Continuing our reportage from the WIPO General Assembly, K M Gopakumar provides us the final outcome. Ending nearly 68 hours of impasse WIPO Member States reached a compromise decision to renew the mandate of the Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore (IGC). WIPO Member States arrived at the agreement just two hours before the conclusion of the assembly.
The decision, which contains the compromise formula, which accommodates the interest of both the developed and developing countries provides a mandate to IGC to under take text based negotiation for an international legal text to ensure effective protection of genetic resources (GR), Traditional Knowledge (TK) and Traditional Cultural Expressions (TCE) with clear time frame spreading two years 2010 and 2011. This renewed mandate has strengthened the developing states' demand for a legally binding instrument for the protection of GRs, TK and TCEs.
Details of the decision are as follows:
“The committee will during the next budgetary biennium (2010/2011) and without prejudice to the work pursued in other fora, continue its work and undertake text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection of GRs, TK and TCEs”
“The Committee will follow, as set out in the Annex, a clearly defined work program for the 2010/2011 biennium. This work program will make provision for, in addition to the 15th session of the Committee schedule for December 2009, four sessions of the IGC and three inter-sessional working groups in the 2010-2011 biennium”
“The focus of the committee’s work in the 2010/2011 biennium will build on the existing work carried out by the committee and use all WIPO working documents, including WIPO/GRTKF/IC/9/4, WIPO/GRTKF/1C/9/5 and WIPO/GRTKF/IC/11/8A (Traditional Cultural Expressions, Traditional Knowledge and Genetic Resources), which are to constitute the basis of the Committee’s work on text-based negotiations”
“The Committee is requested to submit to the 2011 General Assembly the text (or texts) of an international legal instrument (or instruments) which will ensure the effective protection of GRs, TK and TCEs. The General Assembly in 2011 will decide on convening a Diplomatic Conference.”
“The General Assembly requests the International Bureau to continue to assist the Committee by providing Member states with necessary expertise and funding of the participation of experts from developing countries and LDCs according to the usual formula”.
“The General Assembly adopts the draft report of the 14th session of the Committee as reflected in document WIPO/GRTKF/IC/14/12 Prov.2 as the report of that session”.
Key highlights of the renewed a mandate are :
First: As per the renewed mandate IGC while continue the present work will undertake text based negotiations for an international legal instrument, which will ensure effective legal protection to GRs, TK and TCEs. However, there is still doubt about the meaning of the term international legal instrument. According to some experts the term does not necessarily mean international treaty or agreement. However, paragraph d clearly states that submit to the 2011 General Assembly the text (or texts) of an international legal instrument (or instruments) which will ensure the effective protection of GRs, TK and TCEs. The General Assembly in 2011 will decide on convening a Diplomatic Conference.” In the normal course, Diplomatic Conference is normally convened to take decision regarding the adoption of treaty or agreement. Further the words to “ensure effective protection” in the last part of Paragraph (a) also point out clearly that the mandate is not for a declaration but for a legal instrument.
Second: The mandate clearly provides a timeframe for the conclusion of the IGC process spearing over two years from the 2009 General Assembly to 2011 General Assembly. The Annex to the decision contains the list of meetings that will be held between this GA and the 2011 GA as follows: First Inter-sessional Working Group-February/March 2010; IGC 16-May/June 2010; WIPO General Assembly-September 2010; Second International Working Group-October 2010; IGC 17-December 2010; Third Inter-sessional Working Group-February/March 2011; IGC 18-May/June 2011; IGC 19-Early September 2011; WIPO General Assembly-September 2011
Third: All WIPO working documents especially three documents mentioned in paragraph (C) of the decision as a basis for the text based negotiation. These three documents are viz. Revised Objectives and Principles on the Protection of Traditional Knowledge (WIPO/GRTKF/1C/9/5), Revised Objectives and Principles on the protection of Traditional Cultural Expressions (WIPO/GRTKF/IC/9/4) and List of Options for Genetic Resources (WIPO/GRTKF/IC/11/8A).