Shopping in the Mall for Unwilling Hosts: Toward a WIPO IGC Diplomatic Conference on TK and GR Treaty
WIPO GA Decision July 2022: A Game Changer
The 55th (30th Extraordinary) Session of the World Intellectual Property Organization General Assembly (WIPO GA) held in July 2022 decided to convene a Diplomatic Conference on Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources pursuant to the work of the Intergovernmental Committee (IGC). This decision was a welcome impetus to the work of the IGC.
Special Session and Preparatory Committee September 2023
Following the GA decision, the IGC held a Special Session (SS) from Sept 4-8, 2023 to fix lingering gaps in the preamble and substantive articles (Articles 1-9) of the TK-GR Text, which was based on the compromise text of the former IGC Chair, Ian Goss (Australia). The agreed text emerging from the SS was transmitted to the Preparatory Committee (Prep. Comm.) on the Diplomatic Conference, which was held in Geneva immediately following the SS from Sept 11-13, 2023. Among other things, the Prep. Comm. deliberated on “the administrative provisions and final clauses” of the instrument as proposed by the Office of WIPO Legal Counsel (Articles 10-23).
At the conclusion of the back-to-back meetings in September 2023, all appeared set for a final round of negotiations to be concluded at a Diplomatic Conference on the TK-GR Text. The conference, if successful, will result in a new traditional knowledge and genetic resources (TK-GR) treaty text, the status of which remains to be determined. In the event of any such treaty being agreed to, irrespective of its status, it will mark the first major outcome of the over two decades of work by the IGC, pending continuing negotiations on the text(s) of traditional knowledge and traditional cultural expressions.
Chair’s TK-GR Text: Salvaging IGC from Rupture to Hope
The pathbreaking Summer 2022 decision of the WIPO GA to approve the finalization of negotiations based on the Chair’s compromise text and to endorse the convening of a Diplomatic Conference was welcomed with excitement across demandeur states (states demanding the creation of the treaty), Indigenous Peoples and local communities. This excitement is not generally shared by non-demandeur states, especially the United States, Japan, South Korea and their less vocal allies. The reluctance of the US, its unwavering allies and segments of the non-demandeur states is understandable. It is best appreciated within the context of the 2018 IGC where the US bushwhacked delegates and rejected the main text of the TK-GR negotiations out of the 36th session of the WIPO-IGC. That text enjoyed the confidence of an overwhelming majority of delegates. Its rejection by the US placed the IGC on edge and close to rupture.
Given the US’ action and resulting disillusion among delegates across geopolitical blocs, the IGC Chair (Ian Goss) took the initiative to save the IGC. He penned the Chair’s text after extensive, patient and painstaking consultations. In all respects, the text was a compromise document. It has since evolved from its original 2019 version to the main TK-GR Text now ready for a Diplomatic Conference in 2024. But despite the late-stage efforts, especially pursuant to the IGC’s busy September 2023 schedule and the excitement that drove the 2022 decision of the WIPO GA for a Diplomatic Conference, uncertainty hovers over the fate of the TK-GR treaty.
Shopping in the Mall for Unwilling Hosts
At the time of this writing and behind the scenes, there has yet to be an officially confirmed host for the Diplomatic Conference in 2024 because no country has stepped forward to host it. Ideally, expressions of interest to host, albeit informal, should have preceded the 2022 GA. It is not unusual for such expressions of interest to peak after the GA decisions were made and then be affirmed following the September SS and Prep. Comm.
There is no dearth of credible speculation and expectation among diplomats, insiders and delegates on the plausible and potential country hosts of the 2024 Diplomatic Conference. Considerations for hosting such a historic conference to birth a crucial treaty are influenced by a complex array of contingent, pragmatic and dynamic calculations or circumstances. Enumeration of those is outside this short reflection.
What it Takes to Be a Host
However, a snapshot of critical considerations for host status includes, but are not limited to, the following interdependent factors: financial power, political will and capital to invest in and ensure a successful Conference. Other factors include track record of consistent leadership at the IGC, geopolitical influence and leverage, significant stake in matters substantive to the IGC (such as traditional knowledge, biodiversity and genetic resource endowment), and significant Indigenous Peoples and local community constituencies. Additionally, there is a pacific credential which enables a host to leverage its goodwill to forge consensus through troubleshooting. Another factor not to be neglected is a secure ambience or destination that will be ideal and conductive for soothing frayed diplomatic nerves and flares that are incidental to high-stakes negotiations.
In all the above calculations, it is logical to assume that an ideal host country for the Diplomatic Conference would be a demandeur country and others in-between. Such country should check the boxes in favour of several of the above enumerated factors. It is therefore unsurprising that some potential host candidates that have been speculated at one point or another, even at the level of wishful and subtle pressure, include Algeria, Australia, Brazil, China, Ghana, Indonesia, Namibia, New Zealand, Nigeria, South Africa, etc. (listed in alphabetical order).
No Host from Regional Hosts
The regional consultations preceding the IGC SS and Prep. Comm. meeting of September 2023 provided a speculative glimpse on the hosting conjecture. Algeria hosted the African region, Indonesia hosted the Asia Pacific Group, and Uruguay hosted the Group of Latin American and Caribbean Countries. China hosted an informal cross-regional consultative session in Beijing. Yet, this posturing has not led to a hosting commitment for the 2024 Diplomatic Conference by any of the regional hosts.
Significance of the Hosting Cold Feet
It is hard to conjecture why there is a lack of enthusiasm to host the 2024 Diplomatic Conference. Is it indicative of a lack of confidence among demandeur states on the document that is being readied for the Diplomatic Conference? Could it be a matter of timing, given concurrent negotiations at multiple fora (e.g., Convention on Biological Diversity, World Health Organization, etc.) and some nascent regimes on issues overlapping with TK-GR text such as access and benefit-sharing and considerations for genetic sequence information or digital sequence data? These issues, aside from being hot button matters, have potential to take the wind from the sails of a TK-GR treaty. Is it also possible that there is a lack of political will by potential host countries to drive the rancorous TK-GR negotiations to a conclusive outcome, especially amidst the skepticism of some non-demandeurs for whom no outcome is the best outcome? Furthermore, one may ask, is IGC such a political risk that no demandeur country considers it worth taking because of skepticism over outcome or fear of failure? And if so, what does it forebode going forward for the IGC? In addition to all the factors canvassed here, the overarching requirement is a political will, be it at a specific national or regional coalescence, for a courageous host to emerge and to drive the momentum for TK-GR negotiations to the finish line.
Final Opportunity for a Host to Step Up
It is in the context of the above dynamic that WIPO issued a notice on November 30, 2023 to “reconvene the Preparatory Committee on December 13, 2023, to consider the agenda, dates and venue of the aforementioned Diplomatic Conference … to conclude an international Legal Instrument Relating Intellectual Property Genetic Resources and Traditional Knowledge Associated with Genetic Resources”. If no country offers to host the Diplomatic Conference, the default will be for WIPO to take ownership of hosting the conference, possibly in Geneva. The implication of such eventuality for the WIPO-IGC beyond the TK-GR treaty is blowing in the diplomatic wind. And it is not looking like a cool breeze to rest a stormy two decades of the IGC’s work on the TK-GR text.