Environment Law
The Chamber of Deputies approved yesterday (July 8, 2020) the ratification of the Nagoya Protocol. This is a major step taken by the country to recover its leading role in biodiversity discussions at international level, as well as to ensure the compliance of the national legislation by foreign users of the biodiversity. The ratification will also have to be submitted to the Senate, followed by the issuance of a Legislative Decree by its president, and finally, the promulgation of the text by the President of the Republic by means of an Executive Decree to be published in the Official Gazette.
Brazil led the discussions at the 10th meeting of the Conference of the Parties (COP) to the Convention on Biological Diversity (CBD) that took place in Nagoya, Japan, in 2010, but the ratification of the Protocol was still pending.
The Nagoya Protocol entered into force on October 12, 2014, after the deposit of the fiftieth instrument of ratification. It currently comprises 126 parties. The 15th COP to the CBD is expected to take place during the second quarter of 2021.
The Nagoya Protocol created an international regime, to promote and assure the fair and equitable sharing of the benefits arising from the use of genetic resources and traditional knowledge. Amongst the points emphasized by the Protocol there are the legal certainty and the importance of creating an internal legislation that regulates the theme, which our country has had since 2001 through Provisional Measure No. 2,186-16, of August 23, 2001, subsequently revoked by Law No. 13,123, of May 20, 2015.
Our legislation is deemed as the most modern in the world because it was the result of the country's learning over the years in which Provisional Measure No. 2,186-16 was in force and due to the fact that it was inspired by the Nagoya Protocol itself, insofar as it reflects the concepts provided therein, such as the definition of access to genetic resources, as well as allowing the sharing of benefits in the non-monetary form.
Furthermore, the Nagoya Protocol establishes that each country must create mechanisms to ensure that users of genetic resources arising from other countries also comply with the legislation of the country of origin of the genetic resource, upon monitoring measures. This is an important point to ensure mutual compliance by signatory countries with their respective laws.
It establishes a general duty of monitoring and an obligation to adopt legislative, administrative or political measures to ensure that traditional knowledge is accessed, upon prior informed consent, or with the approval and participation of these indigenous and local communities, and that benefit sharing agreements have mutually approved clauses.
The Protocol acknowledges the relevance of genetic resources for food security and the specific nature of biodiversity in agriculture. Its approval by Brazil was conditioned to the formulation of four statements providing interpretative guidelines deemed relevant to avoid future controversies, especially in the scope of the Brazilian agriculture, which has had for many years crops that have not been originated in Brazil, such as soy, coffee, sugar cane, rice and wheat:
- There will be no retroactive effect;
- Economic exploitation for the purpose of agricultural activities, resulting from reproductive material of species introduced into the country by human action until the Protocol enters into force, will not be subject to benefit sharing;
- Species or varieties that form spontaneous populations or that have acquired distinctive characteristics of their own in Brazil and the traditional local or Creole variety or the locally adapted or Creole breed are considered to be of Brazilian origin; and
- The domestic law to be considered for the implementation of the Nagoya Protocol is Law No. 13,123/2015.
However, there are issues that will require clarification and regulation in the near future years, such as measures to be adopted by Brazil that will ensure compliance with the legislation of other countries by Brazilian users, which body or entity will be responsible for its assessment, amongst other aspects.
Brazil detains a huge differential that urges to be valued. The payment for environmental services, the pricing of carbon credits, the adequate access to assets of our rich biodiversity, and the consequent sharing of benefits with the providers and holders of associated traditional knowledge are examples of instruments capable of generating enormous value to the country and to the collectivity.