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Challenges and prospects of implementing the access and benefit sharing regime of the Convention on Biological Diversity in Africa: the case of Ethiopia

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Abstract

An analysis of the implementation of the access and benefit sharing (ABS) regime under the Convention on Biological Diversity and other related regimes in Africa and, in particular, Ethiopia, reveals the following challenges: (a) centralization of power in the hands of the federal government with little attention to regional and local governments; (b) lack of effective mechanism for the participation of communities in ABS; (c) generality and vagueness of the regulatory regime and lack of regulations and guidelines for the effective implementation of the regulatory regime, (c) poor drafting of ABS Agreements; and (d) lack of effective enforcement and follow-up mechanisms for ABS Agreements. Nonetheless, despite the shortcomings, the article suggests that Ethiopia’s experience provides an important lesson for other countries confronted with the challenge of designing fair genetic resource governance at the national level and, more importantly, shows the challenges poor countries face in developing and implementing ABS Laws and in negotiating, concluding and enforcing ABS Agreements.

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Notes

  1. CBD, Article 15.1.

  2. CBD, Article 15.1.

  3. CBD, Article 15.4.

  4. CBD, third paragraph of the preamble.

  5. CBD, Article 15.2.

  6. CBD, Article 15.7.

  7. For detail information on the international regime on ABS and on the progress made so far, see “International Regime on Access and Benefit Sharing.” Retrieved October 22, 2009, from http://www.biodiv.org/programmes/socio-eco/benefit/regime.aspx and CBD/ABS website: http://www.cbd.int/abs/. See also Mugabe et al. (1996); Carrizosa et al. (2004); Stoianoff 2004; Hodges and Daniel (2005). On the so-called Bonn Guidelines in particular, see Chambers (2003); Tully (2003).

  8. Decision 391 of July 2, 1996 of the Andean Pact Countries Establishing a common Regime for Access to Genetic Resources. Retrieved on 9 September 2009, from http://www.comunidadandina.org/INGLES/normativa/D391e.htm. See also Rosell (1997).

  9. The International Treaty on Plant Genetic Resources for Food and Agriculture, adopted in November 2001 by FAO Conference (Resolution 3/2001) and came into force on 29 June 2004. For a detailed discussion of the ITPGR, see Cooper (2002); Tsioumani (2004).

  10. ITPGR, Article 10.

  11. ITPGR, Article 12.

  12. ITPGR, Articles 11.2 and 11.5. See also Ayad (1994); Raustiala and Victor (2004); and the CGIAR Charter, 2007. Retrieved 2 October, 2009, from http://www.cgiar.org.

  13. ITPGR, Article 12. 4. A draft multilateral transfer agreement has been prepared for that purpose by the FAO Secretariat (FAO 2005).

  14. The International Convention for the Protection of New Varieties of Plants of December 2, 1961 as revised on November 10, 1972, on October 23 1978 and on March 19, 1991. UPOV is the French acronym for the French name of the UPOV, L’Union internationale pour la protection des obtentions végétales.

  15. Information retrieved 22 November 2009, from, UPOV website: http://www.upov.int/export/sites/upov/en/about/members/pdf/pub423.pdf.

  16. Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments-Results of the Uruguay Round, Vol. 31, 1994, International Legal Materials.

  17. The African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources, adopted in Algiers, Algeria, 2000. Reproduced in Ekpere (2000).

  18. The African Draft Model Law was developed by an OAU task force in 1997. The OAU Ministerial Session and the OAU Summit of Heads of State and Government adopted the Model Law in 1998 at Ouagadougou and recommended that it be the basis for national laws to be adopted by the African countries (the final version, mentioned in footnote 21, was adopted later in Algiers 2000).

  19. African Model Law, Paragraph 1 of the preamble. See also Schrijver (1997).

  20. African Model Law, Article 3.1. See also Glowka (1997, p. 257).

  21. African Model Law, Article 5.1.

  22. African Model Law, Article 5.2.

  23. African Model Law, Articles 19 and 20.

  24. PIC is defined as “the giving by a collector of complete and accurate information, and, based on that information, the prior acceptance of that collector by the government and the concerned local community or communities to collect biological resources, or indigenous knowledge, or technologies” (PART II, Article 1).

