Paragraph 6: The December 16th Motta text and proposed Chairman's understandings

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:

1. For the purposes of this Decision:

(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;

The proposed Chairmans understanding indicates the following:

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
Legal Advisor MSF

Return to: CPTech Home -> Main IP Page -> CPTech Page on WTO -> Paragaraph Six Page