The Nagoya Protocol, a multilateral agreement establishing rules on access to genetic resources and fair and equitable distribution of the benefits derived from their use, was approved through Legislative Decree No. 136/2020, published in the Brazilian Official Gazette on August 12, 2020.
Such agreement determines “the fair and equitable benefit sharing derived from the utilization of genetic resources, through adequate access to genetic resources and appropriate transfer of relevant technologies, taking into account all rights to such resources and technologies, and through adequate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components”.
The Protocol establishes a number of obligations for the signatory countries, therefore, also for Brazil, in particular with regard to the establishment of specific policies that aim for, for example:
(i) Fair and equitable benefit sharing arising from the use, application and marketing of genetic resources with the Party providing such resources (country of origin or other member that acquired these resources);
(ii) Access to genetic resources subject to the prior informed consent of the Party providing the genetic resources;
(iii) Access to traditional knowledge associated with genetic resources subject to prior informed consent or the approval and participation of indigenous and local communities;
(iv) Encouraging the allocation of benefits obtained through access to the conservation and sustainable use of genetic resources;
(v) The future establishment of a global multilateral benefit-sharing mechanism in cases of utilization of genetic resources in cross-border situations or for which prior informed consent cannot be given or obtained;
(vi) Cross-border cooperation in the case of genetic resources or associated traditional knowledge found in more than one country.
As determined in the Legislative Decree, the provisions of the Nagoya Protocol shall not have retroactive effect.
It was also established that economic exploitation regarding agricultural activities, arising from reproductive material of species introduced into the country by human action until the Protocol enforcement, will not be subject to benefit sharing provided for therein.
The Nagoya Protocol is a multilateral agreement supplementary to the Convention on Biological Diversity (“CBD”), adopted by the participants of the 10th Conference of the Parties to the CBD (COP-10) in 2010 in Japan. The agreement, which currently has 126 party members, was signed by Brazil in New York on February 2, 2011, and was pending approval by the Brazilian government.
Demarest’s Environmental Law team is available to provide more information and regarding the definition of measures to be adopted on a case by case basis.