Costa Rica’s Biodiversity Law

Costa Rica’s Biodiversity Law Protect Biodiversity and Reverse Soil Erosion

Costa Rica has been a pioneer in developing a comprehensive biodiversity law in response to the UN Convention on Biological Diversity. The Costa Rica Biodiversity Law of 1998 embraces the three objectives of the Convention on Biological Diversity: conservation of biodiversity, sustainable use of resources, and the fair and equitable  sharing of the benefits arising from the utilisation of genetic resources. In 2010 Costa Rica’s Biodiversity Law was honoured with the Future Policy Gold Award.

This is not the only time that a policy of Costa Rica has been recognised by a Future Policy Award! In 2013, the Award looked at the theme of disarmament where Costa Rica was recognised with an honourable mention for constitutional abolition of its army. The Redirection of military spending has allowed a greater investment in environment, education and health services leading to one of the highest standards of living in the region and the happiest people!

At a Glance

  • Costa Rica has been a pioneer in developing a comprehensive biodiversity law in response to the UN Convention on Biological Diversity.
  • The law embraces the three objectives of the Convention on Biological Diversity: the conservation of biodiversity, sustainable use of resources, and a fair and equitable sharing of the benefits arising from the utilisation of genetic resources.
  • It also places responsibility upon both the government and individuals to sustainably utilise biodiversity to satisfy the needs of present and future generations in respect of intra- and inter-generational equity.

Policy Reference

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

Article 7.23 of the Biodiversity Law sets out the definition of microorganisms within the framework of biodiversity management. This has now been effectively altered to reflect the definition of micro-organisms set out in the CAFTA-DR agreement.

Changes to Article 80. of the Biodiversity Law, concerning access to genetic resources, were struck down by the constitutional court.

Connected Policies

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

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).

Selection as a Future-Just Policy

This 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 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 the Costa Rica law for its access to genetic resources and benefit sharing. 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, Forestry Law No. 7575).

However, the law has suffered from being diluted somewhat in recent years 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. 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 as 95% of all its energy is renewable. In 2007, the Costa Rican government announced plans for Costa Rica to become the first carbon neutral country by 2021. Costa Rica is also seen as pioneer in ecotourism, has a moratorium on open-pit mining and the President opposes oil mining, all of which help to keep pollution levels to a minimum, and thus help to keep ecosystems healthy. Also, Costa Rica ranks third in the Global Green Economy Index performance measure, according to their newest (2014) report.

The policy 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.

Future-Just Policy Scorecard

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 freedoms, and respect for the environment are coherently considered by policy-makers.

   Sustainable use of natural resources

  • Article 9.2 of the law outlines the general principle that 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:

“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.”

Approximately 25% of Costa Rica’s land is now considered to be in officially protected areas.

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.


   Equity and poverty eradication

  • The recognition and protection of traditional knowledge brings forward previously sidelined indigenous communities.
  • The Payment for Environmental Services (PES) program has helped to bring money to indigenous communities, although there has been some disputes with the local development associations as to the best way to use these funds.
  • 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.”


   Precautionary approach

  • The precautionary principle explicitly referred to in Article 11.2. This is notable as 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.


   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.

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. The Vice Minister for the Environment stated that the translation of documents into indigenous languages is a work in progress.


    Good governance and human security

  • The National Commission for the Management of Biodiversity, 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.

Context
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.
Objectives

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 set 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.
Methods of Implementation

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:

  • Developed at the national level are the main International Environmental Law principles, such as the precautionary principle.
  • 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 provision of 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.
  • Creates the CONAGEBIO (National Biodiversity Management Commission), with the participation of the indigenous, peasant, academic, government and private sectors.
  • Establishes regulations regarding the access to genetic resources and incorporates principles such as cultural denial.
  • 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.

Impact

The law has had an excellent impact in protecting Costa Rica’s biodiversity. Notable achievements include:

  • In 2010, Costa Rica ranked third in the global Environmental Performance Index (EPI). However, their position has fallen dramatically to place 54 in the rankings, though Costa Rica remains number one in the Happy Planet Index 2014.
  • The amount of protected area has risen to approximately 25% of its total territory.
  • It has been widely considered as a world leader in terms of its PES Program, which is estimated to have helped to avoid the emission of 11 million tonnes of carbon between 1999-2005.
  • 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. By 2009, 46% was covered by forest with the forest area. It is estimated that the program prevented the loss of 720 sq km of forests in biodiversity priority areas in 1999-2005.
  • 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.

Potential as a Transferable Model

The Costa Rican Law of Biodiversity, 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.

Additional Resources
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