Community, Customary Law and Political Stability - New Study in East Africa; New Representation in Australia

Results of a study published this week highlight community-based systems of justice and governance in resolving conflicts between communities in East Africa.

International non-governmental organisation, Minority Rights Group International (MRG), has this week released a report which explains the need to utilise traditional systems for conflict resolution and governance. The study consulted with communities in Karamoja and Teso in Uganda. Simon Nangiro, Executive Director of Karamoja Agro-Pastoralist Development Programme, explains: "Both communities in Karamoja and Teso have their own systems of negotiation and compensation when resolving conflicts." As Nangiro explained to Reuters, "We are advocating to the government to give a place to customary institutions, for elders to play a role in the justice system, because they are the ones living with the people."

Significantly, greater emphasis on traditional systems strengthens trust and belief in negotiations, arguably the basis for the legitimacy of any legal framework. The research established that past abuses by the state had led to mistrust in local communities, eroding the legitimacy of stte intervention. In contrast, community-based mechanisms were established and resilient, despite the external pressures of imposed boundary disputes, competition for land and environmental damage: "interviewees were virtually unanimous in their opinion that these mechanisms are an essential part of conflict and justice regulation in these communities, because they are accessible where often the state is absent, and because, being based on traditional principles of spirituality and peaceful coexistence, the outcomes are respected by community members."

Indeed, the sustainability of communities supported by traditional governance systems resonates with traditional knowledge with respect to environmental and agricultural sustainability, as distinct from adversarial models of justice. The press release explains: "Communities in both Karamoja and Teso, traditionally pastoralists, strive for amicable relations and depend on each other for survival in harsh environmental conditions. Government imposed conditions on their traditional way of life, shortage of resources, problems involving cattle rustling and border disputes have led to increasing conflict between the groups in recent times."

The study follows earlier work by MRG in strengthening traditional community governance structures, including assisting with the establishment of the Regional Elders Council in East Africa. The Interim Council included 13 elders, and was chaired by Eunice Marima. The Council, now composed of 10 elders including 4 women, is chaired by Dr Abdullahi Haji Wako (pictured at right), a member of the Borana community in Kenya, implements traditional systems of conflict resolution for communities in Ethiopia, Uganda, Kenya and Tanzania.

In Australia, a National Representative Body for Aboriginal and Torres Strait Islander peoples has been proposed by the Australian Human Rights Commission in a new report, Our Future in Our Hands. The Steering Committee behind the proposal is led by Social Justice Commissioner Tom Calma (pictured at right), an Aboriginal elder from the Kungarakan tribal group and a member of the Iwaidja tribal group. In his speech at the launch of the report, Calma emphasised the importance of the establishment of a national representative body for Aboriginal and Torres Strait Islander peoples both as a true exercise of self-determination and in terms of national governance: "We have suffered from the absence of a strong national representative organisation over the past five years. And governments have also suffered from the absence of a national body."

Previously, Aboriginal and Torres Strait Islander peoples were represented by the Aboriginal and Torres Strait Islander Commission (ATSIC), which was abolished by the Howard government in 2005, which criticised the Commission for corruption and mis-handling of funds. Some have criticised the proposed replacement, saying that it may not offer appropriate representation for those in remote areas. And already, the independence of the new body is in doubt with Indigenous Affairs Minister, Jenny Macklin, refusing to commit funds to ensure its financial self-sufficiency.

This is amid criticisms this week from the UN Special Rapporteur on Indigenous People, Professor James Anaya, who has described entrenched racism in Australia after his 12 day visit. Anaya has condemned the ongoing intervention into remote indigenous communities, commenced by the Howard government but controversially continued by the new Rudd administration. Although Anaya was congratulatory of Prime Minister Rudd on the 2008 apology to indigenous Australians that was reported around the world, the intervention continues the historical discrimination.

Terri Janke (pictured below left) has recently proposed a national approach in another context, that of indigenous and traditional knowledge. The conflict between conventional intellectual property rights and communal systems of traditional knowledge and cultural expression is well-documented, and calls for sui generis systems of protection have not led to substantial actions towards protection of traditional knowledge, in the Australian context or internationally. Ms Janke, an Indigenous arts lawyer, writer and consultant, has recently produced Beyond Guarding Ground: A Vision for a National Indigenous Cultural Authority. Her report calls for a national authority for indigenous culture, pursuant to Article 31 of the UN Declaration on the Rights of Indigenous Peoples (UN Dec):

Article 31

(1). Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

(2). In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Emphasising the requirement of prior and informed consent, the report provides a model of the procedure for approval to use material, which includes applications to the national authority, the identification of rights-holders and a consideration of the propose use of the material, examination of the application by committee and then a procedures for the granting of consent and the monitoring of the use of the material according to the terms and conditions under which that consent is granted. The model both provides assistance to indigenous right-holders as well as establishes a system by which material can be revived culturally and socially in a secure and appropriate way.

