1. Introduction
Smoking is now prohibited indoors in most places, including public buildings, and the headquarters of the World Intellectual Property Organization (WIPO) in Geneva is no different. However, at 2:00 a.m. on 24 May 2024, “white smoke” emerged after the adoption of the new Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge (WIPO Disclosure Treaty).Footnote 1 The treaty is the twenty-sixth WIPO-administered treaty, which has been perceived as a sort of miracle at a time when multilateralism is experiencing a period of increasing criticism and low self-esteem.
Created to diffuse or pluralize powerFootnote 2 by fostering cooperation, compromise, and coordination among global actors, international organizations are becoming prime targets of the prevailing global discontent from the new wave of provincialism that is characterizing the second decade of the twenty-first century. In the public eye, international organizations are held accountable for a lot, yet they remain responsible for very little. Never before has international governance been so challenged, and yet so indispensable, in a world marked by growing interdependence and shared global interests. The intellectual property (IP) global framework has attracted a lot of discontent over the years, and the cornerstone of the international legal framework — the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) — continues to suffer reputational issues.Footnote 3 Still unfairly and primarily pictured by some members of the World Trade Organization (WTO) as a limitation of their policy space,Footnote 4 it was included in the single undertaking basket of treaties under the auspices of the WTO following the conclusion of the Uruguay Round in 1994.
Until now, the inclusion of Indigenous Peoples in international economic law has been minimal. The WIPO Disclosure Treaty marks a significant innovation in this regard. While it is primarily an IP treaty, whose objectives are outlined in Article 1, it also introduces new elements that will be further examined later in this article. Notably, some provisions seek to reconcile the goal of promoting innovation, facilitating regime coherence in biodiversity governance,Footnote 5 and recognizing the rights of Indigenous Peoples. It can be regarded as an instrument to tackle what the United Nations Environment Programme (UNEP) has referred to as “the triple planetary crisis”:Footnote 6 the crisis of climate change, the crisis of nature and biodiversity loss and desertification, and the crisis of pollution and waste.
The WIPO Disclosure Treaty has entered the global IP framework as something of a miracle — an unexpected breakthrough amid a broader crisis in the multilateral system. But is this perception accurate, or is the agreement, in fact, merely a mirage in the desert? This article aims to examine this question by analyzing three key dimensions. First, it explores the WIPO Disclosure Treaty and its main provisions, situating them within the broader legal landscape by reviewing existing national and regional frameworks that regulate traditional knowledge (TK) and genetic resources (GRs). In particular, the analysis focuses on legislation that requires patent applicants to disclose the origin or source of the GRs and associated TK used in their inventions, a mechanism commonly referred to as the disclosure requirement. Second, building on this legal and policy background, the article assesses the extent to which the agreement may be considered a milestone within the fragmented international IP landscape, especially in terms of its potential to spur dialogue in other forums, such as the WTO TRIPS Council or in the context of other WIPO treaties. Third, the article considers how the agreement contributes to enhancing the visibility and participation of Indigenous Peoples in international economic law, a domain from which they have historically been marginalized.
2. Conceptual foundations and systemic challenges in protecting TK and GRs
In order to delve into these issues, the basic terminology must be outlined first. Without entering into much debate about the existing definitions of what can be understood by TK and GRs, suffice it to say at this point that both of them are frequently perceived as concepts that surpass the classification of IP rights (IPRs) and that are not meant to be commoditized. Article 27 of the TRIPS Agreement is at the heart of the controversy, which sets the patentable subject matter “for any inventions, whether products or processes, in all fields of technology.” Some authors have suggested that Article 27 and, by extension, the TRIPS Agreement treat IP very much as a commodity — something that can be sold and purchased, lacking the needed balance to protect essential public interests or goods essential to social welfare, implying that the TRIPS Agreement lacks real soul or self-awareness for public policy objectives like protecting human health or the environment.Footnote 7 Leaving this aside, intentionally or not, Article 8 enshrines explicitly the adoption of measures necessary to protect public health and nutrition and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of the TRIPS Agreement.
If TK and GRs are widely known or accessible, and part of the public domain, should it be possible to patent them as inventions? Even if, for some authors,Footnote 8 TK is remarkably similar to other IPRs like patents or trademarks. It can be said that the existing “gap” is the lack of any legal mechanism for protecting knowledge as such since there are legal mechanisms to protect specific forms or aspects of knowledge.Footnote 9 However, TK is not protected as a particular IPR. The IP system has followed two approaches to protect TK and traditional cultural expressions (TCEs). One approach, referred to as “positive protection,” is designed to enable holders to acquire and assert IP rights in their TK and TCEs. On the contrary, a “defensive protection” approach aims to prevent third parties’ illegitimate acquisition or maintenance of IP rights. The WIPO Disclosure Treaty has opted to follow a “defensive approach” by imposing mandatory disclosure requirements for patent applications for inventions “based on” genetic resources and/or associated TK. In other words, it aims to prevent patents from being granted through a disclosure requirement when the patent application is filed, and by setting an information system to guide patent examiners.
Part of the controversy regarding TK is the fact that IP tends to focus on individual innovations, while Indigenous Peoples who hold knowledge in a collective setting,Footnote 10 as custodians rather than as owners, challenge the traditional conception of IPRs, whose primary function is to be traded or commoditized. The preamble of the TRIPS Agreement reaffirmed this understanding by indicating that IPRs are private rights, even though they are subject to public interests like any other rights. In addition, TK is often only transmitted orally and is therefore not documented in written form. This is particularly relevant, considering that IP protection is inherently time-bound with a short-term focus linked to commercial cycles as opposed to the intergenerational context of traditional knowledge systems.Footnote 11 On the other hand, GRs themselves are not directly protectable under the international IP system since they are subject matter found in nature and not solutions created by the human intellect. Nevertheless, GRs can be the foundation for developing novel technologies like new medicines and improved crops that can be later patented. In fact, GRs, coupled with TK held by Indigenous and local communities, have been leveraged to foster innovations across diverse fields such as medicine, agriculture, and biotechnology. Furthermore, GRs are part of the biodiversity valued for maintaining the possibility of responding to new situations that may arise and because of their links to the sustainability of certain ecosystems.Footnote 12
From this point of view, TK and GRs are significant examples of an issue that, depending on the optics, can be considered either consigned to the margins of the IP framework or simply neglected as an uncommon form of IPRs. Yet TK plays an important role in assessing the legitimacy of the international IP system.Footnote 13 This is because TK and GRs, like biodiversity, are goods mainly available in developing countries. Mega-diverse countries like Bolivia, Brazil, China, Colombia, Costa Rica, the Democratic Republic of Congo, Ecuador, India, Indonesia, Kenya, Madagascar, Malaysia, Mexico, Peru, the Philippines, South Africa, and Venezuela represent 70 percent of the global biodiversity and host an extraordinarily rich cultural diversity and associated TK.Footnote 14
The underlying rationale for politically supporting the protection of GRs and the associated TK is that the knowledge obtained from one country — most likely, from the global South — is often used to seek a patent in another — mainly, in the global North. The TK of Indigenous Peoples and local communities is central to their ability to operate in an environmentally sustainable way and to GRs and other natural resources. Therefore, the protection of TK is closely linked to protecting the environment.Footnote 15 At the international level, there is no accepted definition of TK. Even if there is an express reference to the expression “traditional knowledge associated with genetic resources,” the WIPO Disclosure Treaty does not provide a definition. Generally speaking, TK refers to a body of knowledge developed, sustained, and passed on from generation to generation within a community. It often forms part of its cultural identity and includes know-how, practices, skills, and innovations. According to WIPO,Footnote 16 TK comprises the content of knowledge itself and TCE, including distinctive signs and symbols associated with that TK.
