Abstract: SUMMARY OF KEY POINTS 1. Some states, especially those that are members of the Group of Like-Minded Megadiverse Countries, would like to see more rapid progress on the creation of an international regime on traditional knowledge. 2. No such regime exists at the moment, but there is incremental progress towards such a regime. 3. Most standard-setting on traditional knowledge that takes the form of binding positive law is occurring at the level of state law-making. 4. The economic case for a treaty on traditional knowledge is not clear. Because such knowledge often functions as an input into other research it is hard to value economically. A treaty may simply depress demand for this kind of knowledge. This will suit the indigenous groups who wish simply to safeguard their knowledge. It will not suit states or indigenous groups that wish to commercialize such knowledge. 5. The desire of some states to move towards an international regime must take account of US business interests and agendas. 6. The key to any successful treaty at the international level is harmonious and cooperative relationships between indigenous groups and national governments. Work by the experts at the CBD shows that currently in many cases relations between indigenous groups and national governments are far from harmonious. 7. Any treaty on traditional knowledge would have to accommodate the diversity of traditional knowledge and different national standards of protection. The principles of reciprocity, national treatment and mutual recognition all require, at least to some degree, common standards. There are tensions between these principles and the goal of accommodating diversity. 8. A treaty could commit states to a form of positive comity in this field by obliging states to explore the use of memoranda of understanding (MOU). MOU have the advantage that they are flexible and would allow states to negotiate the enforcement of different standards of protection on an individual basis. At the same time they impose a degree of ‘bindingness’ on states. An incremental approach based on MOU would help to build a community of officials concerned with the enforcement of traditional knowledge, something that is vital to successful regulation in this field. 9. One of the key lessons of TRIPS for a treaty on traditional knowledge is that states should be conservative when it comes to creating new standards, but radical on the issue of enforcement. The issue of how to make an international regime on traditional knowledge enforceable has received insufficient attention. 10. At this stage of the evolution of protection for traditional knowledge a treaty should not attempt to set substantive international norms of protection (for example, by creating an international norm of misappropriation of traditional knowledge). Instead states should focus on creating a treaty that does not discourage the development of national approaches and norm-creation on traditional knowledge, but does offer the members of such a treaty a means of cooperating and coordinating on the enforcement of traditional knowledge. 11. The fundamental role of a treaty on traditional knowledge should be to coordinate the creation of an international enforcement pyramid. The various technical discussion papers produced by WIPO’s Intergovermental Committee suggest that many of the elements of this pyramid are already in place at the national level. Theoretical and empirical work shows that enforcement pyramids are widely used by business regulators because they work. 12. Specifically, this would involve members in the establishment of a Global Bio-Collecting Society that would coordinate enforcement work at the national level so as to constitute an international enforcement pyramid. 13. One possibility that should be explored is whether key organizations such as the WIPO, the FAO and the CBD might be able to establish a Global Bio-Collecting Society as a joint initiative. 14. The treaty should also establish a review mechanism and a set of indicators that could be used to evaluate the progress of states on the regulation of TGKP. A list of indicators could include progress on land rights issues related to TGKP; the implementation of a best practice declaration requirement for patents dealing with TGKP; and assistance rendered to other states on enforcement, including the number of MOU signed with other states. 15. The issue of declaring the origins of genetic resources and/or the use of traditional knowledge should be dealt with through the development of best practice guidelines. The major patent offices of developed and developing countries should participate in the formulation of such guidelines but, if necessary, it could be done by the major patent offices of developing countries. 16. The potential members of a treaty on traditional knowledge should, drawing on the experience of the fairtrade label, use the treaty as a means of developing a co-ordinated approach amongst themselves to labelling and certification. 17. A treaty would have to be careful not to undermine the work that indigenous groups and international organizations have done on broader indigenous issues.