Friday, October 17, 2008


As the 13th Session of the WIPO IGC came to a close, the Zimbabwe delegation cried foul. They, as did several other members of the African Group, expressed their surprise that after a week of negotiations initiated by the African Group, at the 11th hour a new proposal surfaced which backtracked on previously agreed positions. it was said by the Zimbabwe delegation that the new proposal, conveniently titled "Draft Chairman's Proposal for accepted Accelerated Work at IGC 14-15" reverted to positions substantially held by one Group in particular (Group B). It was being said behind the scenes after the Session formally closed that one group got what they wanted; what they came for, that is, a slowing down of the work of the IGC rather than a acceleration.

The reaction of the African Group to the "Draft Chairman's Proposal" unfortunately portrays an element of suspicion and mistust of the Chairman by the African Group, which, as expressed by some members of that group, particularly Algeria (head of the African Group) and South Africa, was never on the table during informal discussions and suddenly appeared Friday evening to further complicate the process of consensus building. Algeria responded with surprise to the Chairman's Proposal, which clearly is deceleration of the work of the IGC than proposed in the Africa Group Proposal.

The original African Group proposal was for 5 Expert Working Groups to meet before the 14thy Session. However, in the spirit of compromise after extensive delegations with the several regional groupings, they amended the Proposal to just 3 Expert Working Groups, which the Chair also proposes. However, the Chairman's Proposal is to convene the 14th Session to include the break-out Working Groups (therefore an intra-sessional rather than an inter-sessional), which would be open to all member states and observers. This was originally a part of Group B's reaction or counter-proposal to the African Group proposal. However, a reasonable criticism of such a suggestion has been that it would result in the same IGC process being too unwieldy to produce concrete results and actually defeat the whole purpose of Expert working groups.

The Chairman's Proposal, as did Group B's proposal/position, was that the working groups should meet in parallel, while the African Group's position has been that to do so would further fragment the discussions (the number of groups having already been limited to just 3 : TK, TCEs and GR) and prevent therefore a holistic approach to the issues. The African Group has therefore proposed that the three expert working groups each meet once consecutively before the 14th Session. The African Group proposal also suggested that the working groups meet for 5 days to have suficient time to flesh out the issues, while the Chairman's Proposal was for only 2 days of meetings, which the South African Friday evening said would only allow aproximately ten minutes from each member state delegation (as the Intra-sessions would be open to in the Chairman's proposal).

Based on the South African delegation's intervention, which was the only on Friday evening to expressly support the right of indigenous observers to participate and to select their representatives to the inter-sessionals, and the African Group's proposal that member states would not have a right to participate indidvidually in the inter-sessionals other than accredited indigenous observers, Group B members objected to member states being shut out of inter-sessionals. This then paved the way for the statement by the USA delegation that "we came and remain fully prepared to take on guidance we’ve heard to achieve concrete outcomes" but that they "feel disappointed with some statements by some delegations which seem at odds with the spirit of consensus reached informally." The USA delegation therefore had its basis to expressly "reserve [the] right to review the entire package before committing to the way forward" such reservation on behalf of Group B, it was said, "to be noted on the face of the document" (meaning any concluding document which in the final [gap?] analysis there was none. So endeth the week, for some, according to plan.

It is difficult to see how the process of the IGC as presently practised, can bear much fruit. Having over 180 countries airing their views on the issues, session after session, year after year, through the Chair, without any direct exchange and negotiation between member states, seems not to be the best and most efficient way to reach concrete outcomes. The process of inter-sessionals, fostering detailed, hard negotiations, is useful, but should have been organized years ago, as had been suggested by the WIPO Secretariat years ago. In fact, the structure by which the Secretariat is beholden to take member state directives rather than being able to be proactive to sufficiently and timely guide the process, the often stubborn sovereignty of member states prevents te full potential of the WIPO Secretariat from being utilised, resulting in an almost inevitable lack of progress being made effectively and efficiently.

In that respect, isn't it presumable, even expected that member states send their national IP experts to participate in the process, or if not, that the member states makenit a point of duty to get expert advice to represent their interests at the IGC? If it is that a member state has no expertise nationally and no access to expertise, and attends the IGC to learn of the developing norms, debates and processes, then surely, with a little initiative and with all the volumes of material, studies, research, opinions, done by WIPO and other international, regional and national organizations, both public and private, the issues ought not to be that dificult to grasp and ought not to require years after years of elucidation and 'richening and deepening of debates'. When at the 12th IGC the African Group proposed a gap analysis, it seemed a good idea, but a bit of spoon feeding, for as us researchers all know, WIPO has done many gap analyses of TK, TCEs and GR, before, although not specifically for the IGC. Surely, member states involved in the process over the years, man from theIGC 1st Session in 2001, must know the gaps in protection by now!