To make matters worse, there is currently no internationally accepted definition of TCE or expression of folklore either, mainly referring to the product of the creative intellectual activity handed down from one generation to another that reflects a community’s cultural and social identity forming that community’s heritage.Footnote 17 This has led some authors to refer to “Indigenous cultural heritage” as including both moveable and immovable cultural property, TK, and TCEs.Footnote 18 However, some experts have stated that the division between TK and TCE is somewhat artificial and that they represent the same value and must be protected as a whole.Footnote 19 However, for the purposes of analyzing the WIPO Disclosure Treaty later in this article, there is a distinction to be made since different sets of policy questions will arise and distinct legal tools are likely to apply for their protection.
There are several reasons for this. First, as of now, text-based negotiations at WIPO are taking place on two sets of draft articles: one on protecting TKFootnote 20 and another on TCEs.Footnote 21 The TK draft articles include a definitive international definition and another on secret TK. However, in the case of the draft articles on TCEs, the proposed definition is broader than any IPR since it is regarded as something dynamic and ever evolving, acknowledging that they are living expressions of culture, which are continually shaped by the people who practise them and pass them on. Second, while it is still too soon to predict what the outcome of those discussions will be, based on the accessible negotiations text, there could be a mandatory disclosure requirement in the case of TK. However, currently, no such provision can be found in the negotiating text on TCEs. For now, the TCEs and TK negotiations currently taking place in Geneva have been unsuccessful. According to accounts from the most recent round of negotiations, held in Geneva on 3–7 March 2025, the talks on TK and TCEs have reached a stalemate due to the persistent differences of opinion between delegations with a “rights-based” approach and those advocating for a “measures-based” approach.Footnote 22 In other words, there are those who support the creation of a separate IPR for TK and TCEs and those who emphasize and promote a list of policy, regulatory, persuasive, and non-binding measures to encourage the “safeguarding” of TK and TCEs. Other voices have suggested eliminating the artificial divide and merging the two negotiating processes into a single track, culminating in one consolidated instrument covering both subject matter areas.Footnote 23 However, at the time of this article, it is difficult to predict the outcome of the negotiations.
Unlike TK, there are several definitions of GRs at a global level since they have been subject to international regulation. In 1992, under the auspices of UNEP, the Convention on Biological Diversity (CBD) was negotiated.Footnote 24 Its Article 15 recognizes the sovereign rights of states over their natural resources. The objectives of the CBD, as set in Article 1, are the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits of utilizing genetic resources. Access to GRs for a party of the CBD must be on mutually agreed terms and based on prior informed consent of the party providing the resources. This point was later developed in the 2010 Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization (Nagoya Protocol), which was introduced as a supplementary agreement to the CBD. Footnote 25
This legal framework subjects all users of plant, microbial, and animal genetic resources to national legal requirements of prior informed consent, mutually agreed terms, and access and benefit-sharing agreements (ABS). A primary objective of the Nagoya Protocol is to enable member states as providers of genetic resources to share monetary and non-monetary benefits derived from using such resources.Footnote 26 Article 2 of the CBD defines GRs as “genetic material of actual or potential value.” This is the term retained by the WIPO Disclosure Treaty in Article 2 as well, which covers any material of plant, animal, microbial, or other origin other than human genetic resources. Other treaties, like Decision 391 of the Andean Community Commission, Common Regime on Access to Genetic Resources, which was adopted 2 July 1996,Footnote 27 broadly defined GRs as “all biological material that contains genetic information of value or of real or potential value.”
3. The WIPO Disclosure Treaty: an overview of its core provisions
The WIPO Disclosure Treaty can be seen as a victory of multilateralism. It represents, after all, the culmination of twenty-five years of debatesFootnote 28 following a proposal initially submitted by Colombia in 1999 during the negotiations for a diplomatic conference to adopt the Patent Law Treaty. Footnote 29 This proposal triggered the creation of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in 2001. Furthermore, it was one of the main goals of the WIPO Development AgendaFootnote 30 that “urged the IGC to accelerate the process on the protection of genetic resources, traditional knowledge, and folklore, … including the possible development of an international instrument or instruments.”
At the time of writing, thirty-nine members of WIPO have signed the treaty, and on 5 December 2024, Malawi became the first country to ratify the agreement,Footnote 31 followed by Uganda on 9 July 2025.Footnote 32 It will only come into force once another thirteen ratifications or accessions are received. In other words, a total of fifteen ratifications are needed. No developed country has decided to do so at the time of writing. The notable exception is Switzerland, which has publicly indicated its intention to join the agreement.Footnote 33 For example, the United States is the only non-contracting party to the WIPO Disclosure Treaty and a famous non-contracting party of the CBD.
The WIPO Disclosure Treaty comprises a preamble and twenty-two articles. The objective of the treaty set in Article 1 is to “enhance the efficacy, transparency, and quality of the patent system with regard to genetic resources and traditional knowledge associated with genetic resources” and to “prevent patents from being granted erroneously for inventions that are not novel or inventive with regard to genetic resources and traditional knowledge associated with genetic resources.” In other words, the treaty aims to prevent so-called “biopiracy” or the misappropriation of the GRs and TK associated with them. Before providing some examples, it is important to note that patents do not automatically grant their holders the right to exploit the patented invention commercially. It is the regulatory process, in particular, of marking authorization of medical products that enables this ability.
