TITLE: Costa Rica's Biodiversity Law: Sharing the Process AUTHORS: Vivienne Solis Rivera and Patricia Madrigal Cordero PUBLICATION: Edited version of a paper prepared for the workshop on "Biodiversity Conservation and Intellectual Property Regime" organised by the Research and Information System for the Non-Aligned and Other Developing Countries (RIS) with the World Conservation Union (IUCN), New Delhi, India, 29-31 January 1999 DATE: June 1999 (edited version) SOURCE: Submitted by the authors to BIO-IPR NOTE: For details on how to contact the authors and how to obtain a copy of the Biodiversity Law of Costa Rica in English or Spanish, please see below. COSTA RICA?S BIODIVERSITY LAW: SHARING THE PROCESS by Vivienne Solis Rivera* and Patricia Madrigal Cordero** Paper prepared for the workshop on "Biodiversity Conservation and Intellectual Property Regime" organised by the Research and Information System for the Non-Aligned and Other Developing Countries (RIS) with the World Conservation Union (IUCN) in New Delhi, India, 29-31 January 1999 Abridged and edited jointly with GRAIN for BIO-IPR The aim of this paper is to share the process of drawing up, approving and starting to implement the Biodiversity Law of Costa Rica. Approved on 23 April 1998, this Law is the result of a long process to elaborate a legal framework in response to the ethical and social mandate for a more just and fairer distribution of benefits deriving from the commercial use of components of biological diversity in accordance with the principles of the Convention on Biological Diversity (CBD). The Costa Rican experience gives one example of how the Convention can be put into practice at the national level. The process has forced us to face important lessons in trying to promote a legal initiative which aims to regulate economic interests. This paper does not deal in depth with the Convention, nor defend its precepts. Each country should seek its own legal means to regulate biodiversity according to its specific social, economic and political context. 1. HISTORY OF THE LAW First, some context. When the initial draft Biodiversity Law was presented in June of 1996, six contracts allowing transnational corporations to conduct biodiversity prospecting had already been signed in Costa Rica. These contracts were drawn up in a regulatory vacuum. Laws which regulate specific natural resources -- such as the Law for Wildlife Conservation (1992), the Forest Law (1996), the Constitutive Law for the National Parks Service (1972), and the Organic Law on the Environment (1995) -- were in effect at that time. But a legal gap existed in the regulation of genetic and biochemical resources, as well as regards access to biodiversity and the fair distribution of benefits derived from it. Prior to the Biodiversity Law, there were two agencies active in administering biological resources: the Advisory Council to the Minister of the Environment and Energy (COABIO) and the National Biodiversity Institute (INBio), a non-government non-profit association at the forefront of bioprospecting for commercial use. The promoter of the Law initiative was Luis Martinez Ramirez, ex-congressman and former president of the Environmental Commission of the Legislative Assembly, who officially requested the technical support of the World Conservation Union?s Regional Office for Mesoamerica (IUCN-ORMA), located in Costa Rica, in the drawing up of the draft Biodiversity Law. The aim of this legal initiative was to comply with the mandate of the Convention on Biological Diversity which challenged its signatories to legislate on the themes covered by the Convention. Costa Rica ratified the Convention in August 1994. ORMA responded positively to the request and charged the Wildlife Thematic Area with responsibility for the project. Prior to the drawing up of the draft law, its philosophical framework was defined jointly with the Environmental Commission of the Legislative Assembly. Through this process, the following were established as guiding principles: * equal access to and distribution of the benefits from the use of biodiversity components * respect for human rights, principally those groups which are marginalised due to cultural or economic conditions * sustainable use of biodiversity components respecting development options for future generations * that democracy guarantees a greater participation of all citizens in decision making, within an environment of peace, and in development options. With this conceptual base, a consultation process was initiated with specific groups: indigenous peoples, people living close to protected areas, small farmer groups, legal experts, scientists, civil servants and private companies. The objective of the consultation was to learn what the basic content of the draft law should be. With this input, the preparation of the draft law started. The Law was meant to be general and comprehensive, regulating all aspects of the Convention on Biological Diversity in an integral manner. This deliberately left open the possibility of developing discrete regulations in the future for specific issues such as biosafety, biotechnology, access to genetic resources and intellectual property. The draft was published on 18 June 1996 and became subject to wide debates and mixed reactions, both for and against. Three thousand copies of the draft were distributed throughout the country for comment. It was also made available on Internet in order to facilitate discussion processes. Based on the comments, observations and suggestions sent to the Environmental Commission, a substantive draft law was drawn up half a year later in December 1996. However, the discussion process got bogged down due to the polarisation of different positions. A proposal for a reconciliation forum made by Jorge Mora, Rector of the