Friday, October 17, 2008

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.

1 comment:

Marcus Goffe said...

It is absolutely disrespectful to indigenous and traditional communities how they have been treated at the IGC 13th Session. Despite the fact that the WIPO IGC was intended and has in the past had as one of its purposes the participatory inclusion of indigenous and traditional communities (albeit as observers), it seems that the impending embarrassment at not having any tangible accomplishments after 7 years of Sessions, has led to the conscious decision to involve as least persons as possible in the decision-making process, which over the course of this week, has been shifted to behind closed doors involving regional delegates and their advisors.

How is it that the process is expected to be inclusive and for the benefit and protection of indigenous and traditional peoples, when they are excluded? Is it that it is still thought by some that government has the right and ability to represent indigenous and traditional peoples' interests? The move smacks of misplaced paternalism, a feature of international law of a time long gone, in relation to indigenous people. And what is more surprising and now seems condescending, is that on Thursday morning the new IGC Chairman met with the Indigenous Caucus to hear in person of their views and concerns.

But, is it a matter of sacrificing principles on the altar of expediency? Even if this is so, it is unacceptable. It is unacceptable from the IGC Chair, as well as from WIPO member states. But again, this may not be surprising considering the views of some member states. For example, despite the fact that from as early as the 12th Session, indigenous and traditional communities, increasingly frustrated by the political rhetoric and manoeuvres of member states, especially of developed countries, came out publicly in support of the African Group proposal to have Inter-sessiomal expert working group meetings to accelerate the deliberations, the African Group had the gall to suggest in its Proposal that national governments should manage and control indigenous and traditional people's cultural heritage. This therefore shows, unfortunately, that paternalism, is alive and well. And as the convenors of the closed door sessions, the African group certainly could have ensured that they invited the Indigenous Caucus to participate, just as the Caucus had invited the African Group to a meeting of the Caucus on Wednesday to engender some co-operation and consensus.

So while Groups A-D hold the fate of indigenous people's expectations of this process in their attache cases, indigenous people are kept on the fringes of the process, repeatedly relegated to side sessions for seemingly light entertainment. The whole lack of mental and political progress perhaps is summed up in the response of the IGC Chair to an indigenous elder from the Tupaj Amaru people who simply expressed his frustration at the seemingly never-ending process. The Chair, without an ounce of empathy, told the Elder to wrap up in three minutes. The indigenous representatives at the WIPO 13th Session therefore have been limited in their freedom of speech in the plenary and locked out of the real boardroom.

So, as the Indigenous Caucus remains outdoors, loitering around WIPO like idlers, while member states deliberate indoors, the inevitable question is, is it all worth it???