STATEMENT BY H.E. MRS. ANAYANSI RODRIGUEZ CAMEJO, AMBASSADOR, PERMANENT REPRESENTATIVE OF CUBA TO THE UNITED NATIONS OFFICE IN GENEVA AND OTHER INTERNATIONAL ORGANIZATIONS IN SWITZERLAND, TO THE WTO DISPUTE SETTLEMENT BODY ON SECTION 211, 26 FEBRUARY 2016.
Cuba wishes to express its concern about the procedural error incurred in the last meeting of January 25, at the request to withdraw from the agenda of the DSB the issue “the United States - Section 211 of the Omnibus Appropriations Act of 1998 " without having achieved consensus to do so given the opposition of several Members.
Article 21.6 of the Dispute Settlement Understanding (DSU) provides for the obligation to submit to monitoring the implementation of recommendations on unresolved disputes. According to this Article, there are only two scenarios where the implementation of recommendations can be removed from the agenda:
1) When the dispute has been resolved, or
2) When the DSB so decides by consensus, in accordance with Article 2.4 of the DSU read in conjunction with Article 21.6.
Neither of these scenarios is set in the present case. First, the European Union and the United States acknowledged that the recent developments, although positive, do not constitute a resolution of the dispute which makes it clear that this has not been resolved.
Second, although the DSB may decide to withdraw the issue from the agenda (even though the dispute is not resolved), that decision must be taken by consensus, that is, without any formal opposition from any Member of the WTO attending the meeting. This did not happen because Cuba and other Members opposed its withdrawal.
These are the only two possibilities permitted by Article 21.6 of the DSU to remove the issue of Section 211 from item 1 of the agenda. However, the President suggested that only "the affected Members", understood as the parties to the dispute, could agree to remove the item from the agenda of the monthly meeting of the DSB and suggested to Cuba to raise the issue elsewhere in future meetings.
We wish to alert the Members of the negative precedent this procedure contrary to the letter of the DSU could create. We believe that the solution offered for this particular case does not conform to Article 21.6 of the Understanding. Under its strict observance, the issue of Section 211 in item 1 of the agenda of the DSB in subsequent meetings should remain.
Mr. President, distinguished colleagues:
Section 211 continues to be in force and therefore the danger of cancellation of the registration of the Havana Club trademark is still present. Even more important, this section prevents the US courts to recognize the Cuban trademarks and patents. Recently, Bacardi petitioned the US Department of the Treasury to explain the reasons for its decision to grant the renewal of the registration of the Havana Club trademark to the Cuban government and to the US Office of Patent and Trademark to reverse the registration. Also, last February 11 a hearing in the Subcommittee on Intellectual Property of the Judicial Committee of the House of Representatives of the US Congress was held to assess future actions of this body with respect to the Havana Club trademark. From the statements of the Bacardi Company, as well as government officials' who attended the same, it is clear that this issue is still far from finding a satisfactory solution and will face major and costly legal disputes in the near future.
Cuba has not only a systemic interest in this dispute. We are also the Member directly affected by this dispute. With this right that assists us, Cuba reserves the right to bring back to the DSB the issue of monitoring the recommendations and resolutions on Section 211 whenever circumstances so merit and demand its full derogation by the United States. We further reiterate that this legal provision is part of the set of laws that make up the unilateral, unjust and illegal policy of the US blockade against Cuba, rejected by the international community. Therefore, we will not give up until its total elimination.