Terri will be delivering a public lecture on the model as part of the 20th Anniversary Celebration of the Jabal Centre, Friday 2 October 2009, Australian National University (ANU).

Robynne Quiggan, indigenous lawyer and quoted in Janke's report, explains with respect to music: "Observing customary law means finding out who can speak for that music."

Giving respect to customary systems of governance within national frameworks ensures that those who can speak are able to speak.

Documenting Knowledge: Traditions and Technologies

The role of documentation in the protection of traditional knowledge is more complex and contentious that perhaps it first appears.

Certainly, documentation projects do suggest the building of relationships within communities and with primary knowledge-holders, and they have been lauded as important mechanisms for capacity-building and for creating commercial value through intellectual property (IP) products. However, the very notion of IP as the primary mechanism by which to protect traditional knowledge is itself troublesome. At the most recent 14th session of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), the International Institute for Environment and Development (IIED) emphasised the role of customary approaches as distinct from IP frameworks. Michel Pimbert, Director of IIED's Sustainable Agriculture, Biodiversity and Livelihoods Programme, says "Intellectual property standards are in conflict with flexibility and adaptability." Co-author of the IIED Report, "Protecting Traditional Knowledge from the Grassroots Up," Alejandro Argumedo, a plant scientist for the Quechua-Aymara Association for Nature and Sustainability Development (ANDES) in Peru, describes traditional management as somewhat contrary to the commercial principles of intellectual property, explaining "The communities developed their own agreement for sharing the benefits derived among themselves, based on traditional principles." Krystyna Swiderska, who coordinated the research for the IIED project and co-authored the report, will participate in a QMIPRI Herchel Smith Seminar on these issues in London, 5 October. If you would like more details and to reserve a place, please email QMIPRI.

My own work in this area certainly confirms similar hesitations and criticisms of intellectual property systems. What is of interest, however, is the potential to appropriate IP-related schemes in relevant and sustainable ways (including sustainability with respect to the knowledge itself). WIPO's documentation projects are indeed relevant to these questions and, although coming from an IP context, are not necessarily driven by IP agenda as such. For instance, at the 12th Session of the IGC presentations on various community documentation projects detailed some of these issues. Representatives spoke of the need to create programmes where the younger members of communities were engaging with elders as "stars" and as knowledge-holders, thus "replenishing the cup of knowledge" in ways that become more relevant and more contemporary for younger members (in terms of the technology) and are at the same time traditional. In other words, traditional mechanisms drive the application of the technology, not the other way around. One presenter noted that many government initiatives focus on the youth, without concentrating on elders. Documentation becomes a project where the elders are the focus, giving the younger members something to emulate rather than abandon.

In this respect, the WIPO assistance for documentation is of great interest. The filming of knowledge is a significant medium, dynamic and interactive and described as some as closest to the traditional transfer of knowledge (as distinct from recording through text). It is also a contemporary and relevant technology for younger generations.

Earlier this month, WIPO launched, as part of the Creative Heritage Project, a further documentation project with the Maasai of Kenya, working with the Indigenous Movement for Peace Advancement and Conflict Transformation (IMPACT) and Kenya's National Museums. In addition to assistance with technology and equipment, the project includes IP training so that communities understand the materials being created in an IP-context, as well as the knowledge being sustained through traditional mechanisms supported by technology. Whether or not IP might be relevant or even effective as protection for TK, nevertheless it is essential for communities to understand what might be created in a wider legal context when materials are documented and circulated. Knowledge about IP therefore becomes a form of protection in itself, ensuring that the design of projects is achieved in such a way so as to avoid rendering knowledge vulnerable to expropriation through the very mechanism of IP itself. Training is undertaken by WIPO together with the American Folklife Library of Congress and the Center for Documentary Studies at Duke University (CDS).