The first notorious example of misappropriation concerned the patents granted in 1994 by the US Patent and Trademarks Office (USPTO) and the European Patent Office (EPO) over neem tree extracts to be used as an insecticide.Footnote 34 A coalition of environmental non-governmental organizations (NGOs) challenged the patent on the grounds that the patent lacked novelty and an inventive step because the fungicidal effect of hydrophobic extracts of neem seeds had been known and used for centuries in India. These arguments were accepted by the USPTO and the EPO when revoking the patent. Other alleged examples include maca (a plant cultivated for centuries in the Peruvian Andes and traditionally used as a fertility aid and aphrodisiac); uña de gato (a plant used by Indigenous Peruvians to stimulate the immune system);Footnote 35 turmeric; ayahuasca; and quinoa.Footnote 36
Other cases of alleged misappropriation are more borderline. For example, the rosy periwinkle plant, native to Madagascar, has been traditionally used to treat diabetes. Scientists at Eli Lilly and the University of Western Ontario found out that the plant has cancer-fighting qualities. In this case, the inventors tested it for its cancer-treating potential after learning about its traditional use to treat diabetes, which was not patented. The claimed invention is not substantively based on the TK. Thus, the scope of the patent right that will ultimately be issued is not affected by the disclosure of the minimal input from TK.Footnote 37
The WIPO Disclosure Treaty’s objectives are to be fulfilled by Article 3, the core provision of the agreement, which is dedicated to regulating the disclosure requirement. Specifically, it contemplates that, when a patent application is based on GRs and/or GR-associated TK, the applicants should disclose the country of origin and the source, including if the country of origin is unknown to the applicant or if the information is not applicable. Furthermore, when the claimed invention is based on TK associated with GRs, the applicants should disclose the Indigenous Peoples or local community who provided the TK or the source, even if the information mentioned above is unknown to the applicant or if the information is not applicable. In other words, Article 3 forces applicants to disclose the provenance of all GRs and/or the TK associated with the GRs. However, at the outset, it is important to note that the WIPO Disclosure Treaty is a transparency mechanism only.Footnote 38 The fact that mandatory disclosure may facilitate CBD and Nagoya Protocol compliance is yet to be seen. But ABS outcomes — as important as they are — do not constitute the primary justification for the WIPO Disclosure Treaty.
Notwithstanding such information, this provision is legally speaking challenging in practice. For instance, TK can be considered not novel by virtue of having been disclosed to the public in a relevant manner. In the case of patents of neem tree extracts, which are used as a leading example of misappropriation, there is no compelling argument in favour, according to some authors, to support the fact that neem tree seeds were exclusively used by farmers in India and not in other countries of South Asia as part of public domain information.Footnote 39 Only innovations that are novel, involve an inventive step, and are capable of industrial application, as stipulated in Article 27.1 of the TRIPS Agreement, qualify for patent protection. The patent examiner conducts a prior art search to determine whether an invention is new or novel. On the other hand, TK can be considered obvious to persons skilled in the relevant art and, therefore, may not appear to meet other patentability criteria. TK is primarily viewed as existing in the public domain without legal protection.Footnote 40 In addition, some countries limit the scope of prior art to the prior art in their own countries, and, therefore, examiners do not utilize information on countries of origin of genetic resources in judging novelty and inventive steps.Footnote 41
The disclosure requirement in Article 3 of the WIPO Disclosure Treaty is neither as novel as it may seem nor as particularly far-reaching by any measure. The agreement can be seen as simply spreading what is already regulated elsewhere to the international dimension — essentially, old wine in new bottles. The disclosure requirement was incorporated in regional and national IP frameworks long before the WIPO Disclosure Treaty. For example, in Norway (Patent Act, chapter 2, section 8b), South Africa (Patents Amendment Act 2005, section 2), Spain (Law no. 24/2015 on Patents, Article 23.2), Switzerland (Federal Act on Patents for Inventions, Article 49), or Germany (Patent Act, section 34a).Footnote 42 According to a study by WIPO in 2020,Footnote 43 more than thirty countries, including both developed and developing countries, had implemented such requirements through national or regional laws. In some countries, like Peru, there is a specific law to include the disclosure requirement in their patent system and protect Indigenous Peoples’ knowledge.Footnote 44 A quick search for TK and GR-related legislation on the WIPO Lex database results in 198 records. Almost all of these pieces of legislation were enacted after the CBD, and the overwhelming majority are in countries of the global South.
Several free trade agreements (FTAs) — at least 14,Footnote 45 according to some sourcesFootnote 46 — contain a provision on disclosure requirements in patent applications regarding the origin of GRs and their associated TK. In addition, new treaties like the draft text-leakedFootnote 47 Protocol to the Agreement Establishing the African Continental Free Trade Area on Intellectual Property Rights includes several provisions that either incorporate the disclosure requirement (Article 18) or even include the obligations of adopting border measures (Article 29) under certain conditions that will be spelled out in a separate annex on TK and TCEs and GRs that needs to be negotiated. While other FTAs, like the one concluded between European FTA and India,Footnote 48 incorporate provisions that, if WIPO adopts an international instrument concerning IP, GRs, and the TK associated with GRs, the parties shall, within two years of the entry into force of such an instrument, enter into consultations to determine whether to amend the FTA following the provisions of the international instrument.
Against this backdrop, the WIPO Disclosure Treaty confirms that WIPO norm making almost always borrows from and builds on national law.Footnote 49 Consensus is built not so much via concessions but, rather, thanks to input from national experience and evidence-based conclusions that, over the years, have become ripe for international action. Unlike negotiations at the WTO, where the principle of a single undertaking means that all issues are negotiated together as part of a comprehensive package, consensus is typically reached through trade-offs across highly interconnected areas. As a result, a concession in one sector, such as agriculture, often has implications for other areas like services or IP, creating a complex web of bargaining and compromise.
However, in this author’s opinion, what is genuinely new is the speed at which the disclosure requirement has already spread into other WIPO-administered agreements, such as WIPO’s recently approved Design Law Treaty (DLT).Footnote 50 The DLT adopted in November 2024 incorporates a disclosure provision for designs in Article 7.2, which enshrines that a “Contracting Party may require, where permitted under the applicable law, that an application contain an indication of any prior application or registration, or of other information, including information on TCE and TK, of which the applicant is aware, that is relevant to the eligibility for registration of the industrial design.” This underlines the political weight of the disclosure requirement for many countries that will likely push for adding it in future negotiations or to be included as an amendment to existing IP treaties.
Another key provision of the WIPO Disclosure Treaty can be found in Article 6, which establishes an information system such as databases of GRs and TK associated with GRs, in consultation, where applicable, with Indigenous Peoples, local communities, and other stakeholders, making such information systems accessible for the search and examination of patent applications. As set in the preamble of the WIPO Disclosure Treaty, one of the goals of the agreement is to emphasize the importance of patent offices having access to appropriate information on GRs and TK associated with GRs to prevent patents from being granted erroneously for inventions that are not novel or inventive. Yet the voluntary establishment of databases for use by patent examiners is not, per se, a great innovation of the WIPO Disclosure Treaty since other international treaties include similar provisions. For example, the United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa provides in Article 18.2(a) that parties shall protect, promote, and use relevant traditional and local technology, know-how, and practices and, to that end, undertake to “make inventories of such technology, knowledge, know-how, and practices and their potential uses with the participation of local populations, and disseminate such information, where appropriate, in cooperation with relevant intergovernmental and non-governmental organizations.”Footnote 51 This provision is heavily inspired by the existence of the Indian government’s Traditional Knowledge Digital Library, which boasts the codification of over 250,000 medical formulations from Indian traditional medicinal knowledge accessible due to the translation of its contents into five of the leading international languages. Access to the database is granted only to patent examiners for the sole purpose of patent examination. But, as has been pointed out, placing TK in a database can, in theory, make it more accessible to patent examiners, mainly when the original source is an oral tradition or a rare, out-of-print publication not available in digital form.Footnote 52 Yet the mere inclusion of TK in a database does not guarantee that an examiner will locate it, nor does it ensure that, even if found, it will be used as a basis to reject a patent claim.
