

ORIGINAL ARTICLE

Genetic Resources (2024), 5 (10), 65–80
DOI: 10.46265/genresj.GKTE3850

https://www.genresj.org
ISSN: 2708-3764

Brazil’s implementation of access and benefit-sharing 
and the Nagoya Protocol: Analyzing some trends and 
positions in the ongoing debate

Eduardo Relly *

Friedrich-Schiller-Universität Jena, SFB/TRR 294 ‘Strukturwandel des Eigentums’, JenTower, 23. OG, Leutragraben 1, 
07743, Jena, Germany

Abstract: Access and benefit-sharing (ABS) arising from the utilization of biodiversity’s genetic resources and traditional
knowledge is the third objective of the Convention on Biological Diversity (CBD). Since its inception, some of the parties to
the CBD have enacted ABS-national legislation and in 2014, the Nagoya Protocol came into force, providing a global standard
among ABS systems. Given this, Brazil has been working to implement ABS since 2001, especially after the enactment of
the national Biodiversity Law (Law 13.123/2015), which is the domestic law for the Nagoya Protocol implementation.
This paper examines how the implementation of ABS and the Nagoya Protocol is viewed, discussed and debated by
some stakeholders. Based on qualitative semi-structured interviews, press releases, public declarations, legislation and grey
literature, the paper reveals that although ABS has faced strong criticism and delivered modest results, most stakeholders
consider it strategic and important, especially in the face of the bioeconomy–biodiversity nexus. In general, positions on the
implementation of ABS policies and the Nagoya Protocol in Brazil can be devised in the following categories: 1) acceptance
and optimistic appreciation of ABS, 2) acceptance of ABS mechanisms but impending need for adjustments, 3) acceptance
of ABS mechanisms as a ‘bad with it, worse without it’ scenario, and 4) rejection of ABS. Our research also shows that when
it comes to ABS and providers of genetic resources, debates centred on the topic of biopiracy have declined, while debates
characterized by compromise, institutionalization and the steering of ABS via the implementation process are on the rise.

Keywords: ABS, Nagoya Protocol, biodiversity, implementation, Brazil, CBD, bioeconomy

Citation: Relly, E. (2024). Brazil’s implementation of access and benefit-sharing and the Nagoya Protocol: Analyzing some
trends and positions in the ongoing debate. Genetic Resources 5 (10), 65–80. doi: 10.46265/genresj.GKTE3850.

© Copyright 2024 the Authors.

This is an open access article distributed under the terms of the Creative Commons Attribution License (CC BY 4.0), which
permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are

credited.

Introduction: Access and benefit-sharing
and Brazil

Brazil is a global environmental superpower, and how
this megadiverse nation implements its policy on access
and benefit-sharing (ABS), along with the Nagoya
Protocol (NP), has far-reaching implications for the
entire world. As both a major user and provider of
genetic resources, Brazil’s ABS landscape is shaped
by a dynamic industrial and agricultural sector, a
vibrant academic community, and strong leadership
from Indigenous and local communities. Few countries

∗Corresponding author: Eduardo Relly
(rellyeduardo@gmail.com)

offer such a comprehensive microcosm of the challenges
and opportunities surrounding the future of the Nagoya
Protocol and domestic ABS systems.

Access and benefit-sharing has been a pivotal concept
that marks the transition from an age in which biological
and genetic resources (GR) were regarded as a common
heritage of mankind toward an international system
based on the sovereignty of national states. Emboldened
by the Convention on Biological Diversity (CBD) (UNEP,
1992), opened for signature during the Earth Summit
in Rio de Janeiro in 1992 (entered into force in 1993),
parties have started to formulate ABS systems aiming to
tackle different goals in the face of global inequalities.
Especially in the so-called Global South, this included
safeguarding genetic biodiversity by adopting CBD’s
“mandate of justice (distributional, procedural, and

Received: 09.04.2024 Accepted: 17.09.2024 Published online: 10.10.2024

https://www.genresj.org
https://www.doi.org/10.46265/genresj.GKTE3850
https://www.genresj.org
https://www.doi.org/10.46265/genresj.GKTE3850
mailto:rellyeduardo@gmail.com


66 Relly Genetic Resources (2024), 5 (10), 65–80

recognitional)” (Suiseeya, 2014) in the face of unequal
technological capacities between poor and rich countries
as well as the establishment of ABS-procedures for
the compensation of Indigenous peoples and traditional
communities’ knowledge. Last but not least, ABS was to
curb potential and actual biopiracy (Rabitz, 2015). In
fact, since the 1980s, researchers and activists have used
the term ‘biopiracy’ to criticize the misappropriation
and commodification of Indigenous peoples and local
communities’ (IPLC) knowledge of seeds or plants
by biotechnology companies, mainly from the Global
North (RAFI, HSCA, 1998; Shiva, 2007; Robinson,
2010). The principle of national sovereignty over GR
was enshrined in Article 3 and Article 15 of the
CBD and was also extended to GR (excluding human
genetics) (UNEP, 1992).

Access and benefit-sharing is based on Article 15 of
the CBD. The latter was reinforced by the legally binding
NP which was agreed in 2010 (CBD, 2011) and came
into force in 2014. The NP provides the framework for
national ABS regulations to be respected by third parties,
especially in the event that GR are utilized outside the
provider country. Broadly speaking, this is the most
encompassing global ABS mechanism that applies to GR
of biodiversity.

However, the ABS concept was criticized from the
outset. Environmental activists, scientists and Indige-
nous peoples feared that private forms of ownership
would be imposed on IPLC and that expropriation
dynamics would be accelerated (Shiva, 2004). Contrary
to the high expectations of megadiverse countries and
of the NP architects, on the one hand, and consistent
with the concerns and hopes of activists and IPLC, on
the other, the NP has not led to significant compensation
payments (Laird et al, 2020). The reasons for this are
manifold, and both users and providers of GR have rea-
sons to complain: a lack of global sanction mechanisms
and the possibility of circumvention (Rabitz, 2015; Hale-
wood et al, 2023); legal uncertainties on concepts such
as access to and use of GR at the national level (Vogel
et al, 2018) which have resulted in limitations to inter-
national trade and research (Braun, 2024); unresolved
questions regarding transboundary traditional knowl-
edge (TK) associated with GR as well as procedures to
facilitate traceability (Dutfield, 2015); structural con-
flicts and lack of trust between IPLC and state insti-
tutions (Hayden, 2003); the ambiguity of the concept
of GR, both at the global and national levels (Aubertin
and Filoche, 2011; Müller, 2018). On the private sector
side, non-harmonized implementation of the NP tend to
expose companies to high risks (Michiels et al, 2022)
and, last but not least, biotechnological innovations such
as the new genomics tools, artificial intelligence and
digital sequence information on genetic resources (DSI)
pose further challenges to the successful implementation
of the NP as well as of the national ABS policies (FDCL,
GeN, 2022).

In Brazil, the discussion on ABS and NP covers
multifaceted aspects. In general, questions of justice

and political constellations (Dallagnol et al, 2016;
Feres et al, 2019), descriptive aspects of legisla-
tion (Silva and Oliveira, 2018), sectorial analysis (ABIH-
PEC, 2017; Costa, 2017; Marinello, 2020), state trans-
formations (Eimer and Donadelli, 2022), and compar-
ative analyses of the legal situation (CNI, 2017) have
framed the debate. The private sector, consultancies, and
third-sector organizations have been especially vocal
in producing guidance for ABS implementation. Like-
wise, influential academics such as the brothers Car-
los and Ismael Nobre (Nobre and Nobre, 2019) and
Ricardo Abramovay (Abramovay, 2020) have urged for
the implementation of ABS in the Amazon, seeing it as
having the potential to represent a major breakthrough
in promoting the Brazilian bioeconomy.

