Don’t trade away farmers’ rights : reject UPOV in EFTA-Malaysia agreement
Sahabat Alam Malaysia - 29 May 2025
Don’t trade away farmers’ rights : reject UPOV in EFTA-Malaysia agreement
Below is a letter written to Prime Minister YAB Dato’ Seri Anwar Bin Ibrahim about our concerns about the inclusion of UPOV 1991 in the Malaysia-EFTA trade agreement, and how it could undermine Malaysia’s plant variety protection law, harm farmers’ rights, and limit seed sovereignty. We urge the government to protect national interests and exclude UPOV from MEEPA. This is jointly signed by Sahabat Alam Malaysia, Consumers Association Penang, Malaysian Food Sovereignty Forum (FKMM), and Third World Network.
YAB Dato’ Seri Anwar Bin Ibrahim,
Malaysia-European Free Trade Association Economic Partnership Agreement (MEEPA) and its Impact on the Plant Variety Protection System and Farmers’ Rights in Malaysia
We are writing with respect to the Malaysia-European Free Trade Association (EFTA) Economic Partnership Agreement (MEEPA) which we understand is in the process of finalization. We understand that there is a strong possibility that the intellectual property chapter refers to Malaysia joining International Convention for the Protection of New Varieties of Plants (UPOV) 1991. We are seriously concerned about this development, even if it is a best endeavour clause.
We are puzzled with the inclusion of any reference to UPOV in MEEPA. In a letter dated December 2020, EFTA has made clear that “EFTA does not make the accession to UPOV or the adherence to its rules a prerequisite for the conclusion of an FTA”. This letter is attached as Annex 1. In view of the position taken by EFTA and given that Malaysia has a well-functioning plant variety protection (PVP) system under its Protection of New Plant Varieties (PNPV) Act 2004, we fail to understand why there is any mention of UPOV in MEEPA.
The abovementioned EFTA response was brought to the attention of the Malaysian government in a letter by Michael Fakhri, the Special Rapporteur on the Right to Food (dated 25th March 2024). In that letter the Special Rapporteur reiterates his recommendation that being a part of UPOV 1991 must no longer be a part of trade negotiations.
Further, any commitment to join or make efforts to join UPOV means that Malaysia is getting a worse deal than the existing EFTA countries. Lichtenstein with a GNI per capita that is 9.9 times more than Malaysia’s GNI per capita of $11,710 is not a party to any UPOV Convention, although EFTA has committed to implement UPOV 1991 in many different trade agreements. Norway with a GNI per capita $102,910 that is 8.8 times more than Malaysia has joined UPOV 1978 which is a much more flexible legal framework for PVP with a very limited scope for breeder’s rights and broader exceptions including for farmers to operate, even allowing the exchange farm-saved seeds. Meanwhile Malaysia is expected to join UPOV 1991 which grants extensive breeder’s rights but restricts farmers’ right to save, and does not recognize farmers’ right to exchange and sell farm saved seeds/propagating materials.
So, in effect, the Malaysian agricultural system and its farmers are much worse off than developed countries such as Lichtenstein and Norway. Will the Malaysian government not protect its agricultural system and farmers’ rights ? As highlighted above, EFTA is clear that reference to UPOV is not a prerequisite to the conclusion of FTA. And there are precedents of EFTA trade agreements that do not require Parties to join or implement UPOV 1991 e.g. the EFTA-Singapore FTA of 2002 and EFTA-India FTA of 2024. There are EFTA FTAs with countries that have higher GNI/capita than Malaysia (e.g. Canada and Gulf Cooperation Council) and lower GNI/capita than Malaysia (e.g. Southern African Customs Union) which have no intellectual property chapter at all. So, it is unclear why Malaysia should be treated worse than those countries.
On numerous occasions farmer organisations and civil society have flagged concerns with Malaysia’s flawed approach to trade negotiations related to PVP. Using the flexibility allowed under the TRIPS Agreement to develop “sui generis” PVP systems, Malaysia adopted the PNPV Act 2004 which uniquely balances the different interests in Malaysia’s agricultural system ; public interests, commercial plant breeders, public breeders and farmers including smallholder farmers. The Act also promotes realization of the objectives as well as rights and obligations of the international instruments that have long been championed by developing countries. This includes the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), the Convention on Biological Diversity (CBD) and the related Nagoya Protocol, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
These international instruments (of which Malaysia is a Party or endorses) inter alia recognize the contribution of farmers and indigenous communities in the preservation and development of plant genetic resources, and their right to seed including to freely save, use, exchange and sell farm-saved seeds and to participate in decision-making on these matters ; they also provide for mechanisms to deal with biopiracy of plant genetic resources by implementing effective access and benefit-sharing systems. Several of these elements are the direct result of Malaysia’s leadership at the international level. Undoubtedly, they reinforce the imperative for a unique PVP system and enactment of supportive national laws.