  25. African Model Law, Article 4.

  26. African Model Law, Article 2.2.

  27. African Model Law, Article 12.2.

  28. African Model Law, Articles 16(ii) and 22.1.

  29. African Model Law, Article 22.1 and 22.2.

  30. African Model Law, Article 9.1 and 9.2.

  31. African Model Law, Article 8.1(v).

  32. See for example, Environmental Management and Coordination Act of Kenya, 2006, Kenya Gazette Supplement No. 84; South African Regulations on Bio-prospecting, Access and Benefit Sharing, 2008, Government Gazette, Republic of South Africa, Regulation Gazette No. 8831, Pretoria; Environmental Management Act of Zimbabwe, 2002, Act 13/2002.

  33. See the Second Country Report of Ethiopia to the CBD. Retrieved 28 October, 2009, from http://www.biodiv.org/doc/world/et/et-nr-02-en.pdf.

  34. System-Wide Information Network for Genetic Resources (SINGER). Retrieved 11 September 2009, from http://singer.grinfo.net/overview/origcty.php?reqid=1157016268.0992.

  35. A study by the Rural Advancement Fund International (RAFI), now Action Group on Erosion, Technology and Concentration (ETC Group), shows that Ethiopian barley and sorghum varieties were used in the US generating US$150 million and US$12 million a year respectively. Another case identified by the study is Endod, known as the African soapberry plant and which has been used by the Ethiopian Communities as a laundry soap and Shampoo. The University of Toledo has applied for a patent on the use of Endod to control zebra mussels which is expected to generate millions of dollars. See RAFI (1994).

  36. For example a variety of Teff, a crop which originated from and widely grown in Ethiopia mainly to make, Injera, a flat bread staple food in Ethiopia was taken from Ethiopia and protected by a plant variety right in the US by the Teff Company (Plant breeder’s certificate No. 090033) without there being any benefit sharing either to the country of the communities that have been preserving and improving the Teff GRs.

  37. The Institute of Biodiversity Conservation and Research Establishment Proclamation No. 120/ 1998 and Proclamation No. 381/2004 to Re-establish the Institute of Biodiversity Conservation.

  38. The Access to Genetic Resources and Community Knowledge, and Community Rights Proclamation, Proclamation No. 482/2006. English text in Regassa (2006, p. 66). See also Lightbourne (2007); and Richerzhagen (2007, at pp. 200–217) (Ethiopia case study).

  39. ABS Law, Article 3.

  40. Ethiopia has ratified the ITPGR on 18 June 2003.

  41. ABS Law, Article 11 (1).

  42. Constitution of the Federal Democratic Republic of Ethiopia Proclamation No.1/1995.

  43. FDRE Constitution, Articles 51(5) and 52(d).

  44. There is no question that GRs in their natural state are natural resources but the issue becomes controversial when improvements have been made to them with individual as well as collective efforts of human beings. Strictly speaking it is difficult to consider these resources as ‘natural resources.’ This is a complex issue which may even have an impact on the ownership of genetic resources in Ethiopia but this article does not seek to discuss these issues in detail.

  45. ABS Law, Article 4.2(a).

  46. ABS Law, Article15.1.

  47. ABS Law, Article 12.4.

  48. ABS Law, Article 12.5.

  49. ABS Law, Articles 12.1 and 12.2.

  50. ‘Prior informed consent’ is defined as “the consent given by the state and the concerned local community based on an access application containing a complete and accurate access information to a person seeking to access a specified genetic resource or community knowledge”.

  51. The illiteracy level is around 58% but it is more prevalent in the rural areas than urban areas. See World Bank, Ethiopia, Quick Facts. Retrieved 11 August 2009, from http://www.worldbank.org.