The topic of implementation in particular has
very recently gained momentum as the expectation
of the ratification of the NP and its promulgation
mounted and these then finally took place in 2021
and 2023, respectively. On the other hand, the
implementation of national ABS policies and the
NP were hampered by COVID-19 pandemics and
unfavourable political conditions during Jair Bolsonaro’s
presidential (2019–2023) term (Eimer and Donadelli,
2022).

Worldwide, the literature on the implementation of
ABS systems has become more and more abundant as
countries, blocs (e.g. the EU), scholars, scientists and
activists have increasingly published their experiences
and views (Coolsaet, 2015; Vanheusden and Van Den
Berghe, 2017; Greiber, 2019; Kamau, 2019; Friso et al,
2020; Kamau, 2022). In Brazil, scientific interest in
the implementation of ABS policies mostly emerged
in light of the ratification of the NP (Silva, 2019;
Ferreira, 2020; Mozini, 2020; Silva et al, 2021; Eimer
and Donadelli, 2022). Previous studies do exist, but they
are either highly technical (Rabitz, 2015; Davis et al,
2016) or present purely national perspectives (Segundo
et al, 2018). Furthermore, the research conducted on
the Brazilian case has also been dominated by legal
analyses (Ferreira and Moraes, 2013; Davis et al, 2016;
Ferreira, 2020; Mozini, 2020).

In this paper, I explore Brazil’s effort to implement
ABS. Brazil is particularly well-suited for this qualitative
case study because it is one of the most passionate
advocates of the NP and a megadiverse nation,
being both a provider and user of GR. Moreover,
the country has been regulating its genetic heritage
since 2001 (Brasil, 2001) and did not wait for the
NP (ratification of the NP by Brazil did not occur
until 2021 (Brasil, 2021b)) and promulgation only
late 2023 (Brasil, 2023c) to develop its own ABS
system. In addition to this, Brazilian national legislation
in the spirit of the NP was enacted in 2015-2016
and the Ministry of the Environment has increasingly
incorporated an institutional framework for ABS. As
one of the first examples of ABS implementation,
Brazil has attracted considerable international attention.
Finally, Brazil has become an important player in the


Genetic Resources (2024), 5 (10), 65–80 ABS and the Nagoya Protocol in Brazil 67

emerging bioeconomy (Backhouse et al, 2021) with
direct influence on how ABS and NP are currently
understood (Queiroz-Stein et al, 2024).

The aim of this paper is to reconstruct the implemen-
tation process from 2015 to 2023 from the perspective
of selected involved stakeholders. By analyzing their key
positions in the debate, we will cluster and explore posi-
tions in depth that highlight current trends with poten-
tial to influence the implementation of Brazil’s ABS sys-
tem and the NP. Given that Brazil has a long experience
with ABS, its implementation hurdles, opportunities and
shortcomings may reflect the challenges or even the lim-
itations for the global implementation of ABS policies.

The paper is structured as follows: after a short intro-
duction to our research methods and data, I summarize
the ABS mechanism, implementation process and gov-
ernance in Brazil. Research on the national implemen-
tation of ABS systems has largely overlooked the inter-
action between these systems, public policy and pub-
lic debate. Most studies have focused on implementa-
tion as a purely legal or procedural process, neglect-
ing the complex sociological dynamics involved (Mat-
land, 1995). Siebenhüner and Suplie (2005) made an
early attempt to bridge this gap by linking ABS imple-
mentation, prior to the NP, with the concept of “insti-
tutional learning”. They challenged the assumption of
rationally bounded actors and extended the understand-
ing of institutions beyond their formal structures. In the
context of ABS implementation, learning occurs within
a network of actors historically shaped by “strong user
interests”, “process facilitators”, and “provider inter-
ests” (Siebenhüner and Suplie, 2005). Thus, implemen-
tation is a fluid process where trust, influence, expertise,
and social capital play crucial roles in the realm of pol-
icy implementation (Montgomery, 2000). According to
this literature, implementation is largely processual and
happens beyond purely managerial decisions; positions
and trends on ABS and the NP thereby play a major role
in the implementation and shall be taken into account
especially due to collegiate governance of these issues in
Brazil.

Empirically, the topic of ABS and NP is managed
in Brazil by a relatively small community which spans
activists, Indigenous leaders, bureaucrats, (natural and
social) scientists, attorneys, consultants and high-skilled
employees of companies that engage with the use
of biodiversity (more details in the next section). In
the Brazilian case, many of them have seats at the
Conselho de Patrimônio Genético Nacional (CGEN).
CGEN is the national committee in charge of the
management of ABS and the NP; within CGEN,
experts represent their own organizations, sectors and
communities. Public servants who are also experts
on ABS and the NP represent their ministries and
secretaries at CGEN. As said before, the community
is small and lack of expertise within some groups
may blur divisions and organized interests, as members
of determined sectorial chambers may be instated to
represent others for the sake of the quorum required

for the CGEN sessions. This diffused knowledge and
multi-sited aspects of representation bring additional
hurdles for the investigation, corroborating the fluidity
of the implementation process. Given this, interviews
became the privileged tool for research. Due to
the specific expertise that the topic requires and
given the reduced size of the ABS community in
Brazil, we consider the expert interviews method the
most adequate approach; according to Meuser and
Nagel (2016), expert interviews reflect a tendency for
institutionalization and a position in society that permits
“free spaces for the construction of reality”. Originally
conceived upon the realities of an industrialized society
(Germany), and drawing on the topic of ABS, whose
interactions with TK and IPLC are self-evident, one
should ask whether such categorization is convenient
in this case; we nevertheless deemed the expertise
and experience of IPLC of uttermost importance and
drawing on Kaiser (2012), IPLC were considered full-
right experts.

To address these questions and following an intensive
desk phase (analysis of grey literature such as public-
ministerial and sectorial reports, Indigenous public dec-
larations, internet homepages, legislation and current
state of research we selected 12 expert interviews1 –
carried out between August 2021 and March 2023 –
with key representatives of different groups of the ABS
landscape in Brazil (Table 1). The interviews ranged
from online sessions via Zoom (Zoom Video Communi-
cations, Inc) to in-person meetings in different Brazilian
cities. Some interviews were also carried out in Mon-
treal, Canada, during the UN Biodiversity Conference
(COP15, December 2022). Following Meuser and Nagel
(2016), some experts hold a dominant role (in the form
of social capital) in their fields, and the selection of inter-
viewees for this paper was mostly based on this crite-
rion. These dominant roles are established within spe-
cific contexts in the ABS arena, and can be observed
among both GR providers and stakeholders in the indus-
trial and academic sectors (users of GR). Consultants
are part of this expert landscape, too. Overall, a list
of experts on ABS was created by using the ‘snowball
method’ (based on recommendations or approaching
potential interviewees via existing ones and other con-
tacts). Recognition of ABS expertise by the interviewees
led us to a shortlist in which experts were categorized
according to Siebenhüner and Suplie (2005) network of
actors on ABS (“strong user interests,” “process facili-
tators,” and “provider interests”). Then we selected the
interviewees for this paper according to the following
criteria: they represent different interest groups at CGEN
and actively participate in the implementation process
both of the NP and the national ABS system; in addition,

1 The interviews were held in Brazilian Portuguese and transcribed
by a native speaker, Ms. Adriana Mastrangelo Ebecken. Email:
dri.mastrangelo@gmail.com. The author is also a Brazilian Portuguese
native speaker and translated excerpts of the interviews into English.
The text and the excerpts were subsequently proofread by an English
native speaker.


