals.
• 14)Constructing electrical or telephone conduction lines, aqueducts, or roads or railways.
• 15)Carrying out any type of commercial, agricultural, or industrial activity.” Moreover, in June 2020, SINAC issued the General Management Plan for the San Lucas Island National Wildlife Refuge, which referenced, among others: i) general characteristics of the refuge; ii) a socioeconomic-environmental-cultural diagnosis; and iii) a strategic framework for the management of the protected wilderness area. Now, while the aforementioned plan carried out an updated analysis of the strengths, weaknesses, threats, and opportunities faced on San Lucas Island, it is no less true that this study was conducted in order to establish the management of the San Lucas Island National Wildlife Refuge, not to determine the propriety of whether a part of its surface area (which includes a cultural heritage zone) should become a national park with a ‘tourist zone’ with differentiated management. That is, there are no technical studies supporting the scope of the law in those terms.

In that sense, for example, the aforementioned plan established the focal management elements, which “consist of a process of selecting a reduced number of biodiversity resources that will be a priority for the management of the San Lucas Island National Wildlife Refuge. The focal management elements guide the Refuge administration in the allocation and prioritization of resources.” Thus, the focal management elements considered in the General Management Plan for the San Lucas Island National Wildlife Refuge—namely, i) remnant of tropical dry forest; ii) marine-coastal resource; iii) the infrastructure of the old Penitentiary declared architectural heritage; and iv) the archaeological sites—are those that guide the allocation of resources in that protected wilderness area.

This is of importance, as it reflects that the study in question focused on the characteristics and conservation objectives of a specific management area, namely, the San Lucas Island National Wildlife Refuge, not on the technical and environmental viability of a sector of its geographic space being managed under another management category, with its differentiating specificities, such as a national park, nor did it examine the implications that this modification generates for the island's cultural heritage.

It is even noteworthy that the aforementioned General Management Plan for the San Lucas Island National Wildlife Refuge stated:

“6. Management category of the PA The category assigned to this PA fully adjusts to its geographic, ecological, environmental, and social conditions. The current regulations, both International and National (Executive Decree 34433, Gazette 68 of April 8, 2008), indicate that National Wildlife Refuges: Geographic areas possessing terrestrial, marine, marine-coastal, freshwater ecosystems, or a combination thereof. Their main purposes shall be the conservation, research, enhancement, and management of wild flora and fauna, especially those that are endangered. For classification purposes, there are three classes of national wildlife refuges: e.1) State-owned refuges. Those in which the areas declared as such belong entirely to the State and are public domain. Their administration shall correspond exclusively to SINAC. Their main objectives are: the conservation, research, and management of wild flora and fauna, especially those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species.

As they constitute the State's natural heritage, only research, training, and ecotourism activities may be developed. e.2) Privately-owned refuges. Those in which the areas declared as such belong entirely to private parties. Their administration shall correspond to the property owners and shall be supervised by SINAC. Their main objectives are: the conservation, research, and management of wild flora and fauna, especially those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. On the lands of privately-owned refuges, only productive activities may be developed in accordance with the provisions of the Regulation to the Wildlife Conservation Law, Executive Decree No. 32633-MINAE, of March 10, 2005, published in Gazette No. 180 of September 20, 2005. e.3) Mixed-property refuges. Those 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, especially those species officially declared by the country as endangered or with reduced populations, as well as migratory species and endemic species. Their administration shall be shared between the private owners and SINAC, such that on State-owned lands, only the activities previously indicated for state-owned refuges, indicated in subsection i), may be developed, while on privately-owned lands, the activities indicated for privately-owned refuges, indicated in subsection ii), may be developed, respecting the respective criteria and requirements.

After analyzing the current regulations, the creation objectives of the PA, geographic and ecological context, zoning, and sustainable and socioeconomic development opportunities, it can be concluded that the wilderness area declared as a national refuge is well categorized” (emphasis added).

Therefore, the General Management Plan for the San Lucas Island National Wildlife Refuge of June 2020 is not an adequate technical study to substantiate the propriety of the change of category of a surface area of the aforementioned refuge to a national park, as it does not satisfy the criteria established for scientific studies to validate the variation of management category, namely, that they be prior, sufficient, individualized, and duly supported in order to reasonably determine that no damage will be caused or endanger the environment and, in this particular case, the cultural heritage.

In relation to the sub lite matter, the IUCN stated to this Tribunal that: “in the case of San Lucas National Park, the change of category denotes an interest in developing tourism use rather than strengthening the protection of the site's natural and cultural values. Additionally, the lack of studies and technical justifications for the change of category and for the insertion of tourism activities within the site. As can be seen in the table below, the permitted uses in a Wildlife Refuge and a National Park differ in that the refuge allows management activities and direct use of biodiversity, construction of public works, and tourism and recreational infrastructure. These activities are not permitted in the national park (…).” Having reached this point, given that the foregoing affects the precautionary principle or in dubio pro natura, it is appropriate to clarify its notion. Firstly, in judgement No. 2004002473 of 8:32 a.m. on March 12, 2004, it was conceptualized as follows:

“IV.- PRECAUTIONARY PRINCIPLE OF ENVIRONMENTAL LAW. One of the guiding principles of Environmental Law is the precautionary principle or principle of prudent avoidance. This principle is enshrined in the United Nations Conference on Environment and Development or Rio Declaration, which literally states: “Principle 15.- In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” In the domestic legal system, the Biodiversity Law (No. 7788 of April 30, 1998), in its article 11, enshrines the following principles as hermeneutical parameters: “1.- Preventive criterion: It is recognized that it is of vital importance to anticipate, prevent, and attack the causes of biodiversity loss or its threats. 2.- Precautionary or indubio (sic) pro natura criteria: Where there is danger or threat of serious or imminent damage to the elements of biodiversity and the knowledge associated with them, the absence of scientific certainty shall not be used as a reason to postpone the adoption of effective protection measures.” In Vote of this Chamber No. 1250-99 of 11:24 a.m. on February 19, 1999 (reiterated in Votes Nos. 9773-00 of 9:44 a.m. on November 3, 2000, 1711-01 of 4:32 p.m. on February 27, 2001, and 6322-03 of 2:14 p.m. on July 3, 2003), this Tribunal considered the following: “(...) Prevention seeks to anticipate negative effects and ensure the protection, conservation, and adequate management of resources.

Consequently, the guiding principle of prevention is based on the need to take and assume all precautionary measures to avoid containing the possible impact on the environment or people's health. Thus, in the event of a risk of serious or irreversible damage—or doubt in this regard—a precautionary measure must be adopted and even the activity in question postponed. This is because in environmental matters, ex post coercion is ineffective, as once the socially harmful biological consequences have already occurred, repression may have moral significance but will hardly compensate for the damage caused to the environment.” Subsequently, in Vote No. 3480-03 of 2:02 p.m. on May 2, 2003, this Tribunal indicated that “Properly understood, the precautionary principle refers to the adoption of measures not in the face of ignorance of risk-generating facts, but in the face of a lack of certainty that such facts will effectively produce harmful effects on the environment.” For cases such as the one under study, the precautionary principle or indubio (sic) pro natura, presupposes that when there are no studies or reports carried out in accordance with univocal rules and the exact application of science and technology that allow reaching a state of absolute certainty about the harmlessness of the activity intended to be developed on the environment, or these are contradictory among themselves, the entities and bodies of the central and decentralized administration must refrain from authorizing, approving, or permitting any new or modification application, suspend those in progress until the doubtful state is cleared up, and, in parallel, adopt all measures aimed at its protection and preservation in order to guarantee the right to a healthy and ecologically balanced environment.

In essence, safe environmental management involves protecting the resource before its degradation.” This criterion has been reiterated in multiple pronouncements; for example, in judgement No. 2019012579 of 1:20 p.m. on July 5, 2019:

“… the precautionary principle or in dubio pro natura, presupposes that when there are no studies or reports carried out in accordance with univocal rules and the exact application of science and technology that allow reaching a state of absolute certainty about the harmlessness of the activity intended to be developed on the environment, public entities and bodies must refrain from authorizing, approving, or permitting any new or modification application, suspend those in progress until the doubtful state is cleared up, and, in parallel, adopt all measures aimed at its protection and preservation in order to guarantee the right to a healthy and ecologically balanced environment (…).” (See in the same sense, judgements Nos. 2019012549 of 1:20 p.m. on July 5, 2019, and 2012016866 of 2:30 p.m. on December 4, 2012, among many others).

Now, upon better consideration, the undersigned magistrates deem it unavoidable to clarify the notion of the precautionary principle or in dubio pro natura in several respects.

First, the preventive principle must not be confused with the precautionary principle, since they possess particularities that differentiate them, which was reflected in judgement No. 2021024807 of 9:20 a.m. on November 5, 2021, in which this Chamber detailed: “In this vein, specialized doctrine has pointed out that the preventive principle demands that, when there is certainty of possible damage to the environment, the affecting activity must be prohibited, limited, or conditioned on compliance with certain requirements. In general, this principle applies when there are risks clearly defined and identified at least as 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 elements to foresee eventual negative impacts. On the other hand, the precautionary principle indicates that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

From the foregoing, it is noted that the principle starts from reasonable scientific uncertainty together with the threat of serious and irreversible environmental damage. In general terms, a relevant difference between the preventive principle and the precautionary principle lies in the level of knowledge and certainty of the risks that an activity or work may cause. While in the former such certainty exists, in the latter what is noted is a state of doubt resulting from scientific information or technical studies (…)” (boldface supplied).

Second, the precautionary principle must be understood precisely as contemplated by Principle XV of the Rio Declaration on Environment and Development: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” That is, it is not about the requirement to have scientific studies to achieve ‘absolute certainty’ of the harmlessness of an activity to the environment (in thesis, total safety is hardly achievable), but rather that, even if the danger of serious or irreversible damage to the environment is not fully assured, such uncertainty never justifies or excuses postponing the implementation of effective measures to prevent environmental degradation. In this regard, note, on one hand, that it is not a matter of just any threat—it must plausibly involve a serious danger—and, on the other, that the measure demands an effective and efficient use of the resources employed.

In the sense stated, even though the precautionary principle is linked to a certain level of scientific uncertainty, this does not imply that it can be used unrestrictedly under the argument that any activity could generate damage to the environment, which would denature its raison d'être, but rather it is necessary to have a certain degree of identification of the dangers of serious or irreversible damage that could be generated, the determination of which varies depending on the particularities of the specific case. Thus, when faced with a situation requiring the application of the precautionary principle, public entities and bodies must refrain from authorizing, approving, or permitting any new or modification application that reasonably implies a serious risk; they are even obligated to suspend ongoing activities, and in parallel must efficiently adopt all measures required for the preservation of a healthy and ecologically balanced environment.

The aforementioned principle is also enshrined in a hard law legal source, since Principle 3 of the United Nations Framework Convention on Climate Change—ratified by Costa Rica through Law No. 7414 of June 13, 1994, and by all OAS member states—establishes:

“3. The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To this end, such policies and measures should take into account different socio-economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties” (highlighting added).

The precautionary principle is also provided for in the Stockholm Convention on Persistent Organic Pollutants, which is ratified by 32 OAS Member States, among them Costa Rica—see Law No. 8538 of August 23, 2006—, which reads:

“ARTICLE 1 Objective Mindful of the precautionary approach as set forth 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 international human rights law instrument, such as the Convention on Biological Diversity, ratified by 34 OAS Member States, including Costa Rica, through Law No. 7416 of June 30, 1994, in whose preamble it is established: “(…) Noting that it is vital to anticipate, prevent and attack the causes of significant reduction or loss of biological diversity at source. Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat (…).” In line with the aforementioned regulations in force in the country, the Inter-American Court of Human Rights also referred to the precautionary principle in Advisory Opinion OC-23/17 of November 15, 2017:

“180. (…) Therefore, this Court understands that States must act in accordance with the precautionary principle, for the purposes of protecting the right to life and personal integrity, in cases where there are plausible indicators that an activity could entail serious and irreversible damage to the environment, even in the absence of scientific certainty. Therefore, States must act with due caution to prevent possible damage. 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 thus, even in the absence of scientific certainty, they must adopt measures that are “effective” to prevent serious or irreversible damage” (highlighting added).

Subsequent to that resolution and through a judgement, in Indigenous Communities members of the Lhaka Honhat Association (Our Land) vs. Argentina, the IACtHR Court ruled on February 6, 2020, as follows: “the right to a healthy environment ‘must be considered included among the rights [...] protected by Article 26 of the American Convention,’ given the obligation of States to achieve the ‘integral development’ of their peoples, arising from Articles 30, 31, 33, and 34 of the Charter.” Of high significance, it should be underscored that, in this ruling, the IACtHR Court refers to advisory opinion No. OC-23/17 in order to develop the content and scope of such right, by virtue of which the legal considerations of the latter have logically come to achieve the legal binding force proper to a judgement. In this sense, the international jurisdictional body reiterates “that the right to a healthy environment ‘constitutes a universal interest’ and ‘is a fundamental right for the existence of humanity,’ 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 the risk to individuals.

It is about protecting nature,’ not only for its ‘utility’ or ‘effects’ regarding human beings, ‘but because of its importance for the other living organisms with whom the planet is shared.’ The foregoing does not preclude, of course, that other human rights may be violated as a consequence of environmental damage.” Precisely, in developing the conceptualization of the right to the environment, the IACtHR Court clearly details State obligations in the face of possible environmental damage, such as the duty of prevention, the precautionary principle, the duty of cooperation, and access to information.

In short, the application of the precautionary principle implies that when there are indicators that a certain activity could plausibly cause serious and irreversible damage to the environment, the lack of absolute scientific certainty or evidence in this regard does not exempt from the obligation to adopt all those 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 and private legal subjects.

Having clarified the foregoing, and in consideration of the particularities of San Lucas Island, it is reiterated that the change of management category that occurred with the law challenged here inexorably entails environmental and cultural implications, making the requirement for duly supported scientific criteria essential. In other words, for the approved modification of the management category of San Lucas Island (which is not only a protected wilderness area but is also considered cultural heritage) to be logical and constitutionally appropriate, there must be sufficient technical and scientific justification, especially since each management category has biological, edaphic, hydrological, physiographic, ecological, climatic, and, in general, environmentally relevant characteristics that confer upon it a specificity of distinctive relevance.

In consideration of the foregoing, in the sub lite matter, no scientific, objective, and reasonable basis is verified that justifies the change of management category of a portion of the terrestrial surface of the protected wilderness area ‘San Lucas Island,’ much less one that examines the environmental and cultural consequences of such a decision.

This is contrary to the precautionary and preventive principles—in environmental and cultural heritage matters—and the principle of objectification of environmental protection.

On the other hand, it is worth citing judgment no. 2013010540 of 15:50 hours on August 7, 2013, in which this Chamber stated:

“6.4.- Violation of Article 89 of the Political Constitution. This constitutional provision states, in relevant part: ‘Among the cultural purposes of the Republic are: to protect natural beauty…’ Regarding this provision, INCOPESCA asserts that it bears no relation whatsoever to shrimp fishing by means of trawl nets on the seafloor. The plaintiffs, for their part, consider that the scenic marine beauty is being destroyed and turned into turbid waters by the onslaught of the trawl net.

The Chamber agrees with this latter assessment. Natural beauty is not limited to the surroundings that our eyes behold, much less to the external face of the earth. Natural beauty is not reduced to an aesthetic concept. As this Chamber has rightly highlighted through a material and evolving interpretation in its case law, the concept of natural beauty (bellezas naturales) used by the 1949 framers is encompassed within the required protection of the right to a healthy and ecologically balanced environment:

‘XIII.- (…) The term “natural beauty” (bellezas naturales) was the one used at the time the Constitution was enacted (November 7, 1949), which today has developed into a specialty 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 sense, the concept of the right to a healthy environment goes beyond the recreational or cultural interests that are also important aspects of life in society; rather, it also constitutes a paramount requirement for life itself (…) (Judgment 9193-2000 of 16:28 hours on October 17, 2000).

The concept of natural beauty (bellezas naturales) is closely related to the concept of natural heritage (patrimonio natural). It is not by chance that the provision refers to historical and artistic heritage, such that the provision regulates three types of heritage essential to preserve the identity of a Nation and its physical, cultural, and social subsistence. Within the concept of natural beauty (bellezas naturales) are included hydrobiological resources. The protection of natural beauty (bellezas naturales) encompasses ensuring the preservation of the environment and ecosystems, because if the latter are destroyed or severely damaged, the former are irremediably harmed. The concept of natural beauty (bellezas naturales) is closely linked to a model of sustainable development, respectful of natural riches and our natural heritage. The purpose of the provision is to protect, conserve, and develop those three forms of heritage and to subject private initiative to that constitutional purpose.

By virtue of the foregoing, contrary to what INCOPESCA considers in its report, the deterioration of marine ecosystems due to trawl net fishing—and as long as there are no Bycatch Reduction Devices (Bycatch Reduction Devices) that significantly reduce incidental catch (not all have the same effectiveness, and those that save turtles are not sufficient)—directly violates the natural heritage (patrimonio natural) protected in numeral 69 through the concept of natural beauty (bellezas naturales)” (the emphasis was incorporated).

