Today the UPOV Council confirmed that the Draft ARIPO Protocol for the Protection of New Varieties of Plants is in conformity with the 1991 Act of the UPOV Convention allowing ARIPO Members that ratify the Protocol to become a party to the UPOV Convention. According to a legal opinion written by Prof. Thomas Cottier from the World Trade Institute the decision taken is not in line with the 1991 Act of UPOV. In order to bring in more African countries the UPOV Council has blatantly broken its own rules.
Northern countries together with the Seed Industry have been trying for a long time to pressure African countries to adhere to the UPOV 1991 Act. In the ARIPO process, industry associations such as the CIOPORA, African Seed Trade Association (AFSTA), the French National Seed and Seedling Association (GNIS) and foreign entities such as the United States Patent and Trademark Office (USPTO), the UPOV Secretariat, the European Community Plant Variety Office (CPVO) have been consulted extensively. On the other hand in an open letter, 75 civil society organisations from all over the world, including the Alliance for Food Sovereignty Africa (AFSA), the African Biodiversity Network (ABN) and La Via Campesina Africa (Region 1), criticized the process of developing the Draft Protocol as being untransparent and not inclusive. The letter also mentions several other substantive concerns such as severe limitations on farmers rights, undermining of national sovereignty, lack of mechanisms to protect public interests and prevent biopiracy, arguing that the ARIPO Protocol is not appropriate for ARIPO member countries. These substantive issues were not discussed today.
APBREBES in its comment based on the legal opinion sent to the UPOV Members focused on the legality of the Decision to be taken by the Council. Article 34 of the 1991 Act requires that an intergovernmental organization (IGO) has its own legislation that is “binding on all its member states”. However the Draft Protocol is only binding on those member states that ratify the Protocol and comes into force after four members have ratified – so it is obviously not binding on all ARIPO member states as required by Article 34. It is for this reason that Prof. Cottier concludes in his opinion that “Membership of ARIPO on the basis of the Protocol and thus selected Membership is not compatible with the requirements of the UPOV Convention”. Another key issue is linked to Article 30(2) which states that each intergovernmental organization must be in a position to give effect to the provisions of the Convention. Prof Cottier concludes that “ARIPO as an Organization […] is not in a position to comply with the requirements of Article 30(2) of the UPOV Convention under the draft Protocol of Accession” since the "Basic requirements of UPOV membership are not fulfilled". The same is valid for individual member states as a prerequisite for individual UPOV membership as long as there is no national law in place.
These facts have not distracted the UPOV Council to adopt the proposed decision today. It is evident that the political goal of many industrialised countries and the aim of the seed industry to expand the coverage of the UPOV as fast as possible was more important than the rule of law.
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