Abstract
It is said that the Ethiopian regime regulating access to genetic resources, aTK and benefit-sharing is too stringent and seems to be overly concerned about the loss of GR. Its development was highly influenced by lessons learned from the agreement on access to and use of Teff and the related case of bio-piracy and, therefore, it is not a hidden fact that its intention is to establish ownership and maintain sovereign control over its genetic resources and aTK aimed at tackling misappropriation, act of bio-piracy and unfair exploitation. Thus, it emphasizes tight control on every act on its genetic resources and aTK, and on compliance of users. This can be observed e.g. in its definition of the term access, the requirement of an assurance letter from the competent authority of the user’s country guaranteeing that it shall uphold and enforce the access obligations and also the restriction made on the export of genetic resource out of the country. The instruments regulating ABS, the Proclamation No. 482/2006 and Regulation No. 169/2009, hence pursue the third objective of the Convention on Biological Diversity with this mindset. With the understanding that Ethiopia, being a party to the Nagoya Protocol, is obliged to comply with the new obligations, this chapter looks at how the law and practice are coping. However, it is to be appreciated that the regime has been undergoing revision and a draft law has been released. This chapter therefore, in addition, examines the proposed changes and tries to see how conformity with the Nagoya Protocol is balanced against the control approach. Besides, the draft deals with some of the very topical issues, e.g. digital sequence information. Concerning this issue the draft has included it within the scope of regulation and hence, the chapter also takes interest on how such issues are addressed. It is notable that in spite of its severity, this regime can nonetheless offer a number of lessons. For instance, the benefit distribution approach and the differentiation of access procedures for access with commercial and non-commercial purposes, which are exemplary for the implementation of articles 9 and 8a of the Nagoya Protocol respectively, are useful to legal transplants. Hence, while exposing the regime’s weaknesses as well as proposing changes, this chapter likewise tries to identify its strengths that can be used to fertilize other regimes.
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Notes
- 1.
WCMC (1994).
- 2.
Vavilov (1951).
- 3.
Dalle (2015), p. 125.
- 4.
IBC (2012b).
- 5.
Hedberg et al. (2009).
- 6.
IBC (2012a).
- 7.
Yimegnuhal and Degefa (2004), pp. xi, 23.
- 8.
EBI (2016).
- 9.
EBI (2015).
- 10.
Yifru (2003), p. 107 ff.
- 11.
Ibid.
- 12.
Ibid.
- 13.
Ibid.
- 14.
Ibid.
- 15.
Ibid.
- 16.
Ibid.
- 17.
Ibid.
- 18.
Dalle (2015), p. 126.
- 19.
“‘Access’ means the collection, acquisition, transfer or use of genetic resources or community knowledge”.
- 20.
ABS law (2006), Art.12 (4).
- 21.
ABS law (2006), Art.12 (6) and Art.14(4).
- 22.
Constitution of Ethiopia, Art. 40.
- 23.
Revised draft law, Art. 5.
- 24.
This is found in article 10 (2) of the revised draft law.
- 25.
See texts at http://www.ebi.gov.et/regulation/ (accessed 11 September 2020).
- 26.
EBI official, pers comms, 30 September 2020.
- 27.
Kebele administration is the smallest administrative unit of Ethiopia.
- 28.
Woreda administration is the third-level administrative division of Ethiopia which is further subdivided into a number of kebeles.
- 29.
Revised draft law, Art. 11 (1) and 12 (1).
- 30.
The revised draft law does not say this directly but implies it in article 2 (11) on definition of PIC (PIC of EBI and local community must be based on an access application) and 41 (b) on offences and penalties (provision of false information in the access application is an offence punishable by law).
- 31.
Revised draft law, Art. 11 (1), (2).
- 32.
Ibid.
- 33.
Ibid, Art. 7 (2).
- 34.
Grounds for denial of an access permit are listed under article 13 of the revised draft law.
- 35.
Revised draft law, Art. 11 (3).
- 36.
Revised draft law, Art. 12 (3 and 6).
- 37.
Ibid, Art. 11 (6).
- 38.
Ibid, Art. 12 (3).
- 39.
Ibid, Art. 33 (1).
- 40.
Ethiopian model contractual clauses in MAT, Art. 3(1–3).
- 41.
This provision does not consider situations when Ethiopia might be only a providing country and not the country of origin.
- 42.
Ethiopian model contractual clauses in MAT, Art. 4 (1 and 3).
- 43.
Ibid, Art. 4 (1).
- 44.
Ibid, Art. 17 (2).
- 45.
Ibid, Art. 3 (10).
- 46.
Ibid, Art. 13 and 15.
- 47.
The agreement is accessible at www.ebi.gov.et.
- 48.
Revised draft law, Art. 17 (1, 2).
- 49.
According to article 41 (1a-e) the acts that will attract these penalties are accessing Ethiopian GR or community knowledge without an access permit; providing false information in the access application therefor or in the course of subsequent monitoring of MAT, changing the purpose of access specified in the MAT without obtaining permit; exploring GR without an exploration permit or providing false information in the application therefor; and possessing or using GR or community knowledge obtained from another country in contravention of the ABS laws of such country.
