Against the grain? A historical institutional analysis of access governance of plant genetic resources for food and agriculture in Ethiopia

• Date: 01 March 2020
• Published date: 01 March 2020
• Author: Teshome H. Mulesa,Ola T. Westengen
• DOI: http://doi.org/10.1111/jwip.12142

© 2020 The Authors. The Journal of World Intellectual Property published by John Wiley & Sons Ltd

J World Intellect Prop. 2020;23:82–120.82

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wileyonlinelibrary.com/journal/jwip

DOI: 10.1111/jwip.12142

ORIGINAL ARTICLE

Against the grain? A historical institutional

analysis of access governance of plant genetic

resources for food and agriculture in Ethiopia

Teshome H. Mulesa

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Ola T. Westengen

Department of International Environment

and Development Studies, Noragric.

Norwegian University of Life Sciences, Ås,

Norway

Correspondence

Teshome H. Mulesa, Department of

International Environment and Development

Studies, Noragric. Norwegian University of

Life Sciences, Postboks 5003, 1432 Ås,

Norway.

Email: teshome.mulesa@nmbu.no

Funding information

Research Council of Norway (RCN),

Grant/Award Number: NFR 277452/H30

Abstract

Farmers' and breeders' access to a genetic diversity is

essential for food system sustainability. The implementation

of international agreements regulating access to plant

genetic resources for food and agriculture (PGRFA) varies

substantially between countries. Here, we examine why

some countries implement a restrictive access governance

regime, taking Ethiopia as a case. Drawing on commons

theory and historical institutional analysis, we analyze

historical, political, and economic factors that have shaped

Ethiopia's access regime. Based on interviews with key

actors and stakeholders and document analysis, we identify

three overarching ideational and material factors that can

explain Ethiopia's current policy: (a) the influence of

narratives about Ethiopia as a biodiversity treasure trove

on the Ethiopian cultural identity; (b) the economic

importance of agriculture based on PGRFA with origin in

the country; and (c) the political influence of the genetic

resource movement that promotes farmers' rights as a

counter measure to stringent intellectual property rights

(IPR), and on‐farm PGRFA management as complimentary to

ex situ conservation and formal seed system development.

The Ethiopian case illustrates that countries' governance of

access to PGRFA must be understood in connection with,

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This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

and not in isolation from, IPR regimes and the historical,

political, and cultural role of PGRFA in the country in

question.

KEYWORDS

Access and Benefit Sharing (ABS), Commons governance, Intellec-

tual Property Rights (IPR), International Treaty on Plant Genetic

Resources for Food and Agriculture (ITPGRFA)

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INTRODUCTION

Sustainable food production depends on cultivated and wild plant genetic resources for food and agriculture

(PGRFA) for crop improvement. Farmers and breeders need access to plant genetic resources (PGRs) from both

within and outside their borders; indeed all countries rely on crop diversity that originated on territories under

other jurisdictions (Khoury et al., 2016; Palacios, 1997). Despite the empirical evidence for the interdependence

and the benefits of well‐adapted crop varieties, access to genetic resources is restricted in several ways, and in

ways that differ between different user groups. The limitation can be practical, economic, political, or legal—or a

combination of these. Three types of laws and regulations explicitly restrict access to PGRs. These are (a)

intellectual property rights (IPRs) on cultivars; (b) access and benefit sharing (ABS) regulations related to the

Nagoya Protocol of the Convention on Biological Diversity (CBD), and to the Multilateral System for ABS under

the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)—hereafter referred to as

the MLS; and (c) plant health regulations. IPRs only apply to new varieties while the two latter apply to all PGRFA

exchanged across national borders.

Concerns over the negative effect of IPRs on farmers' interests and needs in relation to seeds is a long‐standing

research theme and a bone of contention in public debates (Aoki, 2008; Borowiak, 2004; Correa, 2015). IPRs such

as patents, plant breeders' rights acts, and even contract law for the protection of new plant varieties are becoming

increasingly stringent and restrictive on access, causing concern to advocates of farmers' rights and plant breeders

alike (Bandyopadhyay, 2018; Correa, 2015; Dutfield, 2017, 2018; Luby, Kloppenburg, Michaels, & Goldman, 2015;

Wan & Perry, 2019). Less debated in the public are the potential and actual negative effects of different ABS

regulations on PGRFA, however their effects on basic biodiversity and applied life sciences research are of

considerable concern in the research community (Bjørnstad, Tekle, & Göransson, 2013; Neumann et al., 2018;

Prathapan, Pethiyagoda, Bawa, Raven, & Rajan, 2018; Rourke, 2018). The most wide‐ranging ABS regulations

are those of the Nagoya protocol, which apply to all biodiversity and associated traditional knowledge covered

by the CBD.

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The CBD reconfirmed the resolution 1803 (XVII) on the “Permanent Sovereignty over Natural

Resources”adopted by United Nations General Assembly at its 17th session in 1962 and established the

principle that nation states have “sovereign rights”over the biodiversity within their jurisdiction (Nijar, 2011;

Safrin, 2004).