68 Relly Genetic Resources (2024), 5 (10), 65–80

they may also either observe or facilitate implementa-
tion.

We developed the interview guideline based on a
set of questions with which we sought to emphasize
the interviewees’ positionality, expertise, awareness
and sensitivity regarding ABS. The questions included
the following: “Concerning ABS, where do you stand
professionally?”; “What are the biggest challenges and
opportunities in the implementation of ABS and the
Nagoya Protocol in Brazil and worldwide?”; and “What
are the most important conflicts between users and
providers of GR?”.

The interviews, ranging in length from 30 to 90
minutes, were transcribed and then open-coded using
the MAXQDA program (Rädiker, 2023). In the second
phase of the analysis, thematic clusters were formed
by comparing the positions on ABS articulated both
in the interviews and the desk phase. The positions
and clusters discussed here are not intended to
exhaustively represent all perspectives; some also reflect
historical arguments that have long been part of the
controversies surrounding GR and ABS. Importantly,
these clustered positions serve as tools to organize
and deepen the analysis of certain qualitative trends
within the broader debate. They can be understood as
specific frameworks (concerning ABS and the NP) within
the ongoing discussions on the biodiversity–bioeconomy
nexus, as highlighted by Lima (2021), Lima and Palme
(2022) and Queiroz-Stein et al (2024), which consider
the contentious landscape surrounding the use of
biodiversity in Brazil, as well as its distributive, political
and ecological aspects. In this context, we emphasize the
textual nature of the interviews and will explore their
qualitative implications, with a particular focus on the
logic of ABS.

Context: ABS implementation and
governance in Brazil

The regulatory framework in which the ABS mechanism
is implemented in Brazil is set down by the Lei da
Biodiversidade (Law 13.123/2015, LB) (Brasil, 2015)
and the subsequent national decree 8.772/2016 (Brasil,
2016) which revoked the former provisional measure
Medida Provisória 2.186-16/2001 (MP). The latter was
the very first national-level attempt to regulate the
issue of GR in Brazil (Bensusan, 2003). Prior to the
issue of the MP in 2001, the Amazonian states of
Acre and Amapá had created their own state laws
on ABS (Santilli, 2004) (Santilli, 2005). Irrespective
of regional efforts, the MP, the LB and the national
decree 8.7772/2016 nationalized ABS in the early 21st
century. Interestingly enough, the Federal Constitution
of Brazil (Brasil, 1988) established in article 225 the
protection of genetic heritage without regulating access
to it. In addition, Brazil’s constitution uses the concept
of genetic heritage instead of genetic resources – as
proposed by the CBD in 1992. The former is defined in
article 225, caput, as a “common good for the use of
the people” (Brasil, 1988) and Law 13.123/2015 says

in article 2 (I) “information of genetic origin” (Brasil,
2015). Regulation by public law was only established
after the ratification of the CBD (Brasil, 1998), paving
the way for the developments described above (Segundo
et al, 2018).

The LB and the national decree inherited parts of
the organizational structures of the former MP by rein-
stating and strengthening the role of the CGEN, which
falls under the Ministry of the Environment and Cli-
mate Change. This body manages the National Sys-
tem of Genetic Resource Management and Associated
Traditional Knowledge (SisGen, https://sisgen.gov.br/)
digital platform in which the whole process of access,
prior informed consent (PIC), mutually agreed terms
(MAT), research and development (R&D), notification
of products, shipments of samples, auxiliary intellectual
property procedures, and other elements of compliance
shall be registered. The SisGen platform is primarily an
instrument for declaring access (substituting the previ-
ous mandatory authorizations issued by the Genetic Her-
itage Management Council, CGEN, under the MP) and
management of Brazilian GR dynamics. Access to SisGen
is only permitted to Brazilian researchers and institu-
tions; foreign entities or researchers are obliged to sign a
partnership agreement with Brazilian institutions (Silva,
2019).

The CGEN is a collegiate board whose administration
consists of four bodies: 1) a central plenary formed
by twenty counsellors (11 are members of the federal
administration and the remaining nine seats are
allocated to civil society representatives) (Brasil, 2016),
2) thematic councils are created by the plenary to assist
in decision-making, 3) sectoral councils are established
as a platform for the positions of organized groups
such as scientists (Câmara Setorial da Academia), IPLC
(Câmara Setorial das das Guardiãs e Guardiões da
Biodiversidade) and companies (Câmara Setorial das
Empresas), and 4) an executive board (led by the
Secretary of Biodiversity, Forests and Animal Rights)
which is in charge of managing the activities of CGEN,
ensuring SisGen operates smoothly, setting the agenda
for further discussions, etc.

The financial body of the LB is the Fundo Nacional
de Repartição de Benef́ıcios (Brasil, 2016) (FNRB)
and like CGEN also falls under the Ministry of the
Environment and Climate Change. Funds originate from
the annual budget of the ministry, donations, fines
charged for illegal access and use of GR, benefit-sharing,
etc. The FNRB funds are used exclusively for actions and
activities that benefit holders of traditional knowledge
and environmental conservation. Analogous to CGEN,
the FNRB is also a collegiate instance with a similar
structure to CGEN. The internal regulations of the
FNRB were only developed in 2022 with the Manual
de Operação do Fundo Nacional para a Repartição de
Benef́ıcios (Brasil, 2022) outlining the procedures for
benefit-sharing being completed in October 2023. At
the time of writing (early 2024), this fund remains


Genetic Resources (2024), 5 (10), 65–80 ABS and the Nagoya Protocol in Brazil 69

Table 1. List of 12 expert interviews carried out from August 2021 to March 2023 with key representatives of different groups in
the ABS landscape in Brazil

Interviewees Occupation Date Place
I1 Employee at a cosmetics company 3 Mar 2023 Belém do Pará, Brazil
I2 Biologist and former member of CGEN 1 Dec 2021 Braśılia (online), Brazil
I3 Environmental analyst working in the branch of cosmetics 14 Mar 2022 São Paulo (online), Brazil
I4 Representative of a national association of industries 10 Mar 2022 São Paulo (online), Brazil
I5 Leading natural scientist 22 Feb 2022 Rio de Janeiro, Brazil
I6 Leading layer and consultant 14 Mar 2022 Curitiba, Brazil
I7 Academic 14 Dec 2021 Juiz de Fora (online), Brazil
I8 CGEN member and representative of traditional

community
18 Dec 2022 Montreal, Canada

I9 CGEN member and representative of an indigenous group 13 Dec 2022 Montreal, Canada
I10 Activist and member of an organization that defends

indigenous rights
17 Mar 2022 Braśılia, Brazil

I11 Indigenous lawyer and activist 28 Jan 2023 Porto Alegre (online), Brazil
I12 Legal scholar and activist 27 Jan 2023 Curitiba (online), Brazil

non-operational, that is, implementation has not yet
occurred.