- 50.
Revised Ethiopian ABS Proclamation (Draft), Art. 41.
- 51.
Ibid, Art. 41 (2).
- 52.
Ibid, Art. 41 (3, 4).
- 53.
https://absch.cbd.int/countries/ET (accessed 19 February 2020).
- 54.
Art. 21 (1) draft law.
- 55.
Ibid.
- 56.
Revised Ethiopian ABS Proclamation (draft), Art.21 (1).
- 57.
Art. 21 (2) draft law.
- 58.
Art. 21 (3) draft law.
- 59.
Ibid.
- 60.
Art. 21 (4) Draft law.
- 61.
Only three of the authorities/institutions exist in the current law as administrative organs. Their roles have been changed to checkpoints in the draft law and the responsibilities of some of them are now more.
- 62.
Art. 37 (2) (m) draft law.
- 63.
Ibid, Art. 21(1) and Art. 24 (3a).
- 64.
Ibid, Art. 18 (7–8) and Art.18 (17).
- 65.
Ibid, Art. 25 (1a, b).
- 66.
Ibid, Art. 25 (2).
- 67.
Ibid, Art. 26 (1).
- 68.
Ibid, Art.26 (2) and Art. 27.
- 69.
Ibid, Art. 29 (1, 5).
- 70.
Ibid, Art. 30.
- 71.
See revised draft law, Art. 37.
- 72.
Ibid, Art. 37 (2) (j).
- 73.
Art. 22.1 and Art. 23.1 in the revised draft law.
- 74.
Art. 12 (7), revised draft law.
- 75.
In the draft law this is regulated under articles 12 (3) and 12 (6).
- 76.
For critical aspects of legal certainty, clarity and transparency see Greiber et al. (2012), pp. 102–103.
- 77.
Ibid.
- 78.
Ibid.
- 79.
Ibid.
- 80.
See http://www.ebi.gov.et/wp-content/uploads/2018/01/ABS-Regulation-Ethiopia.pdf (accessed 17 June 2019).
- 81.
See http://www.ebi.gov.et/wp-content/uploads/2018/01/ABS-Proclamation-Ethiopia.pdf (accessed 17 June 2019).
- 82.
EBI official, pers. comms, 8 September 2020.
- 83.
Ibid.
- 84.
https://absch.cbd.int/countries/ET (accessed 14 June 2019).
- 85.
Actually the Regulation does not say directly that EBI shall grant a written evidence to grant but rather it just says that “if it ascertains that there exists no ground sufficient to deny access, it shall determine that the access may be granted …” (Art. 10 (1) (b)). It is, however, direct concerning a written decision to deny (Art. 5 (2) (a)). The revised draft law is clear concerning this as it defines clearly under article 37 that issuing of written evidence that access requirements have been met is one of the powers and duties of the EBI.
- 86.
“The conditions and the procedure in accordance to which local communities shall give prior informed consent for access to their community knowledge shall be specified by a regulation”.
- 87.
https://absch.cbd.int/countries/ET (accessed 19 February 2020).
- 88.
Revised draft law, Art. 16. Accordingly, the dispute settlement mechanisms are to ensure the rights of parties to access justice through negotiation, mediation or arbitration as alternative dispute resolution mechanisms, and, by specifying the applicable law and jurisdiction, have their cases adjudicated in a court of law. Where parties have not specified dispute settlement mechanisms, Ethiopian laws shall be applied in Ethiopian courts.
- 89.
Art. 37 (1) Constitution Proclamation No. 1/1995.
- 90.
Federal Courts Proclamation No. 25/1996 and Civil Procedure Code of Ethiopia extraordinary issue No. 3 of 1965.
- 91.
Art. 37 (1) Constitution Proclamation No. 1/1995.
- 92.
Federal Courts Proclamation No. 25/1996 and Civil Procedure Code of Ethiopia extraordinary issue No. 3 of 1965.
- 93.
Teshale (2000), p. 569.
- 94.
Article 11 (2) (c)) Federal Courts Proclamation No. 25/1996.
- 95.
Teshale (2000).
- 96.
Ibid, 577.
- 97.
Ibid, 578.
- 98.
Revised draft law Art. 15.
- 99.
Ibid, Art. 14 (1) (b).
- 100.
Ibid, Art.14 (1) (c).
- 101.
EBI official, pers. comms, September 2020.
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Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization to the Convention on Biological Diversity, adopted by COP-10, in Nagoya, Japan on October 29, 2010
Revised Ethiopian ABS (Access to Genetic Resources and Community Knowledge and Community Rights) Proclamation (Draft)
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Hailu, A.A., Kamau, E.C. (2022). The Ethiopian Access and Benefit-Sharing Regime: Stringent with a Purpose. In: Chege Kamau, E. (eds) Global Transformations in the Use of Biodiversity for Research and Development. Ius Gentium: Comparative Perspectives on Law and Justice, vol 95. Springer, Cham. https://doi.org/10.1007/978-3-030-88711-7_8
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