But the gap analyses was duly and diligently done by the Secretariat as mandated. So is another set of "Expert Working Groups" going to achieve that elusive consensus? After all, the WIPO Secretariat comprises among the leading experts in TK, TCEs and GR in the world. No expert gathering at this stage is going to produce some outcomes, or options that WIPO has not already examined and reported on. Although the suggested inter-sessionals have followed the pattern set by the CBD Working Groups process, it has to be done with a focussed set of specific outcomes, such as being able to capture common ground in sufficiently flexible treaty language if necessary, such as has been done with many international treaties prior. The first treaty or declaration may not be ideal but the process of consensus building is exactly that...a process, which takes time and progresses over time.

Any such working groups to be successful cannot be open to all 180+ member states; it should incorporate a representative process through regional representatives having already canvassed the convergences and divergences in positions of their regional member states, before coming to the table at inter-sessionals. of course, the indigenous caucus should have the same representative process. This is the most efective way to achieve consensus while narrowing down the actual negotiators involved in the inter-sessionals. For the inter-sessionals to be successful, they ought to be focussed less on receiving already received "expert advice", and more on resolving political and ideological divides in and between member state positions with the indigenous positions, and resolving them. The process needs therefore to be seen as a political one rather than as a further exploratory, educational one.

At the end of the long night and week, the African Group was visibly disappointed. Several of them, including South Africa, Egypt and Algeria, expressed the desire to refer the matter to the WIPO General Assembly. However, the Director General stated unequivocally that in the absence of consensus, the mandate of the IGC reverts to its original mandate which is to host two more sessions next year, hopefully before September meeting of the GA. The Director General did however say that the 13th Session was not a failure, as we did accomplish one thing - deciding which NGO observers will obtain funding from the Voluntary Fund to attend and participate (or rather observe) the machinations of the WIPO IGC at its 14th Session tentatively suggested by the Chair in his proposal for March 9-13, 2009.

So once again, progress is calculated to be stalled, sabotaged, while indigenous and traditional communities continue to suffer at the hands of biopirates and misappropriaters globally. How long shall they continue to suffer? Only Swiss time will tell.

Indigenous Boycott at WIPO

Having spent this week at the 13th Session of the World Intellectual Property Organisation (WIPO) Intergovernmental Committee (IGC). At the opening plenary, the new Director-General, Francis Gurry, quipped that 13 is unlucky for some, but lucky for others. However, it seems that it has acquired overwhelmingly bad connotations for indiegnous peoples at the IGC.

It's been an interesting meeting, more in terms of the politics and procedures than in terms of the discussion, which has largely been removed from the plenary to informal, closed sessions of regional groups.This has been criticised by some delegates and indigenous groups as a "divide and rule" strategy contrary to the multilateral and open spirit of the IGC. It is also coming under criticism for effectively alienating indigenous groups and civil society from the discussion.

This morning we began the agenda item on future work, where Algeria, on behalf of the African Group, presented the revisions of the original African Group proposal on inter-sessional meetings to accelerate the Committee's work. The original proposal called for 5 groups to be established according to the 5 items: Definitions and Object of Protection; Exceptions, Limitations and Duration; Prior Informed Consent (PIC), Rights – Moral/Economic; Beneficiaries; and Sui Generis options for protection. However, after lengthy and closed-door regional meetings, the revised proposal (courtesy of IP-Watch) was presented at this morning's opening plenary. Algeria, on behalf of the African Group, explained that the proposal was based on the recommendations of the 2007 WIPO General Assembly and Recommendation 18 of the Development Agenda to speed up the work of the IGC, together with the 12th Session of the IGC which highlighted the importance of holding inter-sessional meetings and the need to arrive at a mechanism to accelerate the committee's work.

The proposed mechanism of the proposal is to set up special task force groups to meet during the inter-sessional period in order to accelerate the committee’s work to achieve concrete results. After informal consultations and in a spirit of flexibility and compromise, this has been revised to three based on the three categories of traditional cultural expressions (TCE), traditional knowledge (TK) and genetic resources (GR). While the original proposal arguably supported a holistic approach to the discussion, the revised proposal, although more likely to be acceptable to the plenary, is certainly a compromise that continues the partitioning of discussion according to conventional intellectual property categories.

The membership is proposed for 37 in total, 27 from member states and 10 from accredited observers. Although some members have argued for open-ended membership, this was suggested as an unnecessary duplication of the IGC process. The mandate, which would be clarified if the proposal is to be accepted, is to be based on that of the IGC and to provide legal opinions, technical advice, possible options and recommendations for the 14th Session. The basis of the work is the body of work already developed by the IGC, including the lists of issues, factual extractions and gap analyses.

