WIPO IGC 14th Session making progress

The WIPO IGC 14th Session is heating up! For the first time in the 9 years of its existence the Committee is seeming to make some tangible progress. This as a result of the current mandate coming to an end soon and the desire by all member states (those that have made representations here) that they wish the mandate to be renewed by the WIPO General Assembly when it meets in September 2009.

As a result of the winding down of the IGC's current mandate, there being only one more session planned for December 2009, the member states have temporarily set aside their geopolitical differences and are at least working together to hammer out the text to submit to the WIPO General Assembly. Whereas a simple request to the General Assembly for a renewal of the mandate would be possible, the concern is two-fold: (1) that the General Assembly may not be inclined to renew due to the lack of progress in the IGC over the last 9 years; and (2) that the lack of progress will continue in the IGC, even if renewed, because of a lack of focus.

As a result, the African Group has prepared and proposed a programme of action and a draft document titled "Elements For the New Mandate" which outlines a focus for the new mandate. This proposal was put up in the plenary on the big screen for discussion by member states and included:
(1) a clearly defined work program and timeframe, including the holding of intersessional work sessions to be adopted at the 15th Session
(2) future work based on text based negotiations.
The African Group's original proposal from the 13th Session had already called for a legally-binding international instrument. The vast majority of member states supported this objective in the 14th Session. However, a few member states, namely those that did not support the United Nations Declaration of the Rights of Indigenous Peoples - Canada, Australia, USA, New Zealand - have declined to support any text seeking a legally-binding agreement, instead preferring language asking for the mandate to include wording "without prejudice to any outcomes" indicating a seeming preference for non-binding soft law outcomes, such as national and contractual arrangements, guidelines and policies, or high level political resolutions, declarations or decisions.

A rather strange and interesting thing happened yesterday at the plenary surrounding this point. Several indigenous community representatives came out in support of the African Group proposal, as did the vast majority of member states. However, a group of five indigenous communities read a statement in which they said that they did not agree with working towards a legally binding instrument and that they wanted more time to assess that aspect of the Africa proposal. This was a surprise to many, leading the Zambian delegation to comment that they thought a legally binding agreement was precisely what indigenous peoples wanted. However, what the five indigenous communities seem to desire is to ensure that no legally binding agreement is negotiated without the full and effective participation of indigenous peoples, which would likely lead to an agreement which does not to justice to indigenous peoples' rights.

Because of that lingusitic disagreement, there was much deliberation by a minority of developed nations about the inclusion of the phrase "text based negotiations" in the proposed new mandate. The same few states wanted to amend that, with the USA proposing that the text read "outcome oriented deliberations". New Zealand proposed the wording "with no outcome excluded". But as Senegal on behalf of the African Group repeatedly explained, text based negotiations was used in its ordinary UN usage, to mean negotiations based on already identified WIPO IGC texts, rather than vague, arbitrary deliberations in a vacuum.

There was also much discussion as to costs of this new mandate and the intersessionals, but it was agreed that it was best not to deliberate on that as there was no way to quantify the budget now for future work. What was therefore agreed was to request of the General Assembly to continue to fund the IGC as well as to support the Voluntary Fund.

Though nothing substantively has been achieved in regard to the protection of TK, TCEs and GR, what has been achieved in substance in arriving at a text to focus the mandate which we hope to be renewed to guide the future work, is an achievement in and of itself. The African Group, in contrast to the last session, should feel proud of what they have been able to achieve and facilitate, albeit limited.