Backdrop to the 50^th WIPO IGC Session

At the 50th session of the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (WIPO-IGC), delegates arrived with expectations for a better outcome. However, after one week of deliberations from March 3-7, 2025, experts and diplomats failed to achieve consensus over an improved working text of international legal instrument(s) for the protection of traditional knowledge and traditional cultural expressions (TK/TCEs). The last session of the WIPO-IGC (the 49^th session) was stalemated because the majority of delegates agreed that they failed to narrow gaps in the working texts of TK and TCEs from the 47^th WIPO-IGC session. At the 49^th session, delegates resolved not to transmit any instruments to the 50^th session, which meant that they would fall back to the text of the 47^th session to the collective disappointment of the Committee and its Finnish Chair, Anna Vuopala, at the December 2024 meetings.

The 50th WIPO-IGC session was chaired by Brazilian diplomat Ms. Erika Patriota, who was invested in breaking the jinx of the 49^th session. Despite her best efforts through a methodology that relied heavily on informal sessions as well as drew from the facilitation skill of the Filipino Friend of the Chair, Anne Adlon, the session’s intended purpose to narrow gaps and deliver on an improved text of negotiating instruments was not met. A hopeful start on the first couple of days resulted in ridding the two working texts (TK and TCEs) of a few redundant and unsupported alternative articles. However, a methodological failure arising from not reining in delegates who were determined to contribute new textual language, and who were determined to even substitute in wholesale fashion some existing articles, pushed the Committee off-balance away from narrowing gaps.

Rights and Measures-Based Approach is Now a Critical Schism

There was a palpable ideological schism among delegates on the perennial high level conceptual question over the nature of the instrument in relation to intellectual property rights. On one side are demandeur delegations who favour negotiating the TK/TCEs instruments as sui generis, or what one delegate characterizes as “IP+.”  On the other side are those who prefer that the instruments be in sync with conventional IP rights – with term limits, elaborate exceptions and limitations, and accommodation of the so-called “vibrant public domain.”

More prominently and equally worrisome at the 50^th WIPO-IGC session was a palpable division among delegates along “rights-based” and “measures-based” approaches to the protection of TK and TCEs. In simple terms, the rights-based approach is premised on the recognition of inalienable and existing rights of Indigenous Peoples and Local Communities (IPLCs) to their TK and TCEs as a fundamental anchor for the protection of those rights and the premise upon which any consequential measures are based. On the other hand, proponents of the measures-based approach, who are mainly non-demandeurs led by the United States and its allies in Group B (Japan, Canada, South Korea, Switzerland, UK), the EU, the Central European and Baltic States (CEBS), etc., are inclined toward a measures-based approach. The latter group of proponents of the measures-based approach proactively emphasizes and promotes a list of policy, regulatory, persuasive, and non-binding measures to encourage the “safeguarding” of TK and TCEs. In the opinion of these proponents, a soft-law (i.e., non-binding) approach is the preferred nature of such measures. The argument is that, in accordance with its mandate, the Committee should not prejudge the nature of the instrument that will result from its work. For most non-demandeurs, a measures-based approach is a suitable pathway to a non-binding treaty.

For the demandeurs, that is, IPLCs as well as mostly developing countries of the global south who coalesce around the mainly fluid category of like-minded countries (LMCs), the African Group, the Group of Latin American and Caribbean Countries (GRULAC), India, China, and some members of the Asia Pacific Group (APG), a rights-based approach is preferred. The demandeurs support a stronger and binding instrument in the nature of the already-concluded treaty from the work of the Committee – the 2024 WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge. For this group, the fact that the Committee is required not to prejudge the outcome of its deliberations does not preclude designing a binding instrument. For demandeurs, the narrow focus of non-demandeurs on a non-binding instrument misses the other consideration regarding the outcome of the Committee’s work, which relates to whether it would result in a single or multiple instruments. At the beginning, the Committee set out on a pathway to three instruments, namely, TK, TCEs and Genetic Resources (GRs).  It has agreed on only one instrument so far, which is the binding instrument on GRs.