France presented a proposal, on behalf of the EU, which appeared to come as a surprise to the other regional groups, including Algeria who raised an objection that this had not been discussed. The Chair declared that such objections should not be made in plenary and the meeting was suspended to closed-door regional groups. The process has raised objections that the multilateral process of discussion is being undermined, effectively blocking genuine participation by indigenous groups, as the plenary is being reserved for particular comments only and prevented from entering into discussion on documents, this occurring only in the closed regional group discussions.

As far as the participation by indigenous peoples in this process, this week appears to have been seriously damaging to the integrity of the process and the spirit of participation. The indigenous groups wanted to make a statement in the plenary session on future work, but the suspension of the meeting prevented this. The result has been that several key indigenous groups have already walked out of the meeting, including the Saami Council and the following statement has been distributed to delegates, ahead of the re-convening of the meeting in plenary.

Closing Statement from Indigenous Peoples and Local Communities

Thank you Mr Chairman,

This Statement is being made on behalf of WIPO Indigenous Caucus:

Mr Chairman,

We are cognizant of the difficult task that you have taken on in leading this committee in its work to fulfill its revised mandate to accelerate its work.

However, we must express our severe disappointment that in your haste to move into regional consultations you did not afford an opportunity to the WIPO Indigenous Caucus to express its positions on future work which could have fed into the informal discussions. This negates the very purpose of having a voluntary fund which supports indigenous participation in this committee. As you may be able to tell, some of our colleagues have already left, seeing no further purpose in simply rubber-stamping the decisions already taken.

This may have been corrected by the inclusion of the elected representative of the WIPO Indigenous Caucus in the informal consultations, something which, in any case, would be required by Articles 18 and 19 of the UN Declaration on the Rights of Indigenous Peoples, which state, respectively:

"Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions."


"States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free prior and informed consent before adopting and implementing legislative or administrative measures that may affect them."

We will, of course, submit our now, obsolete, prepared statement for inclusion in the records of the committee, and sincerely hope that the future operation of this committee will more properly reflect the rights of participation of indigenous peoples.

Having not participated in the deliberations and decisions on future work, the WIPO Indigenous Caucus regrets that its inputs may not be reflected in the decisions taken by the IGC.

Mr Chairman,

Thank you again for this opportunity to voice our concerns, and we look forward to continuing to work with you and the member states in ensuring respect and protection for the rights of indigenous peoples and local communities.

Thursday, October 16, 2008

Indigenous Rights and Climate Change

The role of indigenous and traditional knowledge in the battle against global warming is reaching mainstream significance in international debates on climate change.

Yesterday Norway promised to promote the rights of indigenous peoples in 3 billion Norwegian crowns investments to combat climate change and deforestation in tropical countries. The Minister for Environment, Erik Solheim (at left), has declared the need to recognise and respect the rights of indigenous peoples if efforts to halt deforestation are to succeed. However, he is reported as refusing to establish criteria to be fulfilled by governments when dealing with indigenous peoples' resources in mega-biodiverse regions. As reported in Reuters, at an international conference on indigenous rights and deforestation this week in Oslo, Rights, Forests and Climate Change, Solheim advocated a payment for ecosystems (PES) approach, saying “there is no absolute way to expect that people from Papua New Guinea, Ecuador, among others, will take the responsibility for climate, at the international level, without compensation. You cannot even create any National Park in Norway without indenmization of resident peoples."

However, he did not go as far as advocating robust criteria to regulate access to such knowledge and resources. He declared that while exercising as much influence as possible on governments, Norway would not seek to set pre-conditions on dealing with indigenous peoples in access agreements: "Dialogue is much more likely to succeed than a small nation on the outskirts of Europe ... running around the world setting conditions." In particular, Solheim noted Norway's own past treatment of the Saami people and considered attempts to preach to other nations would be considered inappropriate.

But Andy White, of the Washington-based Rights and Resources Initiative (RRI), says more robust reviews of human rights are essential to avoid eviction of indigenous peoples where no formal rights to land are in recognised. Similarly, Adolphine Muley (at right), of the Union pour l'Émancipation de la Femme Autochtone, describes the lack of consultation for the pygmy people in Democratic Republic of Congo.

The role of the credit crunch in distracting attention from the issues should not be underestimated, with international concerns that messages on environmental climate change more broadly may be compromised by the current economic climate instead. But Solheim states, "There can be no excuse from the financial crisis not to solve the climate crisis. The climate crisis is bigger and deeper."

A new report, Climate Change: Financing Global Forests (the Eliasch Review) commissioned by the British government and published on Tuesday, estimated the costs of deforestation to be $1 trillion/year by 2100. Although the review estimates the costs to halve deforestation by 2030 to be $17-33 billion per year (based on global carbon trading), the long-term benefits could be quantified in the region of $3.7 trillion.