Costa Rica as a Peaceful State: One Costa Rican Lawyer’s Odyssey v. His Nation’s Establishment

In its most positive light, Costa Rica has had a long and impressive history as a pacifist state. This history finds its roots in the colonial period, starting with Columbus’ fourth and final voyage in 1502. The Spaniards called the present-day area the “Rich Coast,” but Costa Rica possessed little gold or other valuable minerals, and lacked a large and centralized indigenous population to be exploited. As a result, the area grew largely isolated from the other, more resource-rich colonies (mainly extracting ore and employing forced labor) and developed relatively autonomously from the rest of the Spanish Captain Generalship of Guatemala, as an egalitarian and family-oriented agrarian society. Perhaps for the better, Costa Rica generally evaded the typical genocidal struggles against “new world” colonialism.

Independence for Central America

News of Central America’s independence, declared on September 15th, 1821, did not reach Costa Rica until the end of the year. After being annexed by Mexico, a short civil war severed their ties and the country joined the United Provinces of Central America (which would become the Federal Republic of Central America), remaining a member for nearly 20 years. The fact that Costa Rica’s first elected president, Juan Mora Fernandez, was an elementary school teacher by trade can be looked back upon as an indication of the country’s future commitments to programs of social welfare that have long served as the backbone of the country. In 1877, Costa Rica became the third country in the world to abolish the death penalty, after Venezuela (1863) and San Marino (1865).

Since the end of the 19th century, save the coup d’état and resulting military dictatorship of General Federico Tinoco from 1917-19, Costa Rica had enjoyed a period of relative political stability uncharacteristic of its Central American neighbors. However, in 1948, after the Costa Rican legislature attempted to annul results of a presidential election, civil war broke out. During the 44-day conflict, the bloodiest in its history, an estimated 2,000 Costa Ricans were killed. Led by Jose Figueres Ferrer, and supported by Guatemala and Cuba, the country emerged with a new constitution that dissolved its national army and extended suffrage rights to women.

From that period, Costa Rica has been a beacon of peaceful and democratic politics in an otherwise tumultuous region. In 1983, this contrast was reinforced as the conflict in Nicaragua between Sandinistas and Contras, along with their U.S. backers took on fierce dimensions, continually spilling over into the northern border area of the country. Distancing Costa Rica from both sides, President Luis Alberto Monge proclaimed the Declaration of Perpetual, Active, and Unarmed Neutrality, pronouncing the country “actively neutral forever,” removed from any armed conflict, but the dirty little secret was that government authorities in fact aided the Contras. While not formally established as law, this “statute” has guided Costa Rican leaders ever since.

These three historic landmarks (the abolishment of the death penalty in 1877, the 1949 Constitution, and the Declaration of Neutrality in 1983), along with Costa Rica’s consistent tradition of political stability and free elections, demonstrate the country’s strong commitment to human rights and the principles of peace. For the past half-century, Costa Rica appeared to be the democratic state par excellence of Latin America, illustrating that pacifism, disarmament and nonalignment can lead to egalitarian development and a high quality of life. But, this status quo also exhibited the hypocrisy of a nation where four presidents in a row were implicated in receiving payoffs from overseas telecommunication companies.

Successful cases – Iraq War

It is necessary to understand and appreciate this history when considering contemporary events in Costa Rica. The country’s success in cultivating a culture of peace with respect for human rights has begun to be legally recognized by the judiciary, opening the necessary space for challenges to the government to be initiated when it is believed to be acting contrary to this tradition. The unofficial guarantor of these challenges, Costa Rican attorney Luis Roberto Zamora Bolaños, has successfully sued the government twice over its support for the invasion of Iraq and over its plans to extract and process nuclear materials. Based upon the constitution and international law, the corresponding legislation was annulled.

In 2003, Zamora, at the time a third-year law student at the Universidad de Costa Rica, filed suit against President Abel Pacheco and Minister of Foreign Affairs Roberto Tovar for including Costa Rica in the Iraq War’s Coalition of the Willing. The suit was brought before the Costa Rican Constitutional Court, a specialized division of the Supreme Court established in 1989 and mandated with the authority to oversee suits of unconstitutionality and constitutional rights. Similar suits were later filed by the Ombudsman, José Manuel Echandi and the Lawyer’s Bar.

In the first place, one might ask what President Pacheco believed Costa Rica stood to gain from supporting a war that was extremely unpopular both at home as well as abroad. In fact, Costa Rica provided no material support, neither troops nor economic assistance, for the conflict nor the rebuilding of Iraq. Was this, more than anything else, a misguided sign of Costa Rican solidarity with the U.S.’s global program of democracy promotion or a purely symbolic act aimed at pandering to the all-powerful U.S.A.? Nonetheless, according to Echandi, “‘Moral support’ to military operations in a third country is nothing but a dissimulated support to a war. A statement of such nature has not been foreseen in our constitutional laws.”

President Pacheco attempted to frame Costa Rica’s inclusion in the White House’s rather pathetic Coalition of the Willing as support for the general fight against terrorism that extends far beyond the invasion of Iraq. He defended his decision, stating, “I was just supporting a friend in the fight against terrorism. Costa Rica was against terrorism, against dictatorships and that was it. Afterward, it turned out that there weren’t weapons (of mass destruction) and all that, but that happens.” Unfortunately, this sort of after-the-fact, “ends justify the means” logic may not be particularly appropriate for matters as serious as war.

