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Ley N° 7788 – Ley de Biodiversidad [Biodiversity Law]. In Spanish, English.

Since its adoption on 23 April 1998, Costa Rica’s Biodiversity Law has been amended through different decrees.

Ley N° 7575 – Ley Forestal [Forestry Law]. In Spanish.

Convention on Biological Diversity (CBD)

International Treaty on Plant Genetic Resources for Food and Agriculture (IT PGRFA)

The Dominican Republic – Central America Free Trade Agreement (CAFTA-DR)

Since Costa Rica signed the Dominican Republic-Central America-Free Trade Agreement (CAFTA-DR) that entered into force in 2009, it has been obliged to adhere to the terms of other international conventions; namely the Budapest Convention and UPOV (Union for the Protection of New Plant Varieties).

his law focuses on creating a legal framework for Costa Rica in line with the principles and themes outlined in the Convention on Biological Diversity. Research interviewees largely agreed that the law has been excellent in most of the areas that it has covered, especially in enforcing the precautionary principle and in promoting participation from all sectors of the population.

The Centre for International Sustainable Development Law (CISDL) recommends Costa Rica’s Biodiversity Law for its access to genetic resources and benefit sharing (ABS) system. Its Payment for Environmental Services (PES) program is widely regarded as a major success (the basis of recognition of environmental services is outlined in a previous law, the Forestry Law No. 7575).

However, the law with its system of intellectual property rights has suffered from being diluted somewhat during the process of approval of the Free Trade Agreement between the United States, Central America and Dominican Republic (DR-CAFTA). In 2008, Articles 78.6 and 80, which both concern intellectual property rights and traditional knowledge, were altered due to these pressures. Also, Article 7.23 of the Biodiversity Law which sets out the definition of microorganisms within the framework of biodiversity management has been altered to reflect the definition of micro-organisms set out in the CAFTA-DR agreement. Finally, changes to Articles 78 and 80 of the Biodiversity Law were struck down by the constitutional court.

Despite this, the law remains one of the most broad scoping biodiversity laws presently in effect, and as such, is an excellent winner of the Future Policy Award.

It must be mentioned that Costa Rica also excels in other sustainable development areas such as renewable energy use. Roughly, 95-98% of the country’s electricity has come from renewable sources since 2014. Despite the fact that oil and gas still play a major role in the heating and transport sector, Costa Rica’s President Carlos Alvarado has vowed to fully decarbonize the country’s economy and make the Latin American country the first carbon-neutral nation in the world no later than 2020. Costa Rica’s decarbonization plan aims to eliminate the country’s greenhouse gas emissions by 2050 and promote the modernization of the country through green growth.

Costa Rica is also seen as pioneer in ecotourism, has a moratorium on open-pit mining and bans the extraction of oil. All these measures help to keep pollution levels to a minimum, and thus help to keep ecosystems healthy. 

The Biodiversity Law has reconceptualised biodiversity from a policy-making perspective. The standard definition of biodiversity has been the variety of animal and plant life on Earth or within a given geographical area. However, this law has shown that to effectively protect biodiversity, access to the genetic resources of plants and animals as well as the intellectual property rights associated with traditional knowledge and practices of Indigenous Peoples needs to be regulated. This ensures that the genetic properties and traditional community knowledge associated with biodiversity remain within the public domain and that any commercial benefits are shared fairly and equitably amongst society. In this way, all exploration, research or bioprospecting programmes of genetic or biochemical material derived from biodiversity that aim to be carried out within Costa Rican territory require an access permit granted by a national authority that is not entirely under governmental control.

Our “Best Policies” are those which meet the Future-Just Lawmaking Principles and recognise that interrelated challenges require interconnected solutions. The World Future Council’s unique research and analysis ensures that important universal standards of sustainability and equity, human rights and freedom, and respect for the environment are coherently considered by policy-makers.

   Sustainable use of natural resources

• Article 9 of the law outlines the general principle that components of biodiversity are valuable for human well-being, but also recognises the inherent value of nature:

“1. – Respect for all forms of life. All the living things have the right to live, independently of actual or potential economic value.”

