Monday, February 4, 2013

WIPO meets on Genetic Resources; Participation of Indigenous Peoples at issue

The Intergovernmental Committee on Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources (IGC) meets this week at WIPO.  The Committee is working on negotiating a new treaty or soft law instrument on Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources.  This week's work will focus on genetic resources, with future meetings this year on traditional knowledge, and traditional cultural expressions.

The meeting begins today with a half day panel of indigenous and local communities - the IGC's traditional way of beginning each meeting - in an effort to include indigenous and local communities in their work.  At the meeting today James Anaya, United Nations Special Rapporteur on the Rights of Indigenous Peoples, gives the keynote.

The IGC's efforts to include indigenous peoples in their work has been subject to both criticism and commendation by the United Nations Permanent Forum on Indigenous Issues.  In February 2012 indigenous delegates walked out of WIPO in frustration at their inability to adequately participate in the negotiations.  Indigenous delegates at WIPO meetings have no power to submit text proposals on  the texts under discussion, and must do so through state delegations.  Concerns have been raised that, under the draft texts, states - rather than indigenous peoples - could grant themselves control over the traditional knowledge, cultural expressions, and genetic resources of indigenous peoples. Many delegates to the Permanent Forum argued that the processes underway at WIPO "only barely masked States’ desires to appropriate indigenous resources." Such views stem, in part, from the fact that the current draft texts use the term "beneficiaries", without specifying that "beneficiaries" must be indigenous peoples, thus leaving the door open to states defining the state itself as the beneficiary of protection. 

The Permanent Forum on Indigenous Issues has, as a result of these controversies, issued a set of recommendations to WIPO, following a consultation:
46. The Permanent Forum recommends that WIPO seek the participation of experts on international human rights law specifically concerning indigenous peoples so that they provide input into the substantive consultation process, in particular with reference to the language in the draft text where indigenous peoples are “beneficiaries” and other language that refers to indigenous peoples as “communities”, as well as the general alignment of the draft text of the Intergovernmental Committee with international human rights norms and principles.
47. The Permanent Forum demands that WIPO recognize and respect the applicability and relevance of the Declaration as a significant international human rights instrument that must inform the Intergovernmental Committee process and the overall work of WIPO. The minimum standards reflected in the Declaration must either be exceeded or directly incorporated into any and all WIPO instruments that directly or indirectly impact the human rights of indigenous peoples.
48. The Permanent Forum appoints Mr. Paul Kanyinke Sena, a member of the Forum, to undertake a study to examine challenges in the African region to protecting traditional knowledge, genetic resources and folklore, and to report thereon to the Forum in 2014.
49. The Permanent Forum welcomes the decision of the Intergovernmental Committee to organize, in cooperation with the Forum, expert preparatory meetings on the Intergovernmental Committee process for indigenous peoples representing the seven geopolitical regions recognized by the Forum.
50. The Permanent Forum requests that WIPO commission a technical review, to be conducted by an indigenous expert, focusing on the draft texts concerning traditional knowledge, genetic resources and traditional cultural expressions, and to provide comments thereon to the Intergovernmental Committee through the Forum. The review should be undertaken within the framework of indigenous human rights.
51. The Permanent Forum calls upon States to organize regional and national consultations to enable indigenous peoples to prepare for and participate effectively in sessions of the Intergovernmental Committee.
52. Consistent with article 18 of the Declaration, the Permanent Forum requests Member States to explore and establish modalities to ensure the equal, full and direct participation of indigenous peoples in all negotiations of the Intergovernmental Committee.
53. As highlighted in article 31 of the Declaration, the Permanent Forum requests that both WIPO and States take effective measures and establish mechanisms to recognize the right of indigenous peoples to protect their intellectual property, including their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games, and visual and performing arts.
54. The Permanent Forum calls upon WIPO to strengthen its efforts to reach out to indigenous peoples and to continue to provide practical assistance and capacity strengthening for and in cooperation with indigenous peoples.
55. The Permanent Forum calls upon the Intergovernmental Committee to appoint representatives of indigenous peoples as members of any Friends of the Chair groups and as co-chairs of any working groups and drafting groups that may be established by the Committee. It also calls upon the Committee to appoint an indigenous person as a co-chair of the Committee as a whole.
 The IGC held a consultation on the participation of observers and has issued this related document, outlining various options for further indigenous participation.  This discussion will continue this week.