The foregoing implies, in the sub iudice, that in the absence of the aforementioned scientific studies, the change of management category (categoría de manejo) in a portion of the surface of Isla San Lucas also infringes numeral 89 of the Magna Carta, since that modification affects a protected wild area (área silvestre protegida), whose constitutional protection coverage (cobertura de protección constitucional) extends to the obligation to safeguard natural beauty (bellezas naturales), even in the face of threats and applying the principle of in dubio pro natura (principio de in dubio pro natura), as well as to preserve cultural heritage, in accordance with constitutional case law, a term that encompasses various types of heritage, such as historical and architectural heritage.

Based on the foregoing, in the sub iudice, the undersigned magistrates consider that the absence of prior environmental scientific studies before changing the management category (categoría de manejo) in a part of the protected wild area (área silvestre protegida) ‘Isla San Lucas’ violates the precautionary and preventive principles—in environmental and cultural heritage matters—and the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental), as well as harms the fundamental rights set forth in numerals 50 and 89 of the Political Constitution.

IV.Regarding the alleged unconstitutionality of Law No. 9892 of August 24, 2020, for reducing the surface area of the protected wild area (área silvestre protegida) ‘Isla San Lucas’ without prior scientific studies.

Of importance for resolving this grievance is that, through Executive Decree No. 34282-TUR-MINAE-C of January 25, 2008, ‘Rectifies, delimits, and expands the boundaries of the Isla San Lucas National Wildlife Refuge and declares the sustainable tourism development of the island to be of national interest and high priority,’ the boundaries of the San Lucas National Wildlife Refuge were modified. In that sense, numeral 1 regulated:

“Article 1º—Modify Article 1 of Executive Decree No. 33327-MINAE, published in La Gaceta No. 172 of September 17, 2006, so that it reads as follows:

Article 1º—Rectify, delimit, and expand the boundaries of the Isla San Lucas National Wildlife Refuge, State property, declared by Executive Decree No. 29277-MINAE published in La Gaceta No. 30 of Monday, February 12, 2001, and its amendment Executive Decree No. 32349-MINAE published in La Gaceta No. 92 of Friday, May 13, 2005, so that they shall henceforth read as follows: A. The terrestrial portion formed by Isla San Lucas, located in the Gulf of Nicoya, IGN cartographic sheet called 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 terrestrial portion are rectified, excluding the area comprised by the following Costa Rica Lambert North coordinates (…) In the water sector in front of Playa Cocos, the boundaries are rectified, excluding the area comprised by the following Costa Rica Lambert North coordinates: (…) In the water sector in front of Playa Cocos, the boundaries are rectified, excluding the area comprised by the following Costa Rica Lambert North coordinates: (…) Add to the Isla San Lucas National Wildlife Refuge a water portion described by the following Costa Rica Lambert North coordinates: B. A marine-coastal area comprised by the waters around Isla San Lucas up to a depth of 6 m (…)” (the bold was incorporated).

Precisely, with respect to this regulatory body and the addition it makes, in judgment no. 2010013099 of 14:46 hours on August 4, 2010, this Chamber clarified that:

“(…) the Executive Branch cannot reduce these (sic) areas without observing the legislative and technical procedure, reason for which the Chamber partially grants the action to annul 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,’ the foregoing due to violation of Articles 11, 50, and 89 of the Constitution, and not as to the addition of the marine sector and islets, since that is permitted to the Executive Branch to agree upon by Executive Decree” (the emphasis was added). Therefore, in the aforementioned pronouncement it was 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, insofar as it modifies only subparagraph A. of Article 1 of Executive Decree No. 33327-MINAE, except for the addition of the water portion that is added to the Isla San Lucas National Wildlife Refuge and paragraph B, which remain in force (…)”.

Thus, the boundaries of the Isla San Lucas National Wildlife Refuge were expanded by means of the aforementioned Article 1 cited ut supra regarding the water portion and the addition of a “marine-coastal area comprised by the waters around Isla San Lucas up to a depth of 6 m,” which remained intact in the transcribed vote.

In the sub lite, the challenged Law No. 9892 states:

“ARTICLE 3- Delimitations. The Isla San Lucas National Park shall consist of a terrestrial portion and a coastal marine area.

The terrestrial portion shall be formed by the insular part of Isla San Lucas, located in the Gulf of Nicoya, cartographic sheet of the National Geographic Institute called Golfo, Edition 3-IGNCR, at north latitude 9º 55' 55\" - 9 57' 20\" and west longitude 84º 53' 23\", with an extension of four hundred sixty-two hectares (462 ha).

The coastal marine area shall be composed of the waters around the island, with a depth of up to three meters (3 m). Inserted within the two previous areas, there shall exist a differentiated management space dedicated to sustainable tourism activity, the promotion and development of the sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourism Zone (…)” (the highlighting was added).

Having stated the foregoing, with the issuance of the aforementioned law, it is undeniable that a portion of Isla San Lucas went from the management category (categoría de manejo) of ‘national wildlife refuge’ (refugio nacional de vida silvestre) to that of ‘national park’ (parque nacional). In this regard, as indicated ut supra, it is feasible for a geographic space, generally of large extent, to be declared a protected wild area (área silvestre protegida) and for different management plan categories to coexist on its surface, in the determination of which prior scientific studies will inexorably be required.

Now, while numeral 1° of Law No. 9892 created the Isla San Lucas National Park, it is no less true that it did not eliminate the Isla San Lucas National Wildlife Refuge, since Executive Decrees Nos. 29277-MINAE of January 11, 2001, and 34282-TUR-MINAE-C of January 25, 2008, remain in force, which implies that in that geographic zone (the entire protected wild area, área silvestre protegida) two different management categories coexist. Consequently, contrary to what the plaintiffs claim, in the sub examine it is not evident that a part of the coastal marine area of the island and the Pan de Azúcar islet have been left without any protection, since such surfaces continue to be a protected wild area (área silvestre protegida) with the category of national wildlife refuge (refugio nacional de vida silvestre).

Despite the foregoing, the truth is that at this point the legal development of the previous section again applies. Thus, in light of the precautionary and preventive principles—in environmental and cultural heritage matters—and the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental), prior to the declaration, modification, or change of management category (categoría de manejo) of the protected wild area (área silvestre protegida) ‘Isla San Lucas,’ scientific studies are required, for the purpose of verifying that the measure to be adopted will not cause direct or indirect harm to the detriment of a healthy equilibrium between the environment and cultural heritage.

Precisely, in the sub iudice, the minimum scientific-environmental support is lacking that would justify the designation of the new boundaries of the Isla San Lucas National Wildlife Refuge, which, it is reiterated, were drastically reduced. Nor are there scientific studies that justify the reason why a portion of the island’s surface remains under the management category (categoría de manejo) of national wildlife refuge (refugio nacional de vida silvestre) while the other became a national park (parque nacional). This is even more serious because, as indicated ut supra, i) that decision generates environmental implications in a protected wild area (área silvestre protegida), especially since the specifications (biological, edaphic, hydrological, physiographic, ecological, climatic, and others of a similar nature) of the management categories in question demand different regulations and measures for each of them; and ii) negative implications could arise for the cultural heritage of the island.

Ergo, numeral 3 of Law No. 9892 is also unconstitutional for violating the precautionary and preventive principles—in environmental and cultural heritage matters—and the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental), as well as the fundamental rights set forth in numerals 50 and 89 of the Political Constitution, given the absence of scientific studies that justify the reduction of the boundaries of the Isla San Lucas National Wildlife Refuge.

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 (área silvestre protegida), despite lacking prior technical studies.

First, what is regulated in Law No. 9892 must be emphasized:

“ARTICLE 1-Creation. The Isla San Lucas National Park is created, which, in addition to its status as a protected wild area (área silvestre protegida), shall be a historical-architectural heritage site (patrimonio histórico - arquitectónico) and a zone for sustainable tourism use (zona de aprovechamiento turístico sostenible), in the specific areas determined in this law.

ARTICLE 2- National interest. The sustainable tourism development of the island is declared to be of national interest and high priority under the terms of this law, as well as the conservation and restoration of the buildings of the former prison of Isla San Lucas. The dependencies of the Public Administration and of the private sector, within the respective legal framework, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the island.

ARTICLE 3- Delimitations. The Isla San Lucas National Park shall consist of a terrestrial portion and a coastal marine area.

The terrestrial portion shall be formed by the insular part of Isla San Lucas, located in the Gulf of Nicoya, cartographic sheet of the National Geographic Institute called Golfo, Edition 3-IGNCR, at north latitude 9º 55' 55\" - 9 57' 20\" and west longitude 84º 53' 23\", with an extension of four hundred sixty-two hectares (462 ha).

The coastal marine area shall be composed of the waters around the island, with a depth of up to three meters (3 m). Inserted within the two previous areas, there shall exist a differentiated management space dedicated to sustainable tourism activity, the promotion and development of the sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourism Zone.

ARTICLE 4- Purposes. The purposes of the Isla San Lucas National Park are the following:

• a)The preservation of the natural, historical, cultural, archaeological, and architectural heritage.
• b)Contributing to the socioeconomic development of the Gulf of Nicoya.
• c)The promotion of sustainable and inclusive tourism for the attention of national and foreign visitors.
• d)The enjoyment, recreation, generation of facilities and amenities for inclusive tourist visitation (…)

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 terrestrial access zone to the island, the plots, the trails, and the beach zones that are indicated, shall be subject to the condition of Tourism Zone. Said areas are specified in the following coordinates:

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

Area of the polygon called ‘Buildings Area’: 265664.59 1 m², equivalent to 26ha5664, equivalent to 0.27km² b) Playa El Coco Recreation Area: comprised by the following coordinates in the CRTM05 projection: (…)

Area of the polygon called ‘Playa El Coco Recreation Area’: 76401.99, equivalent to 7ha6401, equivalent to 0.08km² c) Sector called Trails Area: comprised by the following coordinates in the CRTM05 projection (…)

Area of the polygon called ‘Trails Area’: 314277.731 m², equivalent to 31 ha4277, equivalent to 0.31 km² d) Area called Water Sector: comprised by the following coordinates in the CRTM05 projection (…)

Area of the polygon called ‘Water Sector’: 746209.m², equivalent to 74ha6209, equivalent to 0.75 km².

ARTICLE 7-Scope and Restrictions. The Isla San Lucas National Park shall be governed by a master plan drawn up based on technical criteria.

For the fulfillment of the purposes established in this law, in the tourism zone, concessions and permits may be granted for activities and installations other than park services. Lodging services and games of chance 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 competences shall be resolved by the Minister of Environment and Energy (…)

ARTICLE 9- Tasks and Powers. The Board of Directors of the Isla San Lucas National Park shall have the following powers:

• a)To define the 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 the guidelines for the protection, restoration, and administration of the historic buildings, developing installations and services intended for the rest and recreation of visitors, the habilitation and accessibility of terrestrial and maritime routes, port constructions, and, in general, the provision of all basic services.
• d)To define the environmentally sustainable tourism activities, whether commercial, transport, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island.
• e)To approve the strategic objectives for marketing and promotion necessary to make the Isla San Lucas National Park known, both within and outside the country.
• f)To grant approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourism Zone.

In the case of works related to areas declared heritage sites, coordination shall be made with the Ministry of Culture.

• g)To approve the master plan of 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, modify, or revoke any trust relating to the Isla San Lucas National Park, as well as all types of contracts and agreements with public or private entities and persons. It shall determine the entrance fees to the national park, as well as approve the contracts for the various reservation and purchase systems.
• j)To approve the use of the modalities of public works concession with public service and contracting of mutual benefit with non-profit entities.
• k)To carry out any other type of action necessary to ensure the smooth running of the Isla San Lucas National Park and the achievement of its purposes.

In matters of conservation and preservation of the historical-architectural heritage, the criterion of the Cultural Heritage Research and Conservation Center of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island’s biodiversity, the technical criterion of the National System of Conservation Areas (Sinac) shall prevail. Upon the request of the Board of Directors, said entities shall provide their criteria as expeditiously as possible (…)

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

Among the functions of this committee are the following:

• a)To fulfill all those tasks or duties entrusted by the settlor, established in the trust agreement.
• b)To coordinate with the Board of Directors of the Isla San Lucas National Park and follow its general guidelines for the proper operation and fulfillment of the trust.
• c)To approve the manuals corresponding to the administration, management, oversight, and others relating to the trust.
• d)To review and approve, on an annual basis, the ordinary and extraordinary budgets of the trust.
• e)To instruct the trustee on the actions that are required and that fall within the scope of the trust.
• f)To meet at least once a month ordinarily, and extraordinarily, whenever convened by the Presidency of the Board or the trustee’s representative.
• g)To approve agreements and contracts for the provision of recreational and/or commercial services, as well as essential and non-essential services, to achieve the greatest use of the Tourism Zone and enjoyment of visitors.
• h)The functions attributed to it by the trust agreement relating to internal control, oversight, procurement, personnel, and others necessary for the administration of the national park.
• i)Any other function arising from the trust agreement, its manuals, or others directly related (…)

ARTICLE 16- Infrastructure Development. The Isla San Lucas National Park may develop all necessary infrastructure to facilitate sustainable tourism, including the provision of water, electricity, telecommunications, hygiene and sanitation, docks, piers, food services, and access routes, information and communication in various formats, as well as any it deems pertinent for the benefit of visitors and to ensure the enjoyment and appreciation of the historical, architectural, and natural wealth of the park.

In the construction of docks, piers, and other maritime facilities, the Costa Rican Institute of Pacific Ports (Incop), the Ministry of Public Works and Transport (MOPT), and the Costa Rican Tourism Institute (ICT) shall provide the corresponding technical support to the Board of Directors; likewise, these institutions are empowered to build and maintain the works indicated in this provision” (the highlighting was added).

• A)Regarding the declaration of national interest and high priority for sustainable tourism development on Isla San Lucas, as well as the development of infrastructure to facilitate it, including docks and piers.

It should be noted that, previously, matters relating to tourism on Isla San Lucas were regulated in the aforementioned Law No. 5469, which established:

“Article 2º.- The Municipality shall use the Island as a tourist center, for which purpose it is authorized to contract the necessary infrastructure works (…)

Article 4º.- On the Island and for the purposes of this law, hotels and all those activities typical of a well-organized tourist operation may operate.” Subsequently, Executive Decree No. 34282 ‘Rectifies, delimits and expands the boundaries of the Isla San Lucas National Wildlife Refuge and declares the sustainable tourism development of the island to be of national interest and high priority’ provided:

“Article 2º- The sustainable tourism development of the island is declared to be of national interest and high priority under the terms of this decree, as well as the conservation and restoration of the buildings of the former prison on Isla San Lucas. The dependencies of the Public Administration and of the Private Sector, within the respective legal framework, may contribute economic resources, to the extent of their possibilities and without prejudice to the fulfillment of their own objectives, to collaborate with the sustainable tourism development of the Island (…)

Article 4º- The following is prohibited in the Municipal Administration Area:

• 1)The supply of fuels and their derivatives for the purpose of avoiding environmental contamination.
• 2)The use of water for tourism activities contrary to the technical standards issued by the Water Department of Minae in collaboration with the Costa Rican Institute of Aqueducts and Sewers, if required, so as to preserve the necessary ecological flow for the maintenance of the island’s ecosystem.
• 3)The use of Cultural Heritage contrary to the technical standards issued by the Ministry of Culture, Youth and Sports.
• 4)Fishing and hunting.
• 5)Other limitations established by the Permanent Commission in accordance with pertinent technical studies.

Article 5º- For the development of tourism activities in the municipal administration area and the preservation of the island’s cultural heritage, the ICT shall prepare a Master Plan for Sustainable Tourism Development, which shall include an analysis of environmental impact (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 Master Plan for Sustainable Tourism Development shall contain at least the following elements:

• a)Zoning study, through which land uses (usos de suelo) are defined.
• b)Zoning regulations (ordenanzas and reglamentos) that define and establish criteria and standards for land use (uso del suelo), construction and use of buildings, facilities, public services, buffer zones (áreas de amortiguamiento), among others, necessary for limited and sustainable tourism development and for the protection of the Island’s cultural heritage.
• c)Strategy plan for project execution, establishing programs, projects, and activities, both through private initiative and public investment, for the sake of sustainable development and protection of cultural heritage.

The Master Plan for Sustainable Tourism Development shall be submitted to the National Environmental Technical Secretariat of Minae and to the Ministry of Culture, Youth and Sports for approval, in accordance with the requirements and procedures established by the legal system.

The municipal administration area shall be regulated by the aforementioned Master Plan for Sustainable Tourism Development, and the Refuge Management Plan shall not be applicable to it, except for the pertinent general legal rules. MINAE shall adjust its Management Plan in accordance with the new dimensions of the refuge and the Master Plan for Sustainable Tourism Development (…)”.

Precisely, in judgment no. 2010013099 of 14:56 hours on August 4, 2010, this Chamber resolved an action of unconstitutionality against that decree in this sense:

“IX.- On the implications of sustainable development and tourism.- The cornerstone of development lies in environmental sustainability (sustentabilidad ambiental); its 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 core idea of environmental law principles lies in the rational utilization of natural resources, with the protection of the environment to ensure sustainability for present and future generations. Any economic or productive activity that intervenes in or uses the environment must respond to the philosophy of sustainable development according to the impact it has on it; in that sense, since the Executive Branch bases itself on this type of objectives for economic and social development, this Chamber considers that rural tourism as such must respond to those values that protect sustainable development, because it could not be the exception, and it is constitutionally relevant to control the repercussions it may generate on the environment.