  52. African Model Law, Article 5.

  53. ABS Law, Article 7.d.

  54. ABS Law, Article 2.9.

  55. ABS Law, Article 12.3.

  56. Including license fee, upfront payment, milestone payment, royalty, research funding, joint ownership of IPRs, employment opportunity, participation of Ethiopians in the research, priority to supply raw materials of GRs for producing products there from, access to products and technologies developed through use of the GRs, training at both institutional and local levels, provision of equipment, infrastructure and technology support (ABS Law, Article 19).

  57. ABS Law, Article 9.2.

  58. The pertinent part of Article 9.2 of the ABS Law states that “[l]ocal communities shall have the right to obtain 50% of the benefit shared by the state in the form of money from the benefits derived out of the utilization of their genetic resources”.

  59. African Model Law, Article 9.1.

  60. Proclamation Concerning Inventions, Minor Inventions and Industrial Designs, Proclamation123/1995; English text in Regassa (2006, p. 59).

  61. Proclamation on Inventions, Article 4.

  62. Proclamation on Inventions, Article 17.14.

  63. A Proclamation to Provide for Plant Breeders’ Right, Proclamation No. 481/2005.

  64. PBR Law, Article 14(3).

  65. The PBR Law, Article 22.

  66. Teff (Eragrostis teff) is a small cereal grain, closely resembling millet that is originated from and widely grown and used in Ethiopia to make injera, fermented, flat bread that is the most popular staple in the local diet. Teff is a major contributor to nutrition in the Ethiopian diet.

  67. Agreement on Access to, and benefit sharing from, Teff Genetic Resources, concluded between the Institute of Biodiversity Conservation and Research (Provider), the Ethiopian Agricultural Research Organization and Health and Performance Food International BV, signed on 5 April 2005; English text in Regassa (2006, p. 42).

  68. Teff ABS Agreement, Sections 4.1 and 4.2.

  69. Teff ABS Agreement, Section 3.3.

  70. Teff ABS Agreement, Section 8.

  71. Teff ABS Agreement, Sections 8.6 and 8.7.

  72. English text of the agreement on file with the author.

  73. Teff ABS Agreement, Section 8.4.

  74. Teff ABS Agreement, Section 5.

  75. The Teff ABS Agreement has provided for monitoring and follow-up mechanisms (Section 16) but these mechanisms are largely based on the reports to be submitted by the Company. The provider is entitled to review the bookkeeping as well as the relevant administrative details through an independent accountant but how far this would be implemented on a regular basis is not clear.

  76. For example, under Section 8.7 of the Teff ABS Agreement, it is stated that “As appropriate, the Company will contract out research to Ethiopian research institutions.” It has also been stated in Section 8.9 that the Company has agreed to “establish profitable Teff business in Ethiopia….The Company will therefore create joint ventures with Ethiopian Counterparts”. These are just examples of clauses which do not create enforceable obligations as such. It is obviously difficult to enforce such provisions in case of dispute.

  77. Section 14 provides that “[t]he Convention on Biological Diversity (CBD) and the relevant decisions, guidelines and laws that emanate from it, including the International Treaty on Plant Genetic Resources for Food and Agriculture, in particular but not restricted to, its Article 9 on Farmers’ Rights, the Bonn Guidelines, decisions of the various Conferences of the Parties as well as those provisions of the Union for the Protection of New Plant Varieties (UPOV) that are consistent with the CBD and the relevant decisions, guidelines, and laws that emanate from it shall apply to matters not addressed in this agreement. The CBD and the decisions, guidelines or laws that emanate from it shall prevail over the UPOV in cases on which the two do not agree.”

Abbreviations

ABS:

Access and benefit sharing

CBD:

Convention on Biological Diversity

GR:

Genetic resource

IPR:

Intellectual property right

ITPGR:

International treaty on plant genetic resources

PIC:

Prior informed consent

TRIPS:

Trade-related aspects of intellectual property rights

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  1. Faculty of Law, Addis Ababa University, P.O. Box 150465, Addis Ababa, Ethiopia

    Fikremarkos Merso Birhanu

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Birhanu, F.M. Challenges and prospects of implementing the access and benefit sharing regime of the Convention on Biological Diversity in Africa: the case of Ethiopia. Int Environ Agreements 10, 249–266 (2010). https://doi.org/10.1007/s10784-010-9122-x

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