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Ceremony of the Guatuso people (maleku). Photo: Wayne77/Wikimedia

Costa Rica: The ratification of the Nagoya Protocol and the consent of Indigenous Peoples

20 March, 2023 | Ricardo Changala

On March 14, 2023, the Constitutional Chamber of the Supreme Court of Justice of Costa Rica communicated its decision to the consultation of the Legislative Assembly on the constitutionality of the Nagoya Protocol on access to genetic resources and fair and equitable sharing of benefits (ABS) arising from their utilization to the Convention on Biological Diversity (CBD).

At the moment the substantive judgment is known in terms of its essential content, but the legal bases that have led to taking it have not yet been made known.

The proposal of law for the ratification was sent to the Legislative in August 2019 and, although it had been approved in the first debate, it was sent for mandatory consultation of constitutionality through the Directory of the Legislative Assembly.

The Nagoya Protocol on ABS was adopted on 29 October 2010 in Nagoya, Japan and entered into force on 12 October 2014, 90 days after the deposit of the fiftieth instrument of ratification. Its objective is the fair and equitable sharing of the benefits derived from the use of genetic resources, thus contributing to the conservation and sustainable use of biological diversity.[1]

It provides a transparent legal framework for the effective implementation of one of the three objectives of the CBD: the fair and equitable sharing of the benefits derived from the utilization of genetic resources.

That international instrument aims to create greater legal certainty and transparency for both suppliers and users of genetic resources by establishing more predictable conditions for access to genetic resources, and to help ensure benefit-sharing when genetic resources leave the country that provides them. For this, it promotes incentives for the conservation and sustainable use of genetic resources, and therefore increases the contribution of biological diversity to human development and well-being.

At the time of writing, the Protocol has 139 ratifications and 92 countries that have signed it initially, including Costa Rica, which did so on July 6, 2011.[2]

In its pronouncement, the Constitutional Chamber says that “By majority, the mandatory consultation of constitutionality formulated by the Directorate of the Legislative Assembly on the bill to approve the Nagoya Protocol is evacuated … in the sense that there are no substantial procedural flaws in the approval of the bill”[3]

Although at the end of the resolution it is stated that “Unanimously, the consultation is evacuated in the sense that there are no defects of unconstitutionality in terms of the substance of the project,” it is relevant to consider that the same resolution expresses the following:

“Judges Cruz Castro, Rueda Leal and Garita Navarro voted against and declare that there is a substantial defect in the legislative procedure, because the hearing granted to indigenous peoples to pronounce on it does not satisfy the commitment and right of consultation provided for in Article 6 of ILO Convention No. 169.”

This point is highly relevant.

In a country that has made significant progress in the construction of a consultation mechanism and where there is no doubt about the right to consent of Indigenous Peoples, it is striking that the judges note that the basic requirements for consultation of peoples and communities have not been met.

It should be borne in mind that, beyond the fact that the entire content of the Protocol is of interest to Indigenous Peoples, article 7 establishes:

Access to Traditional Knowledge Associated with Genetic Resources: In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established.

Therefore, while waiting to know the grounds for the resolution, it seems clear that, although the substantive content of the Protocol has been declared compatible with constitutional precepts, the same does not seem to be true of the procedure for its ratification, recalling that, according to the Costa Rican Constitution, human rights treaties have supralegal value.[4]

[1] Full text avaible at: https://www.cbd.int/abs/text/

[2] Detalles de las ratificaciones y firmas pueden verse en https://www.cbd.int/abs/nagoya-protocol/signatories/

[3] Sala Constitucional, expediente 23-001548-0007-CO que puede consultarse en https://pjenlinea.poder-judicial.go.cr/GestionEnLinea/inicio/consultas/consultanumeroexpediente/detalleexpediente

[4] ARTÍCULO 7º.- Los tratados públicos, los convenios internacionales y los concordatos, debidamente aprobados por la Asamblea Legislativa, tendrán desde su promulgación o desde el día que ellos designen, autoridad superior a las leyes.