Fourth Quarter 2007 – What is the Real Relationship between the CBD Working Group on Access and Benefit Sharing and WIPO and the WTO?

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From 2 1-25 January 2008, the Working Group on Access and Benefit Sharing (ABS) of the Convention on Biological Biodiversity (CBD) is meeting in Geneva, for the first time in its history.1 In the seven years that it has been in operation the ABS Working Group has discussed how to enable and operationalize the primary mechanism for sustainable use established by the CBD – access and benefit sharing of genetic resources. While the ABS Working Group has had some undoubted successes, such as the Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits arising from their Utilization, it may have foundered on the next step in its work: negotiating an international regime on Access and Benefit Sharing.

While there are significant elements unique to the CBD that have contributed to the difficu lt ies of the working group, two issues of relevance to intellectual property (IP)related discussions in Geneva stand out: requirements for disclosure of origin of genetic resources in patent applications, and protection of traditional knowledge. While these issues are framed differently in Geneva- based discussions at the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), it is clear that there are substantive and political linkages between the way they are addressed at the CBD and the way they are addressed at WIPO and the WTO. It is difficult to escape the suspicion that the rea-son that the ABS Working Group is coming to Geneva at this time is to try and build off perceived momentum and progress in the Geneva-based organizations, as well as to raise the profile of the ABS negotiations by linking them to more well-known and powerful institutions. In addition, it may also be an attempt for the CBD to claim back space on environmental and indigenous issues that has been somewhat usurped by WIPO and the WTO. This prompts the question of what is the exact nature of the relationship between the ABS Working Group and the WTO and WIPO and if there is any particular benefit for the ABS Working Group in strengthening those linkages.

This focus piece aims to examine the elements of the relationship between the CBD, and the Geneva fora (WIPO and the WTO) by: outlining the formal role that the Working Group’s mandate envisioned for WIPO and the WTO in the ABS negotiations; and examining the actual nature and participation of WIPO and the WTO in CBD processes. It concludes with some thoughts on whether the ABS Working Group should strengthen its linkages with the WTO and WIPO.

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