[A2k] WIPO IGCGRTKF June 29-July 3: Day 5

[Perlman, Marc]

Friday=92s meeting started at 11:00am with a report by the Secretariat on t=
he costs of the IGC=92s activities and the projected intersessional meeting=
s.  Then the plenary went back to Wednesday=92s procedure, examining the Af=
rican Group proposal.  The African Group and its allies reiterated that the=
 core elements (text-based negotiations, on a clear timetable, leading to a=
 legally binding document) were not negotiable.

The EU presented a document that served more or less as the polar opposite =
to the African Group Proposal, in that it called for =93outcome-oriented de=
liberations=94 that =93build on the existing Committee texts=94 (rather tha=
n =93text-based negotiations=94), and it did not exclude =93the possible de=
velopment of a legally-binding international instrument=94 (rather than ins=
isting on it).  The only point of convergence with the African Group propos=
al was the stipulation of a clear timetable.  However, the EU also introduc=
ed a (non-binding) declaration affirming that =93indigenous and local commu=
nities have the right to maintain, control, protect and develop their intel=
lectual property=94 over their heritage, and to protect GR, TK & TCEs again=
st misappropriation.

The USA defended =93outcome-oriented,=94 pointing out that many previous di=
scussions in the IGC had been abandoned without reaching an outcome, and th=
ey wished to pick up the threads of those discussions.

New Zealand was willing to support the African Group proposal, but its gove=
rnment was unwilling to commit itself to a binding document without first c=
onsulting with Maori representatives.

Australia, which had been silent on Thursday, now offered a slight emendati=
on to the African Group proposal, essentially turning the =93legally bindin=
g document=94 from a requirement to an option, but leaving the other two =
=93core elements=94 untouched.  Canada showed some enthusiasm for this appr=
oach; Sri Lanka seemed not uninterested in it.  (Mexico had suggested a sim=
ilar idea on Thursday.)

It seemed for a moment as if there was a move to split the difference betwe=
en the EU and African Group proposals by maintaining two of the three =93co=
re elements=94 (text-based negotiations on a clear timetable), but the prop=
onents of the African Group proposal refused to budge on a legally-binding =
document.

Pakistan argued that it was impossible to negotiate a treaty without knowin=
g at the outset whether it would be binding or not; against this, other del=
egates cited the FAO treaty and the ABS provisions of the CBD as counterexa=
mples.  Mexico suggested they ask for legal advice to resolve this question=
.  But Egypt declared that the real issue was that the majority of states w=
anted a binding treaty, and states that didn=92t want to bind themselves co=
uld simply refuse to sign.  The only reason for opposing negotiations towar=
d a binding treaty, he suggested, was that certain states feared that they =
might some day be pressured into joining such a convention, if it existed.

The plenary was then joined by Mr. Edward Kwakwa, WIPO=92s chief legal offi=
cer.  The Chair asked him to define =93legaly binding instrument,=94 and to=
 explain what is meant by =93including the possibility of a legally-binding=
 instrument or non-binding instrument.=94

If this was intended to answer Mexico=92s question (to what extent the IGC =
might be tying its hands with respect to the status of a future instrument)=
, it produced more mirth than illumination.  Mr. Kwakwa defined a =93legall=
y binding instrument=94 as an instrument that is legally binding, and said =
an =93instrument=94 could be either binding or non-binding.

The discussion then resumed as before.  Zambia demanded that states not wis=
hing to bind themselves should get out of the way and let the majority of m=
ember states negotiate the binding instrument they desired.  Norway pointed=
 out that a treaty, no matter how binding, won=92t be effective if it never=
 enters into force. The Philippines replied that some treaties have come in=
to force with as few as ten ratifications.

Other delegates warned that the lack of a binding instrument on GRTKF would=
 endanger WIPO negotiations in other areas: when developed nations demand b=
etter enforcement of their IP rights, developing nations will remember how =
their proposals had been treated in the IGC.

There was then a long coffee break during which the African Group consulted=
.  Rumors circulated that there would be a call for a vote (something that =
had never happened before in this consensus-based committee).  But when the=
 plenary resumed (around 8:00pm), the African Group said they regretted tha=
t a minority of intransigent member states had doomed the effort to renew t=
he mandate. They seemed disappointed that the Director General had not pers=
onally involved himself more in the negotiations, and predicted that this f=
ailure of the IGC would lead to continued misappropriation of GRTKF.

At that point, around 8:30pm, it seemed like the work of the committee was =
over.  Yet discussion continued for another hour as some delegates tried to=
 keep the door open for informal negotiations leading up to the General Ass=
embly.  The EU requested that its proposal be included in the report, Austr=
alia offered to make itself available for consultations, and Canada moved t=
hat the IGC request the Chair to carry on with informal consultations.

But the advocates of the African Group proposal tried to block these moves =
by invoking the rules of procedure.  Some said the Chair could do nothing a=
fter the IGC meeting because, with the expiration of the mandate, the posit=
ion of the Chair would cease to exist.  Others said the EU proposal could n=
ot be considered an official document of the IGC since it had not been subm=
itted three weeks before the meeting.  And others claimed that the IGC coul=
d not make any recommendation to the General Assembly concerning consultati=
ons that would take place after the IGC meeting.

Mr. Kwakwa was called upon to clarify these procedural issues.  He said the=
 IGC mandate lasted through December 2009, and that according to the rules,=
 working documents should be sent along with the letters of convocation, tw=
o months in advance.  (It turned out that the African Group proposal had it=
self been submitted only a week in advance.)

Strict application of the rules, then, would invalidate all of the IGC=92s =
work.  The Committee could choose to derogate from the rules, but Canada, s=
eeing a solid wall of opposition, retracted its proposal.  Egypt suggested =
that it might approve informal consultations if they were conducted by the =
Director General.  But there seemed to be a certain satisfaction felt by so=
me of the delegations in the collapse of the IGC.  Zimbabwe delivered a def=
iant statement to the effect that the lines had been drawn before the meeti=
ng even started.  The African Group did not come to beg, to ask a favor; it=
 came to claim its rights.  If it failed, it was because the outdated proce=
dures of WIPO allowed a minority to frustrate the wishes of a majority.  Th=
e mother (WIPO) had failed to take care of her child (the IGC), but the pro=
cess would continue elsewhere, outside of WIPO.

The Chair ended with hopeful counsels of patience.  He quoted Victor Hugo, =
a great crusader against injustice, to the effect that nothing can stand in=
 the way of an idea whose time has come.  GRTKF=92s time will come some day=
, and when it does, the course of history will be changed.

Respectfully submitted,
Marc Perlman
Brown University