Cut-and-Paste Merger for Artificial Consolidation

Despite a lack of consensus, the 50^th IGC attempted to merge the two remaining negotiating instruments on TK and TCEs into one document, in contrast to their being negotiated in parallel, which has been the practice. It is not as if no attempt has been made in the past at consolidating the two remaining documents. In February 2023 and March 2023, the Jamaican Chair of the IGC, Lilly-Clair Bellamy, raised the Chair’s Consolidated Texts of TK and TCEs, which some delegations wanted to be used as a working instrument at the aborted 49^th session of the IGC. The attempt at the equally aborted 50^th session to merge both texts in a cut-and-paste merging approach reflects the potential inclination of delegations toward a consolidated instrument. The Committee appears open to consider a single TK/TCE instrument to complement the 2024 GRs text.

Outside the consolidation debate, what ruptured the 50^th session of the IGC was the “rights-based” or “measures-based” deliberation. The irony is that while delegates seemed to agree that both approaches were not mutually exclusive, their actions did not reflect that conviction. The push by the United States’ delegation to introduce a new measures-based text at the heart of the two working instruments (TK and TCEs) adjacent to the core of the rights-based provisions was perceived by a segment of the demandeurs, including the Africa Group, as an overreach and part of the methodological flaw that failed the 50^th session.

From the perspective of a segment of the demandeurs, including the African Group and Indigenous Caucus, the two texts (TK and TCEs) have gradually taken on a deeply flawed structure wherein measures-based provisions have asymmetrically ballooned over right-based ones. Even in its inchoately merged nature from the aborted 50^th IGC session, the text read like a litany of dubious measures, far from the Committee’s mandate to aspire toward an instrument designed for the “adequate and effective protection” of TK and TCEs. There is an apparent attempt by those delegations invested in the measures-based approach to import the language of safeguarding of TK/TCEs into the IGC text, reminiscent of the UNESCO mandate regarding cultural heritage. This was viewed as an avoidable and less helpful regime duplication outside the WIPO mandate.

UK and Nigeria: Filibustering for Different Reasons

These tensions characterized deliberations at the 50^th IGC sessions, which came to a head at two points. One was the result of the delegation of the United Kingdom’s first attempt to filibuster the proposed decision to transmit the merged text to the 51^st session of the IGC. The filibuster move was based on the UK’s non-recognition of collective rights, which is an aspect of the nature of rights of IPLCs to TK and TCEs in the texts. Determined to save the IGC, the Chair called for break and was able to diplomatically troubleshoot and prevent the UK from pulling the plug. But that did not last. Afterwards, Nigeria rose in a terse submission and expressed its delegation’s instructions to block any decisions based on transmission of the artificially merged text to the next IGC. Nigeria’s complaint appeared to be centred around two things. First, Nigeria questioned the value of a merged text, presented in the nomenclature of consolidated text. Second, and perhaps most important, was the marginalization of the rights-based approach and unfettered (even asymmetrical) uptake of the measures-based approach that now compromised the integrity of the rights-based approach.

Following Nigeria’s attempt to block the transmission of the merged text to the 51^st session of the IGC, the Chair’s last-ditch effort again focused on finding a middle ground between Nigeria and those invested along with the US in a measures-based approach. At the end of the day, it was clear that both interests came to the end of their diplomatic flexibilities. At about 23:00 on the last day, delegates resolved to not transmit any text from the 50 sessions of the IGC to the 51st session, thus repeating the experience of the 49^th IGC. The difference with the 49^th IGC was that at the 50^th IGC, there was sufficient diplomatic effort and no lack of trying. It was just that a methodological and procedural vagueness rendered the process vulnerable to magnifying the evident imbalance and polarization of rights and measured-based approaches. Delegates have yet to pragmatically engage those approaches as truly complementary, as opposed to the present mindset that sets them up as being in competition. There has yet to be any sense that the 2024 WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge has generated impetus for the ongoing work of the IGC on TK and TCEs. The contrary appears to be the case.

WIPO-IGC 51: Resetting Over a New Mandate Amidst Uncertainty

The 51^st WIPO-IGC is scheduled for May 30 -June 5, 2025. It will come on the gloomy shadow of two stalled sessions (the 49^th and 50^th IGC sessions). A new mandate will be negotiated at the 51^st session. Delegations may have to be intentional in resetting the structural, conceptual, and methodological tensions hamstringing the negotiations. They must aspire to craft a methodology with firm guardrails that focuses on narrowing gaps, bridging conceptual divides, and aspiring toward concrete and productive outcomes. Strong leadership with institutional memory would be an asset to the work of the Committee going forward.  These criteria are necessary to convince the WIPO General Assembly to renew the IGC mandate after two failed sessions in a row.