6.1 South Africa, On Behalf of the African Group
103. I deliver this statement on behalf of the African Group. At the outset, we thank you for your report back on the consultations that you have held on this important topic.
104. The African Group is of the opinion that non-violation and situation complaints are not applicable to the TRIPS Agreement. Introducing such a remedy in the context of the TRIPS Agreement would undermine the security and predictability provided by the multilateral trading system. Non-violation complaints could enable legal challenges to regulatory and public policy measures that may be consistent with the obligations under the TRIPS Agreement.
105. The African Group notes with interest that the Protocol on the Amendment of the TRIPS Agreement introduced Article 31bis, paragraph 4 reads as follows: "Members shall not challenge any measures taken in conformity with the provisions of this Article and the Annex to this Agreement under subparagraph 1(b) and 1(c) of Article XXIII of GATT 1994." This amendment constitutes a tacit recognition that non-violation and situation complaints may affect flexibilities under the TRIPS Agreement and explicitly makes this remedy inapplicable to the article which deals with compulsory licences for countries with insufficient manufacturing capacity.
106. The lapse of the TRIPS NVC moratorium may have significant implications for the developing countries. In particular, it can significantly limit the ability of Members to use the TRIPS flexibilities to advance public health objectives. If non-violation and situation complaints were to apply to disputes under TRIPS, measures implemented in furtherance of national and regional policies on the use of TRIPS flexibilities can be challenged in a WTO dispute. This could adversely affect developing countries, especially in Africa who are overwhelmed by disease burdens and at the same time face serious resource constraints, and their ability to ensure legal certainty and reliable public health and other policy interventions that would support sustainable human capital development. The rising spectre of unilateral measures and the impact of a dysfunctional Appellate Body further impacts the legal certainty of the use of TRIPS flexibilities should non-violation and situation complaints become applicable to the TRIPS Agreement.
107. The African Group also interprets Article 64.2 to mean that in case the moratorium on the application of non-violation and situation complaints is not extended in June 2020, the complaints would not automatically apply to the TRIPS Agreement. We further understand that these disputes cannot apply until such a time that Members agree to the scope and modalities of their application in respect to the TRIPS Agreement.
108. The African Group sees no linkage between the moratorium on the application of electronic transmissions and the moratorium on the application of non-violation and situation complaints to the TRIPS Agreement. The respective moratoria should be judged on their own merits, there is no historic link since the TRIPS moratorium predates the e-commerce moratorium, even though Members have had a practice to link the two. This linkage is artificial and should not be maintained.
109. In closing, the Africa Group remains convinced that non-violation and situation complaints should not apply to the TRIPS Agreements and would be inconsistent with the long-term best interests of the multilateral trading system and all its Members. We therefore propose that the Council for TRIPS recommend to the next Ministerial Conference that complaints of the type provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under the TRIPS Agreement.