The PNPV Act 2004 was enacted to reflect Malaysia’s diverse national interests and to align with its rights and obligations under relevant international instruments. Rather than supporting this national legislation—formulated through a democratic and consultative process—the inclusion of UPOV in MEEPA risks undermining the PNPV Act by imposing a top-down approach that overrides Malaysia’s sovereign legislative process.
We bring to your attention a detailed report on “The potential impact of UPOV 1991 on the Malaysian Seed Sector, Farmers and their Practices” (hereafter referred to as “the Report”). The report includes survey of farmers from peninsular Malaysia as well as Sabah and Sarawak, and is it clear that the practise of saving, exchange and sale of farm-saved seed/propagating materials are fundamental activities of farmers in Malaysia. Almost 99% of the farmers surveyed were opposed to restrictions on exchange and sale of seeds for reasons such as : wanting freedom to choose whatever seed they prefer ; wanting to control their own farm-saved seed ; no guarantee that the seed in the market will always maintain its quality ; worries that the seed price will increase ; and worries that they cannot save costs when needed.
Joining UPOV 1991 will disrupt the rights of farmers in Malaysia, as under that rigid legal framework, exchange and sale of farm saved seed/propagating materials is not allowed while saving seeds/propagating materials is limited to specific varieties and even then, may be subject to certain conditions. In additional the PNPV 2004 has very important provisions to safeguard national interests, prevent misappropriation of local genetic resources, and ensure timely availability of adequate seeds at affordable prices. These provisions will have to be deleted if Malaysia were to join UPOV 1991.
Attached as Appendix I is a table that summarises the key changes UPOV requires to be made to PNPV 2004 and the severe implications of these changes for Malaysia. Chapter 9 of the Report also elaborates on why there is no case for Malaysia implementing UPOV 1991.
We reiterate that, as also elaborated in the Report, many experts have pointed out that UPOV 1991 is unfit for agricultural systems prevailing in developing countries and for realising Farmers’ Rights. For example, a study commissioned by GIZ on behalf of the German Federal Ministry for Economic Cooperation and Development recommended that developing countries that have not yet joined UPOV “consider opting for an alternative sui generis system of PVP that allows for more flexibility”. The study concluded that “[t]he ‘one size fits all’ approach of UPOV appears … problematic if the highly diverse conditions and needs of developing countries are to be addressed”, and that “UPOV 91-based PVP laws were found to not advance the realization of Farmers’ Rights ; rather they are effective in the opposite direction”.
Importantly, based on the PVP applications filed, Malaysia’s PVP system is functioning even better than many developing countries implementing the UPOV system. Malaysia’s PVP system is regularly used by various types of applicants including foreign and local companies, foreign and local universities as well as foreign and local government research institutions. In fact, foreign companies are major users of Malaysia’s PVP system.
We also reiterate that the Malaysian government has an obligation under the ITPGRFA to protect and promote Farmers’ right to participate in national decision-making on matters related to plant genetic resources for food and agriculture.
Based on this right and for reasons mentioned above, we the undersigned organisations request you to ensure that there is NO commitment in relation to UPOV in MEEPA. Malaysia must retain its sovereignty and full flexibility to implement PNPV 2004 and to adapt it to meet its national needs and the interests of Malaysian farmers and population.
Yours Sincerely,
Chee Yoke Ling
Director
Third World Network
Endorsed by ;
- DIRIBUMI Ecological Services
- Forum Kedaulatan Makanan Malaysia (FKMM)
- Frangipani Natural Farm Sdn. Bhd.
- Frangipani Resort Langkawi
- GRASS Malaysia
- IDRIS Assoc.
- Komuniti Pondok Sukun (KOMPOS)
- Koperasi Petani Pulau Pinang Berhad
- Persatuan Pengguna Pulau Pinang (CAP)
- Persekutuan Persatuan Penanam-Penanam Sayur-Sayuran Malaysia (PPSM)
- RURAL Malaysia
- Sahabat Alam Malaysia (SAM)
- Pertubuhan Persaudaraan Pesawah Malaysia (PeSAWAH)
- Sarawak CSO SDG Alliance
- SEEDS Malaysia
- TERAS Pengupayaan Melayu
- Third World Network (TWN)
- WAU Farm
