The 19th session of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore is meeting this week in Geneva (18-22 July 2011) to make a a decision on a possible international legal instrument (or instruments) to protect genetic resources, traditional knowledge and folklore. At the discussions of future work on 19 July 2011, the United States (Albert Tramposch, USPTO) asked the WIPO Legal Counsel (Edward Kwakwa) the following question.
“There’s been some discussion about international binding legal instruments and mention of a Diplomatic Conference. If we talk of a Diplomatic Conference, does that presuppose a binding legal instrument, or can it be convened to discuss an instrument other than a binding instrument?”
The Legal Counsel responded by saying that in the WIPO context, the traditional forum for the negotiation and adoption of a treaty is a Diplomatic Conference. Mr. Kwakwa noted that WIPO had no experience in convening a Diplomatic Conference to negotiate a non-legally binding instrument. The Legal Counsel drew attention to the Joint Recommendations adopted by the General Assembly in 1999, 2000 and 2001 that emanated from the Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT). By providing this example, the Legal Counsel suggested that WIPO would not need to convene a Diplomatic Conference if the objective was to conclude a non-legally binding instrument. Finally, the Mr. Kwakwa noted that if a Diplomatic Conference were to adopt a Treaty, it would only bind the States that ratified the Treaty.
In response, the delegate of South Africa referenced the mandate of the IGC which requests the the IGC to “continue its work and undertake text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection of GRs, TK and TCEs.” South Africa intimated that asking the Legal Counsel questions about treaties, legally binding instruments, at this inchoate stage would prejudge the outcome and undermine the IGC process.