by Chidi Oguamanam* First Published by ABS Canada here. Republished on Infojustice with the permission of the author.

Delegates to the World Intellectual Property Organization Special Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC) resumed and concluded their last deliberations for the 2024-2025 biennium on May 30-June 5. Most of the first day was used for the traditional opening statements through which major negotiating blocs and delegations signalled to one another their expectations for the 6-day meeting.

No Appetite for Impasse

The 51st session was unique in many ways. It was co-chaired by Anna Vuopala (Finland) and Erika Patriota (Brazil). Respectively, each of the two Chairs superintended over two failed IGCs – IGC 49 and IGC 50. Their co-chairing of the last and final sessions of the IGC for the biennium was expected to draw from their experiences from the two failed previous sessions in a row. The odds were in their favour. Neither of the hardliner demandeur nations or blocs nor their non-demandeur counterparts were disposed to filibuster negotiations. Any such outcome would potentially result in non-renewal of the IGC mandate for the next biennium (2026-2027).  It was clear to the delegates that mandate renewal was the biggest issue on the agenda listed under item 6 for the session (Taking Stock of Progress and Making a Recommendation to the General Assembly).

Tension on Rights-based and Measures-based Approaches Remains

Yet, despite the priority of mandate renewal, there was no let up to the tensions that partly led to the two failed IGCs. The United States, Japan and their Group B allies as well as CEBs, and Switzerland were bent on enumerating a litany of measures in the text in preference to rights. They construed a measures-based approach as having priority over a rights-based approach to the protection of TK and TCEs. At the 50th session, the US delegation, with the active support of Japan, Korea, Canada and Switzerland introduced the language of “safeguarding” to further entrench their measures-based approach and conceivably to water their expectation for a soft and non-binding instrument. This sentiment is also shared by the EU as a bloc.

The attempt to center a measures-based approach stoked tension and resistance on the part of the broad coalition of the Indigenous Caucus, African Group, Group of Like-Minded Countries, China, the Group of Latin American and Carbbean Countries, some members of the Asian Pacific Group and New Zealand. It also nearly derailed the 51st sessions with demandeurs insisting on blocking those safeguarding aspects of measures-based languages regarding TK and TCEs. Nigeria deplored the deliberate attempt at regime duplication as a ploy to undermine the IGC mandate on TK and TCEs which is clear on effective protection of the subject matters. For Nigeria and the Africa Group, safeguarding of TK and TCEs is dealt with at the UNESCO.

As a compromise, those textual drafts on safeguarding and measures-based were taken on board by the three facilitators of the 51st sessions (Ghana, US and Colombia) in an ambiguous procedural circumstance and kept in square brackets under “Alternative X”. This was to preserve the sanctity of the Facilitators’ Alternatives carried over from the IGC 49 texts (WIPO/GRTKF/IC/49/4; WIPO/GRTKF/IC/49/5 which was the default working document and same as from IGC 47) around which there remains a broad coalescing of understanding. Thus, the two texts (TK and TCEs) from the 51st session did little to close gaps.

In sum, the delegations agreed on modest progress on the two texts of the TK and TCEs from the 51st sessions. The progress included modest striking out of a few texts that did not have the backing of any interested bloc as well as the bracketing of the US and allies-backed Alternative X.  The remaining two days were devoted to mandate negotiations.

United States-led Charge to Weaken IGC Mandate

The mandate was negotiated through a combination of deliberations at the informal sessions with ratifications at the plenary. The United States delegation left no doubt regarding their determination to limit the IGC meetings and to whittle down its mandate, a move that was strongly supported by Japan, Switzerland and some Group B allies. The United States went as far as proposing a maximum of two meetings, arguing for resetting the IGC for lack of progress. From the perspective of demandeurs, if there was lack of progress, the blame lies with non-demandeurs whose strategy for scuttling progress remained obvious. For the demandeurs, there was need to keep the momentum created by the two recent WIPO treaties of 2024 – the GR Treaty and the Riyadh Design Law Treaty. These developments called for more meetings and not less.

Framing GRs in the TK/TCEs Mandate After GR Treaty

In addition to different narratives of progress and dissonance over the number of meetings, another issue of contention for the mandate was how to frame GRs into the mandate given the conclusion of the GR treaty. For IPLCs through the Indigenous Caucus, the conceptual holism of TK, TCEs and GRs is not undermined by the fact that a GR treaty has been concluded within the framework of patents. For the Caucus, the Africa Group, GRULAC and LMCs and other demandeurs, discussions about GRs cannot be severed from TK and TCEs notwithstanding the conclusion of the GR treaty.  As a compromise position, delegates agreed that GRs will continue to be part of the IGC mandate, save that there will be no normative negotiations capable of reopening the GR text.

