On March 4, 2021, Brazil ratified the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (“Nagoya Protocol” or “Protocol”). It will come into force on June, 2, 2021 (i.e., on the 90th day after the date on which Brazil deposited its instrument of ratification, as per article 33.2 of the Protocol). As a party, the country can now actively take part in the discussions and decision-making under the Protocol, including by participating in the next Conference of the Parties serving as the meeting of the Parties to the Nagoya Protocol (COP-MOP 4), scheduled for October 2021.
The ratification comes 10 years after Brazil signed the Protocol on February 2, 2011. In the meantime, the country passed its own regulations on biodiversity, notably Law 13,123 of May 20, 2015 (“Brazilian Biodiversity Law”), which provides for access to genetic resources and traditional knowledge as well as benefit-sharing mechanisms and is the national legislation for implementing the Nagoya Protocol—as declared in Legislative Decree 136 of 2020, by which the Brazilian Congress approved the Protocol. That law is one of the key access and benefit-sharing (“ABS”) legislations in place, notably placing benefit-sharing obligations on manufacturers of finished products developed from Brazilian genetic heritage.
In that regard, it should be noted that the Protocol reaffirms the sovereign rights of states over their natural resources, which is why it requires parties to comply with each other’s domestic legislation or regulatory requirements on access and benefit-sharing. As stated in article 15.1: “Each Party shall take appropriate, effective and proportionate legislative, administrative or policy measures to provide that genetic resources utilized within its jurisdiction have been accessed in accordance with prior informed consent and that mutually agreed terms have been established, as required by the domestic access and benefit-sharing legislation or regulatory requirements of the other Party.” This is what, for example, the European Union has set up with its own Regulation 511/2014 on ABS, and with Brazil’s ratification of the Protocol, EU member states now have to ensure that companies conducting research and development in the EU on Brazilian genetic resources access and utilize these resources in compliance with the Brazilian Biodiversity Law.
With respect to agribusiness, the Brazilian Biodiversity Law expressly states—and Legislative Decree 136 reaffirmed—that benefit-sharing under the Nagoya Protocol does not apply to the economic exploitation, for the purpose of agricultural activities, of reproductive material of species brought into the country before the Protocol came into force (on October 12, 2014).
In addition, as a consequence of the ratification, one should expect new domestic regulations governing access to biodiversity from other countries. Other effects should be a strengthening of legal security for users and providers of genetic resources and an increase in opportunities for Brazilian biodiversity, especially considering that, according to the Protocol, “in the development and implementation of its access and benefit-sharing legislation or regulatory requirements, each Party shall . . . create conditions to promote and encourage research which contributes to the conservation and sustainable use of biological diversity, particularly in developing countries, including through simplified measures on access for non-commercial research purposes, taking into account the need to address a change of intent for such research” (article 8(a)).