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The Arusha Protocol on plant varieties protection: balancing breeders' and farmers' rights for food security in Africa
Abstract
The adoption of the Arusha Protocol for the Protection of New Varieties of Plants (Arusha Protocol) in 2015 created a harmonized regional legal mechanism for the protection of plant breeders’ rights (PBRs) in the African Regional Intellectual Property Organization (ARIPO) member states. Regrettably, the Arusha Protocol, which is to enter into force after the requisite ratifications, reaffirms the often criticized International Convention for the Protection of New Varieties of Plants of 1991 (UPOV 1991) in its extensive limitation of the traditional farmers’ rights to freely save, replant and exchange seeds of protected plant varieties, while liberally conceptualizing PBRs. The stated farmers’ rights are essential for the food security of the developing ARIPO member states, as their agriculture is predominantly characterized by impoverished small-scale farmers who rely on informal seed exchanges. On that basis, this article is premised on the view that the legal regime for plant varieties protection established under the Arusha Protocol is inappropriate for ARIPO members as it fails to balance breeders’ and farmers’ rights in a manner that promotes food security. It proceeds to evaluate the appropriate approach that can suitably balance breeders’ and farmers’ rights for the purposes of promoting food security in Africa.
Since 1980, seed business law (patent law vis-à-vis agrobiotechnology, PVP law and seed laws) has been mainstreamed in the global South. Observers maintain that seed business law can lead to dispossession of farmers. I analyse legislation, statistics and case studies (Senegal, Burkina Faso), and argue that in African LDCs, dispossession primarily takes place through capturing seed markets via institutions for direct control over seed distribution. Domestic elites and (global) seed businesses preferably control germplasm via marketing boards, seed subsidies and other former colonial rural institutions. Seed business law, therefore, remains largely disused.
Africa is one of the world’s most biodiverse regions, and many African countries have a comparative advantage in the abundance and variety of biological resources. Furthermore, a majority of the population in Africa depends directly upon biodiversity and ecosystem services for their food and livelihoods,6 whereas natural capital accounts for between 30 per cent and 50 per cent of the total wealth of most African countries.
The creation of the African Continental Free Trade Area (AfCFTA) through the entry into force of the Agreement Establishing the AfCFTA (AfCFTA Agreement), on 30 May 2019, presents important opportunities for boosting intra-African trade and promoting development that is environmentally, socially and economically sustainable.
The AfCFTA is central to achieving the continental integration envisioned in the Organization for African Unity’s Treaty Establishing the African Economic Community (Abuja Treaty) and the African Union’s Agenda 2063: The Africa We Want (Agenda 2063). It is also expected to drive the economic transformation needed to foster the sustained and inclusive growth required to help African countries to implement the 2030 Agenda for Sustainable Development (Agenda 2030) and achieve the Sustainable Development Goals.
The AfCFTA is pivotal to Africa’s development strategy and ambitions. Concerted efforts must be made to ensure that the instruments still under negotiation under the AfCFTA framework deliver a comprehensive set of agreements that boosts intra-African trade, using the opportunity to include features and policies that serve the needs of all African countries.
Supplying growing global consumer demand for natural, healthy, environmentally friendly, just and ethical products and services offers a new avenue to strengthening the legal and sustainable production, trade and consumption of biodiversity-based goods and services.
A targeted approach under the AfCFTA could thus foster intra- African trade in biological resources and derived value added products and services, while conserving globally significant biodiversity, furthering mitigation of and adaptation to climate change, and improving livelihoods.
This study reviews the potential implications of, and
opportunities presented by the AfCFTA for legal and sustainable trade in biodiversity/BioTrade and access and benefit-sharing (ABS).
Section 1 explores the concept of BioTrade, addresses the substance of the updated BioTrade Principles and Criteria published in 2020 by UNCTAD, and illustrates how BioTrade has been implemented in Africa.
Section 2 presents a historical overview of African trade integration, beginning with the creation of the Organization for African Unity (OAU) in 1963 and concluding with the entry into force of the AfCFTA Agreement in 2019.
Section 3 provides a general overview of the broader links between trade and environment, trade in goods, including non-tariff barriers (NTBs), trade in services, intellectual property rights (IPRs), competition policy, and cooperation.
The study concludes by identifying potential points for engagement, as implementation is still in the very early stages, and negotiations on protocols and additional annexes continue.
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