Canada and Costa Rica are very different countries, but they share some important characteristics and values. One which is vital and fundamental to both nations is their rich biodiversity. Biodiversity is a measure of the variety of life forms on every level, from genetics to ecosystems of all sizes. People have come to recognize the severe threats that human activity poses to biodiversity, which are only exacerbated by climate change. In response, the United Nations Environment Programme (UNEP) took action which would eventually lead to the creation of the Convention on Biological Diversity (Biodiversity Convention or CBD). It was opened for signatures in 1992 and entered into force into 1993. As of 2016, the Biodiversity Convention has 196 parties. The CBD is often regarded as the leading multilateral treaty on sustainable development. It has three main goals: the conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of benefits arising from genetic resources. For the first time in international law, biodiversity conservation was recognized as “a common concern of humankind.”
Both Canada and Costa Rica have been highly active in the development of the Biodiversity Convention and its related Protocols. Canada was the first industrialized country to have ratified the CBD and hosts the Convention’s Secretariat in Montreal. In 2002 as part of the Canada – Costa Rica Free Trade Agreement, the Canada – Costa Rica Agreement on Environmental Cooperation entered into force, in a clear demonstration of the two countries’ commitments and recognition of their “common but differentiated responsibilities.” Global perceptions of Canada’s fortitude as a green economy have remained strong despite heavy criticisms of its “insufficient” action on emissions reduction, according to Climate Action Tracker, which categorizes countries based on their potential to reach the 2-degree warming target. Costa Rica, meanwhile, falls within the “2° Compatible” range.
The Global Green Economy Index (GGEI) ranks countries based on contextual factors that contribute to the green economy and does so in a comparative fashion. It provides rankings based on global perceptions of each country and on their actual performance. Costa Rica has been praised for its improvements and performance despite its small geographical and economic stature. The report also lauds Canada for its performance, though reservedly so in consideration of its economic reliance on fossil fuel extraction and mining.
Interestingly, in the 2016 edition, Canada ranks 6th in the perception ranking, while Costa Rica comes in at 13th. However, when it comes to actual performance rankings, Costa Rica outranks Canada by 1 slot. Costa Rica was ranked 3rd in performance in the 2014 GGEI and only 11th in the 2016 version, which the authors explain is due less in part to not performing as well as it is to other countries’ improvements and Costa Rica’s lacking in markets and investments comparatively. Additionally, Canada jumped from 29th to 12th, a significant improvement largely attributable to its improved performance in markets and investments, providing a clear illustration of one major difference between these countries and their capacities to be "green". The diagrams below demonstrate the two countries’ overall GGEI profiles.
These national profile briefs indicate the areas where each country can improve its green economy and image. While Canada is superior in its corporate ventures and investments, Costa Rica is leading in efficiency and leadership and climate change initiatives. Canada has, in fact, increased its emissions levels since the 2014 GGEI. This data suggests increased political action must be taken here in Canada to meet climate change mitigation standards and, hence, biodiversity preservation measures.
Given the different strengths that each country has demonstrated and the nature of biodiversity as “a common concern of humankind” which necessitates information sharing and collaboration, below are a couple of approaches that Costa Rica has taken which can inspire and motivate Canada to improve its biodiversity protection.
- Federal payback program
Costa Rica has been praised for its pioneering Payment for Ecosystem Services Programme (PSA), developed in 1997 from its forestry laws. This programme, the first payment for ecosystem services system to be established on a national scale, charges people for their use of environmental services and transfers funds to farmers who deliver those services. The program has fostered support for local farmers and landowners and has substantially improved the protection of forests and waters and, to a lesser extent, carbon sequestration and biodiversity.
A similar payback for ecosystem services initiative in Canada is ALUS (“Alternative Land Use Services”), an organization started by a waterfowl habitat preservation group. Spanning 27 communities in 6 provinces, ALUS is steadily growing but has not achieved the level of national reach that Costa Rica’s PSA Programme has. Certainly, the geographical disparity between the two countries is a contributing factor, but an even greater distinction comes from the fact that ALUS is a not-for-profit organization, while the PSA Programme has federal backing.
Canadian and Costa Rican constitutions, governmental structures, and approaches to international law are quite distinct. Canada’s constitution is an amalgamation of acts, treaties, and conventions; Costa Rica’s Constitución Política de la República de Costa Rica is a single document drafted after the country’s civil war ended in 1948. While Canada is a federal state, Costa Rica is a unitary state with a strong central government over municipalities. When it comes to incorporating international agreements, such as the Biodiversity Convention, into domestic law, Canada generally takes a “transformationist” approach by passing domestic laws that mirror and give effect to the international agreement. As a more “monist” country, as opposed to “dualist,” Costa Rica takes an “adoptionist” approach and considers international law to apply automatically. Furthermore, Article 7 of the Costa Rican Constitution provides that those which are approved and ratified by the Legislative Assembly are superior in authority to national laws.
A few remarkable provisions in Costa Rica’s constitution set it apart on the global stage and certainly from Canada. Article 12 abolished the military, making Costa Rica the second nation to do so by law. The nation’s efforts clearly shifted to increased environmental protection, as evidenced by Articles 50 and 89. Article 50 was amended in 1994, the year Costa Rica ratified the CBD, to include the emphasis on ecological integrity and the right to a healthy environment. The standing for these claims is broad, allowing citizens who have not been directly harmed to be included. Article 89 emphasizes the protection of the “natural beauty” of the country, reflecting the commitment to preserve its biodiversity.
The closest constitutional protection of a right to a healthy environment that exists in the Canadian context is the Charter’s section 7 right to life, liberty and security of the person. The majority of environmental lawsuits in Canada have not been grounded in constitutional arguments, and the few that have, have failed, largely due to procedural and factual shortcomings. As such, there are many proponents of continuing to fight for a finding of the right to a healthy environment based on section 7. Recognizing this protection on a constitutional basis can provide new mechanisms for redress from governmental (in)action, functionally entrench the precautionary principle, and provide further impetus for environmental action at all levels of government, helping Canada to gradually match its performance standard to its perception standard.
The protection of biodiversity is ultimately a collaborative effort among all nations. Canada and Costa Rica have been leaders in this front, but there is still much progress to be made. As such, Canada would do well to increasingly examine its collaborators’ methods and environmental approaches. The expansion of national payback programs and constitutional recognition of a right to a healthy environment are but two of the many ways the Canadian government can improve its efforts on biodiversity and environmental preservation.
Elise Mallette is a third-year BCL/JD student at the McGill Faculty of Law. She is interested in environmental law, international relations, sustainable development, and the related intersections between human rights. She participates in various initiatives and groups, such as the McGill Journal for Sustainable Development Law, the Centre québécois du droit de l'environnement, the Wilson Moot, the Legal Information Clinic at McGill, Plate Club, Yoga Club, and others. In 2014, she obtained her Bachelor of Arts in International Studies and French with a thematic concentration in Socio-Cultural Identity from the University of Mississippi, and she later spent a year in France teaching English to elementary school children.