An example of this is the Certification for Sustainable Tourism issued by the Costa Rican Tourism Institute as a highly important component, which denotes progress in protecting the right to a healthy and ecologically balanced environment while simultaneously promoting economic diversity; this measure generates incentives in favor of companies engaged in the tourism exploitation of natural and cultural resources. On the other hand, Law No. 8724, which is the Law for the Promotion of Rural Community Tourism, seeks to provide benefits to families and communities by using their localities as tourist destinations, and among its provisions is subparagraph a) of Article 2, which states: ‘To 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 sense, the Global Code of Ethics for Tourism, adopted by resolution A/RES/406(XIII) of the thirteenth General Assembly of the UNWTO in Santiago, 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, establishes that:

‘Article 3.

Tourism, a factor of sustainable development 1.

All tourism development stakeholders have the duty to safeguard the environment and natural resources, in the perspective of sound, steady, 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 incentivize all forms of tourism development that allow for saving scarce and valuable natural resources, particularly water and energy, and that avoid, as far as possible, the production of waste.

(…)

4. 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. Tourism development stakeholders, and in particular professionals in the sector, must accept that limitations be imposed on their activities when these are carried out in particularly vulnerable spaces: desert, polar, or high mountain regions, coastal areas, tropical forests, or wetlands, which are suitable for the creation of natural parks or protected reserves.

5. Nature tourism and ecotourism are recognized as particularly enriching and valorizing forms of tourism, provided they respect the natural heritage and the local population and conform to the carrying capacity of the tourist sites.” For equitable access to development, the traditional idea that the latter occurs only in urban areas must be abandoned, when in the rural environment other factors can be exploited that make the place unique, while of course taking care not to threaten those conditions. There is no doubt that the exploitation of natural resources implies economic diversity; to that extent, the environment requires protection to withstand the burdens of human intervention, and it is therefore necessary to ensure reasonable development in balance with the environment, such that the control that could be exercised would increase according to the impact it may have on it. Consequently, tourism development must not entail the destruction of public domain assets or the surroundings, because it depends on their preservation to achieve the economic improvement of rural communities within the parameters of sustainability.

Among the constitutional purposes of the State is that of developing policies that reduce social and economic gaps, adjusted of course to the environments, whether natural, rural, or mixed; all of this arises from the provisions of Article 50 of the Constitution. Having access to development, in terms of employment opportunities or quality of life, and therefore economic progress, is part of the recognition and advancement of human rights; hence, rural development through tourism must not mean for individuals abandoning their traditional customs and ways of life to migrate to the cities, but rather an adjustment of these to current needs and advances. In this regard, in the opinion of this Chamber, the true challenge for human beings is to generate progress and—why not—well-being (material and spiritual) without threatening the resources available in the environment; the contrary would simply translate into social inequalities that prevent advancing toward a new stage of human development.

This Chamber recognizes that the balance between the two is very delicate, but in order for it to occur without degrading the environment, one must resort to science and technology to determine what burdens certain natural environments and their resources can bear, without violating the right of present and future generations. For all these reasons, the conflict between environmental protection and other rights derived from it, widely recognized in international human rights instruments, merits these considerations from this Constitutional Court. This Chamber considers that rural development based on tourism directed at natural and cultural heritage is constitutionally legitimate as long as it is sustainable. Hence, if science and technology suggest the imposition of certain limitations on the numbers of visitor groups, at certain times, etc., these could not be judged as unconstitutional, given that they respond to sustainability criteria, but without detracting from the various international provisions that safeguard the right to the enhancement of those assets that belong to the national history, not only as national heritage assets but as assets of all humanity, and their restriction to the populations is not legitimate (…)

A type of low-ecological-impact rural tourism that respects environmental regulations is compatible with the Constitution, which contains the international obligations extensively developed in the precedents of this Chamber (to which this Chamber refers), and with Article 89 of the Political Constitution by establishing cultural objectives, among them: protecting natural beauties, conserving and developing the historical heritage, and whose value is enhanced by the access the population may have to it. Therefore, no incompatibilities are demonstrated between environmental protection and the conservation of cultural assets made available to humanity, and a project that must be developed integrally with the environment, that must be inclusive of all its components, not exclusive (…)

The development of infrastructure must be compatible with the principles of environmental sustainability, its protection and conservation; on the contrary, works that did not take into account the protection regimes in force on the Island would be constitutionally questionable, such as the construction of large-scale infrastructure works, given that the validity of the regime as a protected area would imply a substantial land-use change (cambio de uso del suelo), and not because of the human works that existed long before the declaration of the Island as a Protected Wilderness Area and of historical-architectural heritage. Hence, this Chamber does not consider that Articles 2, 3, 4, 6, and 7 of Decreto Ejecutivo 34282-TUR-MINAET-C present vices of unconstitutionality, but understood with the following nuances. The declaration of national interest and high priority of sustainable tourism development, indicated in numeral 2, shall be understood as constitutional so long as the conservation and restoration of the buildings of the former prison and those constructed on the occasion of its existence remain circumscribed to the tasks of 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 that must be carried out. Regarding the infrastructure intended for tourist use, it must be strictly limited to the areas of the historical complex and the road leading to Playa Cocos and to said beach; the facilities that must be built shall be those strictly necessary to meet the basic needs of visitors and tourism development stakeholders, without the foregoing implying that development may extend beyond developments incompatible with a “green” philosophy, or that are not in tune with the carrying capacity of the place, all of which must be ensured sustainably according to science and technology. This Court recognizes that it is a true challenge to achieve the conservation and recovery of the Island’s buildings, as well as their enhancement, 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, as long as sustainability criteria are met; otherwise, it would entail a constitutionally relevant friction with Articles 50 and 89.

As for subsections a) and b) of numeral 5, they shall be understood as constitutional to the extent that what is intended in the Plan Maestro conforms to what this Chamber has indicated, especially insofar as the zoning studies and zoning regulations are not based on a reduction of the protected wilderness area by 5.5% of the area” (highlighting added).

Thus, this Chamber ruled on tourism activity on Isla San Lucas in that judgment, where the constitutionality of Decreto Ejecutivo No. 34282, which declared of national interest and high priority the sustainable tourism development of the Refugio Nacional de Vida Silvestre Isla San Lucas, was analyzed in accordance with a Plan Maestro de Desarrollo Sostenible. In this regard, it was ordered that such a plan must include an environmental impact assessment (evaluación de impacto ambiental) and the technical standards required to meet the objectives of economic, social, and environmental development, which had to be submitted to the Secretaría Técnica Nacional Ambiental and the Ministerio de Cultura, Juventud y Deporte for approval. On this point, this Chamber established that tourism directed at natural and cultural heritage was constitutionally valid as long as it was sustainable, for which purpose it was imperative to have scientific studies determining the feasibility of tourism activity.

Precisely, in order for the development of sustainable tourism activities and the development of the infrastructure required for such purposes in Parque Nacional Isla San Lucas to be harmonious with the right to a healthy and ecologically balanced environment, it is unavoidable to have scientific studies in the terms set forth ut supra so that they conform to the principle of objectification of environmental protection (principio de objetivación de la tutela ambiental). Such studies must be prior, sufficient, and individualized, in such a way as to reasonably guarantee that no damage will be caused nor will the environment be endangered.

On this particular, in the instant case it is not evident that, prior to the declaration of national interest and high priority of sustainable tourism development in Parque Nacional Isla San Lucas, as well as the authorization of the development of infrastructure to facilitate it (including the construction of docks and landing places), there was support from scientific studies for the purpose of determining that such activities were in accordance with the purposes of that protected wilderness area, especially considering that national parks constitute categories of absolute protection.

It should also be noted that, even though numeral 7 of Ley 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 based on technical criteria (…)”, it does not appear that it includes an environmental impact assessment for the purpose of specifying whether the activities to be developed in the aforementioned national park may or may not harm the environment. In addition to the foregoing, according to numeral 9 eiusdem, that plan maestro must be approved by the Junta Directiva of Parque Nacional Isla San Lucas, whose composition lacks members with technical appointments related to environmental matters—we will refer to this in section VI of this dissenting vote—and which, although it must respect the technical criterion issued by SINAC on biodiversity conservation matters, is not obliged to request such a criterion under the terms established in numeral 9 of the challenged law.

Recall that in the Refugio Nacional de Vida Silvestre Isla San Lucas, according to Decreto Ejecutivo No. 34282, the Instituto Costarricense de Turismo must prepare a Plan Maestro de Desarrollo Turístico Sostenible, which includes an environmental impact assessment and the technical standards to achieve the objectives of economic, social, and environmental development, as well as the protection of cultural heritage, which must be submitted both to the Secretaría Técnica Nacional Ambiental and to the Ministerio de Cultura, Juventud y Deportes for approval.

Having clarified this, we verify the violation of the principles of progressivity and non-regression in environmental matters, because the surface area of Isla San Lucas, which went from a wildlife refuge to a national park by virtue of the contested modification, was previously governed by the Plan Maestro de Desarrollo Turístico Sostenible of the Refugio Nacional de Vida Silvestre Isla San Lucas, in which, as indicated ut supra, an environmental impact assessment is indeed required and whose approval falls to the Secretaría Técnica Nacional Ambiental—a technical body in environmental matters—and the Ministerio de Cultura, Juventud y Deporte. With the challenged regulation, that geographical space, upon becoming part of Parque Nacional Isla San Lucas, is only governed by a plan maestro, regarding which there is no express obligation to carry out environmental impact studies nor for its approval to be subject to a technical body in environmental matters. This deterioration in the degree of environmental progression violates the principles of progressivity and non-regression in environmental matters.

In addition to the foregoing, in the sub examine a violation of the precautionary principle (principio precautorio) is verified, because, by virtue of the change in management category in a part of the protected wilderness area ‘Isla San Lucas,’ a general authorization arises for more intensive tourism activities to be deployed in said zone and, with it, the danger of serious damage to the environment increases, as explained below. For example, numeral 7 of Ley 9892 provides a general authorization for concessions and permits to be granted in the tourist zone of Parque Nacional Isla San Lucas for activities and installations other than park services and lodging and gambling services. Additionally, numeral 9 eiusdem provides that the Junta Directiva of the park has, among other powers: “d) Define environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that incentivize tourist attraction and visitation to the island (…) f) Grant approval of authorizations, use permits, and concessions to carry out works and services provided in the Tourist Zone (…)”.

For its part, Article 14 of the challenged law provides, among the functions assigned to the Comisión Administradora del Fideicomiso: “g) Approve agreements and contracts for the provision of recreational and/or commercial services, as well as essential and non-essential services, to achieve the greatest use of the Tourist Zone and enjoyment of visitors.” Thus, Ley 9892 provides a general authorization for the development of tourism activities of various kinds, including commercial, sports, artistic, cultural, and transportation activities, which could generate serious or irreversible damage to the environment and cultural heritage, despite which an elementary and basic precautionary measure such as a prior scientific study was omitted, by means of which at least data such as the tourist loads that said wilderness area can bear according to its characteristics and conservation purposes would be available, so that damage to the environment and cultural heritage could be prevented.

This, despite the fact that this Constitutional Court has highlighted the importance of scientific criteria in determining the feasibility or not of tourism activities that may violate the right to a healthy and ecologically balanced environment. In that sense, it should be recalled that the above-cited judgment No. 2010013099 of 14:56 hours on August 4, 2010, held that: “This Chamber considers that rural development based on tourism directed at natural and cultural heritage is constitutionally legitimate as long as it is sustainable. Hence, if science and technology suggest the imposition of certain limitations on the numbers of visitor groups, at certain times, etc., these could not be judged as unconstitutional, given that they respond to sustainability criteria, but without detracting from the various international provisions that safeguard the right to the enhancement of those assets that belong to the national history, not only as national heritage assets but as assets of all humanity, and their restriction to the populations is not legitimate.” The foregoing entails, likewise, a violation of the principles of progressivity and non-regression in environmental matters, the principle of objectification of environmental protection, as well as the fundamental rights set forth in numerals 50 and 89 of the Political Constitution. Consequently, the unconstitutionality of Articles 2, 4 subsections c) and d), 7, 9 subsections d), f) and g), 14 subsection g) and 16 of Ley 9892 is verified.

• B)Regarding the delimitation of the tourist zone established in Articles 3 and 6 of Ley 9892.

In the sub examine, the plaintiffs allege that in numerals 3 and 6 of Ley 9892 a differentiated-management tourist zone was established despite the lack of studies justifying its creation.

On this point, recall that numeral 3 of Ley 9892 provides that within the terrestrial and marine portion of Parque Nacional Isla San Lucas “there shall exist a differentiated-management space dedicated to sustainable tourism activity, the promotion and development of sites of historical, architectural, and environmental interest, which for all purposes shall be called the Tourist Zone.” For its part, numeral 6 eiusdem details the surface areas that comprise that tourist zone, since it regulates that: “The areas corresponding to the buildings of the former San Lucas prison, including the dock, as well as the marine and terrestrial access zone to the island, the properties, the trails, and the beach areas indicated, shall be affected by the condition of Tourist Zone. Said areas are specified in the following coordinates (…)”.

In that sense, it is worth noting that, in official communication No. SINAC-DE-1338 of August 4, 2019, the Sistema Nacional de Áreas de Conservación referred to the then legislative bill No. 21287 that resulted in Ley 9892 and stated: “For the declaration of a tourist zone, a series of technical studies must be provided to support its establishment, this because said activity must be low-impact, very sustainable, and strategically located in places that do not put at risk the EFM prioritized by the PGM of the ASP. It should be noted that for the definition of this type of zoning, SINAC has created and formalized specific instruments that methodologically guide the definition of this type of zoning in the country’s ASP.” In a similar sense, the Ministerio de Ambiente y Energía issued an opinion in relation to the referred legislative bill, as seen in official communication No. DM-1216-2019 of November 27, 2019, where it reads: “Article 6 proposes that all ASP zoning be the result of the technical analysis of the Plan General de Manejo, which is a planning instrument that allows orienting the management of the ASP toward the fulfillment of its objectives. We suggest that the definition of the tourist zone be the result of what the subsequent technical studies of the Plan General de Manejo yield” (bold in the original).

Now, even though the legislator’s intention with such norms may have been to circumscribe the tourist zone in question to a specific area of the island, not to deprive it of the environmental protection it possesses, but to delimit in which specific surface area sustainable tourism activities can be carried out, in the sub lite it does not appear that, in delimiting said zone, technical factors (such as biological, edaphic, hydrological, physiographic, ecological, climatic, and other characteristics of the zone, as well as historical and architectural factors) were taken into consideration for the purpose of scientifically determining its feasibility or not in relation to the protection of the environment and cultural heritage. This is even more serious, when one observes that, according to the above-cited Article 3, the tourist zone constitutes a differentiated-management area, in which, given the absence of the aforementioned studies, there is no certainty that the preservation and conservation of natural and cultural resources are the main objectives.

Therefore, the undersigned judges consider that in the sub lite a violation of the principle of objectification of environmental protection is verified by creating a tourist zone within Parque Nacional Isla San Lucas and defining its limits without any scientific study, which also is harmful to the precautionary and preventive principles—in environmental and cultural matters—and the fundamental rights contained in Articles 50 and 89 of the Political Constitution, for which reason numerals 3 and 6 of Ley 9892 are unconstitutional.

• C)Regarding the commercial purposes provided for in numerals 9 and 14 of Ley 9892.

Regarding this grievance, it is worth recalling that the plaintiffs maintain that Ley 9892 permits commercial purposes, which is incompatible with the regulations established for national parks.

Certainly, we observe that in numerals 9 and 14 of the challenged law reference is made to commercial activities. According to the first of these norms, the Junta Directiva of Parque Nacional Isla San Lucas has, among its powers: “d) Define environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that incentivize tourist attraction and visitation to the island.” For its part, according to Article 14, the trust’s administrative commission is responsible for: “g) Approve agreements and contracts for the provision of recreational and/or commercial services, as well as essential and non-essential services, to achieve the greatest use of the Tourist Zone and enjoyment of visitors.” On this particular, Article 3 of the ‘Convention for the Protection of the Flora, Fauna, and the Natural Scenic Beauties of the Countries of America’ provides that the riches existing in national parks shall not be exploited for commercial purposes, and that the Contracting Governments only agree to provide these protected wilderness areas “with the facilities for the solace and education of the public.” Concerning national parks, the Ley del Servicio Nacional de Parques is emphatic in stating that in these protected wilderness areas visitors are prohibited from “15) Carrying out any type of commercial, agricultural, or industrial activity.” By virtue of the foregoing, it is relevant to bring up judgment No. 2012013367 of 11:33 hours on September 21, 2012, in which this Constitutional Court referred to the principles of progressivity and non-regression in environmental matters:

“V. On the principles of progressivity and non-regression of environmental protection. The principle of progressivity of human rights has been recognized by International Human Rights Law; among other international instruments, it is set forth in Articles 2 of the International Covenant on Economic, Social and Cultural Rights, Article 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 norms, the State assumes the obligation to progressively increase, to the extent of its possibilities and development, the levels of protection of human rights, with special consideration for those that, like the right to the environment (Art. 11 of the Protocol), require multiple positive actions by the State for their protection and full enjoyment by all their holders.