On the other hand, the WIPO Disclosure Treaty stipulates that its application will mutually support other relevant international instruments (Article 7), and it shall not derogate from or modify any other international agreement. This is further reinforced by the preamble, which incorporates a similar language recognizing that the treaty and other international instruments related to GRs and TK associated with GRs should be mutually supportive. Furthermore, footnote 5 in Article 7 states that “nothing in this Treaty shall derogate from or modify any other international agreement.” Curiously, the previous footnote 4 incorporated an agreed statement, which is at odds with the goal of Article 7. According to this, the contracting parties to the WIPO Disclosure Treaty will request the Assembly of the International Patent Cooperation Union to consider the need for amendments to the regulations under the Patent Cooperation Treaty (PCT) and/or the Administrative Instructions thereunder to provide an opportunity for applicants who file an international application under the PCT to require the disclosure of GRs and TK associated with GRs.Footnote 53
At this point, it is safe to assume that Article 7 does not aim to reflect only the parties’ intention for a harmonious interpretation of this WIPO Disclosure Treaty and other regional frameworks — for instance, Decision 486 of the Andean Community or the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore (Swakopmund Protocol) of the African Regional Intellectual Property Organization.Footnote 54 Examples were very present throughout the negotiations since, in March 2024, Namibia arranged an interregional technical meeting to take place precisely in Swakopmund, where off-the-record discussions took place to help participants reach a compromise across connected issues in the text.Footnote 55 Instead, this part should be read as a sort of “get-your-foot-in-the-door” provision — in particular, the possible future amendment of the PCT, an idea initially suggested by Switzerland in 2003 in the TRIPS Council,Footnote 56 which ended up being discarded. Here, negotiators of the WIPO Disclosure Treaty left a sort of negotiating bookmark in the hope of reviving the conversation in the near future.
While the overall intention of Article 7 was to ensure the compatibility of the WIPO Disclosure Treaty with other international agreements — a concern repeatedly raised during the negotiations given the existence of applicable regional frameworks — one cannot help but question whether an agreed statement, such as the one found in footnote 4, might, in fact, provoke further controversy in the future. This concern is amplified by the absence of a deadline and a required threshold of contracting parties to initiate an amendment of the PCT. With this background in mind, can the repeated assurances throughout the WIPO Disclosure Treaty — that its entry into force will not trigger any modification of, or derogation from, existing international agreements — truly be taken at face value?
Another critical outcome of the negotiations, essential to securing the treaty’s adoption, is that the WIPO Disclosure Treaty does not impose stringent consequences for non-compliance. The compliance provision caused quite a lot of trouble during the final hours of the negotiations. The disclosure requirement was essential for some countries to ensure the efficacy of the treaty, even if national laws already required obtaining permission from the owner or creator before using GRs or TK. In this event, the disclosure requirement laid down in Article 3 was mainly regarded as a deterrent to non-compliance with national protection regimes. Article 5 is a formidable example of legal creativity and linguistic gymnastics that allows something to be and not to be simultaneously. Article 5 requires establishing “appropriate, effective, and proportionate legal, administrative, and/or policy measures” to address breaches of disclosure obligations. However, Article 3.5 indicates that contracting parties shall not enforce on patent offices the duty to verify the authenticity of the disclosure, presumably because this would increase their workload. Patent applicants will indeed be required to submit the relevant information, but if the information is not known to the applicant, each contracting party shall require the applicant to submit a declaration stating that the information is unknown, affirming that their declaration is true and correct to the best of their knowledge.
Applicants are given an initial opportunity to rectify any unintended failure to disclose or correct errors, with guidance from the patent office on meeting the disclosure requirements. Nevertheless, the treaty takes a strict stance in cases involving fraud. Under Articles 5.2bis and 5.4, the contracting parties may deny applicants the possibility of rectifying any failure to comply with the disclosure requirement — an aspect that could pose practical challenges. For instance, in Brazil, Decree no. 8772/2016 mandates that the use of national GRs must be registered with the Management Counsel for Genetic Heritage, generating an access code. This code must be provided when filing a patent application, along with a declaration confirming that the invention involves access to Brazilian GRs or TK. If an applicant fails to provide the access code, the Brazilian Patent and Trademark Office (BRPTO) will issue an office action requiring compliance under penalty of dismissal without examination of the patent application. Furthermore, access registration must occur before filing any provisional application; failure to do so may result in fines.
The WIPO Disclosure Treaty ensures that applicants can amend their applications before any sanctions are imposed, provided that “there has been no fraudulent conduct or intent as prescribed by national law.” It also stipulates that patent rights cannot be revoked, invalidated, or rendered unenforceable “solely on the basis of an applicant’s failure to disclose the information.” Nevertheless, in August 2024,Footnote 57 the BRPTO issued a notice in its official gazette announcing that it would pursue lawsuits to invalidate patents granted without the required access code information. Patentees were given sixty days to submit the missing access codes or amend their initial statements with a negative access declaration. However, uncertainty remains about whether the BRPTO can successfully invalidate these patents under the WIPO Disclosure Treaty without adopting an unorthodox interpretation of the term “solely.” Article 9 of the WIPO Disclosure Treaty does not bring additional clarity since it gives complete freedom in determining the appropriate method of implementing the treaty’s provisions within their legal systems and practices.
In addition, Article 5.4 states that each contracting party may provide for post-grant sanctions or remedies where there has been fraudulent intent concerning the disclosure requirement in accordance with its national law. However, the treaty is silent in the case of regional patent systems, which are intentionally or unintentionally left outside the application of the WIPO Disclosure Treaty. For instance, recently, the Boards of Appeal of the EPO ruled on a case concerning the patenting of a molecule derived from the plant Quassia amara, which is used by the Indigenous communities in French Guiana and patented by the French National Research Institute for Sustainable Development (a public agency of the French government) without proper informed consent or benefit sharing.Footnote 58 The opponents sought to revoke the patent on several grounds — notably, violation of ordre public under Article 53 of the European Patent Convention (EPC) and a lack of novelty and inventive step (Articles 54 and 56 of the EPC), arguing that the molecule was already implicitly disclosed in traditional herbal remedies documented in prior scientific literature.Footnote 59 The EPO’s Board of Appeal rejected the appeal, concluding that misconduct in discovery or research (for example, lacking informed consent) does not necessarily prevent patentability unless the commercial exploitation of the invention itself is contrary to the ordre public. Exploiting the claimed invention was not contrary to public order or morality, even if the conduct during research was ethically questionable. Lastly, even if traditional uses of Quassia amara were documented for the treatment of malaria, its identification required a significant effort, meaning that it was not available to the public and required non-obvious steps that were not disclosed in the prior art.