Debate over an Evidence-based Method

The next most prominent issue in the mandate negotiations was the palpable suspicion among demandeurs and non-demandeurs on the language regarding collection of evidence to inform negotiations.  Evidence-based methodology has been an integral part of the mandate and the work of the IGC. Demandeurs insisted that there is a deluge of real-world evidence and studies, now increasingly magnified by emergent national and regional regimes on the protection of GRs, TK and TCEs. They maintained that the tendency by non-demandeurs to fixate on an evidence-based approach and interminable commissioning of studies is suspect. Delegates agreed that an evidence-based aspect of the Committee’s work method should be framed advisedly so that it is not to be used as a red herring to unduly delay or scuttle progress on text-based negotiations.

Taking a “Measures-based Approach” out of Mandate Text

Rejecting a contrary proposal, the Committee agreed to rid the mandate of any specific prescription or citation of a measures-based approach or detailing categorization of specific issues as core issues for the Committee’s work. While writing a measures-based approach into the mandate was the preference of non-demandeurs, it did not garner support from demandeurs, who resisted extending the already toxic measures-based approach into the mandate.

Expert IPLC Hybrid Workshop

There was an agreement and support to advance effective participation of IPLCs through a Hybrid Expert Workshop. While the original inclination of the non-demandeurs and the Indigenous Caucus was for an in-person workshop, delegates compromised on holding the workshop in a hybrid form. This reflects the characteristic contradiction in the IGC. While all delegates agree that the legitimacy of the IGC derives from active participation of IPLCs, concrete support for that politically correct posture always falls short.

Three Meetings, Twenty-Four Days

From the minimalist number of two meetings floated by the United States to six meetings supported by the non-demandeurs, the co-chairs promoted a total of five meetings and slashed the meeting days for the biennium by 4 days from the normal 30 days to 26 days.  Accommodating sentiments from the United States and other non-demandeur blocs, after much haggling, the Committee ended up on a hard compromise – to shrink IGC meetings for the next biennium down to three meetings for 8 days each making a total of 24 days, a radical departure from the norm of upward of 6 meetings in a biennium over a 30-day period.

A case can be made for reducing the number of meetings for the IGC in view of the conclusion of the GR treaty. But a contrary case can be made for keeping the number of meetings; even increasing them as a demonstration of the desire to expedite and conclude negotiations. But decisions in the IGC are often made on the conflicted visions of the demandeurs and non-demandeurs who support and oppose the case for adequate and effective protection of TK, TCEs and GRs. In addition to this fundamental schism, there are a lot of conceptual divides across different legal regimes and worldviews that have no common perspective on what constitutes progress in this forum. This is in addition to perennial paucity of political will that it takes to ensure that the demandeurs and non-demandures agree on the pace of work and the necessity for agreement(s) on TK and TCEs text(s), not to mention the nature – binding or non-binding.

Conclusion

It is expected that the WIPO General Assembly which convenes in July 2025 will accept the recommendation of the IGC for the renewal of the mandate of the Committee on the terms agreed at the IGC 51st sessions. However, the idea of 8 days for each of the three sessions over the next biennium is an untested proposition. For a forum where negotiations can be very tense and challenging with historic asymmetries across stakeholder blocs, there is no doubt that 8 days in Genava places powerful non-demandeur delegations in a fundamental advantage. Those states have the practice of rotating and refreshing delegates for elongated negotiation sessions. That is a luxury their demandeur counterparts cannot afford. Eight days in a row is susceptible to wear out skeletal delegations of demaneur countries, not to mention the barely funded delegations of the Indigenous Caucus whose attendance is at the mercy of the so-called Voluntary Fund.

The tone and dynamic of the 51st IGC sessions and the strategies deployed by delegates were not encouraging. Rather than generate anticipated momentum for IGC’s work on the TK and TCEs text(s), it appears that the GR treaty has triggered renewed interest of non-demandeurs to reset the IGC back to a talking forum for as long as it takes. In addition to that, the now radically reconfigured timetable for the next biennium exposes IGC to unchartered and experimental territories more likely to dampen expectations of progress. With eyes on the next biennium, one hopes that this prognosis turns out to be wrong.

Postscript: Farwell to a Gentleman: Wend Wendland

One of the highlights of the 51st sessions of the IGC was the opportunity offered to delegates by the WIPO Secretariat to felicitate and bid farewell to Mr. Wend Wendland, the outgoing Director of the TK Division, and the “father and conscience of the IGC.” If the delegations agreed on anything, it was regarding the exemplary service, dedication, experience and expertise of Mr. Wendland whose three-decade career with WIPO overlapped with his steady, patient and exceptional leadership of the IGC.  In emotion-laden tributes, the WIPO DG (thorough ADG, Edward Kwakwa), the co-chairs, regional groups, Indigenous Caucus, and member states expressed their appreciations for Wend’s extraordinary leadership and dedication as well as his legacies which include the 2024 GR treaty.  Delegations wished him well as he attended his last IGC as the Director of the TK Division of WIPO.

* Written by Chidi Oguamanam.

Dr. Chidi Oguamanam is the Principal Investigator at ABS Canada. He is a Full Professor affiliated with the Centre for Law, Technology, and Society, the Centre for Environmental Law and Global Sustainability, and the Centre for Health Law, Policy and Ethics at the University of Ottawa.