WIPO Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge: Slow Progress, Hopeful Outlook
The WIPO Diplomatic Conference on Genetic Resources (GRs) and Associated Traditional Knowledge (ATK) is now on its second week (since May 13, 2024). We are pleased to provide an update in continuation of our first report on the first two days, which can be found here.
Elected conference managers continue to be dynamic and pragmatic regarding the evolution of the conference proceedings and methodology. They have been flexible in applying contingent methods in real time in response to prevailing concerns and difficulties faced by the parties. This approach strives toward minimizing conflicts and ensuring the efficient use of limited time for optimal results.
Committee I (on substantive articles of the draft treaty) and Committee II (on procedural articles of the draft treaty) of the basic negotiating instrument have continued to meet on a parallel basis. The two committees periodically converge at the plenary (the decision-making body) to report on their separate deliberations and to propose texts to the Conference.
The two committees’ work is also continuing to advance in their respective ad hoc (informal) and contact groups. The contact group approach allows the experts to have a holistic sense of the entire text. The contact group is more compact and selected in careful consideration for balanced geographical representation. Conceivably, it is constituted to focus more on technical exploration of the basic text (also known as the “Chair’s text” which was the subject of the mandate for further negotiation at the Diplomatic Conference pursuant to the July 2022 WIPO General Assembly decision).
Within the framework of the contact group, the respective Presidents of the two Committees, Australia (Committee I) and Namibia (Committee II) continue to encourage periodic breakaway sessions via ad hoc groups of delegates. The ad hoc groups are often tasked to further negotiate on isolated sticky issues/articles arising from any of the committees’ work with a view to forging a consensus for the uptake of the assigning contact group and downward to the plenary.
In this report, we provide only a few highlights (not being exhaustive) of the negotiations (in no order) across the two committees:
Patents or Intellectual Property: Delegates evidently disagree over whether the instrument should be benchmarked to the patent system or more broadly to the intellectual property system.
“Other stakeholders”: Juggling diverse competing options, delegates mull whether or how, and in what circumstances “other stakeholders”, in addition to Indigenous Peoples and Local Communities (IPLCs), can be accommodated or referenced in the instrument.
Mainstreaming IPLCs: A critical point of negotiations is whether and how Indigenous Peoples and Local Communities (IPLCs) can be mainstreamed into the instrument on mainly two grounds:
The first is in regard to carefully choosing an effective language to ensure that critical decisions over the implementation of the detail of a potential treaty are made in “conjunction”, “cooperation”, “collaboration,” etc., with and/or in the language of free prior and informed consent or related concepts.
The second relates to official representation of IPLCs in the Assembly of Contracting Parties of the anticipated Treaty. The issue of the right of official representation in Treaty Assembly or any other treaty body is basically the prerogative of contracting parties as sovereign nations. However, given the unique nature of anticipated treaty and its ramification for IPLCs, delegates seem inclined to provide a strong locus standi for IPLCs in the Treaty Assembly directly in the text. This promises to be one of the unique features of the anticipated instrument.
4. Membership/Role of Non-contracting Parties to the Treaty: There is palpable tension among delegates over the push to open the membership of the Assembly of the Contracting Parties and the Treaty Diplomatic Conference convened by such assembly to states who are not parties to the treaty. There is skepticism that any such attempt would undermine interest in treaty ratification and accession. Not only would such approach make the treaty vulnerable to infiltration of states who do have no faith in the treaty, it would also contravene the Vienna Convention on the Law of Treaty (VCLT). The Convention provides that only parties to a treaty can participate in evolution of the treaty e.g. through amendments/revisions. Those powers are within the power of the Treaty Diplomatic Conference as may be convened by the Treaty Assembly. Majority of delegates are suspicious on why the some countries are pushing for opening the treaty assembly and organs to non-treaty parties.
5. Entry into Force: Experts have yet to close the gap on the number of countries required to deposit instrument of ratification or accession to bring the treaty into force. While some look for higher threshold of 30, the majority of delegates prefer 15 as contained in the basic text.
6. Membership of International Organization: The Case of European Union (EU) – As WIPO instrument, all WIPO member states are eligible to become parties to the anticipated treaty. However, in the case of intergovernmental organizations such as the EU, for such membership to be eligible, the organization must meet some criteria, including but not limited to specifying the extent of specific matters covered by the anticipated instrument it has authority to commit its members. Because of its active participation in the negotiations, the EU seeks direct inclusion of its pathway to the membership of the potential treaty. This raises a few unresolved issues for delegates. Two of those will suffice:
Does the EU’s potential membership of the treaty bind its 27 member states; and if that be the case, does it mean that the EU would have 27 block votes within the treaty framework including treaty assembly and diplomatic conference?
Since the proposed treaty does not allow for reservation, what happens if the EU’s potential membership of the treaty is limited to specific matters and does not cover, in their entirety, all the obligations arising from membership of the treaty?
7. Miscellaneous: In addition to the above highlights, delegates continue to debate and negotiate around miscellaneous issues. Not the least of those include the trigger language (the nexus of the claimed invention with GR and/or ATK to trigger disclosure of origin/source); sanctions and remedies (including the issue of patent revocation); responsibility of patent applicant when the source/origin of GR and/or ATK underlying a patent application is not known.
8. Conclusion: One of the surprises so far is that negotiations within the Committee II (procedural provisions) stream have not been less contentious as many anticipated. In addition, delegates seem to have been invested in retaining hardcore and well-worn positions from two decades of IGC along demandeur and non-demandeur divide. Early attempts at introducing new concepts and new texts appear to have been largely futile, draining good energy away from the basic instrument. Such failure often results in recourse to the basic instrument, which demonstrates the resilience of the Chair’s text as the basic instrument. The wisdom is not lost on discerning delegates that the anticipated treaty is supposed to be largely a policy instrument; one that should not be bugged down by picky details. Its nature requires leaving a lot of latitude and discretion to national laws and contingencies. Such consciousness is urgently imperative for delegates to make the best of the remaining days of the historic conference and deliver on the mandate of the WIPO General Assembly and on the expectations of IPLC and various other interests.
WIPO Dipomatic Conference 2024, Geneva
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