Biodiversity: the Nagoya Protocol and its impacts in Brazil

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Giovani Tomasoni

Trench Rossi Watanabe, São Paulo

giovani.tomasoni@trenchrossi.com

Luiza Ramos

Trench Rossi Watanabe, São Paulo

luiza.ramos@trenchrossi.com

Brazil recently made an important step toward the internal application of the Nagoya Protocol. On 12 August 2020, Legislative Decree No. 136/2020 approved the Nagoya Protocol, an international agreement supplementary to the Convention on Biological Diversity that creates incentives for the conservation and sustainable use of genetic resources. It strengthens the contribution of biodiversity to environmental development.

The Nagoya Protocol came into force on 12 October 2014. Currently, 126 countries have ratified the agreement, including relevant export economies like China, India and Indonesia.

Brazil signed the agreement in 2011 but its ratification by the National Parliament was concluded only in August 2020. One of the benefits of being part of the Protocol is that Brazil will be able to participate and vote in the conference of the parties, and will be able to influence significant decisions about the implementation procedure of the Protocol. By joining the agreement, Brazil will also be subject to the obligations established by the Protocol after 90 days of its ratification.

Brazilian legislation already regulates the subject of ‘access to Brazilian biodiversity’. By ratifying the agreement, it may push for international regulation to resemble Brazilian law, which facilitates the internal application of the Protocol.

The ratification of the Protocol will not result in wholesale changes to the internal Brazilian approach, as Federal Law No. 13,123/2015 already establishes rules for accessing national genetic resources. However, in the case of access to exotic biodiversity, there will be the challenge of learning and applying the rules of the Protocol.

To reinforce the legal security, and to promote a fair and equitable share of the benefits brought by the use of genetic resources and the associated traditional knowledge, the Nagoya Protocol fosters the advancement of research about genetic resources that could lead to discoveries, in addition to the conservation of the biodiversity and the sustainable use of its components.

The main premise of this international agreement is that countries have national sovereignty over the genetic resources existing in their territories. Thus, they may require participation in the benefits resulting from the access of products originating from their territories, whether they are a company, a researcher or even a governmental entity.

The agreement does not establish a deadline to comply with its obligations. Unlike other international agreements, the Nagoya Protocol does not stipulate any deadline to start fulfilling obligations between the parties (users and providers). However, countries that have ratified the Protocol are expected to comply with their obligations within a reasonable time.

It is also important to mention that the Nagoya Protocol encompasses obligations directed at the countries and not the individuals that get access to biodiversity. With the ratification of this Protocol, Brazil will be committed to create mechanisms to ensure that any foreign legislation (if any) is complied with by companies, researchers and research entities operating in the national territory. Enforcement must be in place.

Due to the fact that Brazil already has a federal law that deals with access to genetic heritage and its protection, as well as the conservation of the sustainable use of biodiversity, the fundamental normative instrument was created to establish the necessary guidelines for the implementation of the Nagoya Protocol in Brazil – giving greater legal security to all those involved.

Agribusiness players offered some resistance to the ratification of the Nagoya Protocol, precisely due to the possible impacts of benefit-sharing in this industry. However, the Protocol does not apply to the activity of simple commercialisation of commodities without previous ‘access to genetic resources’. In other words, benefit-sharing is only required and applicable in cases where research or technological development on some exotic or native genetic resource previously exists.

It is important to highlight that, for the purposes of its implementation, the agreement will not have retroactive effects, which means that only new access to genetic resources will be subject to the Nagoya Protocol.

Therefore, the impact for those interested in achieving ‘access to biodiversity’, mainly for the agribusiness, pharmaceutical and cosmetics sectors, will depend on, among other things:

• the criteria for the enforceability and calculation of the benefit-sharing adopted by the countries (providers of the resources used in Brazil); and
• the interpretation that will prevail over the scope of the Protocol considering that there are other international treaties, especially the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), which was created to deal with phytogenetic resources for foodand agriculture and institutes its own benefit-sharing regime.

Brazil's adherence to this important international agreement will promote relevant advances in research on genetic resources, which may lead to new discoveries. It is also an important step toward strengthening public environmental protection policies, as well as helping Brazil access other markets and international trade associations such as the Organisation for Economic Co-operation and Development (OECD).

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