From the principle of progressivity of human rights and the principle of non-retroactivity of norms to the detriment of acquired rights and consolidated legal situations, set forth in numeral 34 of the Carta Magna, derives the principle of non-regressivity or irreversibility of the benefits or protection achieved. The principle stands as a substantive guarantee of rights, in this case, of the right to a healthy and ecologically balanced environment, by virtue of which the State is obliged not to adopt measures, policies, or approve legal norms that worsen, without reasonable and proportionate justification, the situation of rights achieved up to that point. This principle does not suppose absolute irreversibility since all States experience national situations, of an economic, political, social nature, or caused by nature, that negatively impact the achievements made up to that point and force a downward reconsideration of the new level of protection.

In those cases, the Constitution and the principles under examination require justifying, in light of the constitutional parameters of reasonableness and proportionality, the reduction of protection levels. In this regard, the Sala Constitucional has expressed in its case law, regarding the right to health: ‘…according to the PRINCIPLE OF NON-REGRESSIVITY, it is prohibited to take measures that diminish the protection of fundamental rights. Thus, if the Costa Rican State, in order to protect the right to health and the right to life, has a policy of openness to access to medicines, it cannot—and much less through an International Treaty—reduce such access and make it more restricted, under the excuse of protecting trade.’ (Judgment of the Sala Constitucional No. 9469-07). In relation to the right to the environment, it stated: ‘The foregoing constitutes an evolutive interpretation of environmental protection according to the Constitution, which does not admit a regression to its detriment.’ (Judgment of the Sala Constitucional No. 18702-10).” (The highlighting does not correspond to the original).

(In the same sense, judgments 2014-012887, 2017-002375, 2017-005994, 2019-012745, and 2019-017397).” Thus, according to the principle of progressivity, the State assumes the obligation to increase, to the extent possible, the levels of protection of human rights, including the right to a healthy and ecologically balanced environment. For its part, the application of the principle of non-regression consists of a guarantee that constrains the State to refrain from adopting measures, policies, or norms that worsen, without a reasonable and proportionate justification, the degree of protection of fundamental rights already achieved.

In consideration of the principles of progressivity and non-regression in environmental matters, as well as in consideration of the content of both the ‘Convention for the Protection of the Flora, Fauna, and the Natural Scenic Beauties of the Countries of America’ and the Ley del Servicio Nacional de Parques Nacionales, the exploitation for commercial purposes of their riches and the development of commercial activities by visitors are prohibited in national parks. Despite that, and to the detriment of such principles, Ley 9892 provides generic authorizations for the performance of commercial tourism activities in Parque Nacional Isla San Lucas, as well as the signing of agreements or contracts for the provision of commercial services, which is evidenced in numerals 9 subsection d) and 14 subsection g).

In addition to the foregoing, in the sub examine, as has been indicated in prior considerandos, in relation to the challenged law, the existence of scientific studies that safeguard the precautionary principles, preventive principle—in environmental and cultural matters—and the principle of objectification of environmental protection, as well as the fundamental rights set forth in numerals 50 and 89 of the Political Constitution, is missing.

Precisely, although the authorization to carry out commercial activities within Parque Nacional Isla San Lucas could generate a danger of serious or irreversible damage in a conservation area of absolute protection in the terms previously set forth, it does not appear that adequate and sufficient measures have been adopted to safeguard the environment, for example, through studies indicating the types of commercial activity absolutely prohibited or the specific guidelines they must follow.

Faced with this situation, we consider the principles of progressivity and non-regression in environmental matters, the precautionary principles, preventive principle—in environmental and cultural matters—and the principle of objectification of environmental protection, as well as the fundamental rights set forth in numerals 50 and 89 of the Political Constitution, to be violated. Consequently, we consider that the word “commercial,” in numeral 9 of Ley 9892 is unconstitutional, as well as the phrase “and/or commercial” in Article 14 eiusdem.

VI.On the alleged unconstitutionality of Ley 9892 of August 24, 2020, regarding the composition of the junta directiva responsible for administering Parque Nacional Isla San Lucas.

Numeral 8 of Ley 9892 9892 designates the Board of Directors (Junta Directiva) of the Isla San Lucas National Park (Parque Nacional Isla San Lucas) as a maximally deconcentrated body (órgano de desconcentración máxima) attached to the Ministry of Environment and Energy (Ministerio de Ambiente y Energía); it possesses instrumental legal personality (personalidad jurídica instrumental) for the exercise of its powers and is responsible for the governance and administration of the park. In turn, numeral 10 of the same law regulates the composition of the board as follows:

“ARTICLE 10—Composition. The Board of Directors of the Isla San Lucas National Park shall be composed of the following members:

• a)The Minister of Environment and Energy, who shall preside over it, with a vice-minister of the ministry being able to act as a substitute.
• b)The Minister of Culture, with a vice-minister of the ministry being able to act as a substitute.
• c)The Executive President of the Costa Rican Tourism Institute (ICT), with the person holding the management or a member of the Board of Directors of said institute being able to act as a substitute.
• d)A representative of the Executive Branch designated by the Government Council, which body shall also appoint a substitute.
• e)The mayor of the Municipality of the Central canton of Puntarenas, with a vice-mayor being able to act as a substitute.
• f)The president of the Chamber of Tourism of Puntarenas, with any of the members of the Board of Directors of said chamber being able to act as a substitute.

The president of the Board shall hold the judicial and extrajudicial representation of the body. Likewise, they shall have a casting vote (voto de calidad) under the terms of Article 49 of Law 6227, General Law of Public Administration, of May 2, 1978. The members of the Board of Directors shall not receive any per diem (dieta).” In turn, according to ordinal 9 of the same law, the Board of Directors of the Isla San Lucas National Park has the following powers:

“ARTICLE 9—Tasks and Powers. The Board of Directors of the Isla San Lucas National Park shall have the following powers:

• a)Define the 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 the guidelines for the protection, restoration, and administration of historical buildings, developing facilities and services intended for the rest and recreation of visitors, the opening and accessibility of land and maritime routes, port constructions, and, in general, the provision of all basic services.
• d)Define environmentally sustainable tourism activities, whether commercial, transportation, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island.
• e)Approve the strategic objectives for the marketing and promotion necessary to make the Isla San Lucas National Park known, both within and outside the country.
• f)Grant approval for authorizations, use permits (permisos de uso), and concessions (concesiones) to carry out works and services provided in the Tourism Zone.

In the case of works related to areas declared as heritage, coordination with the Ministry of Culture shall be required.

• g)Approve the master plan of 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, modify, or revoke any trust (fideicomiso) related to the Isla San Lucas National Park, as well as all types of contracts and agreements with public or private entities and persons. It shall determine the entrance fees to the national park, as well as approve contracts for the various reservation and purchase systems.
• j)Approve the use of the figures of public works concession with public service (concesión de obra pública con servicio público) and mutual benefit contracting (contratación de mutuo beneficio) with non-profit entities.
• k)Carry out any other type of action necessary to ensure the proper functioning of the Isla San Lucas National Park and the achievement of its purposes.

In matters of conservation and preservation of historical-architectural heritage, the criterion of the Cultural Heritage Research and Conservation Center of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island’s biodiversity, the technical criterion of the National System of Conservation Areas (Sinac) shall prevail. Upon request of the Board of Directors, said entities shall provide their criteria as expeditiously as possible” (bold text added).

On the other hand, numeral 1 of the ‘Convention for the Protection of the Flora, Fauna, and Natural Scenic Beauties of the Countries of America’ provides: “National Parks shall be understood as: The regions established for the protection and conservation of natural scenic beauties and of flora and fauna of national importance, which the public may better enjoy when placed under official supervision.” Now, it should be noted that the Biodiversity Law (Ley de Biodiversidad) establishes:

“ARTICLE 22.—National System of Conservation Areas The National System of Conservation Areas is hereby created, hereinafter referred to as the System, which shall have its own legal personality (personería jurídica propia); it shall be a system of institutional management and coordination, deconcentrated and participatory, that shall integrate the competencies in forestry, wildlife, protected areas, and the Ministry of Environment and Energy, for the purpose of issuing policies, planning, and executing processes aimed at achieving sustainability in the management of Costa Rica’s natural resources. In accordance with the foregoing, the General Directorate of Wildlife, the State Forestry Administration, and the National Parks Service shall exercise their functions and competencies as a single instance, through the administrative structure of the System, without prejudice to the objectives for which they were established. The protection and conservation of the use of hydrographic basins and water systems is included as a competence of the System (…)

ARTICLE 24.—Composition of the National Council The National Council of Conservation Areas shall be composed as follows:

1. 1The Minister of Environment and Energy, who shall preside over it.
2. 2The Executive Director of the System, who shall act as secretary of the council
3. 3The Executive Director of the Technical Office of the Commission.
4. 4The directors of each Conservation Area.
5. 5A representative from each Regional Council of the Conservation Areas, designated from within each Council.

ARTICLE 25.—Functions of the National Council The functions of this Council shall be:

1. 1Define the execution of strategies and policies aimed at the consolidation and development of the National System of Conservation Areas, and oversee their execution.
2. 2Supervise and audit the correct technical and administrative management of the Conservation Areas.
3. 3Coordinate, jointly with the Commission, the preparation and updating of the National Strategy for the Conservation and Sustainable Use of Biodiversity, which shall be widely consulted with civil society and duly coordinated with the entire public sector, within the framework of each of the Conservation Areas.
4. 4Define strategies and policies related to the consolidation and development of state protected areas, as well as supervise their management.
5. 5Approve the strategies, the structure of the administrative bodies of the protected areas, and the annual plans and budgets of the Conservation Areas.
6. 6Recommend the creation of new protected areas that increase their category of protection.
7. 7Conduct technical and administrative audits to monitor the proper management of the Conservation Areas and their protected areas.
8. 8Establish guidelines and directives to make the structures, administrative mechanisms, and regulations of the Conservation Areas coherent.
9. 9Appoint, from a shortlist proposed by the regional councils, the directors of the Conservation Areas.
10. 10Approve concession requests indicated in Article 39 of this law.
11. 11Other functions necessary to fulfill the objectives of this and other laws related to the functions of the System (…)

ARTICLE 28.—Conservation Areas The System shall be constituted by territorial units called Conservation Areas under the general supervision of the Ministry of Environment and Energy, through the National Council of Conservation Areas, with competence over the entire national territory, whether regarding protected wild areas, areas with a high degree of fragility, or private areas of economic exploitation. Each conservation area is a territorial unit of the country, administratively delimited, governed by a single development and administration strategy, duly coordinated with the rest of the public sector. In each one, both private and state activities in conservation matters are interrelated without detriment to the protected areas. The Conservation Areas shall be responsible for applying the legislation in force on natural resources within their geographic demarcation. They shall execute the policies, strategies, and programs approved by the National Council of Conservation Areas on protected areas; likewise, they shall be responsible for applying other laws governing their subject matter, such as the Wildlife Conservation Law, No. 7317, of October 30, 1992, and the Forestry Law (Ley Forestal), No. 7575, of February 13, 1996, Organic Law, No. 7554, of October 4, 1995, and the Law Creating the National Parks Service, No. 6084, of August 24, 1977.

Based on the Council’s recommendations, the Ministry of Environment and Energy shall define the territorial division that is technically most advisable for the country’s Conservation Areas, as well as their modifications.

ARTICLE 29.—Regional Council of the Conservation Area The System shall exercise the administration of the Conservation Areas through a Regional Council, which shall be formed by public call, made by the regional representative of the System, to all interested non-governmental and community organizations, municipalities, and public institutions present in the area. It shall be composed of the official responsible for the protected area and shall have a minimum of five members representing different sectors present in the area, elected by the Assembly of organizations and institutions called for this purpose; a municipal representative must always be elected. In those circumscriptions where the indicated organizations do not exist to form the Council, it shall be the responsibility of the municipalities to designate them in coordination with the System’s representative. These Councils shall have the organizational structure indicated by the regulations of this law, which shall have, at a minimum, a President, a Secretary, a Treasurer, and two Members, all elected from within, as well as a representative of the System, who shall always serve as Executive Secretary.

In Conservation Areas where it is necessary due to their complexity, Local Councils may be created by agreement of the Regional Council of the Conservation Area, whose constitution shall be defined in the creation agreement. Each Regional Council shall establish its own regulations within the framework of current legislation, which shall be submitted to the National Council for final approval. These regulations shall establish a percentage of the total economic income of the Conservation Areas for their operation.” In sum, the National System of Conservation Areas consists of a “system of institutional management and coordination, deconcentrated and participatory, that shall integrate the competencies in forestry, wildlife, protected areas, and the Ministry of Environment and Energy, for the purpose of issuing policies, planning, and executing processes aimed at achieving sustainability in the management of Costa Rica’s natural resources”—numeral 22—which “shall exercise the administration of the Conservation Areas through a Regional Council”—ordinal 29—.

Furthermore, note that SINAC has instrumental legal personality and maximum deconcentration (desconcentración máxima), which implies that it performs specific functions that the Ministry of Environment and Energy cannot assume.

Regarding this topic, it is pertinent to bring up what was recorded in judgment no. 2006009563 of 16:06 hours on July 5, 2006:

“IV.—The Biodiversity Law deconcentrates from the Ministry of Environment and Energy two bodies: the National Commission for Biodiversity Management and the National System of Conservation Areas. To the first, it grants ‘instrumental legal personality’ (Article 14) and to the second ‘its own legal personality’ (Article 22). These 2 articles are precisely the provisions challenged by the plaintiff that are linked to the issue of the body’s legal personality, which indicate:

‘Article 14.—The National Commission for Biodiversity Management is hereby created with instrumental legal personality, as a deconcentrated body of the Ministry of Environment and Energy…’ ‘Article 22.—The National System of Conservation Areas is hereby created, hereinafter referred to as the System, which shall have its own legal personality; it shall be a system of institutional management and coordination, deconcentrated and participatory, that shall integrate the competencies in forestry, wildlife, protected areas, and the Ministry of Environment and Energy, for the purpose of issuing policies, planning, and executing processes aimed at achieving sustainability in the management of Costa Rica’s natural resources. In accordance with the foregoing, the General Directorate of Wildlife, the State Forestry Administration, and the National Parks Service shall exercise their functions and competencies as a single instance, through the administrative structure of the System, without prejudice to the objectives for which they were established.

The protection and conservation of the use of hydrographic basins and water systems is included as a competence of the System.’ In the case of the National Commission for Biodiversity Management (CONAGEBIO), the provision is clear in granting it an instrumental legal personality as a deconcentrated body. Although, indeed, the norm does not indicate the degree of deconcentration of this body, this Court understands, according to the powers and the specific competence granted, that it is a case of maximum deconcentration from the Ministry of Environment and Energy, as it is a body specialized in biodiversity matters. Regarding this type of organization, the Chamber in its most recent jurisprudence stated in judgment No. 2005-3629:

‘IV.—On the merits. Since the core point of this study is the unconstitutionality of endowing a deconcentrated administrative body with an instrumental legal personality that allows it to contract, it is convenient to review beforehand the functions constitutionally granted to the Executive Branch and the scope of this legal figure.

a- Functions granted by the Political Constitution to the Executive Branch. Article 140 of the Constitution determines for us a sphere of competences and powers that are exclusive—and excluding—of the Executive Branch, understood as such, the President of the Republic and the respective Minister. Thus, the function of political or governmental direction and the direction of international policy are demarcated as proper and exclusive. Regarding the function of political direction—which is the only one we will focus on developing, in light of the interest of study of this action—it is important to highlight that the Executive Branch corresponds to a function of political orientation regarding state activity, whose purpose is to guide state policies in the various areas of public interest, in order to maintain the necessary unity of the State; and this is achieved through the various mechanisms of administrative self-tutelage (planning power, directive power—related to the issuance of directives—, coordination power—sectorization and regionalization—, the power to issue authorizations—approvals, endorsements, and approvals).

Thus, far from being a competence of a legal nature, it is one of a constitutional nature, proper to the Executive Branch, as this Chamber has previously considered, by virtue of which, it is the Executive that must set the policy in a determined area of action and not the other way around:

‘The Executive Branch—Government—, as a legal and political organization, is the one responsible for organizing, directing, and channeling society in all its political, legal, economic, and social aspects. The executive function is an essential task of the Government in its various bodies or ministries, as is also the political directive one of setting the objectives and goals of coordinated action in the other public entities, proposing the means and methods to achieve those objectives. It is also an essential function of the Executive Branch to orient, coordinate, and supervise the apparatus of the Administration (Article 140, subsection 8 of the Political Constitution) and to issue general norms that are not mere execution of legal norms but delimiting ones (Art. 140.2, Political Constitution)…’ (judgment number 3089-98, at fifteen hours on May twelfth, nineteen ninety-eight).

In this sense, it is important to note that, by virtue of the organizational processes of decentralization by subject matter—autonomous institutions—(Articles 188 to 190 of the Political Constitution) and territorial—municipalities—(Articles 169 and 170 of the Political Constitution), and of deconcentration (Article 83 of the General Law of Public Administration), these functions are not performed exclusively by the Executive Branch; however, by virtue of the provisions of Articles 26 subsection b) and 27.1 of the General Law of Public Administration, the function of direction and coordination of the tasks of Government and of the Central Public Administration as a whole is maintained in the Executive Branch, and also of the decentralized Administration, in what corresponds, by virtue of the degree of governmental autonomy of the municipalities—given by constitutional norm—. This Chamber also already pointed out, in judgment number 2002-06513, at fourteen hours fifty-seven minutes on July third, two thousand two, that the structure of the Costa Rican State was determined by the original Constituent in the Political Constitution, and that, although its structure is not closed ("numerus clausus"), the ordinary legislator—indisputable holder of the residual competence—must adjust, in relation to the creation of public entities and bodies, to the principles of that fundamental order.