Maasai Cultural Heritage project co-ordinator, Kolol Ole Tingoi, describes some of the same issues for documentation in his comments on the project, explaining: "This is a milestone to the community. As we preserve our own cultural traditions, we will also manage our intellectual property interests." Tingoi, together with Anne Tomme and Kiprop Lagrat of the National Museums of Kenya, has undertaken a 3-month training programme with WIPO in partnership with American Folklife Library of Congress and CDS. Wend Wendland of WIPO told Reuters, "It gives them some control. Very often it is the recording which is misappropriated."

The value of the project is not in terms of creating IP as such, but in terms of managing IP as an inevitability of any documentation initiative. Importantly, the documentation is managed within the community and is not undertaken by an external reesearcher with no connection to the community. The very action of the documentation may itself be undertaken in such a way that it is itself traditional, sustaining the mechanism of tradition as a means by which to transmit knowledge, and realising and indeed demonstrating that knowledge immediately within the community and to the benefit of the community. Documentation, thus becomes a technology of the traditional.

Indigenous Agricultural Knowledge in Managing Climate Change

Indigenous and traditional knowledge is being recognised for its critical role in managing climate change, and more recently mainstream attention to traditional agricultural knowledge sees increased respect for sustainable and ancient methods.

In a project supported by the Kenneth Lee Foundation and Oxfam, farmers in Bolivia's Amazon are turning to traditional irrigation systems in more sustainable agriculture. The system relies on building "camellones" (pictured at left and below right) which are platforms of raised seedbed, constructed above flood level and surrounded by canals. The result is a sustainble use of flood waters without the loss of seeds and crops. The canals capture the water during floods and provide for irrigation during dry seasons.

The system dates back to 1000BC to AD1400 when it was used by pre-Columbian cultures in Beni. The Director of the Kenneth Lee Foundation, Oscar Saavedra, says "The floods were the basis for development and the flourishing of a great civilisation." The region has experienced some of the worst floods in 50 years, largely attributed to climate change. According to the BBC, about 400 families have now enlisted in the camellones project, mostly growing maize, cassava and rice. Although the uptake of the method is still described as experimental, confidence in the traditional methods is growing. Dunia Rivero Mayaco, a mother of 3 from Puerto Almacen near Trinidad, is reported, "I had planted rice, maize, bananas and onions on my plot of land. But the water left nothing ... So that's why I am working here on the camellones." (At right: Such traditional irrigation systems may also lead to less need for clearing for farmland)

In India, traditional indigenous engineering is being implemented in order to establish sustainable systems of water management in modern agriculture.

Although much of the knowledge was transmitted through oral means and practical application, some documentation of the legal and administrative aspects of the knowledge is in fact held in the Treatise of administration, by Kautilya, adviser and minister of Indian emperor Chandragupta Maurya, 321-297 BC. Rajendra Singh (pictured below left) explains, "In Indian tradition, the knowledge was transmitted through practical work under the direction of respected elders and gurus. Thus the people engaged in practical work were really the pupils of the indigenous knowledge system ... The prosperous pupils provided help to the poorest who were working for water conservation, and the state provided only the land. It was a pupil-driven decentralised water management, which is another name for indigenous water management."

Singh attributes conservation of forest, water and other natural resources to "eco-friendly cultural traditions", dharma/parampara, and explains the conflict between this approach and the colonial notion of nature as a resource to be exploited. Singh calls for a revival of indigenous and traditional systems to restore the balance betwen nature and industry in Indian society.

One such tradition to be revived is that of Johad. Johads are concave mud barriers built across slopes to catch rainwater run-off. On all but one side there is a high embankment, the 4th side being open in order for water to enter. Water collected during monsoons penetrates the sub-soil and restores groundwater levels, available later through the use of wells and other means for irrigation of crops and water for animals. Singh explains, "When I went to Bheekampura in 1985, this unique traditional water management system was still alive in the collective memory of the people but remained alienated from the global environment."

Non-governmental organisation Tarun Bharat Sangh (TBS) began to revive the tradition of Johad. Johads started to be built in and by the communities themselves: "No engineer was called for consultation; we were guided entirely by the traditional wisdom of the people who have mantained the ecological balance for generations." As Singh says, the wisdom has been "perfected by tradition."

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.

Special Roundtable Event - London - 30 January 2009

The Queen Mary Intellectual Property Research Institute (QMIPRI), Queen Mary University of London, will host a special lunchtime event at 67-69 Lincoln's Inn Fields (map) London, this Friday, 30th January, 12-2pm. The event is free but places are strictly limited so registration by email is essential (please provide name, institution/firm and email).

