Pacific Islands Forum (PIF) The origins of the Pacific Islands Forum date back to 1971 with the creation of the South Pacific Forum by the states of Australia, Cook Islands, Fiji, Nauru, New Zealand, Tonga and Samoa. In 2000 the Forum took the decision to change the nature of the organization from a loose affiliation that mainly revolved around annual meetings at the level of heads of state and government, to an intergovernmental organization based on an international treaty, with specific permanent institutions and a name change to the Pacific Islands Forum. Membership of the Forum now stands at sixteen with the inclusion of the Federated States of Micronesia, Kiribati, Niue, Republic of the Marshall Islands, Palau, Papua New Guinea, Solomon Islands, Tuvalu and Vanuatu. The Forum also has provisions for associate membership status for territories in the region that have yet to achieve self government. The main meeting of Forum is the annual gathering of the heads of state and government to discuss matters concerning the region and issue a communiqué that sets out subjects of concern, areas of agreement and plans for future action. At the Port Moresby Summit in October 2005 final agreement was reached on the new constitutive treaty for the Forum. The Treaty is the first step in establishing the Forum on a legal basis, establishing an institutional framework for the organization. The Agreement has been signed by all members of the Forum but has not yet received full ratification. Recent Development: Traditional Knowledge Action Plan Adopted In December 2009 the Pacific Islands Forum launched the Traditional Knowledge Action Plan[1] (Action Plan) to further the protection of traditional knowledge. The Action Plan is based on supporting the effective implementation of domestic efforts for protection along with developing regional efforts for the protection of ownership rights and the effective commercialization and economic use of traditional knowledge. The Action Plan was adopted in cooperation with the World Intellectual Property Organisation and the Secretariat of the Pacific Community (SPC) and has received financial support from the European Union. The Action Plan is a culmination of efforts organised by the Forum on this issue that began with the issue being addressed by Forum Trade Ministers in 1999. In 2002 the Pacific Islands Forum adopted a Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture[2] that contained a Model Law for the Protection of Traditional Knowledge and Expressions of Culture (Model Law). The Model Law has received substantial attention as an important instrument in this area. The adoption of the Action Plan has been described as a 'milestone development for the region' and the Forum's Secretary General Tuiloma Neroni Slade, has explained that traditional knowledge is an 'integral part of the Pacific' and that the Action Plan 'actively seeks to protect Pacific Traditional Knowledge from misuse and misappropriation without any compensation to the owners of Traditional Knowledge.'[3] The Action Plan is very much a response to the 'recognition that the region's traditional and cultural resources were being improperly exploited without due compensation'.[4] The Action Plan provides for the development of two fields of action on a regional basis. The first concerns Traditional Biological Resources which is the protection of traditional plants, medicinal knowledge etc and this will be developed in collaboration with the Secretariat of the Pacific Regional Environmental Programme (SPREP). The second framework addresses Traditional Knowledge and Expressions of Culture such as the protection of traditional arts, songs, dances and this will be developed in collaboration with the Secretariat of the Pacific Community. The Action Plan is also a contribution to the further development of the Pacific Plan, the overall framework for action in the region, where the protection of traditional knowledge is a key feature in furthering sustainable development.[5] The Action Plan calls for a two stage approach to implementation. The first stage focuses on national efforts for the creation of systems of protection that will complement existing mechanisms for the protection of intellectual property rights. National implementation efforts will include both legal and non-legal measures with the objective of taking a 'holistic approach to the development of frameworks of protection'.[6] Using the Model Law of 2002, states will be supported in their efforts to establish policy measures and legislation that furthers the objectives of the Action Plan. The second stage of the Action Plan relies upon progress being made in the first stage as it involves taking a regional approach to developing cultural industries through the promotion of commercialization of traditional knowledge. Effective regional efforts are seen as crucial for the success of the Action Plan as much of the illicit exploitation of traditional knowledge occurs outside of state borders. The Action Plan recognises the need to build upon the national efforts through a regional international treaty or coordinated transnational activities that will lead to mutual recognition and cooperation among states in upholding legal protection. While the Action Plan is organised as a two step process, the development and implementation of national legislation will, from the outset, take a regional approach in order to facilitate future cooperation. The Action Plan provides a list of justifications for furthering the legal protection of traditional knowledge; a list that gives some important insights into the present condition of traditional knowledge and how it is being used and exploited. The justifications set out the need to establish national and regional systems for the protection of traditional knowledge, in order to:
It is projected that the creation of effective systems for the protection and promotion of traditional knowledge in the region will lead to greater legal certainty allowing for more efficient means of managing and developing resources. The overriding purpose of the Action Plan, through the development of regulatory mechanisms and making traditional knowledge more accessible, is the encouragement of economic activity and market access opportunities at all levels leading to 'the improvement of livelihoods and the eradication of poverty in the region.' (AP 6) The Action Plan does not target any specific group, but rather attempts to support all those involved in the development and use of traditional knowledge in order 'to provide an enabling environment for cultural industries to grow and contribute to economic development and improvement of livelihoods across the region.'[8] The Action Plan sets out that within a year, six Parliaments, Cook Islands, Fiji, Kiribati, Papua New Guinea, Palau and Vanuatu, will have adopted legislation developed under the Action Plan and based on the 2002 Model Law. A draft regional agreement will also be drawn up within the next twelve months with a view to having it in force within two years. ***** The issue of traditional knowledge is an important feature of the Pacific region and through the Action Plan and Model Law the region has put itself at the forefront of international efforts in this field. Traditional knowledge has received significant attention over the years through a variety of international instruments demonstrating the complexities involved in this area. Traditional knowledge is not just about economic exploitation and benefit but includes issues of identity and culture, making it a contentious area for legal regulation as views will vary dramatically on the most appropriate way forward. The Action Plan calls for a bottom up approach with action begin taken at the local level, then national and then regional. The holistic approach that is suggested in the Action Plan will be extremely important to its effective implementation as this is an area where legal frameworks alone will not ensure effective action for the future. At the same time, the emphasis placed on the economic benefits of traditional knowledge by the Action Plan appears to suggest that legal measures will be given a higher priority which is likely to result in disagreements amongst the various participants involved as some are likely to feel that the legal frameworks do not work for their benefit. The Action Plan's emphasis on a regional approach is appropriate as is the efforts already taken to ensure other relevant international organisations are involved in future developments. The importance of taking a regional approach is supported on two levels. The first being the benefits accrued from sharing information and cooperating in the development of policy and legal instruments; something that also includes cooperation with other international organizations, such as the World Intellectual Property Organization. The Action Plan also points out that due to the lack of an international regime in this area, a regional approach is necessary as due to the nature of the subject matter it is not possible to wait for global developments. This sort of approach underlies the importance of regional arrangements in furthering international law by taking action when global developments are slow and also for taking the leading in furthering global developments. Dr. Richard Burchill McCoubrey Centre for International Law University of Hull January 2010 Footnotes: 1 TRADITIONAL KNOWLEDGE ACTION PLAN available at http://forumsec.org/resources/uploads/attachments/documents/Traditional%20Knowledge%20Action%20Plan%202009.pdf 2 Available at http://forumsec.org/resources/uploads/attachments/documents/PacificModelLaw,ProtectionofTKandExprssnsofCulture20021.pdf. 3 Press Statement, Traditional Knowledge Action Plan launched, (December 21, 2009), available at http://www.forumsec.org.fj/pages.cfm/newsroom/press-statements/2009/traditional-knowledge-action-plan-launched.html. 4 Traditional Knowledge Action Plan, supra note 1, para. 1. 5 THE PACIFIC PLAN FOR STRENGTHENING REGIONAL COOPERATION AND INTEGRATION, adopted in 2005, revised in 2007, available at http://www.pacificplan.org/. 6 Traditional Knowledge Action Plan, supra note 1, para. 6. 7 Traditional Knowledge Action Plan, supra note 1, para. 11. 8 Traditional Knowledge Action Plan launched, supra note 3. |
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