After the ratification of the NP by means of legislative
decree n. 136/2020 and the ratification letter of 4
March 2021 (Brasil, 2021b), Brazil declared the LB
as its domestic law for the implementation of the NP.
On 27 December 2023, the NP was finally officially
promulgated (Brasil, 2023c). However, Silva et al (2021)
emphasize the urgent need for the NP and LB to be
harmonized, given that Brazil is now obliged to comply
with ABS legislation from other NP parties and the LB
itself contradicts many of the dispositions of the NP.
Questions arising from the retroactivity and temporal
validity of the LB, cross-border GR, and the use of
foreign GR opened a new chapter in the implementation
of ABS policies in the country, posing further challenges
for policymakers and society (de Souza Dias, 2022).

In terms of institutional strategies, there have been
multiple sets of regulatory frameworks and national
and regional strategies targeting ABS. The national
strategy for intellectual property (Brasil, 2021a), the
national strategy and action plan for biodiversity (Brasil,
2017a), the national strategy on science, technology,
and innovation (2016–2022) Brasil (2017b), and
regional initiatives such as the Plano Estadual de
Bioeconomia championed by the state of Pará (Governo
do Estado do Pará, 2022) and the Diretrizes para a
Construção Conceitual da Bioeconomia no Amazonas
are prime examples in this regard (Governo do Estado
do Amazonas, 2021).

Non-governmental organizations and state-sponsored
institutions are also intertwined with the launch of
ABS especially in the Amazon. Institutions like the
Polo Digital de Manaus (https://polodigitaldemanaus.c
om/), the Hub de Bioeconomia Amazônica (https://fa
s-amazonia.org/hub-de-bioeconomia-amazonica/), and
the technological innovation clusters Arranjo Amoci
(https://arranjoamoci.org/) and Arranjo Namor (ht
tps://arranjonamor.org/) in Manaus and Belém do

Pará, respectively, both funded through the dispositions
of the Law of Innovation (Brasil, 2004) and linked
to the Federal Ministry of Science, Technology, and
Innovation, are supposed to facilitate and speed up
the implementation of ABS and fostering the expansion
of industrial intellectual property rights (IPRs) in the
Amazon.

The implementation of ABS in Brazil has gradually
become part of the overarching discussion on the
bioeconomy and the mainstreaming of biodiversity
in national development strategies (Whitehorn et al,
2019). The bioeconomy and ABS generally form part
of the “biotechnological vision” (Bugge et al, 2016;
Lopes and Chiavari, 2022) in the international debate on
the bioeconomy. Brazil’s IPLC have however challenged
such a definition by proposing the concept of “socio-
bioeconomy” (Queiroz-Stein et al, 2024) as outlined in
the Letter from the Amazon (Amazon Socio-Biodiversity
Meeting, 2021), written on 20 October 2021, as part
of the position taken by the Forest Peoples Alliance (h
ttps://cnsbrasil.org/alianca-dos-povos-da-floresta/) and
other organizations at COP26 in Glasgow. There
are ongoing disputes on the “bioeconomy–biodiversity
nexus” (Lima and Palme, 2022) in Brazil, however,
the specific role of GR, the national ABS system, and
the NP are clearly subordinate to the more generalist
approaches on the bioeconomy, forest conservation
issues, etc.

Particularly since Lula da Silva began his third
presidential term, ABS has also gained momentum
in mainstream politics. With Marina Silva as Minister
of the Environment, the new National Secretariat
for the Bioeconomy issued by Federal Decree N.
11.349/2023 (Brasil, 2023a) with a specific Department
for Genetic Heritage (Brasil (2023a), Chapter II,
Art. 2., II, d), 3) was established. Referring to the
prospects of the bioeconomy in Brazil, Silva stressed
that “reindustrialization will come from the environment
and ancestral knowledge” (Relly, 2023b). In a similar

https://fas-amazonia.org/hub-de-bioeconomia-amazonica/
https://fas-amazonia.org/hub-de-bioeconomia-amazonica/
https://polodigitaldemanaus.com
https://polodigitaldemanaus.com/
https://arranjonamor.org/
https://arranjonamor.org/


70 Relly Genetic Resources (2024), 5 (10), 65–80

vein, the government has also fostered Brazil’s research
capabilities on biodiversity prospecting (bioprospecting)
in the Amazon region with the reorganization of
the Centro de Biotecnologia da Amazônia (Melo,
2023), a research institution in charge of promoting
biotechnology and thereby accelerating ABS throughout
the Amazon basin. Very recently, the federal government
announced the plan Nova Indústria Brasil (Brasil,
2024) with the aim of increasing the technological and
sustainable use of biodiversity by 1% per year until
2033.

The country’s IPLC seem also to have shifted
their position on ABS in recent years, following the
possibilities of the bioeconomy and adding their own
perspectives. Their fears of biopiracy dominated stances
on GR and TK in the early 2000s (Relly, 2023a).
Open letters and declarations such as the Carta de São
Lúıs do Maranhão paved the way for a national ABS
regulation (the MP in 2001). This helped to politicize
the issue, and IPLC took a firm stand regarding their
demands on the protection of TK coupled with the
promotion of Indigenous territorial rights. Today, CGEN
has established its legitimacy among key stakeholders
and has genuinely become the national forum for the
issue (Castro et al, 2022). Critical voices do exist,
especially targeting the weak dispositions for prior
informed consent (PIC) of the LB. Sharp criticism or
rejection of the ongoing implementation process is more
commonly found on the side of IPLC, activists and
their supporters. In addition, overall criticism of the
ABS architecture has commonly been incorporated into
the overarching topic of the bioeconomy, as indicated
by the positions taken by the critical group Carta de
Belém (Carta de Belém, 2022).

Nevertheless, risks to the outcomes of implementa-
tion also affect more powerful stakeholders. Due to
Brazil’s position as an agricultural powerhouse, whose
dependence on foreign (agro)genetic resources is huge
(soybean, cattle genetics, fish, etc.) and not entirely cov-
ered by Annex 1 of the FAO’s International Treaty on
Plant Genetic Resources for Food and Agriculture (FAO,
2009), representatives of the agrobusiness sector tend to
be more skeptical about the implementation or at least
are more cautious about engaging with the whole pro-
cess. The delay in the ratification of the NP might also be
seen as a symptom of such reluctance (Eimer and Don-
adelli, 2022).

As Brazil has had national ABS legislation since
2001 and recently ratified and promulged the NP,
the global discussions on DSI and the corresponding
dematerialization of GR have placed Brazil’s ABS system
and experiences in the spotlight. The literature and
our findings suggest that Brazil’s legal concept of GR
as genetic heritage (contrary to the “material” notion
agreed in the CBD) has hampered discussions on this
very issue since the topic has long been covered by Lei
da Biodiversidade and previous regulation (Silva and
Oliveira, 2018) Aside from the definition of the Lei
da Biodiversidade, actors continue to associate genetic

heritage with material entities, especially plants. This
understanding is dominated among IPLC, in particular,
since all five biocultural protocols drafted and published
in Brazil are based on plants (Andrade, 2022).

The results of the implementation are nevertheless
disappointing. As stated above, the Brazilian state has
not yet paid any benefits to IPLC via the FNRB. Since
the state has not yet begun to implement the FNRB, we
cannot attest to the full-fledged implementation of ABS
in Brazil. Despite those shortcomings, we will see in the
following pages that there is widespread acceptance of
ABS policies, and the NP and many actors feel that it is
time to seize the moment and drive the implementation
processes.

