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  • Writer's picturePeter K F Cheung SBS

Just a Footnote

  1. FADE IN


  2. Act 1


  3. INT. STUDY - 09:45


  4. Following a Zoom conference with his iPad Mini, PETER hears: WTO Ministerial Conference and Decision...in June 2022.


  5. PETER (V.O.): I've lost touch with WTO developments.


  6. We see on screen a slide: Ministerial Decision...waives Art 31/31 bis so as to allow easier access to imported medicine.


  7. PETER (V.O.) (Cont'd): Sounds familiar. There was the WTO-Doha Declaration on TRIPS Agreement and Public Health 2001.

  8. Recalling.


  9. PETER (V.O.) (Cont'd): In 2005, the TRIPS Protocol gave legal effect to that. Hong Kong, China, stated that if it used the system as an importer, it would be for emergencies.


  10. We hear from screen: China has made a binding commitment not to avail itself of the WTO Ministerial Decision on the TRIPS Agreement...and that is recorded as Footnote 1.


  11. PETER (V.O.) (Cont'd): Footnote 1?


  12. Peter is in deep thoughts.


  13. Act 2


  14. FLASHBACK


  15. INT. PETER'S HK HOME - (1985)


  16. Peter (31) is looking at new books in a bookshelf.


  17. PETER (V.O.): I've begun reading my LLM (Lond) as an external student. I want to teach myself International Law.


  18. Pausing.


  19. PETER (V.O.) (Cont'd): The papers I've to pass in 1986 are: (1) Legal Theory and Jurisprudence, (2) Methods and Sources of International Law, (3) Law of Treaties, and (4) International Protection of Human Rights.


  20. Picking out a book entitled "Vienna Convention on the Law of Treaties 1969" by Ian Sinclair, Peter reads a section on "use of terms".


  21. PETER (V.O.) (Cont'd): "Treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more instruments and whatever its particular designation.


  22. Thinking.


  23. PETER (V.O.) (Cont'd): It's the substance rather than the form that matters.


  24. Reading the foot of the page, Peter sees the footnote: Article 1(a) of the Vienna Convention on the Law of Treaties 1969.


  25. PETER (V.O.) (Cont'd): Footnotes won't disrupt the flow of the main text.


  26. Pausing.


  27. PETER (V.O.) (Cont'd): Are there footnotes in treaties? I don't seem to come across any.


  28. Thinking.


  29. PETER (V.O.) (Cont'd): If there're agreed footnotes in treaties, I don't see any legal reason to ignore them or to attach lesser weight to them.


  30. Thinking.


  31. PETER (V.O.) (Cont'd): For the avoidance of doubt, contracting parties can also manifest their intention.


  32. END FLASHBACK


  33. PETER (V.O.) (Cont'd): Although not sovereign, Hong Kong, as a separate customs territory, became a GATT Member in 1986 and a founding WTO Member in 1995.


  34. Recalling.


  35. PETER (V.O.) (Cont'd): When my colleagues and I represented Hong Kong in GATT, and later WTO, processes, we just did it.


  36. Recalling.


  37. PETER (V.O.) (Cont'd): But when I represented Hong Kong in the WIPO processes, I was a UK delegate before July 1 1997, and a China delegate after that.


  38. Pausing.


  39. PETER (V.O.) (Cont'd): So Hong Kong has always been relatively active at the WTO. I was a WTO Dispute Settlement Panelist.


  40. Peter looks at the presenters on screen from time to time.


  41. PETER (V.O.) (Cont'd): Some of them are young and bright.


  42. FLASHBACK


  43. INT. ATTORNEY GENERAL'S CHAMBERS - DAY (1991)


  44. Holding a fax from Geneva, a COLLEAGUE shows it to Peter (37).


  45. COLLEAGUE: Is the substance and presentation of this agreeable to you?


  46. We see the content of the fax: Footnote 1: When "nationals" are referred to this Agreement, they shall be deemed, in the case of a separate customs territory Member of the WTO, to mean persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in that customs territory.


  47. PETER: Yes. That's what I suggested earlier.


  48. RETURN TO PRESENT


  49. PETER (V.O.) (Cont'd): When the TRIPS Agreement was signed on April 15, 1994, the content of Footnote 1 remained intact. And that was some 28 years ago.


  50. Act 3


  51. INT. STUDY - 15:45


  52. Peter picks up a red book "TRIPS Agreement" 1994.


  53. PETER (V.O.): All the IP laws that I designed for Hong Kong are consistent with, if not above, the TRIPS Agreement standards.


  54. Turning to the Footnote 1 of Article 1 of the TRIPS Agreement, Peter sees his signature against it.


  55. PETER (V.O.) (Cont'd): Yes! If one reads Footnote 1 thoughtfully, one can infer the concern of a "separate customs territory member". When I initiated it, China wasn't a WTO Member yet. Now it has got its special Footnote 1.


  56. We see in footnote 1: [WIPO note: the numbered footnotes constitute part of the text of the TRIPS Agreement].


  57. PETER (V.O.) (Cont'd): There's no doubt about the legality of footnoting anymore.


  58. Reflecting.


  59. PETER (V.O.) (Cont'd): I'm content to be just a footnote in the evolving international IP system.


  60. Later, the Zoom conference ends.


  61. THE END


  62. FADE OUT












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