The GRATK Treaty: Understanding a Triumph of Multilateralism

By Margo A. Bagley

The World Intellectual Property Organisation (WIPO) Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (the “GRATK Treaty”), concluded at the WIPO Headquarters in Geneva, Switzerland in May 2024, represents a triumph of multilateralism. Before the treaty’s adoption, multilateralism in the intellectual property (IP) arena appeared extremely shaky. The last IP treaty had been concluded more than a decade earlier, and efforts in the WTO TRIPS Council to waive IP protections to expedite the deployment of COVID vaccines, treatments, and protective equipment at the height of the pandemic resulted in only a wimpy relaxation of constraints on compulsory licensing for vaccines.

Given that a successful completion of a new multilateral treaty is a rare occurrence, this article traces key moments that enabled a pathway towards agreement. The backstory on the negotiation process highlights the seminal roles played by preparation and strategic opportunism.

Situating the GRATK Treaty

The GRATK Treaty obligates contracting parties to require utility patent applicants to disclose the origin or source of genetic resources and associated traditional knowledge for claimed inventions based on such resources or information. It also mandates the imposition of appropriate measures if the disclosure obligation is violated. It creates no new rights. Instead, it is largely a transparency measure that can help avoid granting patents on non-novel subject matter. It may also facilitate compliance with genetic resource and traditional knowledge benefit-sharing obligations under the UN Convention on Biological Diversity’s and its Nagoya Protocol.

It is the first IP treaty to mention Indigenous Peoples and Local Communities (IPLCs), the primary creators and holders of traditional knowledge about genetic resource utilisation, who are often the stewards and improvers of such resources. As such, it injects a sense of balance in an otherwise fairly lopsided IP system, known for promoting protections that largely benefit creators, owners, and users in high-income countries, often to the detriment of those in the Global South.

The successful negotiation of the GRATK treaty had a cost: 25 years of negotiating, with Global South countries demanding progress and many industry-leaning high-income countries resisting and content with the status quo.

But this result had a cost: 25 years of negotiating, with Global South countries demanding progress and many industry-leaning high-income countries resisting and content with the status quo. In my view, this situation likely would still exist if it were not for two critical events: one involving preparation and the other, strategic opportunism.

Pathways towards Agreement

In 2012, after thirteen years of meandering Intergovernmental Committee (IGC)      discussions, the Consolidated Text on Genetic Resources and Associated Traditional Knowledge (Consolidated Text) was released. It distilled those years of discussions and served as the basis for negotiations moving forward. However, because every member state had the right to have their position reflected in the document, it gradually became littered with hundreds of brackets (indicating disagreement), multiple alternatives to many articles, and some downright conflicting provisions (such as a “no disclosure requirement” article). Despite this, progress was being made, so much so that in 2018, the adoption of a revision of the text (reflecting important compromises) was blocked by one member state, ostensibly leaving negotiations at a standstill.  

But this failure created an opportunity for a phoenix to rise from the negotiating ashes: the Chair’s text. Then-IGC-Chair Ian Goss (Australia) had been strategically meeting with numerous delegations to identify areas of potential agreement and benefiting from work being done behind the scenes by a diverse group of countries representing several geographical regions. This enabled him to draft and table in 2019 a carefully crafted, narrowly focused, and delicately balanced Chair’s text that looked like a real treaty but could not be cluttered with opposing provisions, as could the consolidated Text. 

In 2022, Russia’s unprovoked invasion of Ukraine, an event seemingly unrelated to the IGC, catapulted the Chair’s text to a treaty-making diplomatic conference.

Little happened with the Chair’s text or the consolidated document after that due to the pandemic and the selection of a new IGC Chair. But in 2022, Russia’s unprovoked invasion of Ukraine, an event seemingly unrelated to the IGC, catapulted the Chair’s text to a treaty-making diplomatic conference.  

How did this happen? 

Seizing Opportunity in a Changing Political Context

WIPO normally operates by consensus. Voting is rare and frowned upon. Nevertheless, at the beginning of the 55^th Session of the WIPO General Assemblies (GAs) in July 2022, the insertion into the agenda of a provision to provide IP technical assistance to Ukraine due to Russia’s aggression brought challenges from Russia. It led to – horror of horrors – a vote! In fact, several votes were held concerning that issue during the GAs. 

If each group agreed to support the combined proposal (and lobbied like-minded states to do so as well) and the matter came to a vote, there should be enough votes to pass the measure – strategic opportunism at its best.

But where some saw opposition, others saw an opportunity. If WIPO members were open to voting on one issue, how about another? What about a Diplomatic Conference (DipCon), or two? Diplomats from demandeur countries in the IGC conferred with diplomats from high-income countries who wanted adoption of the draft Design Law Treaty, which had been languishing for years in a different WIPO committee and proposed a horse trade: agreement to two DipCons to result in two new treaties. If each group agreed to support the combined proposal (and lobbied like-minded states to do so as well) and the matter came to a vote, there should be enough votes to pass the measure – strategic opportunism at its best.

Towards Agreement

In the end, a vote was not necessary. The minority of countries opposed to a GRATK treaty chose to end the voting wave at WIPO by not blocking a consensus agreement to hold two DipCons in 2024. However, without a well-prepared Chair’s text that looked like a treaty sufficiently ready for a diplomatic conference, even the threat of a vote would not have enabled the outcome achieved.

Of course, there were other contributors to the successful adoption of the GRATK treaty, including a gifted and persuasive DipCon President in Guilherme Patriota (Brazil), behind the scenes work by the WIPO Traditional Knowledge Division, and the efforts of numerous negotiators over the course of many years. However, the above two events are, to my mind, illustrative of why this treaty succeeded in a world where multilateral agreement success is far from assured. 

Does the treaty represent a triumph of multilateralism? Certainly, but one that was achieved through a series of conflicts and negotiating failures, with strategically minded actors pulling victory from the jaws of defeat and capitalising on seemingly unrelated events. While such a confluence might be hard to replicate, it was, nonetheless, a signal achievement.

About the Author

Margo A. Bagley is Asa Griggs Candler Professor of Law at Emory University School of Law. She served as Friend of the Chair in the WIPO IGC from 2018 – 2023, and as an IGC Facilitator from 2014-2018.