By Chidi Oguamanam

Delegates and experts reconvene for the 47th instalment of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC). However, on the heels of the 47th IGC (which is the last meeting of the 2022-2023 IGC biennium) much focus has been on the 2024 Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge (the Diplomatic Conference). On July, 2022, the WIPO General Assembly sanctioned the advancement of the Chair’s draft text on Genetic Resources to be the principal working instrument for the Diplomat Conference at a date to be determined in 2024.

Expert Committee on the Genetic Resources Text

Meanwhile, a special expert committee of the IGC continues to deliberate on the Genetic Resources text with a view to reconcile any remaining issues. A report of their deliberations will be proposed for considerations as preparations for negotiations ramp for the 2024 Diplomatic Conference.

Regional Meetings Ahead of the Diplomatic Conference

Parallel to the work of the expert committee on the Genetic Resources text, various regional negotiating blocs at the IGC have been meeting and holding consultations. These meetings, which are supported by WIPO, are designed to articulate regional positions and strategies. They also involve necessary sensitizations of stakeholders in preparation for a successful Diplomatic Conference in 2024.

IGC 47: Continuing Negotiations on TK/TCEs

Outside the buzz generated by the 2024 Diplomatic Conference – which is understandable being the closest the WIPO-IGC has come to a concrete outcome after more than two decades of negotiations – the focus of the experts’ programme for the 47th IGC is on continuing negotiations on the TK and TCEs (aka folklore).

In an about-face, after twenty years of two clear sperate tracks of negotiations on TK and TCEs, the experts are now open to real time juxtaposition of the two documents as a new negotiation strategy. This inclination toward potential consolidation of the TK and TCEs texts is already reflected in the Chair’s first zero draft (non-paper) text of TK/TCEs first unveiled at the IGC 45 as a single instrument.

Aside from continuing negotiations on the draft texts of TK and TCEs (from the 46th IGC), experts will also receive a further iteration of the Chair’s parallel consolidated text on TK/TCEs (second draft) from its earlier version first released at the 45th IGC.  The IGC Chair, Ms. Lilly-Claire Bellamy (Jamaica), has continued to work on that draft in collaboration with an expert advisory committee, albeit exclusively holding the pen on that document.

At the 47th IGC, as delegates continue their negotiations on the substantive TK/TCEs, they do so with the current iteration, i.e., second draft of the Chair’s TK/TCEs Text in the background. This set up promises to be an interesting negotiation dynamic that subtly pulls towards a consolidated TK/TCEs text.

Genetic Resources and WIPO-IGC Future Mandate

Another crucial part of the 47th IGC agenda for delegates involves deliberations on the future work program of IGC now that the Genetic Resources text is moving forward to the Diplomatic Conference. Delegates are expected to propose a new work program for the approval of the WIPO General Assembly.  This task is, by all considerations, a delicate one. The tension is palpable, even if not necessarily desirable, that the interest of non-demandeurs lie mostly in genetic resources. In that regard, there is a potential risk of waning interest in the IGC program’s TK and TCEs work, especially by non-demandeurs. However, that proposition could be quite misleading. Even though GRs text has proceeded on a separate track, it does not detract from the holistic essence of the subject matters of the WIPO-IGC. Also, it will be too early and premature to sever GRs from TK/TCEs before a decision is made on the status of the instruments resulting from the IGC.  Furthermore, current developments in related regimes such as the CBD, WHO and cognate fora reinforce the continuing exploration of GRs in conjunction with traditional knowledge and innovation without disentangling them.

Now that the GRs text is advanced to the Diplomatic Conference, it remains to be seen if there will be continuing commitment by both WIPO and the non-demandeurs to ratchet up efforts on the TK/TCEs. It will be too simplistic to suggest that the progress on the GRs text would dim the urgency and political will to ramp up negotiations on TK/TCEs. Despite the differentiated advancement of negotiations on the texts of the IGC instruments, the fundamental mandate of the committee to negotiate text of instrument/s for effective protection of genetic resources, traditional knowledge and traditional cultural expression remains sacrosanct. Rather than diminish enthusiasm and commitment, the impetus around the genetic resources text must create an urgency to expedite work on TK and TCEs. Genetic resources must remain within the radar and purview of WIPO IGC toward a potential transmutation of the IGC into a WIPO standing organ, one can only hope.

Indigenous Caucus Strategy for Participation at WIPO

Finally, in the shadow of the strategic meetings of regional groups ahead of the 2024 Diplomatic Conference, the issue of how Indigenous Peoples could effectively participate at the concluding stage of the negotiations on Genetic Resources stalks the legitimacy of the IGC process. The irony is that while delegates agree that Indigenous Peoples and Local Communities are the primary beneficiaries of the protection of TK/TCEs and genetic resources and of the instruments arising from the WIPO-IGC, IPLCs participate in the negotiation on the margins. They are neither state parties nor do they have corresponding rights of sovereign states.

In terms of funding and protocol of deliberation at the IGC, Indigenous Peoples’ participation is at the mercy of IGC member states. Notwithstanding this conundrum which mocks the legitimacy of the IGC, the Indigenous Caucus is unrelenting. It has been active in organizing strategy sessions, outreaches and contacts to regional groups and WIPO to ensure that Indigenous Peoples’ effective participation is a deliberate part of the ensuing protocol for the Diplomatic Conference.

Beyond participation at the Diplomatic Conference specifically, the Indigenous Caucus is committed to prick the consciences of delegations and member states on the issue of Indigenous Peoples’ locus standi and participation in WIPO processes. To this end, The National Congress of American Indians, the Native American Rights Fund & the University of Colorado School of Law have organized, on the sidelines of the 47th IGC, an important panel exploring “Models and Guidelines for Promoting Effective Participation of Indigenous Peoples at WIPO”.

Indigenous Peoples and the amorphous category, “Local Communities”, are critical part of the raison d’être of the WIPO-IGC. They are undisputed beneficiaries of the central objectives of the instruments arising out of the IGC.  Their active participation in the IGC process constitute the fundamental, albeit neglected, basis of the legitimacy of the WIPO-IGC and indeed other relevant programs and processes at WIPO involving Indigenous peoples. It is hoped that the protocol for the Diplomatic Congress will include substantive participation of Indigenous Peoples as a deliberate matter.

This post first appeared on ABS Canada.