Approved by Brazil’s Federal Senate on August 6, 2020 (PDL 324/2020), the Nagoya Protocol is currently awaiting enactment by the Executive Branch. Originating from the Convention on Biological Diversity 10 years ago, the protocol is a multilateral environmental agreement whose fundamental objective is to establish the conditions for access to traditional knowledge associated with genetic resources and the fair and equitable sharing of the benefits of their use.
Brazil, one of the countries with the richest biodiversity in the world, is now taking one more step toward effectively implementing an access and benefit sharing (ABS) policy. It is relevant to note that ABS also applies to traditional knowledge and genetic resources imported by Brazil and not just those exported.
In the area of intellectual property, the Nagoya Protocol is also important since it is an essential tool against biopiracy as it recognizes the sovereignty of countries over their genetic resources.
Legislative Decree No. 136 of 2020, which approved the Nagoya Protocol's text, conditioned its ratification on certain understandings:
- Its provisions will not have retroactive effects;
- Economic exploitation for agricultural activity purposes will not be subject to benefit sharing;
- Species or varieties that form spontaneous populations that have acquired their distinctive characteristics in the country and the traditional local or landraces or the locally adapted or landraces breed are considered to be found, in situ conditions; and
- Law No. 13,123 / 2015 is the domestic legislation for implementing the Nagoya Protocol.
Although the text of the Nagoya Protocol confirms that a national strategic plan will be necessary for its effects to be realized in practice, the Protocol will undoubtedly contribute to the protection of the environment and will foster essential negotiations in the country on the subject.