Countries Discuss Prospect Of Plurilateral Agreement On Genetic Resources Protection

Faced with a longstanding lack of progress at the World Trade Organization and the World Intellectual Property Organization on the protection of genetic resources and traditional knowledge, some developing countries are examining the possibility of moving outside the multilateral system toward a plurilateral agreement with like-minded countries. During an international conference last week, panellists pondered the prospects of such an option.

On 7-8 June, India organised a conference on linkage between the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the UN Convention on Biological Diversity (CBD). It was co-sponsored by Brazil, Indonesia and South Africa, and jointly organised by the Centre for WTO Studies, the Indian Institute of Foreign trade, and the South Centre.

Much as frustration at the lack of progress on international trade discussions have pushed some countries into bilateral, regional, or plurilateral agreements, the time may have come to explore the same option for the protection of genetic resources and traditional knowledge from misappropriation and misuse, according to some developing country ambassadors (IPW, Biodiversity/Genetic Resources/Biotech, 12 June 2018), and some panellists.

Disclosure Requirements in FTAs

Burcu Kilic, Global Access to Medicine Program legal counsel at Public Citizen, said that after the WTO Doha Round discussions stalled, a number of countries turned to bilateral or regional free trade agreements (FTAs).

She presented a comparison of several FTAs and their clauses on disclosure requirements if any. For example, the 2008 European Free Trade Association (Iceland, Liechtenstein, Norway and Switzerland – EFTA) and Colombia FTA contains an explicit and separate provision disclosure of origin/source. According to a background note Kilic wrote for the event, it was the first FTA concluded by a developed country group containing such an explicit provision.

However, she said, the Peru and China FTA of 2010, although concluded between two countries having strong positions on disclosure requirements, fails to provide strong norm-setting provisions on disclosure.

The background document also illustrates the 2014 FTA between China and Switzerland. Both countries have a disclosure provisions, and the FTA provision is more ambitious in scope than other FTAs negotiated by China. In particular, it offers a language concerning the efforts needed to establish a mutually supportive relationship between TRIPS and the CBD.

FTAs can be used strategically by countries that have disclosure requirements, she said, and they should take advantage of it, in the same way some countries push for higher standards of IP protection, known as TRIPS-plus provisions.

A TRIPS-Plus Agreement Protecting GR, Associated TK

According to Thamara Romero, legal officer, Intellectual Property Unit, at the United Nations Conference on Trade and Development (UNCTAD), a plurilateral agreement would allow members to go beyond the current minimum standard of disclosure of Article 29(1) (Conditions on Patent Applicants) of the TRIPS.

Currently, she said, patenting based on GR and TK is happening mostly in developed countries with no requirement for mandatory disclosure of origin or source. On the other hand, developing countries are also facing difficulties in implementing mandatory disclosure, she said. In particular, patent offices in some countries – both developed and developing – lack capacity to deal with access procedures, and some countries have no checkpoints.

The CBD Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization requires that countries designate checkpoints so that genetic resources getting out of the country can be identified, and that proper authorisation is given from the genetic resource holders.

A plurilateral agreement could unify developing countries in a common position and strategy on mandatory disclosure and the consequences of non-compliance, according to Romero. Those countries could share their national experiences, find common ground, and bring coherence to the system of mandatory disclosure, as currently countries only protect their own GRs and TK and are not really vigilant about other countries’. Furthermore, such a plurilateral agreement could help re-launch negotiations at the multilateral level, she added.

It would be interesting to involve developed countries in a plurilateral agreement, she said, adding such an agreement would make sense if it incorporates countries where the patenting is happening. Such an approach would be beneficial for developing countries if they approach countries which might show openness, such as some in the European Union, she said.

If developed countries cannot be included, developing countries can use the plurilateral agreement as a negotiation tool, to establish a new standard. It could allow them to develop a template which addresses access and benefit-sharing to be used when negotiating FTAs, she said.

Some Broad Thinking Required

For Joshua Sarnoff, law professor at DePaul University College of Law in Chicago (US), a plurilateral approach also makes sense. This plurilateral agreement would need to establish mutual supportiveness by all involved jurisdictions, he said, which requires thinking about how broad and stringent the adopted provisions should be, if all provisions are to be applied by all involved. There also is a need to think about how it would change current regimes in participating countries.

Also the level of what is sought should be clear, including issues such as what is covered, what are the obligations, what should be disclosed, and the kind of information needed.

It is important to understand the consequences of any violation of benefit-sharing rules, he said, and how it may affect other countries to process patent applications. He also underlined the importance of the recognition of foreign judgements.

Following a question about some developing countries not recognising the existence of indigenous communities in their territory, Romero said one of the major fights of local communities is recognition by their own countries.

Way Forward, Favourable Conditions

Viviana Muñoz Tellez, coordinator, Development, Innovation and Intellectual Property Programme at the South Centre, underlined the fact that the international environment is favourable for a way forward, citing the CBD Nagoya Protocol, which is gradually being implemented, and the strong commitment around the UN Sustainable Development Goals.

However, the slow progress of international discussions is of concern, she said, in particular regarding the trade framework, and the status quo is not regarded as an option for many WTO members, she added. “We are way beyond exploratory work,” she said.

With 33 countries having implemented a disclosure requirement, there is evidence that this legislation is functioning at the national level, she said, but it is however “clear” that national laws are insufficient and international norms are needed.

Although the multilateral option is always the best, and including all member states would be an ideal scenario, the current situation where the CBD secretariat cannot be invited to the TRIPS Council even on an ad hoc basis to present the Nagoya Protocol does not present much of a prospect, she said.

The South Centre would be happy to support an alternative solution, such as starting work on a plurilateral solution, according to Muñoz Tellez. In the meantime, she said, there is a need for more coordination among ministries within countries, awareness raising, participation with all stakeholders, as well as an increased coordination among developed countries so that the pace of negotiation among like-minded countries increases.

 

Image Credits: Catherine Saez