Once again, the narrow framing of Article 7, which enshrines the relationship between the treaty and other international agreements, may warrant reconsideration, particularly given the complex interplay of international IP law with national, regional, and global legal sources. Fortunately, under Article 8, the contracting parties have committed to reviewing the scope and content of the WIPO Disclosure Treaty four years after it enters into force. This review will address, among other issues, the potential extension of the disclosure requirement in Article 3 to other areas of IP and derivatives and challenges arising from new and emerging technologies relevant to the treaty’s application. Yet this gives rise to a striking paradox. While IP remains inherently territorial, international cooperation in this field does not appear to diminish that feature in favour of a more integrated, globalized economy. Instead, such cooperation tends to build upon the territorial nature of IP. The international legal system governing IP is undeniably fragmented, though this characteristic may not set it apart from other areas of international law.Footnote 60 Certainly, it is a feature at odds with the attempts of convergence imposed by the economic reality.
4. A milestone in the fragmented international IP framework: old wine in new bottles
The TRIPS Agreement is silent regarding the protection of TK and GRs, which was never formally discussed during the Uruguay Round, but it has been a frequent topic of discussion at the TRIPS Council. From 1999 to 2002, the issue of the relationship between the TRIPS Agreement and the CBD was raised by the TRIPS Council as part of the review of Article 27.3(b), which allows members to exclude from patentability plants and animals but not microorganisms. This provision also indicates that it shall be reviewed four years after the date of entry into force of the WTO Agreement. Footnote 61
Starting in the TRIPS Council meeting on 5–7 March 2002,Footnote 62 the topic of protection of TK and folklore and the relationship between the TRIPS Agreement and the CBD has been included in the agenda of regular meetings. Ever since, they have been grouped together, forming “the triplets issues” on the TRIPS Council’s agenda. Thereafter, work has split into two separate tracks: the first track, which is explained above and whose work is ongoing today, and a second track, which is part of the mandate given in 2001 to the TRIPS Council according to paragraph 19 of the Doha Ministerial Declaration,Footnote 63 to review Article 27.3(b) and to examine the relationship between the TRIPS Agreement and the CBD, the protection of TK and folklore, and the overall review of the implementation of the TRIPS Agreement under Article 71.1. This mandate was renewed some years later, in 2005, under paragraph 39 of the 2005 Hong Kong Ministerial Declaration.Footnote 64
The first track — the relationship between the TRIPS Agreement and the CBD, resulted in a long-standing controversy on whether or not to amend the TRIPS Agreement to include a disclosure requirement. Something that Brazil originally proposed,Footnote 65 initially as an amendment of Article 27.3 (b), gained some traction years later when other WTO members indicated their support.Footnote 66 Some authors have suggested that moral and rhetorical considerations primarily drove the perceived conflict.Footnote 67 According to WTO members such as Australia, there is “clearly no explicit conflict” between the two instruments.Footnote 68 Other WTO members, like the United States,Footnote 69 were even more categorical and affirmed that “the purposes of the CBD and the TRIPS Agreement are widely disparate … and most of the provisions of the two agreements are unrelated in any way.” And even if there were to be a contradiction, “the agreements are sufficiently flexible to enable a country that is a member of both to implement the provisions of each in good faith in a non-conflicting and, in some cases, mutually supportive way.”
In the view of the United States, it is not the lack of provisions in the TRIPS Agreement to protect GRs from misappropriations that creates a misguided granting of patents but, instead, the lack of clearly defined national systems directly regulating the use of GRs, particularly in the context of ABS systems.Footnote 70 The view held by the United States is that ABS can be effectively utilized via a contract-based system that will fall outside the purview of the patent system. A patent disclosure requirement, per se, cannot transfer benefits, as such a requirement would merely convey the information requested but would have no mechanism to transfer benefits between parties. If the country of origin of the relevant TK or GRs has no ABS infrastructure in place for the use of the TK and/or GRs, there still would not be any compensation to the custodians of the relevant knowledge or resource, even if a patent relating to these materials were identified.Footnote 71
However, according to some developing WTO members like Peru, “since the entry into force of the CBD, it has been recognized that countries have sovereign rights over their natural resources and the power to regulate access to genetic resources. This legal obligation is enforceable erga omnes, and the legal right protected is the resource itself.”Footnote 72 The origin for the confusion of this perceived conflict can be traced down to Article 16.5 of the CBD, which stipulates that “the contracting parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law to ensure that such rights are supportive of and do not run counter to its objectives.” A provision that some WTO members have interpreted as an obligation for countries to cooperate to ensure that patents and other IP rights do not run counter to the objectives of the CBD. Footnote 73
Given the state of things, in 2003, in the context of the review of Article 27.b of the TRIPS Agreement, the African Group submitted a far-reaching proposal on a decision on TK.Footnote 74 According to this proposal, it should be considered a category of IPRs offering members the possibility to protect them with either a sui generis system or to adopt a more extensive protection than that foreseen in the decision. The proposal also included the obligation that no IP shall be granted or protected without due recognition of the TK involved, covering ex-officio cancellation of any intellectual property rights that breach the decision. The decision also included the establishment of an electronic register of TK and the creation of a Committee on TK and GRs at the WTO. However, the proposal was unsuccessful, and members continued the discussion in the TRIPS Council.
Some years later, in 2006, a group of WTO members submitted a proposal to amend the TRIPS Agreement, including Article 29 bis, titled “Disclosure of Origin of Biological Resources and/or Associated Traditional Knowledge.”Footnote 75 The proposal also included the obligation to require patent applicants to provide information, including evidence of compliance with the applicable legal requirements in the providing country for prior informed consent for access and fair and equitable benefit sharing arising from the commercial or other utilization of such resources and/or associated traditional knowledge. In addition, the proposal requires parties to ensure that administrative and/or judicial authorities have the authority to prevent the further processing of an application or the grant of a patent and to revoke or render unenforceable a patent when the applicant has, knowingly or with reasonable grounds to know, failed to comply with the above obligations or provided false or fraudulent information. In 2011, following the adoption of the Nagoya Protocol in 2010, a new proposal of Article 29 bis (revised to be consistent with the Nagoya Protocol) was proposed by Brazil, China, Colombia, Ecuador, India, Indonesia, Peru, Thailand, the African, Caribbean, and Pacific countries (ACP Group), and the African Group.Footnote 76
On the second track of negotiations, in July 2008, a group of over one hundred WTO membersFootnote 77 called for a “procedural decision” to negotiate the creation of a multilateral register for geographical indications for wines and spirits (as foreseen in Article 23.4 of the TRIPS Agreement), a proposal to extend to other products the higher level of geographical indications protection now given to wines and spirits (which have to be protected even if a misuse would not cause the public to be misled under Article 24), and the requirement that patent applicants disclose the origin of genetic material and TK used in their inventions. At the time, there were three leading positions among the WTO members.Footnote 78 On the one hand, a large group of developing members proposed an amendment to the TRIPS Agreement to introduce a mandatory disclosure requirement in patent applications. A second group of members opposed negotiations on this matter. They believed that there were no convincing arguments as to how disclosure requirements of the sort proposed would contribute towards meeting the commonly accepted objectives; thus, there would be no need to amend the TRIPS Agreement. Instead, they suggested the establishment under WIPO of improved databases on TK that would be available to patent examiners and through contractual arrangements under national access and benefit-sharing laws. And, lastly, there was a third approach that lay in between these two positions.