Results and discussion: facts and positions
on the implementation of ABS in Brazil

Exact facts and figures on the implementation of the
NP and ABS in Brazil are hard to obtain inasmuch as
most ABS contracts are confidential and only headers
including related terms like “changes and regulariza-
tion”, “terms of commitment”, and “non-monetary ben-
efits” are published by CGEN online (Brasil, 2023b). A
side event organized by CGEN at the COP15 in Mon-
treal (December 2022) did, however, provide an oppor-
tunity to verify some figures. The data presented here
are for the period 2001–2022 and do not differentiate
the period after the LB.

SisGen registration figures

Up to December 2022, a total of 68,764 access
registrations were carried out by SisGen. Of these,
56,909 (83%) referred to research on Brazilian genetic
heritage. A total of 3,203 registrations only involved
acccessing TK and 8,652 entries stated that both
GR and TK were accessed. Thus, TK accounted for
approximately 17% of the net registrations. Interestingly
enough, CGEN individualized the registration of access
to DSI – since DSI is covered by the Brazilian ABS
legislation. Of the 68,764 net registrations at SisGen,
1,411 entries declared in silico access, of which, 336
registrations stated commercial purposes, with 1,075
registrations declaring “access activities for commercial
and non-commercial use of DSI on GR”. Shipping figures
were also published: GR were mostly shipped to the
United States (35.90%), France (14.91%), the United
Kingdom (12.56%), and Germany (7.07%). Biodiversity
samples or DSI were shipped from all Brazilian
ecological regions, but forested biomes predominated:
the Atlantic Forest (39.73%) and the Amazon (39.27%)
led the statistics.

Benefit-sharing

As of 2001, 3,116 users had declared products under the
modality of non-monetary benefits, while 1,789 users
selected monetary benefits. The overwhelming majority,
8,859 administrative declarations of products (the
trigger for benefit-sharing under LB) were exempted


Genetic Resources (2024), 5 (10), 65–80 ABS and the Nagoya Protocol in Brazil 71

due to the legal specifications of the LB – presumably
related to agricultural research/product development
which are exempted from benefit-sharing. Whether
monetary benefits were paid or not is hard to assess
due to the confidentiality of ABS agreements. However,
when it comes to non-monetary benefit-sharing, CGEN
has published (Brasil, 2023b) recent agreements. As of
early 2024, in total, CGEN registered 28 non-monetary
agreements involving seven companies including the
cosmetics giants Natura & Co (Avon), L’OréalTM,
and O BoticárioTM. Of the 28 non-monetary benefits
agreements, 20 addressed traditional communities
such as Quilombolas, riverine communities, and other
traditional communities, but no Indigenous groups
appear on the list. These ABS agreements are worth
around R$1,000,000 each (approx. US$200,000).

At the FNRB, CGEN amassed around US$1,250,000
to safeguard biodiversity via the payment of monetary
benefits (E. Relly, personal observation). As already
mentioned, the Brazilian state has not yet paid any
benefits to IPLC. Notwithstanding this fact, benefits in
Brazil are only billed via the GR associated with TK
modality, by which IPLC and users of GR establish
contractual obligations according to which the state
receives a 0.5% share of the net commercialization
revenues. This means that ABS only occurs between
private companies and providers of GR. Companies
such as Natura & Co have led the way in this regard
and have therefore been seen as an efficient ABS
implementor. One outstanding example in this matter
is the Fundo Médio Juruá (https://institutojurua.org.b
r/en) established in 2017 between Natura & Co and
associations of communities living along the Juruá river
in the western Amazon. An employee at Natura & Co
(interviewee 1, I1) told us in early March 2023 that the
modality of ‘GR associated with TK’ is the only possibility
for effective benefit-sharing in Brazil inasmuch as “we
[the company] have to meet the condition that benefits
will be directly transferred to the community”.

Moreover, most benefits that are currently being
paid to IPLC (monetary benefit-sharing) were agreed
on under the previous MP and not under the current
and valid LB. Even under the old MP, benefits for
IPLC were very scarce. Souza et al (2017) estimated
that between 2004 and 2013, just one ABS contract
was concluded with Indigenous peoples and 61 with
traditional communities. Overall, 86.4% of the total
ABS contracts in this period were a result of the
state’s sovereignty over GR. Nor do the figures provided
by CGEN in Montreal during COP15 allow us to
individualize ABS under the new and valid regulation.
However, as the figures collected by Souza et al (2017)
indicate, most benefits were paid to the state.

Stakeholder positions

Given the multifaceted debate on ABS, our research has
clustered some positions on the ongoing implementation
of and future scenarios for ABS. In so doing, I do not
claim to have covered all positions of all stakeholders.

Consequently, the positions presented here acquire a
normative character inasmuch as they are intended
to provide a general insight into and characterize
the process of implementation. They may reflect both
local and global constellations, since views on nature,
work, property, justice and distribution vary enormously.
In general, the political economy of the CBD era is
still quite relevant. Siebenhüner and Suplie (2005)
seek to order the institutional learning regarding
implementation and Görg (2002) idea of a “field of
conflicts” on GR still applies today. Most positions reflect
user, facilitator and provider interests, but topics such as
biodiversity loss, IPRs, national development, far-right
anti-environmentalism, and the prospect of bioeconomic
transitions have produced a more blurred landscape
and “convivial conversations” (Lima and Palme, 2022)
between former antagonists seem to be occurring
continuously.

Thus, positions can be clustered in the following
categories: 1) acceptance and optimistic appreciation of
ABS, 2) acceptance of ABS mechanisms but impending
need for adjustments, 3) acceptance of ABS mechanisms
as a ‘bad with it, worse without it’ scenario, and
4) rejection of ABS (Figure 1). Positions here were
extracted from the transcriptions of 12 interviews
and clustered qualitatively according to scholarship on
contemporary biodiversity debates in Brazil provided
by Lima (2021), Lima and Palme (2022) and Queiroz-
Stein et al (2023). According to these, terminologies like
“territorial rights and social objectives” and “economic
growth” frame biodiversity discussions in Brazil and our
research will move within this established scholarship.

Acceptance and optimistic appreciation of
ABS

This cluster is mainly represented by natural scientists
working both at universities and national research
institutions (e.g. germplasm banks and crop genebanks)
and sectorial organizations (e.g. industry, bioeconomy).
This cluster can be seen as the group where users’
interests dominate.

Scientists working with genetic germplasm, for
instance, may see themselves as bearers of a national
mission to bring TK and GR from the “public domain
as collecting sites” (Hayden, 2003) and as legitimizing
ABS scenarios and practices vis-à-vis the idea of
enfranchisement of IPLC. A former CGEN member and
biologist working in this field (I2) stated that most
IPLC “neither know, nor even grasp how to value
what they have”. Others in industry tend to fully
accept ABS mechanisms, perceiving them as a tool
for harmoniously reconciling nature conservation and
economic development for IPLC. Interviewee I3, who
works for a major cosmetics corporation in Brazil,
emphasized that:

“ABS conserves because he [an IPLC individual]
collects the fruit, the leaf, he’s not using it for timber.
Because he could be selling that wood, you know? But
instead of selling the wood, what does he sell? He sells

https://institutojurua.org.br/en
https://institutojurua.org.br/en/


72 Relly Genetic Resources (2024), 5 (10), 65–80

Figure 1. Clustered groups, relationships and positions among stakeholders of the Brazilian access and benefit-sharing landscape.
Terminologies were developed with the help of Lima and Palme (2022) and Queiroz-Stein et al (2023).

the fruit, the leaf, the flower, which has a higher added
value for the cosmetics industry and, in some way, he
conserves it. So, for example, how much fruit do you
take from the environment so that you don’t have a
negative impact in the sense that you manage to keep
a certain amount of seeds for other trees to grow. That’s
management: “Oh, you need to hire a professional to do
this management”; with what money? So, do through
ABS!”