“2. – The components of biodiversity are valuable. They have decisive and strategic importance for the development of the country and are indispensable for the domestic, economic, social, cultural and aesthetic use of its inhabitants.”

• Article 10.2 aims to:

“promote the active participation of all sectors of society in the conservation and ecological use of biodiversity, in the pursuit of social, economical and cultural sustainability.” 

Slightly more than one third of Costa Rica’s land area is officially protected through diverse categories of wildlife protected areas.

   Equity and poverty eradication

• Article 9.4 of the law:

“Intra and inter-generational equity. The State and private individuals will watch over the sustainable utilization of the components of biodiversity to ensure that the possibilities, opportunities and benefits of their use will be guaranteed in an equitable manner for all sectors of society and will satisfy the needs of future generations.”

• The recognition and protection of traditional knowledge (TK) brings forward previously sidelined indigenous communities. However, in terms of implementation the protection of TK through intellectual community rights (Arts. 82 + 83 Biodiversity Law) constitutes a major loophole of the law because in practice that system has not been developed. The process of developing a TK protection system is complex, because people need to be consulted. There are 24 indigenous territories. The indigenous population is relatively small (around 1% of total population). It’s difficult in terms of logistics and money to conduct consultation to put in practice or regulate the protection system of intellectual community rights. 
• The Payment for Environmental Services (PES) program has helped to bring money to indigenous communities, although there have been some disputes with the local development associations as to the best way to use these funds.

   Precautionary approach

• The precautionary principle explicitly referred to in Article 11.2. Notably, this is the first time it was included in Costa Rican law as such.

“Precautionary criterion: When danger or threats of grave or imminent damage to the components of biodiversity and its associated knowledge exist, the absence of scientific certainty should not be used as a reason to disregard the adoption of effective measures of protection.”

• Article 109 of the law:

“The burden of proof, of absence of contamination or prohibited degradation or affectation, lies with the one who requests an approval, permit or access to biodiversity or who is accused of having caused environmental damage.”

Bioprospecting is permitted under the Biodiversity Law since it was expected to bring economic benefits to the country. A coalition of Costa Rican environmental organizations, academics, Indigenous Peoples and peasants, who form the Network for Coordination on Biodiversity, question whether bioprospecting has in fact brought the country the benefits that were promised. They are concerned that it assists the appropriation of genetic assets as well as local and traditional knowledge. Research has yet to prove the case either way.

However, it appears that on several occasions the National Office of Seeds, an arm of the governmental bureaucratic apparatus, has broken Article 80 of the Biodiversity Law. It has done this by granting licenses to access biogenetic resources to organisations and companies without first consulting CONAGEBIO, the devolved authority that it responsible for biodiversity management in Costa Rica.

   Public participation, access to information and justice

• Article 101 of the law:

“the participation of communities in the conservation and sustainable use of the biological diversity shall be promoted by means of technical assistance and special incentives in this law and its regulation, especially in areas harbouring species which are rare, endemic or in danger of extinction.”

Local and regional councils have been created that consist of people from different sectors of society, which is a practical way to promote transparency. Local councils are a very useful instrument to promote public participation at local level. Their level of implementation is good, but information about impact and results are unclear. It is not easy to know how many local councils there are, and what they are doing. This is an issue that deserves further attention in the future.

According to Article 83 of the law a committee between the CONAGEBIO and the Office for Indigenous and Peasant Affairs should have been established in order to ensure input from local communities. This committee has yet to be established. Furthermore, information concerning the Biodiversity Law published in digital and print form is not available in indigenous languages. 

    Good governance and human security

• The National Commission for the Management of Biodiversity (CONAGEBIO) is provided for by Article 15 with a broad range of participants, and as a fair and effective institution.
• The local and regional councils promote participation, with legal instruments to promote transparency. The law also serves to recognise traditional institutions such as those of indigenous peoples, and they are consulted, for example, in cases of prior informed consent.

   Integration and interrelationship

• Articles 49, 53 and 54 all outline the need to maintain and repair ecological processes and systems.
• Chapter 6, entitled “Education and public awareness, research and technology transfer” outlines a number of different ways in which the state aims to provide benefits to the public on the topic of biodiversity.
• The PES program helps to protect the forest by paying the people who live in or own the land containing it to look after it, thus it provides benefits for both the environment and society.