Ever since, the positions on this topic among WTO members have been caught in a stalemate, resulting in two main views at TRIPS Council meetings.Footnote 79 One is supported by WTO members like India, Indonesia, and other developing countries claiming that an international enforceable regime should exist to contain misappropriation. Therefore, patents should not be granted for existing TK associated with GRs. Consequently, Articles 27.3(b) and 29 of the TRIPS Agreement should be amended to prevent the misappropriation and misuse of GRs and TK. Other WTO members, such as the United States, Japan, South Korea, and China, have argued that the WIPO’s IGC is the best forum to trust these issues with and not the TRIPS Council.
Nowadays, after the adoption of the WIPO Disclosure Treaty, the positions among WTO members remain deadlocked. However, on 8 March 2024, some WTO members requested the TRIPS Council to expedite ongoing work to examine the relationship between the TRIPS Agreement and the CBD and the protection of TK and folklore.Footnote 80 That was just months before the diplomatic conference adopted the WIPO Disclosure Treaty. In addition, during the April 2024 TRIPS Council meeting,Footnote 81 some WTO members, like Bangladesh, Thailand, and Ecuador, requested that the WTO Secretariat update background factual briefs on the state of TRIPS-CBD relations as a possible first step to guide the conversation. The three factual notes summarized the TRIPS Council’s discussions on the TRIPS Agreement and the CBD and related items initially prepared in 2002Footnote 82 and last updated in 2006.Footnote 83 However, some WTO members, such as the United States, did not support the request to update the factual notes. The European Union (EU) indicated its preference to wait for the outcome of the diplomatic conference at WIPO that resulted in the WIPO Disclosure Treaty instead of engaging with the TRIPS Council in overlapping discussions.
After the adoption of the WIPO Disclosure Treaty, during the TRIPS Council meeting on 10 July 2024, WTO members were briefed by a WIPO representativeFootnote 84 on the adoption by consensus of the WIPO Disclosure Treaty. Delegations were informed that this was the first WIPO treaty to address the interface between IP, GRs, and associated TK and the first WIPO treaty to include provisions specifically for Indigenous Peoples as well as local communities. Although some WTO members took the floor to make statements supporting the new agreement, no new development took place at that time.
In preparation for the TRIPS Council of March 2025, Brazil, India, and Peru sent out a communication to the members to provide a clear mandate during the fourteenth WTO Ministerial Conference (MC-14) in the form of a ministerial declaration to revive discussions on the relationship between the TRIPS Agreement and the CBD. Footnote 85 The proposal of Article 29 bis, as proposed in 2011, had come back on the table with new arguments supporting amending the TRIPS Agreement. First, because of the proponents, the WIPO Disclosure Treaty does not offer recourse to an international dispute settlement if a party fails to establish the disclosure requirement under their domestic patent systems. Second, it does not address the requirements to obtain prior-informed consent under mutually agreed terms. Hence, even though the treaty introduces the disclosure requirement, it does not provide for compliance with the ABS requirements. Thus, the proposed amendment of the TRIPS Agreement seems to suggest this time that it would be necessary to provide legal teeth to the WIPO Disclosure Treaty that is, as explained in the first section, rather toothless and, like all WIPO-administered treaties, lacks enforcement provisions and a dispute settlement mechanism.
In this sense, as has been recognized by some, if there is a consensus on a text establishing foundational matters such as the definition of TK, the rationale for its protection, and the relationship to existing forms of intellectual property, WTO members may be able to at least use that text as a starting point for further discussion.Footnote 86 It is not the goal of this purpose to examine if the TRIPS Agreement should be amended or not and under which circumstances. This decision falls at the discretion of the WTO members alone and would result from a general consensus. However, on closer inspection, the overall succession of events shows that the TRIPS Agreement has the potential to contextualize IP law within the realm of general public international law.Footnote 87 It is not only a treaty that sets minimum standards of IP protection and enforcement. If WTO members so wish, it could potentially become a vehicle for connecting the fragmented global IP framework. A “catch-all” treaty that agglutinates and gives overarching coherence in a system that remains territorial and increasingly dispersed at the international level in WIPO-administered treaties and FTAs.
It is important to recall that the TRIPS Agreement was built upon a foundation of existing international IP norms, consolidating and formalizing them within a unified multilateral framework. This legal architecture reflects a deliberate choice of design: to build upon pre-existing international obligations, as implicitly acknowledged in Article 2, which governs the relationship between the TRIPS Agreement and earlier WIPO treaties. This layering of commitments is a distinctive feature of the TRIPS Agreement within the broader landscape of international law. A notable example of this approach is the evolution from the traditional principle of national treatment in the Paris and Berne Conventions to the more expansive concept of most-favoured-nation (MFN) treatment enshrined in Article 4 of the TRIPS Agreement. Footnote 88 Whereas national treatment forbids states from according less favourable protection to foreigners than to their nationals, MFN treatment goes a step further. Under this principle, any advantage, favour, privilege, or immunity related to the protection of IP granted to the nationals of one WTO member must be extended to the nationals of all other WTO members.
As some authors have noted,Footnote 89 this flexible and integrative nature of the TRIPS Agreement is further reinforced by the absence of any provision that explicitly excludes FTAs from the scope of the MFN obligation. As a result, any enhanced IP protection negotiated under a FTA may be subject to automatic extension to all WTO members. This interpretation is supported by the broad language of Article 4, which refers to “nationals of any other country,” potentially including non-WTO members as long as they are beneficiaries of such treatment. Notwithstanding this, authors have held that, in the context of TK, FTA provisions do not have these increasing standards and norm-pushing effects since there is no consistency between the provisions, being primarily aspirational and not substantive obligations.Footnote 90
It is to be expected that, at some point, the WTO members must decide either to relaunch the diplomatic negotiating efforts ahead of MC-14 or to put to bed the controversy between the TRIPS Agreement and its relationship with the CBD and the protection of TK and folklore once and for all. Either way, this could lead to more tangible, rich, and precise discussions at the TRIPS Council on the issues relating to biodiversity and IP rather than abstract theoretical debates that have not been conducive to much in nearly two decades. Discussions at the WTO have not been limited to the TRIPS Council. Indeed, other WTO bodies, such as the Committee on Trade and Environment, have examined the role of IPR protection in the conservation and sustainable use of biological diversity where views have diverged as to whether IPR protection encourages conservation and sustainable use of biodiversity — for instance, by encouraging the development of environmentally friendly new products or technologies — or may represent a threat to biological diversity by favouring monoculture of proprietary crop varieties or the inappropriate use of pesticides.Footnote 91
5. Indigenous Peoples in international economic law: legal intersections of IP and trade
For all these reasons, the WIPO Disclosure Treaty does not significantly develop what already exists and is dispersed at both the national and regional levels. Yet the treaty marks an important milestone in international economic law, particularly since it is one of the first treaties to address Indigenous Peoples and local community rights. In the preamble, the WIPO Disclosure Treaty urges members to spare no effort in including Indigenous Peoples and local communities, as applicable, in implementing the treaty. The term “Indigenous and local communities” has been the subject of considerable discussion and study since there is no universal standard definition.Footnote 92 It is used in several treaties, like the CBD, the Nagoya Protocol, or the Food and Agriculture Organization’s International Treaty on Plant Genetic Resources for Food and Agriculture. Footnote 93 Some international agreements use slightly different terms — for example, “local or traditional community” is used in the Swakopmund Protocol. Likewise, Article 1 of Decision 391 on Access to Genetic Resources of the Andean Community mentions the term “native, Afro-American, or local community.”