Positions emerging from this field tend also to be
influenced by the prospects of bioinnovation and the
biotechnological bioeconomy. In this realm, GR and TK
are seen as a pool of resources for national development,
a comparative advantage, and last but not least, a
strategic asset (Nogueira, 2022). Cultural diversity
seems somehow separated from biological diversity in
this cluster. Another interviewee (I4), a representative
of a relevant Brazilian association that fosters corporate
use of national biodiversity, stressed his optimism:

“(. . . ) first of all, I’m quite optimistic, okay? (. . . )
Yeah, since Brazil has the greatest biodiversity in the
world, right? (. . . ) No country has the number of biomes
that we have, right, with the reach that we have. (. . . )
we do have the greatest biodiversity and (. . . ) this
amount of biodiversity, makes this diversity strategic for
the country, right? So, the development of legislation
that allows biodiversity to be exploited in a sustainable
way, and that adds value to the country, is fundamental
for economic development. It’s a wealth that the country
possesses, right?”

Positions within this group tend to minimize the
conflicting issues concerning PIC and MAT or even
impacts on IPLC livelihoods and cultural systems. There
is a firm belief that ABS is there for good and is thus,
through its market-based logic, likely to achieve the
goals of national and international ABS mechanisms
with regard to the utilization of biodiversity and
ecological conservation. Unlike natural scientists who
typically work under the umbrella of state funding,
actors from industry and representatives of powerful
associations in the field of agriculture and industry
deplore the poor performance of the state and blame
it for the inefficiency and difficulties of the whole
implementation process. This cluster does not argue
that existing ABS systems are flawless either, but the
depiction of a win-win scenario prevails. Last but not
least, this position resembles Lima (2021) “conservative
ecological modernization” concept which he applied to
the analysis of projects surrounding the bioeconomy in
Brazil.

Acceptance of ABS mechanisms but
impending need for adjustments

According to our interview record, this group is the most
heterogeneous and the largest. This cluster encompasses
the largest number of experts on the issue. Natural
scientists, CGEN members, lawyers, compliance firms,
even members of industries, agroecologists and IPLC
fall into this group. People in this field can be seen
mostly as facilitators who attempt to build bridges


Genetic Resources (2024), 5 (10), 65–80 ABS and the Nagoya Protocol in Brazil 73

among diverging interests and possess relationships
both with users and providers of genetic resources but
strong user interests are also present in this group of
positions. Indigenous peoples and local communities
in this cluster deviate from a more critical stance
toward ABS mechanisms and they are keen to identify
advantages within the process of implementation.

This cluster tends to reflect on the distinctions
between the LB and the NP and plead for further
development of the national law, either by means
of a new specific piece of legislation to address the
integration of the NP into the national ABS system
or by adapting implementation through guidelines
created by CGEN. Another core issue for this cluster
revolves around the view that ABS systems are a better
outcome than the previous principle of common heritage
of mankind. In general, ABS systems are deemed a
game changer that represents a significant obstacle to
biopiracy. That being said, scientists within this group
complained about the hurdles created by the LB and the
NP, and articulated the more general view that science
is a common benefit to all (Bockmann et al, 2018). A
common criticism of the LB is centred on the difficulties
foreign and national scientists experience in conducting
research on Brazilian biodiversity. Some within this
cluster also postulated that conflicts between users
and providers of GR have gradually diminished and
commended the maturity and stability of the Brazilian
debate on the issue. This has led to institutionalization
and the effective management of the conflicts, leaving
behind the more politicized discussions on biopiracy, for
instance.

This last factor has significant positive consequences
for the processes of implementation. Looking back at
Brazil’s experience with ABS so far, a leading scientist
we interviewed (I5), who is an active participant in
international networks, remarked:

“If we consider 2001 until now (. . . ) there’s been a
huge maturing process, and then the new legislation
[LB] came along, which has a lot of problems, but is
still much better than the other one (. . . ) So, I think
all this has (. . . ) helped reduce conflicts. Conflicts, most
of the time, are not between the academy and industry,
they are between the providers and industry, and even
with us [scientists]. So, on this point, I’m even proud to
say that in the MP we were often on the opposite side
and now we’re together [with IPLC] (. . . ) Perhaps at the
beginning there was some estrangement, I agree, but
today we are very much together, defending the same
things.”

Knowledge production and the role of facilitators
are also pivotal within this position. At the COP15 in
Montreal, for example, Natura & Co, Croda International
Plc and GSS Sustentabilidade e Bioinovação (a leading
compliance firm in Brazil) launched the 2022 version
of the Project Brogota, an outstanding piece of
work, written in English, comparing the Brazilian
ABS system with other national regulations around
the world (GSS Sustentabilidade e Bioinovação Ltda,

Croda International Plc, Natura & Co, 2022). Despite
the alleged progressiveness of the ABS mechanisms
(in terms of addressing justice issues), there is still
a constant need for adjustments (whether that be
harmonization between the NP and the LB, or working
out how to meet the expectations of providers), making
them very much a work in progress. Interviewee
I6 who works in the compliance field also referred
to these problems, affirming the many shortcomings
of the implementation of ABS worldwide, the CBD’s
mandate of justice (Suiseeya, 2014) in addressing
global disparities, and last but not least, the necessity
of impending changes with the aim of creating a
multilateral system for benefit-sharing:

“Now, thinking about Nagoya (. . . ), not just about
Brazil, about Brazilian legislation, the big issues [to be
solved], whether it’s Brazilian legislation or Nagoya,
we have some structural problems, some conceptual
problems. Because ideologically, the legislation is
wonderful, the intention of the Nagoya Protocol is
wonderful, the fact that the CBD, back in 1992, brought
in sovereignty for countries, is also fantastic, because
at that time countries needed to have sovereignty
over their genetic resources, not least because of the
historical legacy of colonization. So, it was absolutely
necessary. The big problem we face today is that soon
there will be, in a way, a war over the availability of
genetic resources. Because some countries are stricter in
the use of their genetic resources, others will see this
as an opportunity to give away their genetic resources
and facilitate access. And more than that, and this
is one of the points that I’m fighting the most in
relation to the Nagoya Protocol, is the overlapping
of access. (. . . ) so this, for me, is one of the big
bottlenecks of the Nagoya Protocol, the fact that we need
a multilateral mechanism, a benefit-sharing fund that
facilitates or makes it possible for this to happen in a
more homogeneous way and for the countries to agree
to it, right?

Indigenous peoples and local communities as well
as agroecologists are in a minority in this cluster.
However, their positions tend to point out the double-
edged nature of ABS mechanisms which range from
the social valorization of TK to the dangers of cultural
exploitation (Dutfield, 2015). Changes must be carried
out at the state level and should address providers’
interests. Natural scientists deplore the bureaucratic
hurdles and their positions express the need for a
more clearly defined role of basic science or for the
participation of foreign scientists who wish to use
Brazilian biodiversity.

Topics like PIC and MAT are more relevant and should
form part of the discussion, inasmuch as they provide
more legitimacy to the stabilization and management of
conflicts between providers and users. In this position,
we also observe “convivial conversations” with providers
of GR, which do not preclude “market opportunities
that may be reaped but to be open to the full spectrum


74 Relly Genetic Resources (2024), 5 (10), 65–80

of possibilities, acknowledging and accepting multiple
forms of social existence” (Lima and Palme, 2022).