National University, was accepted by the Environmental Commission. The latter delegated the task of drawing up the draft law to a special mixed sub-commission, made up of representatives of the National Indigenous Forum, the Costa Rican Federation for Environmental Conservation, the National Small Farmers Forum, the University of Costa Rica and the National University, the Union of Chambers for Private Business, INBio, COABIO, and the National Liberation and Christian Socialist Unity parties. The objective of this sub-commission was to draft a consensual draft within a period of five months. Debate focused, among other things, on: the role of the state as guardian of biodiversity; the concepts of public and private ownership; the administrative organisation; biosafety; access to genetic and biochemical components; the protection of associated knowledge; and the intellectual rights of communities. The sub-commission submitted its consensual text in November 1997, and five months later, on the 23rd of April 1998, during the last days of the Figueres Olsen administration, the draft Biodiversity Law was approved by a conditional majority vote in the legislative assembly to be subsequently signed and converted into Law of the Republic No. 7788 on 6 May 1998. 2. HIGHLIGHTS OF THE LAW 2.1 Basic concepts The following concepts are defined in Article 7: * Biodiversity: The variability of living organisms from any source, existing within terrestrial, aerial, marine or aquatic ecosystems or in other ecological complexes. It includes the diversity within each species, as well as between species and the ecosystems of which they are part. For the purpose of this law, the term biodiversity is understood to include those intangible components being: individual or collective knowledge, innovation and traditional practice, of real or potential value associated with biochemical and genetic resources, protected or not by intellectual property systems or sui generis registry systems. * Biodiversity prospecting: The systematic search for, classification and research for commercial ends of new sources of chemical compounds, genes, proteins, micro-organisms and other products of current or potential economic use, that are to be found in biodiversity. * Genetic resources: Any material from of plant, animal, fungal or micro-organism sources which contain units with a hereditary function * Knowledge: A dynamic product generated by society over time and by different mechanisms, and includes that which is produced by traditional means or generated by scientific practice. * Prior informed consent (PIC): Procedure by which the state, private owners or local and indigenous communities, having been previously supplied with all requested information, agree to permit access to biological resources or to the intangible component associated with them, under mutually agreed conditions. 2.2. Administration The Administrative structure, which we will not explain in detail, hinges on the National Commission for Biodiversity Management (CONAGEBIO). This Commission defines policy, provides advice to the government and grants permits for the collection of biological resources. It is composed of: * eleven representatives of the following ministries: Environment and Energy which presides the Commission, Agriculture and Livestock, Health and Trade * a representative from the Costa Rican Institute for Fisheries and Aquaculture, as the body charged with overseeing marine resources. * the Executive Director of the National System of Conservation Areas. * representatives of: Association of the National Small Farmers? Board, Association of the National Indigenous Board, Costa Rican Federation for Environmental Conservation, Costa Rican Union of Chambers of Commerce and the National Council of Rectors CONAGEBIO has an Office for Technical Support which takes care of the processing, coordination and granting of permits. 2.3 Access Access to genetic and biochemical components of biodiversity is regulated under Article 62. Any research programme or biodiversity prospecting on genetic or biochemical material from biodiversity to be carried out on Costa Rican territory requires an access permit. However, one of the exclusions established in Article 4 of the law is that it does not apply to the exchange of biochemical and genetic resources between indigenous peoples and local communities. The basic requirements for access are: a) prior informed consent of representatives of the place where access is to take place, these being the regional councils of the Conservation Areas, farm owners or indigenous authorities, when this lies within their territory; b) authorisation of this prior informed consent on the part of the CONAGEBIO?s Technical Office; c) terms of technology transfer and the fair distribution of benefits, when these exist, agreed in the permits, agreements and concessions, as well as the type of protection of associated knowledge called for by the representatives of the place where access takes place; d) definition of the means by which such activities will contribute towards the conservation of species and ecosystems; and e) designation of a legal representative, resident in the country, in the case of an individual or corporate entity resident overseas. Access permits for research or bioprospecting only allow for the carrying out of prospecting activities on explicitly identified biodiversity components. The permits clearly stipulate: the certification of origin, the possibility or prohibition to extract or export samples or, failing which, the duplication or deposit of materials; periodic reports, monitoring and control, publicity and ownership of rights, as well as any other condition which, given the applicable scientific and technical rules, are necessary according to the Commission?s Technical