Coherence Needed To Avoid Multilateral Legal Swamp, WTO Told

The multilateral system with its different agencies dealing with specific areas is sometimes seen as incoherent in global negotiations and norm-setting as there are overlaps in competency, definition and scope, according to speakers at a side event to the recent World Trade Organization Public Forum.

The focus of the side event organised by the International Centre for Trade and Sustainable Development (ICTSD) on 17 September was the interaction between the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights and the UN Convention on Biological Diversity (CBD), a few weeks before the high-level CBD Conference of the Parties in Nagoya, Japan.

For example, the biodiversity regime “complexe” as characterised by Jean-Frédéric Morin, professor at the Université Libre de Bruxelles, includes four regimes: agricultural, trade, biodiversity, and intellectual property. The overlap between those four regimes creates ambiguity, he said.

Agencies go through different stages: the first stage Morin described as “atomisation” where agencies work in their own field, the second stage where there is competition between the agencies, and a third stage where the “different regimes try to avoid confrontation” and specialise but they influence each other, he said.

States also have different approaches to the agencies, he said. They are either “chaotic” and there is no coordination between different regimes, “ strategic” when they choose to play a different part in different agencies, with trade-off considerations, “functional” when states establish clear boundaries between areas, or “systemic” when states send the same diplomats to different fora to discuss a specific issue. Switzerland has a systemic approach, while the United States have a more strategic method, Morin said.

The issues relating to biodiversity and IP are discussed in multiple fora; two fora on IP, the World Intellectual Property Organization (WIPO), and the WTO, and four fora dealing with various issues on genetic resources and traditional knowledge, the Food and Agriculture Organization of the United Nations (FAO), the International Treaty on Plant Genetic Resources for Food and Agriculture, the CBD, and the World Health Organization (WHO), according to Martin Girsberger, head of the IP and Sustainable Development Unit at the Swiss Federal Institute of Intellectual Property.

Focusing on disclosure requirement, Girsberger said that the Swiss patent law included a provision for disclosure requirement in patent applications. A revised patent act entered into force in July 2008 with the main goal of increasing transparency in access and benefit sharing. The patent act requires the disclosure of the source of genetic resources but also applies to traditional knowledge. The Swiss patent act also includes pre- and post-grant sanctions.

The Swiss patent act is the basis for the country position at international level, Girsberger said, and Switzerland has proposed textual amendments to the WIPO Patent Cooperation Treaty regulations. Switzerland also submitted proposals at WIPO and the CBD to establish an online list of government agencies competent to receive information on declaration of source.

Pathogens: a Case of Challenge to Global Governance

The sharing of biological materials with human pathogenic potential is necessary in order to find vaccines and therapeutic treatments from a public health standpoint, said Frederick Abbott, a law professor at Florida State University. Emergency cases such as a threat of pandemic prompt sharing in order to defuse a potential spreading. In general terms, access to biological materials is essential to research and development, he said.

However, the multilateral response is inadequate, according to Abbott. For example, WHO negotiations within the framework of the intergovernmental meeting on “pandemic influenza preparedness sharing of influenza viruses and access to vaccines and other benefits” are stalled, he said, while at the CBD, biological materials with pathogenic potential appear within the technical scope of the agency.

However, in the CBD, the definitional scope of genetic materials and genetic resources that are subject to access and benefit sharing obligations may exclude viruses because they would lack “functional” heredity. The problem is reflected in the negotiations of the CBD access and benefit sharing working group trying to agree on a protocol, he said.

The protocol is “a self-standing document for the CBD” and the draft document has a lot of bracketed language, which might turn into a text that “may exclude human genetic resources and/or human pathogens from its scope but may include a provision addressing the relationship with the WHO treatment of pathogens or genetic materials,” he said.

The CBD group dealing with access and benefit sharing met in Montreal from 18-21 September, and will meet again in Nagoya from 18-29 October.

According to Abbott, “countries are negotiating toward potential multilateral legal swamp” and if the WHO is seen as a more logical venue for negotiations on sharing of pathogen materials, developing countries might feel that their voice is not empowered enough in that forum and might favour the CBD/ABS alternative. Countries “should commit the subject of pathogen materials to a single forum and approach with a firm resolve to bridge differences in the interests of global public health,” he said.

More Consideration for Biodiversity in FTAs

In the past few years, there has been a positive interest in understanding the concerns of countries, trying to address trade and biodiversity-related issues in bilateral free trade agreements (FTAs) said Maria Julia Oliva, senior adviser on access and benefit sharing at the Union for Ethical BioTrade.

For example, in the US-Peru and US-Colombia FTAs, there was a recognition of the value of biodiversity, traditional knowledge in relation to sustainable development, the importance of prior informed consent, the equitable sharing of benefits, and the issue of quality of patent examination.

In the EU-Colombia and EU-Peru FTAs, there is a section on the protection of biodiversity and traditional knowledge (although with exclusions), a recognition of the CBD principles and an exchange of information on patent applications, in particular on prior art, Oliva said. In the European Free Trade Association-Colombia/Peru FTA, there is also a section on biodiversity in the IP chapter, a reaffirmation of the CBD, requirements on the declaration of origin and prior informed consent both within national laws, with sanctions, she said.

Some uncertainties remain though, she said, like the implementation and cooperation factors, the concretisation of obligations and the impacts on the ground.

“There is a range of mechanisms that have to be installed to increase mutual supportiveness,” she said, and coherence is very important. “We have a system with all the tools in place but tools need to be enforced.”