It is thus that the doctrine of Public Law makes a clear differentiation between administrative decentralization and deconcentration, categorizing the first as that formed by public legal persons with full or special legal personality; with a specific attribution or competence, which it develops exclusively or privately, and not concurrently, alternatively, or in parallel, so that the larger Entity (State) cannot invade its sphere of competences, since these are competences that have been transferred from the Executive Branch to the new institution; for which they are endowed with patrimony and budgetary autonomy; so that they are recognized a legal capacity to administer themselves (administrative autonomy), under the terms provided in Article 188 of the Political Constitution:

‘The autonomous institutions of the State enjoy administrative independence and are subject to the law in matters of government. Their directors are responsible for their management.’ On the other hand, a deconcentrated body refers to the phenomenon that occurs within the same legal person—without creating a new entity—with a concrete and dependent competence task, in what is not deconcentrated, of the hierarchy of the entity to which it belongs, as provided in Articles 83.2, 83.3, 83.4, and 83.5 of the General Law of Public Administration:

‘2. Minimum deconcentration shall occur when the superior cannot:

• a)Avoke competences from the inferior; and b) Review or substitute the conduct of the inferior, ex officio or at the request of a party.

3. Deconcentration shall be maximum when the inferior is also removed from orders, instructions, or circulars from the superior.

4. The norms that create minimum deconcentration shall be applied restrictively against the competence of the deconcentrated body and those that create maximum deconcentration shall be applied extensively in its favor.’ Thus, administrative deconcentration exists when by legal norm an exclusive competence is attributed to an inferior body of the entity, with some degree of autonomy, thereby producing the loss of competence by the hierarchical superior, wherefore its condition can never be equal to that of the superior, even when it involves the maximum degree of deconcentration. The doctrine is unanimous in considering that the Public Administration is formed by the set of public entities that make up the administrative organization, that is, by the larger public entity (State or Central Public Administration), and the rest of the smaller public entities (Decentralized Public Administration, whether institutional or by services—autonomous institutions—or territorial—municipalities), which have been created by an act of authority, of constitutional order (in the case of municipalities) or legal.

In this sense, decentralization will always imply the creation of smaller public entities, distinct from the State, endowed with legal personality, their own patrimony (which implies financial autonomy), and the attribution of a competence, exclusive and excluding, that is severed from the Executive Branch; for which reason the larger public entity—State—cannot invade its sphere of competence, although it is subject to administrative oversight (direction, planning, coordination, and control). Thus, the fundamental element to determine the presence of an entity is the endowment of legal personality, which is delegated by the State for the realization of a specific competence, and which has the immediate consequence of turning it into a center of imputation of rights and obligations, that is, it legitimizes it to manage by itself and before itself the delegated competences, in consideration of the degree of autonomy granted (administrative—minimum and first-degree—, characteristic of autonomous institutions; governmental—second-degree—, characteristic of municipalities and the Costa Rican Social Security Fund regarding the administration of social insurances; and organizational—full or third-degree, characteristic of the state universities).

It is thus that the endowment of legal personality to a public entity places it in a different position from that which, lacking personality, constitutes a body. For this reason, the actions carried out by these entities are the responsibility of the entity, not of the State in a strict sense. Finally, it is necessary to recall that decentralization is a model of Administration organization, with the aim of seeking the best efficiency of public management, for the satisfaction of the public interest entrusted.

b- Instrumental legal personality. Now then, the Chamber has sustained the criterion that it is not unconstitutional to endow a deconcentrated body with instrumental legal personality, as a model of administrative organization, for the purpose of achieving greater efficiency in the state apparatus. It has been considered a budgetary personification, which confers on a deconcentrated body the power to administer its resources independently of the public Entity to which it belongs, although it is subordinate in all other aspects that are proper to the deconcentrated function. It is an endowment of legal mechanisms and instruments strictly necessary for the body to fulfill the public tasks and functions delegated by virtue of law, all of which is not only adequate but necessary under the coverage of two fundamental principles of public management, efficiency and adaptability to change. Such that this instrumental capacity is subject to the terms and conditions provided in the law of its creation, and insofar as they are strictly indispensable for the fulfillment of the delegated public function; so that, if the law omits the competence, they must be presumed as proper and reserved to the superior.

Thus, it may contract personnel, goods, and services that are indispensable for the fulfillment of the public function delegated to it, only with the understanding that the law expressly empowers it to do so. On the other hand, all the constitutional norms and principles of control and oversight of the Public Treasury are binding and applicable to this type of body, that is, those governing administrative contracting, and those of Budgetary Law. In all else, they are subject to the control systems proper to the activity of public institutions.’ Under this weighting, the Court maintains the criterion that it is not unconstitutional to grant instrumental legal personality to a deconcentrated body of the administration according to the considerations set forth. So that the creation of CONAGEBIO under the condition of a deconcentrated body with instrumental legal personality is not unconstitutional.

Likewise, the Chamber applies the considerations set forth to the National System of Conservation Areas, which according to the questioned Article 22, was constituted as a system of institutional management and coordination, deconcentrated and participatory, with the purpose of integrating the competencies in forestry, wildlife, protected areas, and the Ministry of Environment and Energy. Although said provision indicates that this body shall have its own legal personality, the truth is that this cannot be understood as full personality, but rather instrumental, since precisely the legislator created it as a deconcentrated body, in order to attribute exclusive and technical competencies to it, but with a certain degree of independence and impartiality, which allows the administration to achieve a higher level of effectiveness, efficiency, speed, and agility in its actions. This being the case, this provision is also not unconstitutional’ (the highlighting is not from the original).

The foregoing shows that SINAC plays a fundamental role in relation to conservation areas, among which are protected wild areas (áreas silvestres protegidas), such as Isla San Lucas, which is reflected in its condition as a body of maximum deconcentration in forestry, wildlife, and protected area matters. Therefore, the National System of Conservation Areas exercises exclusive and technical competencies in such fields, without MINAE being able to give it orders, instructions, or issue circulars.

In line with such a role, the Regulations to the Forestry Law—Executive Decree No. 25721 of October 17, 1996—provides:

“Article 11.—On lands previously declared as Natural State Heritage, both within the Protected Wild Areas and outside them, only training, ecotourism, and research activities shall be permitted; these activities shall be subject to the provisions established in the management plan of the Protected Wild Area and other regulations established in this normative, as follows:

A- Within the Protected Wild Areas In the case of Protected Wild Areas with the exception of National Parks and Biological Reserves, ecotourism activities may be carried out solely and exclusively in the zones established by the National System of Conservation Areas (SINAC), in accordance with the zoning of each Protected Wild Area” (the highlighting was added).

Another example of the role granted to SINAC regarding protected wild areas is reflected in the Wildlife Conservation Law (Ley de Conservación de la Vida Silvestre):

“Article 83.—The extraction of wildlife (*), continental and insular, is prohibited in national wildlife refuges, with the exception of management and extraction for nurseries or captive breeding facilities (zoocriaderos), after conducting the corresponding scientific-technical studies.

The National System of Conservation Areas (*) shall have the powers and duties established by Law No. 6043, with respect to National Wildlife Refuges that include areas of the maritime-terrestrial zone.” Furthermore, in the Regulations to the Wildlife Conservation Law—Executive Decree No. 40548 of July 12, 2017—it was recorded:

“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, in accordance with the policies established in the National Biodiversity Policy and its Strategy, the National Development Plan, and the institutional planning instruments.

2. Grant the licenses, permits, or authorizations indicated in the Wildlife Conservation Law and these regulations.

3. Ensure the correct application and compliance with the current legal framework on wildlife.

4.

Develop regulations for control and subsistence hunting, conservation, and sustainable use of wild flora and fauna when applicable.

5. Serve as the national focal point (focalía) (administrative authority) before CITES and ensure its correct application and compliance, as established in the LCVS and the scope of this regulation.

6. Develop and keep updated the National Wildlife Information System (Sistema Nacional de Información sobre Vida Silvestre).

7. Develop and review the Protocols established in this regulation.

8. Convene and coordinate the work of the National Wildlife Commission (Comisión Nacional de Vida Silvestre).

9. Develop educational materials that publicize the mission, objectives, and programs of SINAC regarding the conservation and sustainable use of wildlife.

10. Other duties assigned by CONAC or the Minister of Environment and Energy.

Article 10.- Functions of the Conservation Areas (Áreas de Conservación). For the purposes of the Law and this Regulation, the Conservation Areas shall have the following functions:

1. Participate in the development of institutional programs and projects, and execute them in accordance with established procedures and provisions.

2. Coordinate the execution of activities with other competent agencies.

3. Inform and coordinate with the Executive Secretariat of SINAC regarding the execution of regional-level programs and projects related to wildlife.

4. Grant and supervise use permits and administrative resolutions for the operation of management sites (sitios de manejo), as well as the issuance of control hunting licenses, use of wildlife with or without commercial purposes, and other acts inherent to their management.

5. Participate in rapid ecological assessments and assessments of population statuses of wildlife species and issue corresponding recommendations, in coordination with the Executive Secretariat of SINAC.

6. Order management measures aimed at the protection and sustainable use of endangered species, and promote research on these species in coordination with the Executive Secretariat of SINAC.

7. Review, evaluate, and approve or reject management plans (planes de manejo) for management sites, and ensure their effective compliance.

8. Promote scientific research on wildlife and the publication of technical-scientific documents, ensuring compliance with national legislation. Research on species requiring appropriate technical management to foster coexistence with human activities, and on management methods for wildlife populations with abnormal growth or specific problematic issues, shall be promoted with special emphasis, in coordination with the Executive Secretariat of SINAC.

9. Analyze and evaluate impacts caused by individual wild fauna specimens on agricultural activities.

10. Carry out formal and non-formal environmental education programs to raise community awareness about the appropriate management of wild flora and fauna, in accordance with institutional priorities.

11. Keep the National Wildlife Information System updated, based on the actions they carry out.

12. Conduct prevention, control, and protection activities, and address complaints as applicable.

13. Ensure proper compliance with wildlife legislation.

14. Support the Executive Secretariat in corresponding processes.

15. Other duties assigned by current legislation, the Executive Director of SINAC, CONAC, or the Minister of Environment and Energy." For its part, the Biodiversity Law (Ley de Biodiversidad) provides:

"ARTICLE 61.- Protection of protected wild areas The State must give priority attention to the protection and consolidation of state-owned protected wild areas located within the Conservation Areas. For these purposes, the Ministry of Environment and Energy, in coordination with the Ministry of Finance, must include in the budgets of the Republic the respective transfers to the trust or financial mechanisms for protected areas to ensure, at a minimum, the personnel and necessary resources determined by the National System of Conservation Areas (Sistema Nacional de Áreas de Conservación) for the operation and integrity of state-owned protected wild areas and the permanent protection of national parks, biological reserves, and other state-owned protected wild areas." Now, in section 9 of Law No. 9892, the following is attributed to the National System of Conservation Areas: "(…) for the protection of wildlife and conservation of the island's biodiversity, the technical criterion of the National System of Conservation Areas (Sinac) shall prevail.

Upon request of the Board of Directors (Junta Directiva), said entities shall provide their criteria as expeditiously as possible." However, firstly, the foregoing does not imply that the Board of Directors of the Isla San Lucas National Park is obligated to request SINAC's technical criterion. In reality, consulting SINAC is provided as a power of the Board of Directors, which it could well choose not to exercise.

On the other hand, note that the protection of the environment falls upon the State as a whole, so its proper exercise requires the execution of coordinated efforts among the various Branches, bodies, and entities, among others. An example of this is seen in judgment No. 2019017397 of 12:54 hours on September 11, 2019, in which it was resolved:

"X.- On the stewardship (rectoría) of the Ministry of Environment and Energy, as well as the necessary coordination of the different institutions in environmental matters.- In the preceding recital (considerando), it was affirmed that State institutions are the first ones called to comply with environmental protective legislation, without any justification existing to exempt them from compliance with environmental requirements. Consequently, in this section, the stewardship of the Ministry of Environment and Energy in environmental matters will be explained. Furthermore, the necessary coordination that must exist among the different State institutions will be set forth. In this regard, this Tribunal, in judgment number 2004-8928 of 16:37 hours on August 18, 2004, has mentioned that it is evident that the central State is the entity primarily entrusted with the defense of the environment, which is reaffirmed in the Organic Law of the Environment (Ley Orgánica del Ambiente), number 7554 of October 4, 1996, which delegates to the Ministry of Environment and Energy a large part of the powers in this matter, without discharging other public entities from their responsibilities in this field.

Likewise, for the case in question, it is important to clarify that the Ministry of Environment and Energy also has the authority to administer national refuges and wetlands, which derives in addition from Articles 82 and 84 of the Wildlife Conservation Law (Ley de la Conservación Silvestre), 32 of the Organic Law of the Environment, 13 of the Forestry Law (Ley Forestal), and 58 of the Biodiversity Law (see judgment number 2004-8928 of 16:37 hours on August 18, 2004).

Now then, although stewardship in environmental matters falls upon the Ministry of Environment and Energy, it is necessary to clarify that the State, in a broad sense, is the guarantor in the protection and guardianship of the environment and natural resources (see judgment number 6922-2010 of XX on XX). That is, although the central State delegates the defense of the environment to the Ministry in question, this does not eliminate the responsibility that other State institutions bear in this matter. In this regard, this Constitutional Chamber (Cámara Constitucional) has also expressed the need for coordination among public agencies to guarantee environmental protection. Thus, it mentioned that:

"On various occasions, constitutional jurisprudence has indicated that the protection of the environment is a task that falls upon everyone equally, that is, that there is an obligation for the State –as a whole– to take the necessary measures to protect the environment, in order to avoid degrees of pollution, deforestation, extinction of flora and fauna, excessive or inadequate use of natural resources, which endanger the health of the administered. In this task, public institution must be understood to include both the Central Administration – Ministries, such as the Ministry of Environment and Energy and the Ministry of Health, which, by reason of their subject matter, have broad participation and responsibility regarding the conservation and preservation of the environment; which act, most of the time, through their specialized agencies in the matter, such as, for example, the General Directorate of Wildlife (Dirección General de Vida Silvestre), the Forestry Directorate (Dirección Forestal), and the National Environmental Technical Secretariat (SETENA); as well as decentralized institutions, in the case of the National Institute of Housing and Urbanism (INVU), SENARA, the Costa Rican Tourism Institute (ICT) or the Costa Rican Institute of Aqueducts and Sewers (AyA); a task in which, of course, municipalities bear great responsibility regarding their territorial jurisdiction.

This is why one might think that this multiple responsibility would cause chaos in administrative management, which is not true, because in order to avoid the simultaneous coexistence of spheres of power of different origin and essence, the duplication of national and local efforts, as well as the confusion of rights and obligations among the various parties involved, it is necessary to establish a series of coordination relationships among the various agencies of the Executive Branch and decentralized institutions, and between these and the municipalities, in order to carry out the functions entrusted to them (…)" (see judgment number 2009-000139 of 08:53 hours on January 13, 2009).

In summary, although the State delegates to the Ministry of Environment and Energy a large part of the powers in this matter, with this Ministry holding the stewardship function in environmental matters and, therefore, being responsible for issuing environmental protection policies, management, and sustainable use of natural resources; it is also true that there is a need for coordination among public agencies to guarantee environmental protection. Therefore, State institutions, the Executive Branch, the Legislative Branch, the Judicial Branch, Municipalities, as well as any other institutions, are all bound by environmental legislation or that which is related to environmental protection (see judgment number 8928 of XX on XX and judgment number 8713-2008 of 09:06 hours on March 23, 2006)" (emphasis added).

Regarding Isla San Lucas, in judgment No. 2011003741 of 14:37 hours on March 23, 2011, this Tribunal referred to the need to coordinate efforts to safeguard the environment and cultural heritage:

"I.- In this amparo proceeding, the violation of the rights protected in Articles 50 and 89 of the Political Constitution is claimed, due to the deplorable state of the facilities of the former prison located on Isla San Lucas. According to the petitioner, neither the Ministry of Environment, Energy and Telecommunications, nor the Ministry of Culture and Youth, nor the Municipality of the Canton of Puntarenas have taken the necessary measures to keep the aforementioned facilities in good condition. This situation, according to the petitioner, is illegitimate and injures the Right of the Constitution.

II.From the documentary evidence adduced to the record, as well as from the reports rendered under the solemnity of an oath by the Minister of Environment, Energy and Telecommunications, Teófilo de la Torre Agüero, the Minister of Culture and Youth, Manuel Obregón López, the Acting Director of the Center for Research and Conservation of Cultural Heritage (Centro de Investigación y Conservación del Patrimonio Cultural), Javier Carvajal Molina, the Executive Director of the National System of Conservation Areas, Giselle Méndez Vega, and the Municipal Mayor of the Central Canton of Puntarenas, Juan Luis Bolaños Alvarado –which are given with timely warning of the consequences, including criminal ones, provided in Article 44 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional)– it is proven that:

a. the buildings on Isla San Lucas are in very poor condition, due to the omission of the authorities of the Municipality of the Canton of Puntarenas, the Ministry of Culture and Youth, and the Ministry of Environment, Energy and Telecommunications to take the necessary measures to conserve the facilities of the place (see report at folio 83).

