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On July 8, 2020, the Brazilian Chamber of the State Representatives unanimously voted on the Bill of Legislative Decree # 324/20 to approve the Nagoya Protocol.  As a result, the text was sent for consideration to the Senate and, once approved, the President should enact a federal Decree allowing the treaty to take effect in the country.

The Nagoya Protocol (Protocol) is a multilateral agreement ancillary to the Convention on Biological Diversity (CBD) and aims to implement the CBD’s objective relating to the sharing of benefits arising from the utilization of genetic resources and/or associated traditional knowledge in a fair and equitable way.  The Protocol entered in force on October 12, 2014.  Currently, 124 countries are signatories to the agreement. 

The Protocol takes into consideration the principle established by the CBD that countries have sovereign rights over the genetic resources within their territory and may demand compliance with the requirements and sharing of any benefits arising from their use by individuals, companies, or government entities whose countries are parties to the Protocol. 

The country providing the genetic resources (i.e., provider country) has the right to establish (or not if it so chooses) specific requirements for access to its genetic resources and/or associated traditional knowledge as an exercise of its own sovereignty. The other parties to the Protocol (i.e., user countries) are required to take appropriate measures to comply with the requirements that have been established by the provider country.  Accordingly, the parties to the Protocol, both as provider and/or user countries, must ensure that access to these genetic resources and/or associated traditional knowledge, as well as the sharing of the benefits arising from their use, comply with their own country’s legislation.

The impact arising from the ratification of the Protocol on the national industry in Brazil will mostly involve the general duty of individuals, companies, and government entities to know and comply with the obligations established by a provider country that supplies any foreign genetic resources and/or any associated traditional knowledge for the development and manufacture of products.  This same duty will also apply to any user country (i.e., foreign individual, company or government entity) that accesses any genetic resources of Brazil’s biodiversity and/or associated traditional knowledge for the development and manufacture of products.  Thus, the Protocol has the potential to eliminate any asymmetries that exist between national and international industries.

Since the enactment of the CBD, Brazil, as a “mega biodiverse” country, has taken a leadership role in several discussions relating to the access and benefit sharing of genetic resources.  As a result, the delay in the approval of the Protocol may have been the result of internal (political) dissent regarding the positive or negative impact of the Protocol on the country’s economy. Despite Brazil’s huge biodiversity, the country relies heavily on foreign genetic resources, such as in the area of agriculture and livestock.

Nonetheless, despite the delay, both the agricultural and environmental caucuses agreed that accession to the Protocol would be important in order for Brazil to have a voting seat in on-going discussions relating to the implementation of the Protocol.   Some of the matters currently under debate by the 124 parties include, for example, the scope of the Protocol (e.g., whether it will be applicable only to the species that entered into the user country after ratification of the Protocol or if new uses of species already in user countries would be encompassed), definition of checkpoints and information to be provided (e.g., would patent offices be included as one of the authorities to be used as a check point?), how to handle genetic resources of biomes in transborder areas, and the use of digital sequence information. 

It is important to note that the Brazilian law on access to the biodiversity, Law #13123, establishes that the sharing of benefits provided for in the Protocol should not apply to the use of species introduced into Brazil as a result of human action relating to agriculture and livestock  activities. In other words, Brazil has limited the Protocol’s scope in its national legislation in order to mitigate its impact in this area. 

Please continue to watch BRICS & Beyond for updates on the Nagoya Protocol in Brazil.

This post was written by Lisa Mueller and Viviane Kunisawa at Licks Attorneys

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