Antony Taubman, Acting Director and Head of the Global Intellectual Property Issues Division (including Traditional Knowledge and Life Sciences) with the World Intellectual Property Organization (WIPO) will lead a roundtable on The Recognition and Protection of Traditional Knowledge: What's next on the international agenda?

Antony will be joined in discussion by Tim Roberts, Head of the International Chamber of Commerce (ICC) delegation to the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Johanna Gibson, QMIPRI, will chair.

The Roundtable will commence at 12pm with a sandwich lunch and will conclude at 2pm. The event is accredited for 2 CPD points.

The event is free and open to the public but places are strictly limited and registration is essential. To register, please email with the following information:
(1) Full Name
(2) Firm/Institutional Affiliation or University and course and
(3) Email contact details.

If you would like to subscribe to the QMIPRI mailing list or unsubscribe, please email QMIPRI with your request.

Traditional Medicine - The Threat of Biodiversity Loss

New Scientist magazine has recently reported on the threat to traditional medicines and global health posed by loss of biodiversity and extinction of species of medicinal plants.

Traditional medicinal plants are threatened by the global alternative medicines boom, and are being over-harvested resulting in loss of diversity. Traditional medicine is the main source of medicine for many regions of the world, with the World Health Organization (WHO) recording that in some Asian and African countries, as much as 80% of the population relies on traditional medicine in their primary health care.

Plantlife's Medicinal Plants Conservation Initiative (MPCI) published a report this month suggesting that almost a third of medicinal plants could become extinct if the use is not regulated. The report recommends, among other things, cooperation with local communities having knowledge and interest in medicinal plants in order to link development to conservation and use. The report describes the relationship between the supply of medicinal plants to community benefits in health care, income and cultural traditions.

Sara Oldfield, the Secretary General of the Botanic Gardens Conservation International (BGCI), which published a report in 2007 on the conservation of medicinal plants and the role of botanical gardens, describes the problem as a "quiet disaster."

Cusco Law on Indigenous Knowledge and Biopiracy

The regional government of Cusco, the former capital of the Inca Empire, has enacted laws (O.R. Nº048-2008-CR/GRC) to regulate against biopiracy and protect indigenous knowledge at the regional level.

Alejandro Argumedo, Director of Cusco-based indigenous organisation, Asociacion ANDES, describes the law as "a good example of how local governments can create the appropriate legal and institutional framework, as well as the mechanisms to implement it, to ensure that biopiracy does not prey on the creativity of indigenous peoples and local communities." He explains further, "Worldwide, national governments and international bodies such as the World Trade Organization and the World Intellectual Property Organization have failed to protect indigenous people's traditional knowledge and associated genetic resources from biopirates."

The laws include provisions for prior informed consent from indigenous and local communities, benefit-sharing with communities, and limiations upon the creation of patent rights over genetic resources. The laws are based on the understanding that such communities have sustained and protected the species for centuries through their traditions and practices, and acknowledge this guardianship in the duties to those communities, as recognised in the law, as well as providing for communities to rely on customary laws to develop and implement registers for genetic resources and protocols and procedures for the access to those resources.

The International Institute for Environment and Development (IIED), long-time partner of Asociacion ANDES, praises the passage of the law. Dr Michel Pimbert of IIED (pictured at left) notes the relationship between protecting biodiversity and conserving cultural knowledge: "Biopiracy of traditional knowledge and associated native crops, medicinal plants and microorganisms has been common, depriving poor indigenous people and farming communities of their ancestral rights to natural resources."

Although the law provides for a local infrastructure to challenge national procedures on bioprospecting, the law may conflict with national laws on the recording of indigenous knowledge. The provision for locally produced and controlled registers for traditional knowledge may conflict with the National Register of Indigenous Knowledge, created by the National Institute for the Protection of the Consumer and Intellectual Property. This capacity of local and indigenous communities not only to create but also to control their knowledge registers according to customary rules is of critical importance. To reconcile the two systems, Maria Scurrah, a Peruvian scientist specialising in farmers' rights, suggests to SciDev.net that a cooperation between local communities and the national register is necessary: "I believe that ancient knowledge should be kept by the community and be brought to a national registry to ensure payment to each community for each variety and species registered. That is the only way to pay for each community to be the guardian of biodiversity."

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.