Currently, Indigenous Peoples are not represented in their own right in international organizations. The state remains, up to this day, the centre and epicentre of the international community. Indigenous Peoples’ concerns are manifested through their state representatives. Indigenous Peoples might be viewed as distinctive populations, but their actual legal rights are dependent upon the willingness of states to protect their interests. Since Indigenous Peoples are not recognized as international legal subjects, they do not possess any ability to negotiate conventions as states do.Footnote 94 Also, there are no special forums to voice their concerns and advocate for policy change, except for the United Nations (UN) Permanent Forum on Indigenous Issues, the Expert Mechanism on the Rights of Indigenous People within the UN system.
Despite this, at least in WIPO, several things have changed.Footnote 95 Rather than states, Indigenous Peoples have been the driving force in claiming protection of their TK and expressions of folklore. This has resulted in the participation of Indigenous representatives in the IGC sessions at WIPO as ad hoc observers with prior consent from members at the beginning of each session. Also, the Indigenous panels facilitated by WIPO and the institution of a yearly Indigenous fellow who is integrated into the Secretariat’s work are aimed at strengthening the impact of Indigenous groups. Their representatives have also been invited to participate in informal (negotiation groups usually consisting of member states only). WIPO has created the Voluntary Fund, which is based on voluntary payments by member states and aims to enable representatives of Indigenous groups to participate in the meetings of the IGC and other related activities run by WIPO.
However, Indigenous People face real struggles. According to the World Bank, there are an estimated 476 million Indigenous Peoples worldwide.Footnote 96 Although they comprise just 6 percent of the global population, they account for about 19 percent of the extreme poverty in the world. Indigenous Peoples’ life expectancy is up to twenty years lower than the life expectancy of non-Indigenous peoples worldwide. Thus, enhanced protection of TK, GRs, and TCEs could mitigate the severe economic and social disadvantages that most Indigenous groups in the world currently suffer.Footnote 97
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) enshrined in Article 31 their right to maintain, control, protect, and develop their cultural heritage, TK, and traditional cultural expressions, including the right to maintain, control, protect, and develop their IP over such cultural heritage, TK, and traditional cultural expressions.Footnote 98 In this sense, it could be said that IPRs could be valuable tools to facilitate the participation of Indigenous Peoples in international trade and protect their cultural heritage.Footnote 99 For example, the San People, an Indigenous group living in the Namib Desert and Kalahari region of South Africa, Botswana, Angola, and Namibia, concluded an ABS agreement regarding a patent that isolated the active ingredient of the hoodia plant (known as an appetite suppressant for many centuries), which is going to be of use as a weight management treatment, resulting in significant economic benefits.Footnote 100
Even though the UNDRIP is not legally binding on UN member states as any other UN declaration in principle, paragraph (j) of Article 8 of the CBD stipulates that, insofar as possible and appropriate, parties shall,
subject to its national legislation, respect, preserve and maintain knowledge, innovations, and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations, and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations, and practices.
This provision of the CBD binds its 196 state parties and provides guidance to legislators in implementing Article 8(j) of the CBD, and the Conference of the Parties agreed to a set of guidelines (the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising Out of Their Utilization).Footnote 101 However, some WTO members have emphasized that Article 8(j) refers only to knowledge, innovations, and practices “relevant for the conservation and sustainable use of biological diversity.”Footnote 102
Despite this widespread recognition of Indigenous Peoples’ rights globally, concerns continue to exist. In December 2024, the UN General Assembly expressed its concern over the misappropriation and misuse of Indigenous Peoples’ cultural heritage.Footnote 103 It encouraged states to strengthen international cooperation to address the disadvantages faced by Indigenous Peoples and to increase technical cooperation and financial assistance. The remaining question at this point is whether current IPR systems should be adapted to protect and reward traditional and Indigenous knowledge, and, if so, what kind of sui generis approaches or alternative systems of protection should be envisaged. It is beyond the purpose of this article to delve into this issue.
However, one thing is sure: the connection between TK, Indigenous Peoples, and the protection of biodiversity has been increasingly reaffirmed and confirmed globally. For instance, the preamble of the CBD mentions “the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources.” Furthermore, for instance, the Kunming-Montreal Global Biodiversity Framework of the Convention on Biological Diversity (KMGBF) has explicitly recognized the important roles and contributions of Indigenous Peoples and local communities as “custodians of biodiversity” and as partners in its conservation, restoration, and sustainable use.Footnote 104 This indicates that the rights and knowledge, including TK associated with biodiversity, innovations, world views, values, and practices of Indigenous Peoples and local communities, must be respected, documented, and preserved with their free, prior and informed consent. The rise of this connection should not be dismissed lightly.
Goal C of the KMGBF is to establish that the monetary and non-monetary benefits from the utilization of GRs and digital sequence information on GRs, and of TK associated with GRs, as applicable, are shared fairly and equitably, including, as appropriate, with Indigenous Peoples and local communities, and substantially increased by 2050, while ensuring TK associated with GRs is appropriately protected, thereby contributing to the conservation and sustainable use of biodiversity, following the internationally agreed access and benefit-sharing instruments. Just recently, at the sixteenth Conference of the Parties to the CBD in Cali, Colombia, it was decided to formally recognize and expand the role of Indigenous Peoples and local communities in saving biodiversity and to operationalize a mechanism to share benefits from digital genetic information. The Cali Fund for the Fair and Equitable Sharing of Benefits from using Digital Sequence Information on Genetic Resources (Cali Fund) will receive contributions from private sector entities making commercial use of genetic resources.Footnote 105 The Cali Fund opens a new era for biodiversity financing since companies making commercial use of data from GRs in nature in a range of lucrative industries are now expected to contribute, voluntarily, 1 percent of their profits or 0.1 percent of their revenues to the fund. Contributions to the Cali Fund will be allocated to implementing the CBD and support the implementation of the KMGBF. At least 50 percent of the Cali Fund’s resources will be allocated to Indigenous Peoples and local communities, recognizing their role as the custodians of biodiversity.
