Christopher Garrison
Legal Advisor, MSF
February 13, 2003
There is a seemingly glaring inconsistency between the proposed Chairman's
understandings and the Motta text itself. It does not seem to have been
widely discussed so it is raised here.
The Motta text of December 16th 2002 indicates the following:
(b) "eligible importing Member" means any least-developed country Member,
and any other Member that has made a notification to the Council for TRIPS
of its intention to use the system as an importer, it being understood that
a Member may notify at any time that it will use the system IN WHOLE OR IN
A LIMITED WAY, for example ONLY IN THE CASE OF A NATIONAL EMERGENCY OR
OTHER CIRCUMSTANCES OF EXTREME URGENCY or in cases of PUBLIC NON-COMMERCIAL
USE. It is noted that some Members will not use the system set out in this
Decision as importing Members and that some other Members have stated that,
if they use the system, it would be in NO MORE THAN SITUATIONS OF NATIONAL
EMERGENCY OR OTHER CIRCUMSTANCES OF EXTREME URGENCY;
Secondly, delegations have made it clear that they see the system that we
are establishing under paragraph 6 of that Declaration as being essentially
designed to address NATIONAL EMERGENCIES OR OTHER CIRCUMSTANCES OF EXTREME
URGENCY.
On the terms of the Motta text therefore, agreeing to the Chairman's
proposed understanding, presumably means that all Members "essentially"
fall into the category of only using the system in a LIMITED way and not AS
A WHOLE.
The option that any Member could use the system AS A WHOLE would therefore
seemingly be rendered superfluous, even for LDCs.
The option of public non-commercial use ("government use") raised by the
Motta text would also presumably be foreclosed.
It surely cannot be the intention of all the negotiating parties to agree a
text and then preface the text with an understanding which renders the text
operationally largely useless.
There is debate as to the legal weight of the Chairman's understanding.
From a common sense point of view it must be clear that the Chairman is not
recording the understanding just because he feels like it and that it can
be forgotten later. It is phrased as a record of AGREEMENT between
delegations, to be taken into account when subsequent action is taken on
the basis of it.
The general rule as far as treaty interpretation is concerned on this point
is given in the Vienna Convention on the Law of Treaties. Art 31(2) of the
Vienna Convention says: " The context for the purpose of the interpretation
of a treaty shall comprise, in addition to the text, including its preamble
and annexes: (a) any agreement relating to the treaty which was made
between all the parties in connection with the conclusion of the treaty"
Whatever the complexities of mapping this general principle onto the WTO,
it should be clear that the Chairman's understandings are not throwaway
lines. They must certainly be intended as binding. If there are any who
think that maybe Motta's December 16th text alone will form the basis of
any amendment to the TRIPS Agreement (i.e. that the "mere" Chairman's
understanding can be discarded), look at section 11 of Motta's text: "?on
the understanding that the amendment will be based, WHERE APPROPRIATE, on
this Decision?".
Accepting the Chairman's understandings must be, practically speaking, as
good as accepting an amendment of section 1(b) of Motta's text to limit any
possible use of the proposed paragraph 6 solution to situations of national
emergency or other circumstances of extreme urgency? Given the firm stand
on disease scope (Motta section 1(a)) made by many WTO Members in the last
weeks and months, it is hard to imagine that this is their intended result?
Christopher Garrison
1. For the purposes of this Decision:
The proposed Chairmans understanding indicates the following:
Legal Advisor MSF
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