III.From the relationship of proven facts in this judgment, the Chamber considers that the omission of the respondent authorities to take the necessary measures and execute the pertinent actions to restore, preserve, and maintain in good condition the buildings on Isla San Lucas is illegitimate and violates the rights protected in Articles 50 and 89 of the Political Constitution, which is why it is appropriate to grant the amparo action in all its aspects against all the sued authorities. Indeed, regardless of the discussion concerning the administration of the properties of Isla San Lucas, on which the Constitutional Tribunal omits any pronouncement on this occasion (as it is a matter that completely exceeds the summary nature of this amparo proceeding), the obligation of all respondent authorities (including, of course, the Municipality of the Canton of Puntarenas) to protect natural beauties, conserve and develop the historical and artistic heritage of the Nation, in strict adherence to the right protected in Article 89 of the Political Constitution, is plainly evident.

IV.In the present case, however, it is evident that the deterioration of the facilities on Isla San Lucas responds, solely and exclusively, to the omission that has been demonstrated in this amparo proceeding with respect to all the respondent authorities, which must coordinate their future actions to preserve the resources and historical heritage of that site. It is manifest that the impugned situation is illegitimate and injures the Right of the Constitution, which is why it is appropriate to grant the amparo action, not without first warning the respondents, based on the provisions of Article 50 of the Law of Constitutional Jurisdiction, not to incur in the future in the acts or omissions that gave merit to the acceptance of the action.

Therefore (Por tanto):

The amparo action is granted, and consequently, the Minister of Environment, Energy and Telecommunications, Teófilo de la Torre Agüero, the Minister of Culture and Youth, Manuel Obregón López, the Acting Director of the Center for Research and Conservation of Cultural Heritage, Javier Carvajal Molina, the Executive Director of the National System of Conservation Areas, Giselle Méndez Vega, and the Municipal Mayor of the Central Canton of Puntarenas, Juan Luis Bolaños Alvarado, are ordered to immediately and jointly adopt the necessary measures and execute the pertinent actions to protect, restore, and preserve the buildings on Isla San Lucas, of which a report must be rendered to the Constitutional Chamber, within the non-extendable period of one year from the notification of this judgment. The foregoing under warning of the consequences, including criminal ones, that arise from disobedience to the orders issued by this Constitutional Tribunal, Article 71 of the Law of Constitutional Jurisdiction.

The State and the Municipality of the Canton of Puntarenas are condemned to the payment of costs, damages, and losses, which shall be liquidated in execution of judgment in the contentious-administrative jurisdiction. Notify this judgment to the indicated officials personally. Communicate." Note that what the transcribed judgment orders is the coordination of efforts among the respondent authorities for the purposes of preserving cultural heritage and the environment, which does not imply per se that the administration of Isla San Lucas must specifically fall upon a body composed of the aforementioned sued parties.

On the contrary, it is important to highlight that, concerning the preservation of objectivity and technical support in the decision-making of certain bodies based on the subject matter they address, this Chamber held in judgment No. 2016007123 of 11:00 hours on May 25, 2016:

"VII.- On the Commission for the Regulation and Control of Commercial Advertising of Alcoholic Beverages (the Commission) (Comisión para la Regulación y Control de la Publicidad Comercial de las Bebidas con Contenido Alcohólico). Pursuant to Article 12 of Law No. 9047 'Law on the Regulation and Commercialization of Alcoholic Beverages' ('Ley de Regulación y Comercialización de Bebidas con Contenido Alcohólico'), the Ministry of Health is in charge of the regulation and control of all types of commercial advertising related to the commercialization of alcoholic beverages, carried out by any means of communication free of charge or through payment. To fulfill such task, the challenged Decree was issued and the Commission for the regulation and control of commercial advertising of alcoholic beverages was created, whose objective is precisely to review, approve or reject, and monitor commercial advertising on alcoholic beverages (paragraph 4 of the Decree).

According to challenged paragraph 5, this Commission is composed of 5 full representatives and their respective alternates; of these, 3 are officials of the Ministry of Health freely chosen by the Minister of Health, one is a representative of UCCAEP, and another is a representative of advertising agencies. It is also provided that the members must have technical competence in public health, addictions, law, advertising, and gender issues. Likewise, this Commission, in case of reasonable doubt in a case, may request the opinion of experts. The members of the Commission hold their positions for 4 years, and may be re-elected for equal periods. In particular, the representatives of the Ministry of Health cease in their positions when they cease to be officials of the institution or when the superior authority so decides. The presidency and secretariat of this body are held by officials of the Ministry of Health and remain in their positions for two years, and may be re-elected.

Now then, pursuant to Article 8, the quorum to meet is three members. Its resolutions are adopted by absolute majority and the president has a casting vote in case of a tie. This Commission must rule on the approval or rejection of advertising material or projects thereof submitted to it, within a period of one calendar month, counted from the business day following the submission of the request. Likewise, against the agreements of the Commission, appeals for reconsideration (revocatoria) with subsidiary appeal (apelación en subsidio) are available.

The petitioner questions that the Commission is composed of subjects of both public and private law, as this constitutes a non-delegable public power, with the aggravating factor that, due to the established quorum, purely commercial private interests that are incompatible with the public function assigned to such body prevail in its decisions. On this particular point, the position of the Attorney General's Office (Procuraduría General de la República) coincided with the petitioner, by pointing out that the integration of the Commission in charge of reviewing, approving or rejecting, and monitoring commercial advertising on alcoholic beverages cannot be delegated to the two representatives of UCCAEP and the advertising agencies, since they have a direct interest in the matter over which they exercise control, seriously violating the principles of objectivity, transparency, and impartiality that must govern public functions and that the Constitutional Chamber has elevated to constitutional rank, derived from the provisions of Article 11 of the Political Constitution.

For their part, the representatives of UCCAEP and the associations appearing in this proceeding indicated that the integration of the Commission reflected the principle of citizen participation, without this influencing the impartiality of the Commission members. Furthermore, they explained that said members enriched the Commission's work with their experience.

As a starting point, it is reiterated that Law No. 9047 'Law on the Regulation and Commercialization of Alcoholic Beverages' provides in paragraph 12 that the Ministry of Health is in charge of the regulation and control of all types of commercial advertising related to the commercialization of alcoholic beverages, carried out by any means of communication free of charge or through payment. Without a doubt, this is a public power conferred by the legislator upon this Ministry specifically. It is appropriate to transcribe the referred article again:

'ARTICLE 12.- Commercial Advertising The Ministry of Health shall be in charge of the regulation and control of all types of commercial advertising related to the commercialization of alcoholic beverages, carried out by any means of communication free of charge or through payment. All control shall be carried out prior to the dissemination of the advertising.

The use of trademarks or names of alcoholic beverages in advertising is prohibited, such as labeling of uniforms, means of transportation used for competitions, and sports articles of any team, association, federation, and sports league, as well as in recreational or cultural activities aimed at minors.' As a first point, an element that is self-evident is underlined. The legislator's choice of the Ministry of Health as the entity in charge of the regulation and control of advertising related to alcoholic beverages is not random. Quite the contrary, its selection responds to the fact that this Ministry is in charge of national health policy, as stated in its organic law. Due to the impact that the consumption of alcoholic beverages can have on the population, the legislator's decision was to grant jurisdiction to said Ministry over advertising related to them.

Just as the first paragraph of the norm allows deducing that the issue of advertising control for alcoholic beverages is a matter of public health, the second makes it clear that the protection of minors must prevail in the exercise of such control.

This point –the protection of minors– is observed in multiple paragraphs of the same Law No. 9047, such as Article 9 in its subsections a), b), d), e), and g); or paragraphs 13 and 16, related to the sale of alcoholic beverages to minors and their presence in establishments that sell said beverages, among other topics.

Likewise, the protection of minors in this matter is found in the Childhood and Adolescence Code (Código de la Niñez y la Adolescencia), whose paragraph 22 states:

'Article 22°- Restricted messages.

Mass media shall refrain from disseminating messages offensive to the rights of minors or harmful to their physical, mental, or social development.

Programs, advertising, and other messages disseminated by radio and television shall adjust to the corresponding audience. By executive decree, matters related to the schedules governing programs unsuitable for minors shall be regulated.' (Emphasis added).

At the international level, the Convention on the Rights of the Child also provides for the protection of minors vis-à-vis the media. Its paragraph 17 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 those aimed at the promotion of his or her 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 his or her well-being, bearing in mind the provisions of Articles 13 and 18.' (Emphasis added).

It is worth remembering that both –the right to health and the protection of minors– enjoy constitutional and conventional protection, as this Chamber has recognized.

In summary, challenged paragraph 12 seeks the regulation and control of advertising for the commercialization of alcoholic beverages in order to protect public health and minors, preventing interests related to said beverages from prevailing over them.

Now then, the task of regulating and controlling said advertising falls upon the Commission, by provision of the challenged Decree. As previously stated, state powers must be deployed following criteria of objectivity, as this entails not only the subjection of the Administration to the principle of legality, but also the protection of individuals' rights against state powers. In the instant case, the objectivity of the Commission is of particular importance, since it affects interests of special protection at the constitutional and conventional level, as has been highlighted in the preceding paragraphs. The objectivity of the Commission in the exercise of its duties can only be guaranteed through an integration that reflects said objectivity and the absence of conflicts of interest in decision-making.

Thus, in order to resolve the controversy raised, it is necessary to analyze whether the integration of the Commission, in light of the principle of objectivity in relation to the principle of the best interest of the minor, is consistent with that legal mandate and is the most appropriate for the protection of the interests defined by the legislator.

As noted, the members of the passive coadjuvant associations pointed out that the inclusion of a representative of the advertising agencies and one from UCCAEP in the composition of the Commission is an expression of the principle of citizen participation, aimed at enriching its work with the specialized knowledge of said representatives.

However, in response to the aforementioned argument, it is no less true that both UCCAEP and the advertising agencies represent bodies whose primary purposes are particularly focused on promoting the business sector and advertising activity, respectively, which in certain situations may collide with the protection of public health or the best interest of the minor, which are essential purposes of the advertising control established by Law No. 9047.

As stated in previous paragraphs, the control of advertising has the purpose of giving precedence to public health and the well-being of minors over any other type of interest, including the commercial interests of companies involved in the production and commercialization of alcoholic beverages. Now, given the purposes of said law, it is a contradiction for its regulation to grant significant intervention in that control to UCCAEP and the advertising agencies, since they represent –precisely– the companies producing and commercializing alcoholic beverages. A clear contradiction is thus noted, as the bodies that should be controlled and supervised regarding this particular matter, so sensitive for the purpose of safeguarding minors, have the possibility of influencing the decision of the body in charge of their control and supervision, without it being possible to derive from Law No. 9047 that this was the legislator's intention.

This patent conflict of interest and its impact on the right to health and the best interest of minors justify the Chamber's intervention in order to restore the original purpose of the legislator.

The Chamber does not disregard that the position of representatives of UCCAEP and the advertising agencies may be considered by the Commission, due to their knowledge, experience, and perspective from their respective fields. However, the fact is that there is a more reasonable way to achieve this objective (without affecting the best interest of the minor and the principle of objectivity regarding the protection of the right to health) that has been provided for by the same regulation to Law No. 9047 in its paragraph 5 in fine:

'In case of reasonable doubt, the commission may request the opinion of experts.' Note that a substantial difference between the opinion of one of these experts and that of a member of the Commission lies in the latter's ability to exercise a vote. If the participation of the representatives of UCCAEP and the advertising agencies occurred solely under the terms of the aforementioned norm, that is, without a vote, the value of their specialized experience would be preserved, without calling into question the objectivity of said collegial body.

In other words, if the reasonableness of the measure is examined, particularly its necessity, it is concluded that the participation with a vote in the Commission of the representatives of UCCAEP and the advertising agencies is unnecessary. Necessity means that among several equally suitable measures to achieve an objective, the competent authority has chosen the one that least affects the legal sphere of individuals.

Applying the reasoning mutatis mutandis, it is observed that the participation of said representatives, in the capacity of expert opinion, would achieve the objective of making their expertise available to the Commission, without calling into question the objectivity that it must maintain when safeguarding the protection of health and the best interests of the minor.

It is worth referring to the report of the President of the Commission, who indicated that they have had to consult, as experts, officials of the Ministry of Health itself and of the IAFA (a deconcentrated body of said Ministry). This need would be alleviated if the Commission were composed of officials from those entities.

Regarding this issue, the representative of UCCAEP referred to article 5 (…The persons who make up the Commission must have technical competence in the areas of public health, addictions, law, advertising, and gender…) to emphasize the need for a composition formed by multidisciplinary experts. However, the analysis of said provision in light of the purposes of the regulation (protection of health and the best interests of the minor) instead invites questioning of the marked weight that the composition of the Commission grants to the opinion of the representatives of the business sector and not to other entities that could have a clear interest in the matter, possess specialized knowledge in the subjects indicated by said provision (public health, addictions, law, advertising, and gender), and contribute to the balance of the interests at stake, such as the Patronato Nacional de la Infancia, the Instituto de Alcoholismo y Farmacodependencia, etc. The safeguarding of Article 9 of the Constitution does not entail the blind viability of any type of citizen participation, because that ignores the need to protect other interests of constitutional relevance.

Finally, the Chamber observes that the challenged decree contravenes the legal provision by granting powers to UCCAEP and the advertising agencies in the appointment of members of the Commission. This Court notes that said representatives are excluded from the grounds for cessation established in Article 6:

"Article 6—The members of the Commission shall hold their positions for 4 years, and may be reelected for equal periods; the representatives of the Ministry of Health shall cease in their positions when they cease to be officials of the institution or when the superior authority so decides." (Emphasis added) It is of interest to the Chamber to highlight that only the Ministry officials who make up the Commission could be removed when a superior authority so decides. The foregoing means, in essence, that UCCAEP and the advertising agencies can impose their representatives on the Ministry—the entity tasked by law with the oversight and regulation of advertising for beverages with alcoholic content—without them being removable by a superior authority of that Ministry. This fact represents a partial hollowing out of the content of the law. If the law granted the authority to the Ministry of Health for the indicated tasks, the composition of a Commission by persons completely external to the Ministry signifies material non-compliance with the legal precept.

For example, the Commission could formally be included in the structure of the Ministry, but if hypothetically all five of its members came from other entities, the content of the law would be materially (and completely) hollowed out. In this case, the hollowing out of the content has been partial (only two members out of five represent entities subject to control); even so, due to its significance in light of the best interests of the minor and the principle of objectivity in relation to the right to health, it does not pass the constitutionality review exercised by this Chamber.

Consequently, the phrases "five" and "a representative of UCCAEP and another from the advertising agencies" of Article 5 of the challenged Regulation are declared unconstitutional. As indicated in the preceding paragraphs, the position of the representatives of UCCAEP and of the advertising agencies—as well as that of other entities related to the matter, such as the Patronato Nacional de la Infancia, the Instituto de Alcoholismo y Farmacodependencia, etc.—can be considered in the work of the Commission. It is in these terms that the Chamber deems it reasonable to eliminate the vote of said representatives in the Commission, but to maintain their voice in it. This provisional situation shall be maintained for a period of 6 months, which is granted to the Executive Branch to reform Article 5 in the terms indicated in this judgment.

Regarding Article 8, the Chamber observes that it only determines the formation of a quorum internally within the Commission, and therefore it could only lead to constitutional problems if the validity of Article 5 were maintained. However, in view of the declaration of unconstitutionality of the latter, the basis of the allegation against the former collapses, and therefore its constitutionality is upheld (…)” (emphasis added).

This same ratio decidendi is set forth in recent resolution No. 2022025307 of 1:40 p.m. on October 25, 2022, this time specifically in the matter of environmental protection. Thus, this Court stated unanimously in Considerando XII:

“XII.- REGARDING THE ALLEGED VIOLATION OF THE RIGHT TO A HEALTHY AND ECOLOGICALLY BALANCED ENVIRONMENT, THE PRINCIPLE OF EQUALITY, THE PRINCIPLE OF HIERARCHY OF NORMS, THE PRINCIPLE OF SINGLE NON-DEROGABILITY OF REGULATIONS, AND THE PRINCIPLE OF OBJECTIVIZATION OF ENVIRONMENTAL PROTECTION BY ARTICLE 18 OF THE CONSULTED DRAFT LAW. The signatory Deputies consult whether Article 18 of the draft law infringes the right to a healthy and ecologically balanced environment because: a) it provides for priority processing for green hydrogen production projects with respect to the environmental feasibility assessment, and the expedited manner in which it would be processed, without the pertinent studies that confirm the expedited treatment being included in this legislative initiative; b) it grants the Minister of Environment and Energy the authority to determine the procedure to follow regarding the environmental feasibility of projects related to green hydrogen, when this is a function that corresponds to the Secretaria Técnica Nacional Ambiental (SETENA), as provided by the Ley Orgánica del Ambiente, which creates the secretariat as a body of maximum deconcentration of the Ministerio de Ambiente y Energía (MINAE).