Acceptance of ABS mechanisms as
representing a “bad with it, worse without

it” scenario

In the words of a distinguished scholar of the natural sci-
ences (I7) based in the state of Minas Gerais: “In today’s
context, it is bad with it [ABS], but worse without it.”
This “bad with it, worse without it” position has been
adopted by a number of individuals predominantly from
the fields of agroecology activism, environmental pro-
tection, science (especially anthropology, ethnobiology
and the social sciences), law (including legal scholars),
and members of governmental bodies and agencies who
support or even promote the rights of IPLC and pub-
lic policies. This position clearly reflects the interests of
the providers of GR and builds up the other interface
for “convivial conversations” (Lima and Palme, 2022), a
common aspect within this position.

Members of this cluster may express strong criticism
of the current ABS mechanisms and in the Brazilian
case, there is a common trend of addressing sharper
critics of the national ABS system due to its weaker
stance on PIC (vis-à-vis the Nagoya Protocol) and IPLC’s
lack of political representation both in the creation of
the LB (2014–2016) and in ongoing implementation in
general (Guetta and Bensusan, 2018). The proximities
between specific sectors of academia and IPLC’ demands
in Brazil was already noted by Eimer and Donadelli
(2022).

Overall, the “bad with it, worse without it” position is
a structural stance adopted by IPLC and their support-
ers in relation to ABS. It is indeed an utterly ambiguous
position on the general concept of ABS, and such ambi-
guity has accompanied the implementation process. In
Brazil at least, IPLC, NGOs and numerous grassroots
organizations have nurtured a well-considered view-
point – in the sense of the role of IPRs among IPLC as
described by Ido and Valentini (2018) – on the possibili-
ties of ABS to address or instrumentalize IPLC demands.
Although “bad with it, worse without it” may imply a
lack of alternatives, limited room for manoeuvre, or even
rejection, this position seems to nevertheless entail a
predisposition to critical compromise and the creation
of institutional spaces. This position was clearly taken
by the signatories subscribers (many of them from IPLC
associations) of the Carta Aberta de Recomendações da
Sociedade Civil Brasileira na 15ªConferência das partes
da Convenção da Diversidade Biológica e seus Protoco-
los Terra de Direitos (2023), who stressed that: “despite
all the criticism that the Biodiversity Law deserves, it
also brings advances, such as the establishment of com-
munity biocultural protocols, the result of joint (. . . )
struggle by peasants, Indigenous peoples, traditional
and quilombola communities.”

Ambiguity marks the complex position of Indigenous
peoples in the face of the prospect of the commodifica-
tion of TK and the rapprochement of market relations. In

this sense, Bonifácio José Baniwa’s argument, an Indige-
nous scholar from the Baniwa people from northern
Brazil, still resonates and it is quoted as an authorized
and actual perspective on TK and its relationship to mar-
kets (Alencar et al, 2003):

“We work with crafts that have traditional values,
traditional knowledge, and traditional meanings (. . . )
when we try to valorize these through sales, the
market has its own requirements and rules. We will
have to accept these rules if we want to improve the
community’s income, but at the same time, we may end
up breaking the law of traditional knowledge. It seems
that one side is stronger than the other. We’re trying to
work on the market understanding our way and not our
knowledge having to fit the market. This is the main
challenge for traditional knowledge.”

In this cluster, the LB is seen as an unjust piece
of legislation, a law that enabled access to instead of
protection of TK. Nevertheless, implementation of the LB
by means of the national decree and the establishment of
the new CGEN provided IPLC with some opportunities.
Our research was conducted at a rather difficult time,
since Jair Bolsonaro’s presidential term and the COVID-
19 pandemic prevented or hindered direct participation,
leaving IPLC with fewer tools to influence decisions at
CGEN level, inasmuch as health and security (conflicts
on land) worries became a priority. Irrespective of this,
IPLC participation at CGEN is of utmost importance to
tackle the unfavourable rules of the LB. Interviewee
I8, CGEN member and representative of a traditional
community in central-eastern Brazil stated:

“The implementation makes it possible for us to have
an impact in some way. I think it’s an opportunity
in the sense that we can influence the agenda (. . . );
we couldn’t do this for the last four years because of
Bolsonaro’s term, but now, with the new government
[reference to the victory of Lula da Silva in the 2022
presidential election], we have this great opportunity to
make implementation really go to the grassroots.”

The fact that the LB allowed the development of
biocultural protocols as valid documents for trade,
access and benefit-sharing is seen as a reason why
the law has not been rejected outright. Interviewee
I9, an Indigenous woman from northern Brazil who is
also a CGEN member, stated that these protocols are
“our dream (. . . ) especially because they [the federal
government of Brazil] need to foster the biocultural
protocols and respect the opinion of the peoples.”

The “bad with it, worse without it” position
predominates in our interviews with IPLC. In this
cluster, inequality, power relations, but also IPLC’s
leading role in the implementation and “biocultural
jurisprudence” (Bavikatte and Robinson, 2011) are key.
Biopiracy is still a risk for some. However, we observed
a structural shift toward institutionalization with a view
to changing the ABS mechanism from the inside, given
that the complexity of the issue means it constantly takes
on new forms, is reframed, and poses new challenges,
such as DSI, transborder GR and overall harmonization


Genetic Resources (2024), 5 (10), 65–80 ABS and the Nagoya Protocol in Brazil 75

with the NP. There are, however, several issues that
remain unresolved by legislation. These include weak
PIC dispositions, the question of unidentified TK, and
the digital system enabling access through SisGen. Last
but not least, ABS is seemingly expected to be a tool for
territorial claims and IPLC rights. This link between ABS
and territorial rights is illustrated by interviewee I10,
an activist working at Conselho Indigenista Missionário
and an advocate of Indigenous territorial rights, who
told us that “from the moment you highlight people’s
coexistence with biodiversity [referring to TK] (. . . ) you
need to have a territory of your own.”

Rejection of ABS

In Brazil, the outright rejection of ABS systems only
plays a minor role in the debate. The people who
argue for the rejection of the concepts underlying
the implementation of ABS have long-standing critical
expertise on the topic as well as excellent moral
reputations. Some are seen as intellectual authorities on
TK and IPLC rights. This cluster comprises Indigenous
peoples and legal scholars. Their main argumentation
against ABS is rooted in the issue of individual IPRs
(against the background of Indigenous collective forms
of property) and the encroachment of capitalist logics on
IPLC’s collective social structures. In addition, questions
regarding PIC quickly come to the fore in this cluster.