The court unanimously judged that Costa Rica’s inclusion in the Coalition of the Willing ran “against the Constitution, Costa Rica’s neutrality declaration, International Law and the UN System.” Attorney General Farid Beirute delivered the opinion before the Constitutional Court that, based on Costa Rica’s respect for international law, and considering that the US-UK led invasion was not authorized by the UN Security Council, Costa Rica’s support for the use of armed forces against Iraq was unconstitutional. Nonetheless, Beirute also recognized that the government did not violate the constitution because its support did not amount to a declaration of war. After one year and eight months as a member of the Coalition, Costa Rica removed itself in September 2004, with the entire event projecting a sense of buffoonery.

Arms Decree Case

Building upon his 2003 success, in 2006, Zamora challenged President Óscar Arias and Minister of Health Luisa Avila’s Arms Decree (Executive Order 33240-S) of the same year. The Arms Decree, which regulated the import and manufacture of weapons, was challenged on the basis of granting permits for the “extraction of uranium and thorium, elaboration of nuclear fuel, and manufacture of nuclear reactors for any purpose.”

Once again, the Court unanimously sided with Zamora and annulled three sections of the Decree (1200 – extraction of thorium and uranium, 2330 – elaboration of nuclear fuel, and 2813 – fabrication of steam generators). These sections were voided for violating the right of Costa Ricans to a healthy environment and ecological system, breaching international law and the Nuclear Non-Proliferation Treaty, and threatening Costa Rica’s right to peace and the UN Declaration on the Right of Peoples to Peace. According to the Court, “… [A] state that seeks to promote peace both domestically and internationally must take special care on authorizing the manufacture and/or import of weapons and chemical substances in its territory by rejecting categorically those that, because of their nature, were conceived and designed to encourage the negative value of war.”

Taking heed from reflections on peace by Baruch Spinoza and Martin Luther King, the verdict continued, stating, “A State that takes Peace as a constitutional fundamental value cannot conform itself with the limited notion that Peace is just the absence of war, it must go beyond that, preventing and rejecting continuously all decision and act which might derive and end in such a circumstance.” To take peace seriously as an ideal, according to the Court, requires a conscience working not only to prevent conflict but to actively promote justice. While the idea of peace as a human right was first brought up in the Iraq War case, the Court’s ruling in this case formally established Costa Rica as the first country to legally recognize peace as a human right.

Ongoing Cases – CAFTA-DR Case

Zamora has parlayed his triumph in the Iraq War and Arms Decree cases to challenge the legality of the Dominican Republic – Central America Free Trade Agreement (CAFTA-DR). The legal right to peace, formally established in the Arms Decree case, means that Costa Rica can have no association with any materials that can be used for the purpose of war. However, CAFTA-DR contains a long list of weapons and weapons-related materials that qualify for the free trade status of the agreement. If the suit were to go to trial, there is a good chance that the court would be forced to nullify it. As international law, if only one section is declared illegitimate, the entire agreement is voided. Thus, Zamora’s challenge to CAFTA-DR on the basis of its inclusion of arms could threaten the entirety of the free trade agreement.

It is important to note that Zamora’s confrontation against the free trade agreement focuses exclusively on the country’s attempts to institutionalize peace as a human right and the legality of the law. This case does not voice opposition to CAFTA-DR on any economic or environmental grounds, and focuses solely on the “peace” factor as the central issue. Zamora filed the suit even before the free trade agreement had been approved by the government. However, it was dismissed by the Court in Costa Rica because an Ombudsman’s report was found to have ruled on the issue. Zamora asserts that the Ombudsman’s report agrees with his position and that his case still deserves to be heard.

Zamora’s success in protecting peace as a human right has garnered him a certain degree of notoriety in the officials’ circles in San José, in particular from the judiciary. Because he no longer is able to work free of harassment and discrimination in Costa Rica, Zamora has taken his case to the Inter-American Commission on Human Rights (IACHR), where he has filed a suit alleging “denial of access to justice, obstruction of proceedings, and judicial bias, by virtue of [his] name.” If the IACHR finds in his favor, there are two possible actions that could occur: the Commission can remand the case back to the Costa Rican Supreme Court, thereby forcing the national court to try the case, or it could overrule the national judgment and annul the free trade agreement (CAFTA-DR) itself.

Difficulties Faced by Zamora and Implications

For all of his successes, Zamora encounters tremendous difficulties in continuing his work in Costa Rica. He has had problems finding clients, as potential cases avoid his legal counsel due to the bias against him as a brash young man in the legal bureaucracy. He can’t use his own letterhead, can’t sign his own name and can’t stamp documents submitted to the courts—all because of his past victories against the country’s bureaucracy. Zamora’s cases are denied as soon as he identifies himself in pre-trial legal proceedings. He has been forced to resort to filing his suits anonymously in order to avoid discrimination from the government.

The fact that peaceful Costa Rica is hampering and harassing its greatest advocate for peace and human rights suggests that in past years this tradition has come under attack, and the Nobel Laureate president, Óscar Arias has been no ardent defender of it. Nevertheless, Costa Rica generally has been a leader on issues of human rights, so it comes as little surprise that it continues to be at the forefront by setting legal precedents concerning the right to peace. Zamora sees the results of these cases as larger than just applying to Costa Rica and stresses that these tactics can and should be applied to other countries, emphasizing the international perspective of his work. The next step will be for other countries to consider emulating these principles by setting their own precedents to institutionalize national human rights commitments as binding international law.