134. My delegation is a co-sponsor, alongside many countries, of document IP/C/W/385/Rev1. With respect to issues the document IP/C/W/599 previously mentioned in this discussion, it tries to clarify concerns raised by document IP/C/W/385. I will make reference to four of these elements.
135. A first element is that in the view of the supporters of IP/C/W/599, the TRIPS Agreement is not different from a market access agreement; unlike the GATT and the GATS, the TRIPS Agreement does not involve an exchange of concessions, and it remains unclear how non-violation complaints would apply to minimum regulatory standards that protect private property rights. While intellectual property rights may in some cases facilitate international trade and investment, the TRIPS Agreement's obligations cannot be characterized as market access concessions in the same way as obligations can be characterized under the GATT or the GATS. The results of WTO market access negotiations are recorded in the respective GATT and GATS schedules, but not in the TRIPS Agreement. Indeed, in some cases intellectual property rights may undermine market access; Article 8, for example, explicitly notes that domestic measures may be needed "to prevent ... the resort to practices which unreasonably restrain trade". That the remedy has been applied under the GATT and the GATS does not render it appropriate for the TRIPS Agreement.
136. A second element is that the United States does not believe that the availability of non-violation measures will raise systemic concerns; as part of a single undertaking, WTO obligations apply cumulatively and so a measure consistent with one WTO agreement (e.g. the GATT) can still be found to nullify and impair benefits under another (e.g. TRIPS). Similarly, the response that Article 3.2 of the DSU will prevent the dispute settlement body from adding to or diminishing the rights and obligations under existing WTO agreements begs the question and fails to recognize that applying non-violation complaints to the TRIPS Agreement amounts to establishing a new cause of action under the TRIPS Agreement. In the absence of clear arguments to the contrary, the concern that non-violation complaints may give rise to incoherence among WTO agreements remains.
137. A third element is that the US understands that the availability of non-violation complaints will protect Members from intentional evasions of obligations under the TRIPS Agreement while preserving the ability of any Member to implement social, economic development, health, environmental and cultural policies. Because, in their view, there are a number of ways to implement social and cultural policy goals, a Member may take this element of non-violation complaints into consideration when crafting measures to protect these goals. Non-violation complaints would require one WTO Member to compensate another for measures that adversely affect foreign holders of intellectual property rights and that were not foreseen during the Uruguay Round. Such an approach would arguably cover a range of domestic measures, may undermine the Agreement's flexibilities, including in the area of public health, and could affect the enjoyment of WTO Members' sovereign right to develop new laws to protect the public interest.
138. We also note that, unlike the GATT and the GATS, the TRIPS Agreement fails to protect measures designed to achieve important national policy goals, such as protecting health and the environment, through a general exception. These measures are likely to be placed at a further disadvantage if open to challenge through non-violation complaints.
139. A fourth element of the IP/C/W/599 document is that the good faith application of the Agreement's provisions will not in all circumstances fully protect Members in the same way that the availability of non-violation complaints will. Brazil understands non-violation complaints are not the best way to protect benefits arising from the Agreement. We have yet to hear arguments why the provisions of the TRIPS Agreement are not sufficiently flexible to address the concerns raised by Members who support such a remedy. We believe that, rather than relying on the legally imprecise notion of non-violation, a focus on the text of the Agreement, supported by other principles of international law, is a preferable approach.
140. According to Article 3.2 of the DSU, one of the purposes of the dispute settlement system is to clarify the provisions of the agreements covered by the DSU "in accordance with the customary rules of interpretation of public international law". According to Articles 26 and 31 of the Vienna Convention, all treaties must be interpreted and performed in good faith.