The principle of nation states' sovereign rights over PGRs within their jurisdiction “reshaped and transformed

the global genetic commons”into something states could claim ownership over (Roa‐Rodríguez & Dooren, 2008).

Arguably, the CBD objective about “fair and equitable benefit sharing”came about due to increased use of IPRs to

protect the ownership of the products based on biodiversity (Byerlee & Dubin, 2010; Fowler, 2002). The debates at

the time of negotiation of the CBD focused on the asymmetrical power relation between genetic resource

“providers”and “users,”typically referring to countries in the Global South as providers and countries in the Global

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As of June 2019, the Nagoya Protocol had 117 contracting parties out of 196 contracting parties to the CBD: https://www.cbd.int/abs/nagoya‐protocol/

signatories/default.shtml

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North as users. This notion inspired many countries in the Global South to demand more equitable ABS rules

globally and to implement stricter policies nationally (Correa, 1995; Fowler & Hodgkin, 2004; Halewood, López

Noriega, & Louafi, 2013b; Roa‐Rodríguez & Dooren, 2008).

Thus, restrictive access policies can be seen as a reaction from countries in the Global South toward an

increasing enclosure of various genepools by IPRs, with little or no economic benefit flowing back to the countries

in whose jurisdiction the genetic resources originated (Andersen, 2017; Timmermann & Robaey, 2018; Tsioumani,

2018). Through access policies and sui generis IPR laws, these countries intend to recognize the importance of

farmers' varieties, and to provide appropriate mechanisms for ABS (Robinson, 2008). The other intention is to

prevent the misappropriation of farmers' varieties, and safeguard farmers' rights to freely save, use, exchange, and

sell all seeds (Lewis‐Lettington, 2008a, 2008b). As such, sovereign rights over PGRFA are being used as a freedom

to determine the condition under which access occurs (Correa, 1995, 2015). This freedom soon became other

actors' restriction as international germplasm access was limited following the CBD ratification (Correa, 2005;

Falcon & Fowler, 2002; Sullivan, 2004).

The ITPGRFA was negotiated as an attempt to balance fair and equitable benefit sharing with a rational system

for facilitated access to genetic resources. In addition to agreements on sovereign rights, farmers' rights and benefit

sharing, the ITPGRFA's MLS aims to increase access to PGRFA for crop improvement programs (Byerlee & Dubin,

2010). Research shows that the availability and exchange of germplasm has indeed increased following the

adoption of the ITPGRFA (e.g., Dulloo et al., 2013) when compared with research results from before its adoption

(e.g., Dudnik, Thormann, & Hodgkin, 2001).

According to some legal experts, the ITPGRFA and its MLS are “high‐water marks for how countries can work

together under the United Nations to tackle complicated transnational conservation and access issues”(Halewood,

López Noriega, & Louafi, 2013a). However, the same analysts are the first to acknowledge that the MLS is working

suboptimally, and that there are some major “design issues”limiting full engagement of all actors (Dedeurwaerdere,

2012; Halewood et al., 2013b). Many countries, even member countries, have shown reluctance to implement the

multilateral system, and access to genetic resources from institutions in these countries is restricted or nonexisting.

The continuation of restrictive access regimes among some contracting parties is a source of tension and debate in

the biannual Governing Body meetings of the ITPGRFA (Finkel, 2009). Ethiopia is often mentioned as an example of

a country that does not provide access according to the MLS. In this article, we take Ethiopia as a case and ask: Why

do countries, in spite of the empirical evidence for interdependence and mutual benefits of open access to genetic

resources, implement a restrictive governance regime for access to genetic resources?

Ethiopia is internationally recognized as a hotspot for wild and cultivated plant genetic diversity and is a vocal

actor in international biodiversity governance fora. The country is a party to the CBD, the Nagoya Protocol, and the

ITPGRFA. Furthermore, Ethiopia is home to many national and local projects for PGRFA conservation and

sustainable use in accordance with the objectives of the ITPGRFA (e.g., Alemu, 2011a; Balemie & Singh, 2012; Dalle

& Walsh, 2015; Fukuda, 2011; Mulesa & Ortiz, 2015; UNDP, 1994). As mentioned above, Ethiopia's fame as a

center of important crop diversity is accompanied by a reputation for strict access regulation. This reputation is for

the most part informally shared in the PGRFA community, but it also sometimes percolates into statements and

anecdotes in the research literature, media reports, and the gray literature. Plant breeders have singled out

Ethiopia and a few other countries (i.e., China, India, Iran, and Turkey) for not complying with ITPGRFA norms

regarding access, or for restrictive access policies toward PGRFA users outside their territories (Finkel, 2009;

Gewin, 2019; Kate & Laird, 2002; Kloppenburg & Kleinman, 1987). For instance, a scientist from Kew Botanical

Gardens was cited in an article in Scientific American as saying:

The country where coffee originated curates a large collection of coffee plants that exist nowhere else in the

world. But the government keeps them under lock and key and will not allow foreign researchers access.

There's been a lot of bad blood between Ethiopia and the coffee industry (…) it's no wonder they're guarded

about their genetic resources (Rosner, 2014).

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