Those positioning themselves against ABS systems
generally claim that CBD-based solutions are not
suited to resolving the issues concerning TK and IPLC
rights. Prior informed consent has been a structural
argument in this regard and discussions on how the
representation of Indigenous peoples works tend to
disregard ABS mechanisms. In the Brazilian debate,
this position can be traced back to 2003 when the
notorious Brazilian anthropologist Eduardo Viveiros de
Castro questioned whether it was “the community that
produces the consent or the consent that produces
the community?” (Alencar et al, 2003). Rejecting
any possibility of a stable PIC concerning access
to TK, Viveiros de Castro insisted on the structural
nature of unsuccessful consent, given that Indigenous
communities do not operate according to the political
models of liberal/Western collective representativeness.
Casting doubt on the legitimacy of IPRs emanating from
GR associated with TK, this view clearly prevails among
those who reject ABS mechanisms. This is illustrated by
interviewee I11, an Indigenous lawyer and activist from
southern Brazil, who asked: “Who is the juridical person
who represents my people? This person does not exist”,
making the case for the impossibility of a legitimate PIC
under Brazilian Biodiversity Law. The issues concerning
PIC in this cluster are centred on the limitations of
the liberal legal tradition and criticism of capitalism.
Interviewee I12, legal scholar, lawyer and long-standing
activist for Indigenous rights in Brazil, noted that “the
discussion on property (. . . ) is an essential discussion. If
you introduce private property within a system in which
private property does not exist, you will destroy this

system.” Drawing on his own remarks, I12 went on to
state his position on ABS mechanisms more clearly:

“(. . . ) in any case, between not having any legislation
and having legislation that regulates access, that is,
that opens another door to usurpation, I would say
the following: we have three forms of usurpation,
right? Free usurpation: everyone goes there and does
what they want, a mess; legal usurpation; and illegal
usurpation, which is against the law and may be
punished. Free usurpation ceases to exist when there
is regulation, leaving just the other two. So, if this
regulation opens up too much space for legal access, it’s
better not to have it. I think the regulations we have in
Brazil open up a lot of space.”

Conclusion

With Brazil being both a major provider and user of
GR, it is one of the few countries in the world that can
illustrate the true complexity of the situation to help
comprehend the challenges, opportunities and perhaps
even limits of the ABS mechanisms that were agreed
upon at the CBD and in subsequent agreements (in
our case, the NP). In this regard, Brazil can be seen
as a microcosm of the (future) global ABS landscape.
Notwithstanding this, ABS has not unleashed its
global potential and has frustrated some expectations,
especially with regard to benefits, legal uncertainties
and administrative failures (here reported in the case
of the Brazilian State). In this regard, Brazil has also
contributed to the alleged problems implementors and
COP negotiators frequently express (Silva et al, 2021).

Nevertheless, ABS in Brazil is robust. CGEN has
gained legitimacy among stakeholders and the majority
adhere to its premises, notwithstanding the justified
criticism of weak PIC, high transaction costs, unequal
power relations, and a lack of proper instruments
of IPRs that reflect Indigenous sensitivities regarding
the collective nature of their societies. We observe
that the discussion on ABS mechanisms has also
changed considerably and has incorporated other
transversal axes such as the bioeconomy and the
mainstreaming of biodiversity in national strategies
(within the bioeconomy–biodiversity nexus). Politics
have also shaped the spaces for debate and participation.
Having undergone massive political change in the last
ten years, the role of biodiversity in Brazil has been
in the spotlight in a very different way. Between
the tug-of-war among powerful agrarian interests and
the transition to a low-carbon economy, our research
revealed that the ABS and NP topics, which predate
the discussions on the bioeconomy, have also been
increasingly appropriated by the latter. The topic of
biopiracy, for instance, which characterized the debate
(especially among IPLC) during the early CBD years
and the first regulation provided by the provisory
measure n. 2186/2001 (2001-2015) (Brasil, 2001),
for instance, have been superseded by the negotiated
participation of IPLC in the national economy. In this
regard, we observe increased entanglement of ABS with


76 Relly Genetic Resources (2024), 5 (10), 65–80

the prospects of a particular version of the bioeconomy,
especially the biotechnological, bioecological and so-
called bioeconomy of sociobiodiversity. These prospects
provide opportunities but also pose risks to the
actors involved. Drawing on the literature on legal
anthropology, and by crossing this with the interviews,
we see a trend toward compromise via the multifaceted
terms of implementation, enabled by the collegiate
governance of CGEN. The fact that the position that
pleas for the outright rejection of ABS systems is the
least relevant in the debate suggests this trend. CGEN’s
authority and its position as a national forum indicate
that too.

Although implementation has been disappointing,
that has not prevented actors from attempting to influ-
ence the course of things. Creating future scenarios and
the possibility of shaping the course of implementation
through CGEN governance continue to offer actors an
arena for adapting national legal provisions produced by
the LB as well as guiding the contingencies of the NP at
the national level. In this particular regard and based on
IPLC’s positions on the issue of ABS, we see a major shift
toward the stabilization and institutionalization of the
issue. The heated debates of the past are still relevant,
but IPLC are now acting pragmatically and programmat-
ically, having even built alliances with some users and
facilitators. The structural nature of the CBD arena, cen-
tred on users’, facilitators’ and providers’ interests, still
holds true but the situation has become more blurred,
inasmuch as actors are compromising more. On the side
of IPLC, compromise on ABS tends to address another
structural claim of the post-CBD era: territorial rights as
the underlying basis of an effective ABS system.

The positions raised in our study represent only a
fragment of a broader and more complex implementa-
tion process. Due to the collegiate governance of ABS
in Brazil, these positions tend to influence implemen-
tation. Aligning to national development and reflecting
more clearly users’ interests and the upper hand of nat-
ural sciences in the process, we clustered the position
“acceptance and optimistic appreciation of ABS”. The
position “acceptance of ABS mechanisms but impend-
ing need for adjustments” seems to encompass a wider
range of stakeholders with diverse backgrounds and
perspectives, from those advocating prioritizing users’
interests to those arguing for better protection of tra-
ditional knowledge. A more critical perspective, which
leans toward providers’ interests while still seeking com-
promise with users and facilitators (such as the State
and consulting companies), is captured in the position
“acceptance of ABS mechanisms as a ‘bad with it, worse
without it’ scenario”. Finally, the “rejection of ABS” posi-
tion, although less influential in the debate, is rooted in
historical arguments about the inadequacy of TK to be
accessed through ABS. Despite ongoing debates, trends
toward implementation, institutionalization and gover-
nance of GR and TK in Brazil, ABS remain highly con-
tested.

Conflict of interest

The author declares that he has no competing interests
or relationships that might have influenced the work
reported in this paper.

Acknowledgements

This research was funded by the Collaborative Research
Project SFB 294 ‘Structural Changes of Property’
(Friedrich Schiller University Jena and University of
Erfurt, Germany) and conducted within its framework.

I would like to extend my gratitude to all interviewees
for their knowledge, insights and thoughtful contribu-
tions. Special thanks are also due to my colleagues from
the Junior Research Group ‘JRT03 Ownership of Genetic
Resources: On the Appropriation of Traditional Knowl-
edge in the Bio-Economy’ under the SFB 294 project
– PD Dr Anne Tittor, Prof. Dr Maria Backhouse, Leoni
Schlender, Tila Mendonça and Zelda Wenner – for their
support and collaboration.

Furthermore, I am grateful to the members of the iDSI
research network for the enriching discussions we have
had since COP15 in Montreal.

Lastly, I would like to thank the CGEN coordination
for providing detailed information on this topic through
our email exchange in April 2023. Any errors in data
interpretation remain my sole responsibility.

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	Introduction: Access and benefit-sharing and Brazil
	Context: ABS implementation and governance in Brazil
	Results and discussion: facts and positions on the implementation of ABS in Brazil
	SisGen registration figures
	Benefit-sharing
	Stakeholder positions

	Acceptance and optimistic appreciation of ABS
	Acceptance of ABS mechanisms but impending need for adjustments
	Acceptance of ABS mechanisms as representing a ``bad with it, worse without it'' scenario
	Rejection of ABS
	Conclusion
	Conflict of interest