Office. These requirements are established in a different manner for commercial and non-commercial research. In the case of non-commercial research, it must be established beyond any shadow of a doubt that no economic interests exist. For duly registered ex situ collections, there is a special procedure for authorising permits. These permits are granted to a researcher or research centre on a personal and non-transferable basis. Further, they are limited to the material containing the authorised genetic or biochemical components and can only be used in the area or territory which is clearly indicated in the permit. As a direct consequence and corollary of the principle of prior informed consent, the law recognises the right to cultural objection. This means that local communities and indigenous peoples have the right to deny access to their resources and associated knowledge for cultural, spiritual, social, economic or other reasons. Since this right is embedded in the Biodiversity Law only since its enactment in 1998, it does not automatically apply to materials that were collected earlier in time and may be stored at present in ex situ conditions. However, the concept of public domain as defined in Article 6 of the law does grant power to the State to access materials, whether found in ex situ or in situ conditions, irrespective of when they were collected. 2.4 Intellectual property Intellectual property is regulated under Articles 62-67 of the Biodiversity Law. CONAGEBIO is the obligatory consulting body in procedures soliciting protection of any intellectual rights on biodiversity. The following aspects should be highlighted. * The State recognises the existence and validity of all forms of knowledge and innovation, and the need to protect them through appropriate legal means for each specific case. * The State will grant protection through patents, trade secrets, plant breeders rights, sui generis community intellectual rights, copyright, farmers? rights, and other forms. * The following are excluded from any form of intellectual property protection in Costa Rica: deoxyribonucleic acid sequences per se; plants and animals; micro-organisms which have not been genetically modified; essential biological procedures for the production of plants and animals; natural processes and cycles themselves; inventions which are essentially derived from knowledge associated with publicly-owned traditional or cultural biological practices; inventions which, on being commercially exploited in a monopolistic manner, could affect agricultural processes or products considered basic for food and health of the country?s inhabitants * Both the National Seed Office and the Intellectual Property Office are obliged to consult with CONAGEBIO on innovations which involve biodiversity components prior to granting protection of intellectual or industrial property. Any such protection granted by these offices must always be accompanied by a certificate of origin issued by the Commission?s Technical Office and a certificate of prior informed consent. Opposition raised by the Technical Office will effectively prevent registration of any patent or plant breeder's right certificate. * Individuals benefiting from protection of intellectual or industrial property related to biodiversity will cede, in favour of the State, a compulsory license in cases of national emergency for the benefit of the collectivity. 2.5 Sui generis community intellectual rights The state recognises and expressly protects, under the basket denomination "sui generis community intellectual rights", the practices and innovations of indigenous peoples and local communities, related to the use of biodiversity components, and their associated knowledge. This right exists and is legally recognised by the simple existence of the cultural practice or knowledge related to genetic and biochemical resources. It requires no previous declaration, formal recognition or official registration. However, it may cover practices which do acquire formal status in the future. The recognition implies that none of the forms of protection of intellectual and industrial rights regulated in this law, in any special laws and in international law will affect such historical practices. The law states that within 18 months following its coming into force, the Commission, through its Technical Office, together with the Indigenous Board and the Small Farmers? Board, are required to carry out a participatory process with indigenous and small farmer communities to determine the nature, scope and requirements of these rights for their definitive regulation. This process is not over yet, so we must wait for its finalisation to appreciate more fully the attributes and form of these rights. An inventory will be made of specific and unique community intellectual rights for which communities request protection. However, the possibility will remain open in the future for the registration or recognition of other communities' rights with the same characteristics. Any registration of community intellectual rights with the Commission?s Technical Office shall be voluntary and free of charge. The existence of community rights in the Registry will oblige the Commission?s Technical Office to reject any request for recognition of intellectual or industrial property rights over the same component or knowledge. Such refusal, always being duly well-founded, can be made for the same motive even when the sui generis right is not officially registered. 