258. The representative of South Africa, supporting the statement by the delegation of Nigeria, said that the issue had been on the Council's agenda since the Ministerial Conference in Hong Kong. He recognized that Members clearly had different views concerning the application of subparagraphs 1(a) and 1(b) of Article XXIII of GATT 1994 under the TRIPS Agreement. As a Member of the WTO, South Africa was fully committed to upholding its obligations and commitments as set out in the various agreements of the WTO, including the TRIPS Agreement. The purpose and aim of Article XXIII subparagraphs 1(a) and (b) of GATT 1994 was to ensure compliance with GATT rules and principles by providing Members with an opportunity to make representation under the situation provided for in subparagraphs 1(a) and (b).
259. On the other hand, TRIPS was a sui generis agreement. It was not aimed at promoting market access or harmonizing the standards of Member States with regard to the protection and enforcement of intellectual property rights. It provided for minimum standards for the protection and enforcement of intellectual property rights. The insertion of Article XXIII subparagraphs 1(a) and 1(b) of GATT 1994 under the TRIPS Agreement would undermine the sovereign rights of the respective Members in putting into place laws for the protection of intellectual property within their jurisdictions. Furthermore, such an insertion would restrict the flexibilities provided to Members and defeat the balance that had been maintained under the TRIPS Agreement. While recognizing the need for the protection and enforcement of intellectual property rights, he considered that the insertion of non-violation and situation complaints would be impractical under the TRIPS Agreement.
