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

Abstract

The utilization of natural genetic resources could yield great benefits. The Convention on Biological Diversity introduced a number of rules concerning the sharing of these benefits. However, the interpretation and application (legal implementation) of these rules is a matter of discussion among specialists around the world. In theory, the alternatives for the implementation of the equity principle vary. On the one hand, the role of private law can be emphasized by leaving freedom to contracting parties; on the other, a public law approach (enacting a national legal rule) can be chosen. By doing this, different expressions of equitableness (distributive, retributive or procedural) are accentuated. In this article, we will illustrate how biodiversity-rich Brazil has changed its initial approach. The Bioamazonia- Novartis contract, a retributive solution in a private law context, aroused many criticisms and was therefore changed by a distributive and procedural solution in a public law context. The core elements of the Brazilian solution could serve as a lesson for other countries that have to implement the Convention on Biological Diversity. Equitableness seems to be protected more in a public law context where distributive and procedural equity exists than in a private law context with its emphasis on retributive equity