3. POLEMICAL ISSUES The most polemical issues raised by this Law and how they were resolved were the following: -Criticism- The law established too many obstacles to access. -Conciliation- It was clarified that the law governs access to genetic and biochemical resources, not biological resources. Access conditions were simplified. -Criticism- University autonomy will suffer. -Conciliation- The law does not affect university autonomy as far as teaching and research in the field of biodiversity is concerned, except when the research has commercial ends. -Criticism- Protected areas are not covered by the law. -Conciliation- A chapter was included for the legal establishment of the National System of Conservation Areas (SINAC). -Criticism- Indigenous and small farmer groups are not organised, so they cannot be parties to this public legal process -Conciliation- The Indigenous Board and the Small Farmers? Board shall participate in the National Commission for Biodiversity Management. -Criticism- Human genetic material is governed by the law. -Conciliation- Access to human biochemical and genetic material is excluded from the law. 4. CURRENT SITUATION AND FOLLOW-UP: NATIONAL INCIDENCE NETWORK With the aim of ensuring the regulation and enforcement of the Biodiversity Law and strengthening the participation of civil society in debates relating to trade and environment, the National Small Farmers? Board, the National Indigenous Board, the Costa Rican Federation for Environmental Conservation and the National University?s CAMBIOS programme have formed a National Incidence Network with the following objectives: a) Ensure the direct participation of farmers, indigenous populations, academia and the environmental movement in the regulation of the law. b) Strengthen civil society participation through the National Commission for Biodiversity Management (CONAGEBIO), the body which was created to draw up national policy in the conservation, sustainable use and restoration of biodiversity. CONAGEBIO is the body which will propose policies relating to access to the genetic and biochemical components of biodiversity and will act as the obligatory consultative body as far as procedures relating to requests for protection of intellectual rights over biodiversity are concerned. c) Strengthen civil society participation through its effective incorporation into the Regional Councils of the Conservation Areas, created within the framework of the National System of Conservation Areas. d) Support the participatory process with communities so as to achieve the means, the scope and requirements for the regulation of sui generis community intellectual rights (rights of local communities to collectively benefit from their knowledge, practices and innovations relating to the conservation and sustainable use of biodiversity). e) Support education in biodiversity conservation and sustainable use. f) Strengthen international relations with organisations which work in this area so as to share experiences and support proposals which benefit local communities. On the legal level, the Ministry of the Environment and Energy has presented to the constitutional chamber a charge of unconstitutionality against articles 14 and 22 of the Biodiversity Law. These articles create the National Commission for Biodiversity Management (CONAGEBIO) and the National System of Conservation Areas (SINAC). The justification for this action is to recover state jurisdiction over the definition of environmental and natural resources policies, and its exclusive jurisdiction and responsibility in the use of public funds. The National Incidence Network together with other sectors, is analysing the possible consequences of this charge and is attempting to ensure that it does not become an insurmountable problem for the enforcement of the law. 5. LESSONS LEARNED The main lessons we have drawn from this long process are the following: a) The regulation of activities which are underway and un-regulated is a process which generates strong opposition and considerable political and economic pressure. b) There are no systematised experiences or practices which help analyse how these issues can be resolved in the South. We have to take a path which is both empirical and innovative. c) Information available to the general public on biodiversity and its economic, ethical and social interests has been very limited. As a result, only an academic/scientific elite is informed. d) There is no adequate or continuous participation of Central America, as a region, in meetings on issues prioritised by developing countries as regards follow-up to the Biodiversity Convention. e) The transcendental points should appear in the Law and not in its regulations. f) The State does not yet want to share decision-making power with civil society sectors, especially the small farmers and indigenous peoples. But the best lesson we have learned in the legislative and advisory processes we have undertaken in Central America is that the drafting of the law can open a space for learning and for strengthening capacities. This allows for a real change in management of power and resources, even if the law, in the end, is not approved. * Co-ordinator, Wildlife Thematic Area, World Conservation Union (IUCN) Regional Office for Mesoamerica. ** Environmental Law Consultant, Wildlife Thematic Area, World Conservation Union (IUCN) Regional Office for Mesoamerica. For further information or copies of the original paper presented in New Delhi, please contact the authors at World Conservation Union Regional Office for Mesoamerica (IUCN-Mesoamerica) PO Box 1161-2150 Moravia, Costa Rica Tel: (506) 236 27 33 Fax: (506) 240 99 34 Emails: vsolis(at)orma.iucn.org -and- patmadri(at)sol.racsa.co.cr Full-text copies of the Biodiversity Law of Costa Rica may be obtained as a Word attachment from grain(at)bcn.servicom.es. Please indicate if you would like the original Spanish or the English translation of the law. The English translation is unofficial. It was put together by GRAIN in order to facilitate wider understanding and appreciation of Costa Rica's initiative by non-Spanish readers.