Equitably sharing benefits from the utilization of natural genetic resources: the Brazilian interpretation of the Convention on Biological Diversity

The Convention on Biological Diversity introduced a number of rules covering benefit sharing with responsibility for the interpretation and application of these rules transferred to the national level. Therefore, Article 15 of the Convention necessitates a further interpretation and application at the national level, the Provisional Measure being a first official attempt. This article attemps to inform the debate on how these measures should be implemented using the case study of Brazil where the national debate on benefit-sharing “has made it clear that the application of the rules from the Convention necessitates a more detailed explanation and clarification of the Convention’s rule in the law.”The Brazilian case, the authors argue, shows that an equitable implementation structure can only be adequate if the public law component is well elaborated in clear provisions. In the context of interpretation and legal implementation of the Convention two lessons are drawn from the Brazilian case.Firstly, a private law solution appeared to be unacceptable for the legal scholars and many other stakeholders so that it had to be changed to a primarily public law approach. Retributive equity does not emerge automatically if contracting parties have equal power. Therefore, the concept of equity should be elaborated in a distributive and procedural sense under a public law approach.Secondly, distributive and procedural equity require the incorporation of some basic elements in public law. The following public law elements from Brazil can be considered minimum requirements to be incorporated in other legal rules on this issue:the concept of genetic patrimony as a new legal category to be protected by public (constitutional) law;an overview of possible benefits from the utilization of natural resources that should be shared;a legally binding obligation to share the benefits in good faith between contracting parties;protection of weaker parties by a provision that exchanged values must have equal weight;not only the recognition of the general rights of indigenous people and local communities but also more specific provisions concerning property and associated traditional knowledge as well as recognition of the right to claim;provisions that make clear what institution has the authority to enter into contracts;the establishment of an independent institution that should check and approve contracts.The authors suggest that these principles might in the future be summarised in guidelines or even in a protocol on benefit-sharing as part of the Convention.[adapted from authors]