Minutes - TRIPS Council - View details of the intervention/statement

Mr. Joshua C.K. Law (Hong Kong, China)
77. The representative of Argentina said that she could accept the proposal the Chairman had formulated on extending the timeframe. She wanted, however, to refer in greater length to two issues which the Chairman had raised, namely the form and the content of the amendment and the Secretariat notes which had been circulated. 78. She said that, in its note of 1 March 2004, the Secretariat had stated that neither Article X of the WTO Agreement nor the Vienna Convention on the Law of Treaties referred to the question as to whether a footnote could be used to amend the substance of a treaty. The Secretariat had noted the existence of a considerable number of footnotes which it described as "substantive" in nature. In its note of 12 May 2004, the Secretariat further considered that the precedents set by the panels and the Appellate Body of the WTO confirmed that footnotes had been used for substantive provisions in several WTO agreements and were interpreted in the same way as provisions in the main text of the agreements concerned. The Secretariat had concluded that there was no formal reason either in the law or the jurisprudence of the WTO that would preclude amending an agreement, including the TRIPS Agreement, through a footnote. Indicating that the Dispute Settlement Body had not differentiated the legal effects of footnotes from the main text of the Agreement, the Secretariat had concluded that it would not be contrary to the TRIPS Agreement to amend it through a footnote as long as the procedure of Article X of the WTO Agreement was respected. 79. She said that although the 12 May note of the Secretariat had indicated in paragraph 3 that it did not intend to analyse the appropriateness of each course of action, she believed that paragraph 29 did prejudge the appropriateness of the different courses of action by stating that "apart from a footnote", "other" possible legal forms had been mentioned, as if these were of secondary importance. 80. In her delegation's view, the main issue with regard to footnotes relates to the interpretation made in general in the context of treaties, in particular to the WTO agreements and more specifically to the TRIPS Agreement. She added that it was not customary under the law of treaties to amend a treaty through a footnote which was usually considered to be subordinate in nature to the main text and could not take precedence over it, but could merely be supplementary or clarificatory in nature. The legal form was of particular importance with respect to the amendment following the Decision of 30 August, since such an amendment would not be merely a clarification, but would modify the legal effects of Article 31 of the TRIPS Agreement. According to her delegation, an analysis of the footnotes in the WTO agreements referred to by the Secretariat as being "substantive" would show that most of them served the purpose of clarifications referring to the way in which the text of the treaty should be interpreted or supplemented. For example, the TRIPS Agreement contained 14 footnotes, none of which contradicted the main body of the text, although footnote 12 was the only one which could be considered to modify the effects of the Agreement, since it contained the sentence "shall not be required to". Even this footnote did not in fact create an exception to an obligation or contradict the main text – as would be the case if the Council introduced the Decision of 30 August into the TRIPS Agreement. Besides, the footnotes to the Agreement were introduced at the time of its negotiation and not as the result of later amendments. On the occasions when the provisions of GATT were amended, the amendments were set out in the form of protocols. 81. As to the jurisprudence cited by the Secretariat, she did not see any relevant material with regard to how to interpret a footnote when it was not supplementary or merely subordinate to the main text. In view of that, it needed to be determined whether a footnote was the appropriate legal form for creating an exception to Article 31 of the TRIPS Agreement. Article X of the WTO Agreement contained the procedure for amendment of WTO agreements and the Secretariat had clearly set out in its documents that this procedure must be followed in incorporating the Decision of 30 August through an amendment, irrespective of the legal form that was chosen for the amendment. A footnote would thus not simplify the amendment procedure to the Agreement since the Council would have to follow the procedure of Article X. What, then, were the advantages of adopting an amendment through a footnote? The proponents of this form of amendment were those who advocated incorporating not only the Decision, but also the Statement of the Chairman of the General Council (hereinafter referred to as "the Statement"). The only motivation Argentina saw for such proposal was that a footnote would facilitate the introduction of the Statement into the TRIPS Agreement, giving it the same legal status as the Decision. 82. She said that the Statement had clearly been drafted to enable all Members to join the consensus on the adoption of the Decision. In the view of her delegation, the Statement was a unilateral instrument without any binding effect and its legal value and status were distinct from that of the Decision adopted by the General Council. At no stage had the Chairman or the Members construed the Statement as being part of the Decision, but rather as an instrument which would facilitate a consensual decision on the Decision. From the standpoint of Article 31 of the Vienna Convention on the Law of Treaties, one could analyse whether the Chairman's Statement could in fact be considered to be part of the "context" of the amendment. Her delegation believed that for the purposes of interpretation, the Statement did not reflect an "agreement" between the parties within the meaning of paragraphs 2(a) and 2(c) of Article 31 of the Convention. She said that the Secretariat had cited precedents to determine whether the Statement could be considered under Article 31.2(b) of the Convention (i.e. as "any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty"). She also said that the Secretariat had taken the view that a statement made by one party could be considered as part of the context of the treaty or as an instrument related to the treaty. In the case at hand, she said, the Chairman's Statement was not, however, an instrument which had emanated from a "party", i.e. a WTO Member. 83. The representative of Argentina said that it was equally clear that there was no consensus amongst Members with regard to the legal value of the Statement, and indeed, most Members had explicitly stated that the Statement lacked legal value to become part of the amendment. Her delegation believed that only the Decision of 30 August adopted by Members should be considered in the process to amend the TRIPS Agreement. The Secretariat had stated that the incorporation of the Statement would not be decisive in assessing the legal value of the Statement, but that the latter would depend on the actual text of the footnote. Her delegation disagreed with that argument, since there should be unanimity on the value of the Statement for it to have legal value in the light of Article 31 of the Vienna Convention. 84. In conclusion, the representative of Argentina said that, in view of the foregoing, her delegation believed that the most important value to be preserved was legal security. She said that the Chairman's Statement could not be part of the amendment as it was a unilateral statement which was not included in the agreement reached by Members, i.e. in the Decision of 30 August, and to introduce it would establish a bad precedent amounting to a disguised amendment to the provisions of the TRIPS Agreement through unilateral instruments, which were not generated by one of the contracting parties and which did not constitute an agreement between the parties. In her view, a footnote referring to a decision such as the one of 30 August 2003 could prove controversial. She further said that the amendment did not have as its objective the clarification of the text of Article 31 or to supplement it to avoid its misinterpretation, but rather an authorisation to Members to carry out activities which, according to Article 31, were not at present permitted. The amendment would be the subject of interpretation in the future and this task would not be facilitated by an amendment in the form of a footnote. Apart from the fact that there were no precedents on this form of amendment, her delegation did not consider such an approach to be appropriate from a systemic standpoint.