In consideration of the foregoing, they consider that the provision under consultation could go against the principle of hierarchy. Given the interdisciplinarity that characterizes environmental matters, the various administrative bodies must exercise their singular powers in a coordinated manner for the best satisfaction of the public interest, especially when dealing with the fundamental right to a healthy and ecologically balanced environment; however, this would not be equivalent to the Minister of Environment and Energy substituting the exclusive powers granted to SETENA, because the authority to design, apply, and approve environmental impact assessments does not belong to the minister, but rather environmental impact assessments are a deconcentrated authority that corresponds to the Secretaria Técnica Nacional Ambiental. Furthermore, they allege that such a provision would be disapplied for a particular or specific case, as would be the case with green hydrogen and its feasibility, which could imply a violation of the principle of single non-derogability of the provision for the specific case.

On the other hand, they consider it risky to include accelerated processes for this procedure in the cited draft law. They reiterate that the challenged article provides that the procedure to follow, regarding feasibility, will be the one dictated by the head of the Ministerio de Ambiente y Energía, which could go against the principle of objectivization of environmental protection, because it would be the minister who makes a decision of great importance for the environment, despite the existence of a technical body tasked with that function. They refer to judgment number 14293-2005 of the Constitutional Chamber, which indicated that the principle of objectivization of environmental protection is a derivative of the provisions of the cited Articles 16 and 160 of the Ley General de la Administración Pública, which translates into the need to support decision-making in this matter with technical studies. c) they consult whether Article 18 of the consulted draft law infringes the principle of equality because it gives priority to green hydrogen in relation to similar energy transition projects that should be considered under equal conditions, given that they present objectives coinciding with and related to this draft law, such as the draft law 'Ley para la promoción y regulación de recursos energéticos distribuidos a partir de fuentes renovables,' legislative file No. 22.009, and the draft law 'Ley para la Contribución a la Transición Energética,' legislative file No. 21.343.

Furthermore, the preponderance is not based on any technical study that supports said treatment in relation to provisions of equal relevance, and therefore the article under consultation could violate the principle of equality and non-discrimination. They allege that there are no technical analyses and studies that justify the determination of public interest of the green hydrogen production project, when, as has been previously indicated, there are other initiatives with identical purposes that are not given that same treatment. They reiterate that there is an absence of technical and scientific analyses and studies that determine the preponderance of green hydrogen compared to other energy alternatives such as those indicated.

The provision under consultation provides the following, 'ARTÍCULO 18.- Environmental feasibility. Due to the public interest that green hydrogen production projects represent and which require environmental feasibility, the review of which shall be conducted in an expedited manner and with prioritization, the procedure to follow shall be that dictated 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 to be performed is identified, it must be indicated in the project name, on the corresponding form, that it is a priority project, so that the file intake system can prioritize the procedure. Regardless of the foregoing, the environmental impact assessment or the permit required by the project must be resolved within a maximum of sixty calendar days.' In order to analyze the consulted points, it must first be indicated that, as has been repeatedly held in this pronouncement, the Legislative Assembly, in the exercise of its function to enact laws in the formal and material sense, enjoys broad freedom of configuration to develop the constitutional program established by the Constituent Power.

The margin of maneuver regarding the subject matter regulated has also been called legislative discretion, understood as the possibility that this body has, when faced with a specific need of the social body, to choose the normative solution or rule of law it deems most just, adequate, and suitable to satisfy it, from within the range or plurality of political options freely offered by the electorate through the system of legislative representation. It is clear that this power is not unrestricted, but must observe constitutional precepts, values, and principles. In that sense, the declaration of public interest of economic activities aimed at the research, production, transformation, storage, transportation, commercialization, supply, final use, and export of green hydrogen is a manifestation of the principle of free configuration of the legislator, as developed in Considerando VII of this pronouncement (…)

On the other hand, the constitutionality of Article 18 of the draft law is consulted for infringement of Article 50 of the Political Constitution because it indicates that in projects requiring environmental feasibility 'the procedure to follow shall be that dictated by the head of the Ministerio de Ambiente y Energía (Minae) in accordance with the categorization of the activity, work, or project.' In order to answer that aspect, it is necessary to indicate that the Ley Orgánica del Ambiente, No. 7554 of October 4, 1995, in development of Article 50 of the Political Constitution and as a means of safeguarding or ensuring the precautionary principle, the preventive principle, and the principle of objectivization of the right to the environment, establishes the technical competence for the scientific assessment of the environmental impact of the various conducts and projects developed by human beings.

It is in that sense that said legislation confers that specialized competence to a technical body called the Secretaría Técnica Nacional Ambiental, as a body of maximum deconcentration of the Ministerio del Ambiente y Energía. Consistent with that purpose, it is assigned the fundamental objective of harmonizing the environmental impact with productive processes (Article 83). To this end, the law confers on it the power to analyze environmental impact assessments and resolve them within the deadlines provided by the Ley General de la Administración Pública and to recommend the actions necessary to minimize the impact on the environment, as well as those technically appropriate for its recovery. On the other hand, Article 17 of the cited law assigns to SETENA the authority to carry out the environmental impact assessment of human activities that alter or destroy elements of the environment or generate toxic or hazardous waste, materials, and provides that its prior approval by this body shall be an indispensable requirement to initiate the activities, works, or projects.

The laws and regulations shall indicate which activities, works, or projects will require the environmental impact assessment.' Article 18 prescribes that the approval of environmental impact assessments must be processed before the Secretaría Técnica Nacional Ambiental, and Article 19 indicates that the resolutions of the Secretaría Técnica Nacional Ambiental must be substantiated and reasoned, establishing their obligatory nature both for private parties and for public entities and organisms. On the other hand, the Ley Orgánica del Ambiente establishes a multidisciplinary and highly technical composition, in which there shall be a representative of the Minister of Environment and Energy, who shall serve as General Secretary. SETENA is also composed of a representative of the Ministry of Health, with a specialty in sanitary engineering, a representative of the Instituto Costarricense de Acueductos y Alcantarillados, with a specialty in hydrology, a representative of the Ministry of Agriculture and Livestock, with a specialty in agronomy, a representative of the Ministry of Public Works and Transportation, with a specialty in civil engineering, a representative of the Instituto Costarricense de Electricidad, with a specialty in energy development, a representative of the state universities, with a specialty in biology.

The Secretaría Técnica Nacional Ambiental was also created as a body of maximum deconcentration of the Ministerio de Ambiente y Energía, which means, pursuant to the provisions of Article 83 of the Ley General de la Administración Pública, that the Minister, in addition to being unable to assume the powers of the subordinate and review or substitute their conduct (either ex officio or at the instance of a party), is equally prohibited from giving orders, instructions, or circulars to the subordinate body, such that the legislator wished to provide the Secretaría Técnica Nacional Ambiental with guarantees of independence from the superior. This is also evidenced by the provision in Article 88 that the members of the Secretariat shall be full-time officials, with exclusive dedication and a prohibition on the exercise of their personal, professional, or private activities, whose removal may only be agreed upon when there is serious fault or non-compliance with what is established in this or other laws.

Due to all the foregoing, it is the opinion of the Chamber that there is free configuration of the legislator in the creation and assignment of administrative competences. This implies discretion in the definition of administrative entities charged with carrying out a specific function in relation to a particular matter. Thus, the mere assignment of a specific competence to a different entity, in itself, does not constitute a violation of the constitutional order. However, in the case of the right to environmental protection, as a consequence of the preventive and precautionary principles, it is necessary that a competence of a technical or scientific nature, directed at establishing environmental feasibility or the impact of a certain activity or project on the environment, or in general, defining the type of technical-scientific tool to weigh those effects on the environment and ecosystems, be assigned to an entity of a technical nature and not of an eminently political order. The foregoing is because the weighing and analysis of such a matter demands and imposes that considerations of a technical nature be the ones that support the approval or denial of said feasibility. Although political entities could establish programmatic guidelines on that matter, ultimately, the specific application of the scientific and technical variable entails that functional orientation.

Thus, Article 18 of the consulted draft law, insofar as it establishes that to determine the feasibility of projects related to green hydrogen production, 'the procedure to follow shall be that dictated by the head of the Ministerio de Ambiente y Energía (Minae),' disregards the aforementioned criterion of technical functional specialty, transferring the competence in question to a political entity, without an objective reason that allows supporting the single disapplication or exceptionality of the technical competence that, regarding that matter, has been generally assigned to a specialized entity, according to the regulations of the Ley Orgánica del Ambiente. Therefore, that treatment is contrary to Article 50 of the Political Constitution, from which the principle of environmental non-regression derives, because it deteriorates the technical suitability of decisions pertaining to the type of evaluation, control, and oversight of activities that impact, to a greater or lesser extent, the environment, to the detriment of the right to a healthy and ecologically balanced environment.

That is, the assignment of competence to the head of the environment portfolio in relation to environmental assessments related to the purpose of the draft law in question constitutes a single disapplication of technical powers that have been legally assigned to a specialized entity, to instead transfer them to a political entity; therefore, an unjustified exception to the specialization of competence that guarantees the technical assessment of the potential environmental impact of certain productive human development projects, an analysis that seeks to directly satisfy the precautionary and preventive principles. That treatment disapplies the cited technical deference, creating asymmetrical treatment in the environmental assessments of that type of anthropogenic development, without any legitimate cause being observable that could support that treatment.

On this point, the consultation is answered to the effect that Article 18 of the draft law 'Ley para la promoción e implementación de una economía de hidrógeno verde en Costa Rica' is contrary to Article 50 of the Political Constitution insofar as it provides that 'the procedure to follow shall be that dictated by the head of the Ministerio de Ambiente y Energía (Minae)' and that 'the environmental impact assessment or the permit required by the project must be resolved within a maximum of sixty calendar days' (highlighting added).

Based on the foregoing, it is clear that the Chamber has affirmed that, in the exercise of its powers, the actions of the State must be deployed with criteria of objectivity and respecting the univocal rules of science or technique, because that leads to more effective and efficient protection of the fundamental rights of individuals vis-à-vis state powers and, even, against private third parties. In the case of the State, the principle of free configuration of the legislator grants it ample space for the creation and assignment of administrative competences, as well as the definition of which administrative entities are in charge of a certain function in a particular matter. However, when it comes to the protection of a healthy and ecologically balanced environment, the constitutional preventive and precautionary principles demand that a competence of a technical or scientific nature directed at establishing environmental feasibility or the impact of a certain activity or project on the environment, or in general, defining the type of technical-scientific tool to weigh those effects on the environment and ecosystems, be assigned to an entity of a technical nature and not of an eminently political order.

Indeed, given the requirements of the objectivization of environmental protection, strongly consolidated thanks to constitutional case law, the weighing and analysis of environmental matters imposes that it be considerations of a technical nature that support all decisions involving an impact on the environment, which naturally encompasses those resolutions, plan designs, or actions relating to any management plan in a protected wild area. Although political entities could issue programmatic guidelines on that matter, ultimately, the specific application of the scientific and technical variable must prevail in the functional orientation and the corresponding decisions.

The aforementioned requirement has been embodied, for example, in various collegiate bodies with competence in matters of environmental relevance, since their composition reflects that endeavor to resolve matters concerning the environment in a substantiated manner, that is, based on scientific and technical knowledge, not according to criteria of mere political expediency.

For example, Article 5 of the Ley del Servicio de Parques Nacionales provides for a council as an advisory body to the Executive Branch regarding the policy for the creation, development, and conservation of national parks. Such body is composed as follows:

"a) The Minister of Environment and Energy, or their representative, who shall preside. b) The Minister of Culture, Youth and Sports, or their representative. c) A representative of the Ministry of Public Education. d) A representative of the Instituto Costarricense de Turismo. e) The Director of the Servicio de Parques Nacionales. f) A representative of the Colegio de Biólogos." This is of crucial importance, because the affirmative report of the Council is required to authorize various activities, such as sport and artisanal fishing in certain areas of the national parks.

Another example can be seen in Article 21 of the Reglamento a la Ley de Conservación de Vida Silvestre. This regulates the Consejo Nacional de Vida Silvestre, whose objective is to support and technically advise MINAE and SINAC regarding the conservation and sustainable use of wildlife, as well as the fair and equitable distribution of the derived benefits. Said commission is composed as follows:

"a. From SINAC, the Coordinator of Wildlife and their respective alternate. b. Two regular representatives and two alternates designated by CONARE. c. One regular representative and one alternate from the Colegio de Biólogos de Costa Rica. d. One regular representative and one alternate from the Colegio de Ingenieros Agrónomos. e. Two regular representatives and two alternates from non-profit non-governmental organizations, with proven experience in conservation and sustainable use of wildlife, which shall be elected in a participatory process led by MINAE SINAC." In accordance with the ratio decidendi of judgment No. 2022025307—where, as in the case sub examine, the principal constitutional interest protected is the environment, which has a natural and an urban aspect as explained supra—in this action of unconstitutionality, it is observed that the safeguarding of cultural heritage and a healthy and ecologically balanced environment requires officials of technical appointment and with competence of a scientific nature in the composition of the Junta Directiva of the Parque Nacional Isla San Lucas.

In this regard, the free configuration of the legislator in the creation and assignment of administrative competences, although constitutionally safeguarded, is no less subject to a series of limitations—for example, when dealing with matters relating to environmental protection—since, in such a case, based on the principles of objectivization of environmental protection, preventive, and precautionary, the logical-legal principle of non-contradiction, and the fundamental rights to a healthy and ecologically balanced environment and the protection of natural beauties (Articles 50 and 89 of the Political Constitution) it is unavoidable that the entity or body responsible for the management and administration of a protected wild area has within its composition the scientific element, so that its decisions are shaped with the participation of that factor which fosters objectivity and the technical basis of decisions.

In the case sub iudice, this implies that the composition of the Junta Directiva of the Parque Nacional Isla San Lucas must be formed in such a way that the substantiated and technical nature of its decisions is strengthened, a purpose that inexorably entails that its members must possess sufficient scientific knowledge in environmental and cultural heritage matters, by virtue of their experience in that field and because it is a designation based on professional merit, and not on purely political assessment.

Indeed, it is worth recalling that Article 4 of Decreto Ejecutivo No. 29277 'Declares the area comprised by Isla San Lucas and the coastal marine area a Refugio Nacional de Vida Silvestre' provided:

"Article 4—The Administration of the protected areas declared herein shall be the responsibility of the Ministerio de Ambiente y Energía and the institutions established by the applicable regulations. The management categories established in this decree shall be governed in accordance with the provisions established in this regard by the legislation in force on the matter. Marine species extraction activities shall be permitted based on the regulations established by the Instituto de Pesca y Acuacultura (INCOPESCA)." Thus, since its creation, the administration of the Refugio Nacional de Vida Silvestre Isla San Lucas was placed under MINAE and the institutions contemplated in the applicable regulations, such as SINAC, which has within its powers the administration of conservation areas, as well as the Consejo Nacional de Áreas de Conservación, whose functions include the definition of strategies and policies aimed at the consolidation and development of SINAC, as well as the supervision and oversight of the correct technical and administrative management of conservation areas (see the cited articles of the Ley de Biodiversidad).

However, although the administration of the Refugio Nacional de Vida Silvestre Isla San Lucas, pursuant to Decreto Ejecutivo No. 29277, was expressly assigned to MINAE and the institutions established in the applicable regulations, with the issuance of Law No. 9892 this situation was set aside, because the area of the aforementioned refuge, which became the Parque Nacional Isla San Lucas, came under the administration of the Junta Directiva provided for in Article 9 of that legislation, whose composition consists of: "a) The Minister of Environment and Energy, who shall preside, with a vice minister of the ministry being able to act as alternate. b) The Minister of Culture, with a vice minister of the ministry being able to act as alternate. c) The Executive President of the Instituto Costarricense de Turismo (ICT), with the person holding the management or a member of the Junta Directiva of said institute being able to act as alternate. d) A representative of the Executive Branch designated by the Council of Government, which body shall also appoint an alternate. e) The mayor of the Municipalidad del cantón Central de Puntarenas, with a vice mayor being able to act as alternate. f) The president of the Cámara de Turismo de Puntarenas, with any of the members of the Junta Directiva of said chamber being able to act as alternate." Such a situation is harmful to the principles of progressivity and non-regression of environmental protection, given that the administration of the surface area in question passed from a body with technical knowledge in environmental matters to one in which not a single one of its members is appointed on a technical basis grounded in demonstrated scientific knowledge.

Likewise, the precautionary and objectivization principles of environmental protection are violated, since, in light of the considerations set forth supra, it is essential that the Board of Directors (Junta Directiva) of the Parque Nacional Isla San Lucas be composed of representatives from properly scientific agencies relevant to environmental and cultural heritage protection, especially since this collegial body is responsible for adopting a series of decisions of a technical-environmental nature with an impact on the preservation of natural and cultural resources, sustainability, and biodiversity, among other aspects important for the protection of a healthy and ecologically sustained environment in that protected wilderness area (área silvestre protegida) and the aforementioned cultural heritage.

Precisely, said collegial body is responsible for, among other things, “a) Defining the 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 historic buildings, developing facilities and services intended for the rest and recreation of visitors, the habilitation and accessibility of land and maritime routes, port constructions, and, in general, the provision of all basic services. d) Defining environmentally sustainable tourist activities, whether commercial, transport, sports, artistic, or cultural, that encourage tourist attraction and visitation to the island (…) f) Granting approval of authorizations, use permits, and concessions (concesiones) for carrying out works and services provided in the Tourist Zone.

In the case of works related to areas declared heritage, coordination must be made with the Ministry of Culture. g) Approving the master plan of 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.” Even other tasks that are not specifically environmental, such as marketing and promotion of the park, must always consider the variable of safeguarding nature and cultural heritage, precisely because it is a protected wilderness area of historical-architectural interest.