At the WTO, there are increasing attempts to bring Indigenous People to the centre of the discussions. Even though the primary goal of international trade law is to advance trade liberalization, modern international trade law is a complex body of rules since the system must balance trade against competing social values, like the protection of the environment, Indigenous Peoples, the right to health, and labour standards.Footnote 106 Beyond the famous case European Communities-Seal Products that challenged the EU’s regulations banning the import and marketing of seal products, including those derived from hunts conducted by Inuit or Indigenous communities, recent WTO negotiation outcomes include a reference to Indigenous Peoples.Footnote 107 This marks a significant turning point for the modern multilateral trading system, which must now pursue a moderately flexible approach to reconcile conflicting interests while advancing the overarching objective of promoting international trade. Flexibility is essential for the system’s continued survival and success, especially at a time when the foundational paradigm established at the turn of the millennium is undergoing substantial reconfiguration.
A recent example of this turnaround is the stabilized text of the joint statement initiative on e-commerce released on 26 July 2024, which includes a provision devoted to Indigenous Peoples whereby no party will be precluded “from adopting or maintaining measures it considers necessary to accord more favourable treatment to Indigenous Peoples in its territory in respect of matters covered by this Agreement, including in fulfilment of its obligations under its legal, constitutional, or treaty arrangements with those Indigenous Peoples.”Footnote 108 On the other hand, it excludes from WTO dispute settlements the questioning, in an eventual dispute, on “the interpretation of a Party’s legal, constitutional, or treaty arrangements with Indigenous Peoples in its territory.” Furthermore, the Investment Facilitation for Development Agreement includes an identical provision in footnote 46.Footnote 109 While, so far, these agreements have not yet come into force, this provision reflects the growing awareness of some WTO members.
One predominant example is New Zealand, which has incorporated as part of its trade policy the goal of protecting Indigenous Peoples’ rights, like Māori interests, by negotiating the inclusion of a “Treaty of Waitangi” exception as part of its trade policy.Footnote 110 This exception, as explained by New Zealand during the last WTO trade policy review, aims to reserve policy space for the government to implement domestic policies in relation to the Māori People.Footnote 111 Functioning as a defence, it allows the adoption of measures necessary to accord a more favourable treatment to the Māori People regarding matters covered by the agreement, including fulfilling its obligations under the Treaty of Waitangi. Footnote 112 In this sense, New Zealand’s FTAs showcase the country’s agenda to further build the relationship between trade and Indigenous Peoples. For example, the FTA between New Zealand and Taiwan, signed in 2013, was the earliest contemporary example to include a chapter devoted to Indigenous Peoples. This chapter aims to enhance the cultural exchange between the Māori and the Indigenous Peoples of Taiwan, encourage cooperation between the Indigenous Peoples’ institutions, focus on tourism, and expand and facilitate trade and economic relations. Likewise, New Zealand has joined Canada in developing a new trade policy, known as the New Progressive and Inclusive Trade Agenda, which aims to maximize opportunities and minimize the risks associated with global issues, including the rights of Indigenous Peoples.Footnote 113
6. Conclusion
The adoption of the WIPO Disclosure Treaty constitutes a noteworthy development in the international IP landscape. Although it does not create substantive rights over GRs or the associated TK or establish a new category of IPRs, the treaty marks a significant regulatory milestone, both symbolically and substantially. It remains to be seen whether ongoing negotiations at WIPO will do so for TK and TCE, or if, on the contrary, the IPRs contained in the TRIPS Agreement will suffice. However, it is noteworthy to mention the recognition of Indigenous Peoples and local communities — an unprecedented inclusion in a WIPO-administered multilateral legal instrument.
The treaty highlights a persistent structural paradox: while IP law remains territorial, global challenges such as biodiversity conservation or TK protection require coordinated international responses. From a legal standpoint, the treaty formalizes a disclosure requirement already incorporated in numerous national and regional legal frameworks. As such, its regulatory content is not revolutionary. Instead, it provides a global reach to pre-existing legal practices. The requirement to disclose the country of origin of GRs and the source of GRs associated with TK used in a patent application is not novel in substance. Still, it does signal an emerging consensus regarding procedural safeguards in the patent system.
The WIPO Disclosure Treaty confirms a trend of increasing “WIPOnization” of the global IP framework. This preferred method of rule making has been privileged because it is more deferential to the state’s sovereignty and less onerous than the multilateral trading system. While the new WIPO treaty only requires the signing of fifteen contracting parties to enter into force, amendments at the WTO of existing agreements or new multilateral trade agreements will enter into force when supported by two-thirds of all members (currently 166 WTO members) under Article X of the WTO Agreement. However, this preferred legal avenue is not without consequence. The increasing “cherry-picking” approach would inevitably increase the number of free-riders or countries that choose not to join the advancement of the global IP law, creating a race-to-the-bottom effect and larger disparities that could result in tensions and contradictions at the international level. Simply incorporating a provision that mandates the treaty to be implemented in a mutually supportive manner with other international agreements might not always do the trick.
Furthermore, WIPO-administered treaties like the WIPO Disclosure Treaty lack enforcement provisions and a dispute settlement mechanism. The “hardening” of its provisions for some WTO members seems to require an amendment of the TRIPS Agreement, consolidating its role as the international treaty that underpins the global IP framework, thus becoming the sole source of obligations in enforcing IP rights, binding the dispute settlement mechanism, technology transfer, and health issues. Issues that are left unaddressed by a WIPO-administered treaty or practically undiscussed by WIPO bodies, such as the WTO TRIPS Council. In the current state of the world, it should be a priority to have a play-by-the-rules approach rather than a rule-making system: fewer norms but stricter enforcement of the existing ones. Recent proposals from some WTO members suggesting an amendment to the TRIPS Agreement confirmed that playing by the rules might now be the focus of negotiations and international law at large.
At this point, the WIPO Disclosure Treaty is both a miracle and a mirage. Only time will tell how the scales will tip. Nevertheless, one thing is clear: the treaty will trigger new discussions beyond WIPO in other multilateral forums, hopefully revitalizing discussions within the TRIPS Council on the relationship between IP and biodiversity. The WIPO treaty thus serves as a gentle catalyst, if not a legal precedent, for further engagement on a multilateral dimension. While the WIPO Disclosure Treaty may not represent a substantial shift from pre-existing national and regional frameworks, it nonetheless marks a historic step forward in international economic law by recognizing the rights and contributions of Indigenous Peoples and local communities. As such, these breakthroughs underscore a broader shift towards a more inclusive and equitable international economic order — one in which Indigenous voices are no longer peripheral but increasingly central to shaping the rules that govern global interaction.