   Common but differentiated responsibilities

• Ahead of its time regarding the inclusion of rules on access to biochemicals and genetic resources.
• The high level of participation is also very much in accordance with Costa Rica’s social and cultural values, in the way it values the input that traditional knowledge can give to society.
• The law at no point places unnecessary burdens or costs on vulnerable groups such as indigenous peoples; on the contrary, it makes every effort to aid them and to cater for their welfare.

Luis Martínez Ramírez, ex-congressman and former president of the Environmental Commission of the Legislative Assembly, originally proposed the initiative to develop a national biodiversity law in Costa Rica that was in compliance with the mandates of the UN Convention on Biological Diversity.

• The overall objective of the law concerns the conservation of biodiversity and the sustainable use of resources as well as the equitable distribution of the benefits, and derived costs, from the use of its elements.

  The conceptual framework of the law sets forth the following elements:

  • Equity in access to and in the distribution of benefits derived from the use of the elements (genetic and biochemical elements) of biodiversity.
  • Respect of human rights, especially of those groups that are marginalized because of their culture or socio-economic condition.
  • Sustainable use of biodiversity, in order to respect the development options of future generations.
  • Biosecurity shall be interpreted in the broadest sense to include technological, environmental, alimentary and sanitary aspects.
  • Democracy as a guarantee of greater citizen participation in decision-making.

Implementation uses both the concepts of tangible elements of biodiversity, as defined by the CBD, and intangible elements, such as individual or collective knowledge, innovation and practices:

• A model of objective liability is established, reversing the probative facts on the accused in the cases of environmental damage.
• The PES program to include payments for environmental services for water and energy.
• The Biodiversity Law provides legal authority and support to the National System of Conservation Areas (SINAC) and conceptualises a participatory system through the creation of regional and local councils in each conservation area, integrated by five elected members of different sectors from that geographical area.
• The Law creates the CONAGEBIO (National Biodiversity Management Commission) with the participation of the indigenous, peasant, academic, government and private sectors.
• Both institutions SINAC and CONAGEBIO are fully implemented and operational.
• Regulations regarding the access to genetic resources are established and principles such as cultural denial incorporated. In practice, the ABS system suffers from criticism because of its slow and bureaucratic processes.
• The Law recognises different systems of intellectual property, e.g. farmers’ rights and sui generis community intellectual rights. For this reason, the law excludes non-genetically modified plants, animals and microorganisms from intellectual property rights.

The biodiversity law has often been used by the Constitutional Chamber to support their sentences in environmental issues. The intellectual property right regulations and other elements in this law were objects of debate during the process of approval of the Free Trade Agreement between the United States, Central America and Dominican Republic.

The law has a strong impact in protecting Costa Rica’s biodiversity. Notable achievements include:

• The amount of protected area has risen to slightly more than one third of Costa Rica’s land area.
• Costa Rica is widely considered as a world leader in terms of its PES Program, which is estimated to have helped to avoid the emission of 165,9 million tonnes of carbon between 1999-2015.
• Costa Rica is the first developing country to have halted and reversed deforestation. By 1985, forest cover had been reduced to just 24% of the original forest area. Today, approximately 52% of Costa Rica’s land area is covered with forests.
• Income contributed by the biodiversity prospecting program makes important contributions to technology, the National System of Conservation Areas, and more importantly, to the creation of national capacities and negotiation capacities.

The Costa Rican Biodiversity Law, approved six years after the CBD, was a significant milestone in the development of biodiversity laws with a more integral focus.

The Central American policy regarding biodiversity, which has not yet been approved, follows the content of the Costa Rican law closely. Many countries, including China, have consulted Costa Rica regarding their Payment for Environmental Services Program.

The access and benefit sharing system developed by Costa Rica’s Biodiversity Law is well known as a good model with lessons to be learnt from: It includes a three-tier permit system (basic research, bioprospecting or commercial use) which has granted 666 access permissions until 2020 and also has several monitoring mechanisms in place.

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