It is worth highlighting that, previously, in the legal system, some of these functions now conferred on the Board of Directors of the Parque Nacional Isla San Lucas were granted to the Consejo Nacional de Áreas de Conservación and SINAC. For example, section 25 of the Ley de Biodiversidad contemplates as part of the functions of the aforementioned council: “1.- To define the execution of the strategies and policies aimed at the consolidation and development of the Sistema Nacional de Áreas de Conservación, and to monitor their execution. 2.- To supervise and oversee the correct technical and administrative management of the Areas of Conservation (Áreas de Conservación) (…) 4.- To define strategies and policies related to the consolidation and development of state-protected areas, as well as to supervise their management. 5.- To approve the strategies, the structure of the administrative bodies of the protected areas, and the annual plans and budgets of the Areas of Conservation (…) 8.- To establish the guidelines and directives for making coherent the structures, administrative mechanisms, and regulations of the Areas of Conservation (…) 10.- To approve the concession requests indicated in article 39 of this law.” Furthermore, 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 indicated by the LCVS and this regulation.” Ergo, the functions granted to the Board of Directors of the Parque Nacional Isla San Lucas in subsections a), b), f), and h) of article 9, to mention some examples, had already been previously conferred upon SINAC and the Consejo Nacional de Áreas de Conservación, namely, technical actors.

On this subject, in the above-cited official communication no. DM-1216-2019 signed by MINAE on November 27, 2019, regarding bill no. 21287 which became law no. 9892, it was stated: “In Article 7 on the creation of the Board of Directors of the Parque Nacional Isla San Lucas, it is recommended that it be a body of maximum deconcentration (desconcentración máxima) attached to the Ministerio de Ambiente y Energía, and with instrumental legal personality for the exercise of its competencies. As well as that the positions be permanent and that it be chaired by MINAE. We also recommend that they be persons with a suitable technical and specialized profile, accompanied by a person as Executive Manager of the Board, to support the administration's management in specialized tasks such as the conservation and restoration of the island's cultural heritage. Furthermore, it must be accompanied by administrative personnel to fulfill all the obligations imposed by law. The members of the Board must not receive any per diem and we suggest their appointment be for periods of two years” (emphasis added).

In the same vein, in memorandum no. CICPC-CNP-023-2019 signed on July 1, 2019, by the Comisión Nacional de Patrimonio Histórico Arquitectónico in relation to the above-mentioned bill no. 21287, it was stated:

“ARTICLE 9- Composition The Comisión Nacional de Patrimonio Histórico Arquitectónico considers that it is unnecessary to establish a Board of Directors that comes to substitute or supplant functions that were conferred by Law upon the Centro de Patrimonio Cultural.

ARTICLE 12 – Development and Infrastructure In relation to Articles 09 and 12, this Commission considers it very concerning that a Commission that is neither technical nor composed of specialists is given functions above the very ministerial responsibilities for the protection of heritage and the environment, in the service of tourism.

The enjoyment and historical appreciation can be understood in very diverse ways by a Commission that would make decisions by voting where specialized criteria would not prevail (…)” (emphasis added).

Similarly, in report no. AL-DEST-IJU-006-2020 issued by the Departamento de Estudios, Referencias y Servicios Técnicos of the Asamblea Legislativa concerning the bill that became law no. 9892, it was pointed out:

“Article 9.- Composition Establishes how (sic) the Board of Directors of the Parque Nacional Isla San Lucas will be constituted.

Regarding the representatives featured on the Board of Directors, it is essential to establish in the article who (sic) will designate them, the rank and technical knowledge that each representative must possess, besides the power of decision to determine agreements.

In the case of a board of directors tasked with managing the operations of a protected wilderness area and a sustainable tourism peripheral zone, in whose handling ecosystemic, ecological, social, economic, cultural, tourism, and environmental principles converge, the representative subjects must possess the expertise that allows decisions to be made aligned with those interests.

Regarding the functioning and organization of the body constituted here, although article ten refers to the Ley General de la Administración Pública, it must be specifically indicated in what is “related and corresponding to collegial bodies”, for greater clarity. However, it would be important at most to indicate basic aspects such as the quorum for constituting the body and the minimum number of sessions per month” (highlighting added).

Based on the foregoing, the fact that the Board of Directors of the Parque Nacional Isla San Lucas, according to section 9 of law no. 9892, is not composed of technical bodies for environmental protection and cultural heritage that properly assist in the design of policies, guiding guidelines, and other facets of environmental and cultural relevance within the decision-making process internal to that collegial body, is contrary to the principles of progressivity and non-regression in environmental matters, the precautionary and objectivization principles of environmental protection, the preventive principle in matters of cultural heritage, and, by derivation, to articles 50 and 89 of the Carta Magna. Furthermore, although section 9 of law no. 9892 indicated that: “In matters of conservation and preservation of the historical-architectural heritage, the criteria of the Centro de Investigación y Conservación del Patrimonio Cultural of the Ministry of Culture shall prevail, and for the protection of wildlife and conservation of the island's biodiversity, the technical criteria of the Sistema Nacional de Áreas de Conservación shall prevail,” it is no less true that no obligation to request such technical criteria is apparent.

Likewise, observe that the conservation and preservation of the historical-architectural heritage and the safeguarding of wildlife and biodiversity on the island are only some of the aspects of cultural and environmental relevance in which the criteria of the Centro de Investigación y Conservación del Patrimonio Cultural and SINAC, respectively, must prevail, as the rule expressly regulates, since the safeguarding of such constitutional assets naturally extends to other areas of protection pertinent to the park as a protected wilderness area and site of cultural interest, such as dignity in relation to nature, landscaping, education in this subject, among others.

Finally, even though the record contains proof that representatives of SINAC participated in the ordinary sessions of the Board of Directors of the Parque Nacional Isla San Lucas 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, it is not proven that they attended all of the aforementioned sessions; an example of this is that out of the 14 ordinary sessions held in the year 2021, the aforementioned Board of Directors only had the participation of a representative of the Sistema Nacional de Áreas de Conservación in five of them.

Therefore, the unconstitutionality of section 10 of law no. 9892 is verified.

VII. Regarding the alleged unconstitutionality of law no. 9892, concerning the granting of concessions

The undersigned magistrates also maintain that, prior to the granting of any type of concession, authorization, or use permit in a national park, it is necessary to have sufficient and individualized studies that, in accordance with the principle of objectivization of environmental protection, allow for technically and scientifically accrediting that the environment will not be harmed, and, in the special case of Isla San Lucas, that the cultural heritage will not be harmed either.

Despite the above, law no. 9892 authorizes the granting of concessions and permits for activities and installations different from those of the park service i) without a scientific study having been previously carried out to establish guidelines regarding which activities may or may not be granted under concession in the Parque Nacional Isla San Lucas, according to its environmental and cultural specificities, and in consideration of its conservation objectives and purposes; and ii) without expressly requiring the performance of environmental impact assessments (evaluaciones de impacto ambiental) prior to the granting of the aforementioned concessions for the purpose of determining, through technical and scientific criteria, that no deterioration to the environment will be caused. Nor is respect for the precautionary principle verified, despite the risk generated by the granting of concessions in a national park that also possesses cultural heritage. Therefore, upon verifying the harm to the precautionary, preventive, and objectivization principles of environmental protection, and the fundamental rights contemplated in sections 50 and 89 of the Constitución Política, the unconstitutionality of the second and third paragraphs of article 7, subsections f) and j) of section 9, as well as the phrase “the fees for concessions and permits” of section 17 of law no. 9892, is evident.

VIII.Regarding the rest of the grievances raised in the sub lite case. Finally, we do not omit to note that we concur with the majority regarding what is established in the recitals (considerandos) XII and XIII of this pronouncement.

IX.Corollary. In sum, the undersigned magistrates dissent, declare the action with merit, and annul law no. 9892 of August 24, 2020, named ‘Ley de Creación del Parque Nacional Isla San Lucas’, for violation 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 objectivization of environmental protection, and the fundamental rights enshrined in articles 50 and 89 of the Constitución Política.

Fernando Cruz C.

Paul Rueda L. Roberto Garita N.

Res. no. 2023-012817 ADDITIONAL REASONS OF MAGISTRATE CRUZ CASTRO.- The disrespect of the constitutional principle of technical reasonableness, in environmental matters, is furthermore a flaw in the legislative procedure.

I have concurred with the dissenting vote in this action, where for the extensive reasons expressed therein, I have considered that law no. 9892 of August 24, 2020, named "Ley de Creación del Parque Nacional Isla San Lucas", is unconstitutional. Basically, in said vote, considerations of that unconstitutionality are sustained, for violation 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 objectivization of environmental protection, and articles 50 and 89 of the Constitución Política.

Now, in addition to what was indicated there, I have considered adding these additional reasons to record the following:

The principle of technical reasonableness, as a constitutional principle, imposes on the legislator the requirement to have a technical study prior to the approval of a law, in order to prove the proportionality between the means chosen and the proposed ends, and thereby prevent the law from being irrational, arbitrary, or capricious, but also, that the selected means have a real and substantial relationship with their object (see resolution no. 1992-1739, no. 2018-15966, no. 2021-11957, among others). Said principle thus constitutes a constitutional parameter (see resolution no. 2001-732). A parameter that leads to considering the absence of technical criteria as an essential flaw in the legislative procedure (see resolution no. 2012-13367 and no. 2017-11714, the latter when it indicates: “this Tribunal has required in environmental matters the need for technical studies to reduce protected areas, and has concluded that this omission constitutes a flaw of an essential nature in the legislative procedure.”).

Thus, this Chamber has specified that in certain matters such a technical or scientific study is necessary and has therefore understood that having said technical support is part of the constitutional principle of technical reasonableness. Thus, this Chamber has stated that “Technical studies are necessary when there is an express rule in this regard (for example, in environmental matters) or when the subject matter demands them, under penalty of transforming discretion into arbitrariness.” (see resolution no. 2018-00230 of 10:40 a.m. on January 19, 2018). Regarding the constitutional principle of objectivization of environmental protection or the principle of binding to science and technique, see resolutions no. 2022-23307 of 1:40 p.m. on October 25, 2022, no. 2010-000075 of 3:01 p.m. on January 6, 2010, no. 2012-013367 of 11:33 a.m. on September 21, 2012, no. 2013-005964 of 3:05 p.m. on April 30, 2013, and no. 2018-007978 of 12:45 p.m. on May 18, 2018.

In this matter, law no. 9892 of August 24, 2020, proceeded to change the management category of a territorial surface area of the protected wilderness area “Isla San Lucas” and to reduce its surface area. All this, without having scientific studies that would guarantee that said change would not have a de-protective impact on the natural heritage (being a protected wilderness area) and cultural heritage (being declared cultural heritage) of Isla San Lucas. This requirement imposes a clear restriction on the exercise of political power, in this case, that of parliament. It cannot adopt a decision on such a sensitive matter, such as the environment, without having a prior technical study. In this case, political power is subjected, by higher interests, to scientific criteria. This restriction has been disrespected in this case, as in others in which this Chamber has elucidated environmental matters. The political decision, so important, must be subject to scientific criteria, in defense of higher interests.

Furthermore, the violation of the environmental principles of: the preventive principle (when there is certainty of possible damage to the environment, the affecting activity must be prohibited, limited, or conditioned on compliance with certain requirements) is evident. In general, this principle applies when there are clearly defined risks 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 elements to foresee eventual negative impacts), the precautionary principle (principio precautorio) (when there is danger of serious and irreversible damage, the lack of absolute scientific certainty shall not be used as a reason to postpone the adoption of effective measures in terms of costs to prevent environmental degradation. The principle arises from reasonable scientific uncertainty together with the threat of serious and irreversible environmental harm), the pro natura principle (in case of doubt or uncertainty, controversies must be resolved and norms interpreted in favor of the protection and conservation of the environment), and the principle of objectivization of environmental protection (or principle of binding to science and technique, according to which it is required to support decision-making in this matter with technical studies, both concerning acts and provisions of a general nature -both legal and regulatory-, from which the requirement of "binding to science and technique" derives, thereby conditioning the Administration's discretion in this matter. It has been defined as principle number 17 of the Rio Declaration on the Environment).

When faced with a situation that demands the application of the precautionary principle, the legislator must abstain from legislating to the detriment of or through norms that imply a regression of environmental protection. Consequently, the application of the precautionary principle implies that when there are indicators that a certain activity could plausibly cause serious and irreversible damage to the environment, the lack of absolute scientific certainty or evidence in this regard does not exempt from the obligation to prevent an environmental violation. Furthermore, in accordance with the theory of Drittwirkung der Grundrechte, this principle extends its guiding function to the conduct of both public and private legal subjects.

The foregoing therefore implies a violation of the constitutional principle of technical reasonableness, and therewith, the legislator incurred a substantial procedural flaw that renders the law unconstitutional, not only for substantive reasons as stated in the dissenting vote, but also formally, as I record in these additional reasons.

The tension between scientific reasons and circumstantial political interests is very clearly seen in environmental matters, because the aim is for interests alien to the protection of the Earth to prevail, despite the scientific criteria that contradict such a claim. The delicate balances that sustain the environment and the health of Mother Earth require the wisdom of science, abstaining even in the face of doubt of environmental harm. This wise rule is squeezed or postponed when political urgencies require it. It is a common story in the matter of protecting our common home.

Fernando Cruz Castro 1 [1] See in this regard: UNDP et al. El ABC de los servicios y actividades no esenciales en las áreas silvestres protegidas del Sistema Nacional de Áreas de Conservación. Costa Rica, February 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

Control constitucional: Sentencia desestimatoria Sentencia con Voto Salvado Sentencia con nota separada Sentencias del mismo expediente Contenido de Interés:

Temas Estrategicos: Ambiental,Constitución Política Tipo de contenido: Voto de mayoría Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: AMBIENTE Subtemas:

NO APLICA.

AMBIENTE. CREACIÓN DEL PARQUE NACIONAL ISLA SAN LUCAS Sentencia: 012817-23 de 31 de mayo de 2023 Tipo de asunto: Acción de inconstitucionalidad Norma impugnada: Ley de Creación del Parque Nacional Isla San Lucas. NO. 9892 de 24 de agosto de 2020. Publicado en La Gaceta 233 de 21/09/2020 Parte dispositiva: 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.

TEMAS ANALIZADOS EL DESARROLLO SUSTENTABLE Y EL TURÍSTICO SOBRE LA CONDICIÓN DE PROTECCIÓN DE LA ISLA SAN LUCAS, SU ÁREA, USOS Y LOS ESTUDIOS TÉCNICOS.

SOBRE LA ACUSADA REDUCCIÓN DE LA SUPERFICIE DEL ÁREA SILVESTRE PROTEGIDA Y DEL CAMBIO DE CATEGORÍA, SIN JUSTIFICACIÓN TÉCNICA.

SOBRE EL CUESTIONAMIENTO DE LA EXISTENCIA DE UNA ZONA DE APROVECHAMIENTO TURÍSTICO EN LA ISLA SAN LUCAS Y SU DELIMITACIÓN.

SOBRE EL CUESTIONAMIENTO DE LOS ACCIONANTES EN RELACIÓN CON LOS FINES COMERCIALES DE LA LEY IMPUGNADA.

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.

SOBRE LA ALEGADA INCONSTITUCIONALIDAD DE LA LEY NRO. 9892, EN CUANTO AL OTORGAMIENTO DE CONCESIONES.

SOBRE LA ALEGADA INCONSTITUCIONALIDAD DE LA LEY NRO. 9892, EN CUANTO AL FINANCIAMIENTO INCIERTO.

Telf5439 ... Ver más Citas de Legislación y Doctrina Sentencias Relacionadas Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 050- Ambiente Subtemas:

NO APLICA.

ARTÍCULO 50 DE LA CONSTITUCIÓN POLÍTICA. “…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…” CO05/24 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 1. CONSTITUCIÓN POLÍTICA CON JURISPRUDENCIA Tema: 089- Protección de bellezas naturales y patrimonio histórico y artístico Subtemas:

NO APLICA.

ARTÍCULO 89 DE LA CONSTITUCIÓN POLÍTICA. “… 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…” CO05/24 ... Ver más Contenido de Interés:

Tipo de contenido: Voto de mayoría Rama del Derecho: 2. PRINCIPIOS CON JURISPRUDENCIA Tema: Protección al ambiente Subtemas:

NO APLICA.

PROTECCIÓN AL AMBIENTE. “…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…” CO05/24 ... Ver más Contenido de Interés:

Tipo de contenido: Nota separada Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: AMBIENTE Subtemas:

NO APLICA.

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 Telf5439 ... Ver más Contenido de Interés:

Tipo de contenido: Nota separada Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: AMBIENTE Subtemas:

NO APLICA.

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.

... Ver más Contenido de Interés:

Tipo de contenido: Voto salvado Rama del Derecho: 3. ASUNTOS DE CONTROL DE CONSTITUCIONALIDAD Tema: AMBIENTE Subtemas:

NO APLICA.

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 1. 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.

2. 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.

3. 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:

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; …

e. 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 1. 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.

2. 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.

3. 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.

4. 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:

a. 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.

CO05/24 ... Ver más 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 Observaciones de SALA CONSTITUCIONAL votado con boleta Clasificación elaborada por SALA CONSTITUCIONALdel Poder Judicial. Prohibida su reproducción y/o distribución en forma onerosa.