Sabotage!

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.