“We are all aware that the text of the TRIPS is a masterpiece of ambiguity, couched in the language of diplomatic compromise, resulting in a verbal tight-rope walk, with a prose remarkably elastic and capable of being stretched all the way to Geneva.”
In the recent past, the issue of TRIPS flexibilities has gained prominence owing to the rapid proliferation of Free Trade Agreements (FTA’s) that impose TRIPS plus obligations on economically weaker contracting states and help emasculate the rather vibrant policy space around TRIPS standards. Paradoxically enough, some FTA’s now carry a clause explicitly mentioning that the FTA does not in any way impact TRIPS flexibilities that are otherwise available to contracting parties to deploy whilst implementing TRIPS standards (referred to losely as TRIPS flexibility “safeguard clause”).
Illustratively, in the light of accusations that the IP chapter of the proposed India EU FTA will have a detrimental impact on access to affordable medicines in India and other developing countries relying on cheap generics from India, the EU Commission recently emphasised that it has proposed a “clause that will guarantee that no provision of the FTA will prevent India from using the flexibilities contained in the TRIPS Agreement”
Dr Henning Grose Ruse Kahn, a leading international IP and trade scholar from the Max Planck Institute who’s already featured on this blog several times in the past has a wonderful paper that assesses the import of this “safeguard clause”.
I extract Hennings’ abstract below:
“Fifteen years after the WTO TRIPS Agreement entered into force, international IP law and policy have moved on. Since the mid-nineties, countries interested in higher IP standards have successfully shifted IP negotiations away from WIPO and WTO towards Free Trade Agreements (FTAs).
The trend towards TRIPS-plus obligations in FTAs has led to changes in the perception of TRIPS: initially viewed by developing countries as serving primarily the interests of the IP exporting industries in the developed world, TRIPS is now often acknowledged for the flexibilities it offers.
Various institutions, policy makers, and NGOs have highlighted the importance of TRIPS flexibilities – especially in the public health and human rights context – and have called for safeguarding the right of WTO Members to exercise them against TRIPS-plus obligations in FTAs. This includes the main demandeurs of TRIPS-plus obligations FTAs which increasingly commit themselves to safeguarding TRIPS flexibilities.
Given all these statements and assurances, the question arises how FTAs have incorporated these promised policy changes and whether the relevant FTA provisions really translate political assurances into binding treaty language. This Article aims to examine this question from a public international law perspective. It analyses the relationship between TRIPS flexibility provisions and TRIPS-plus FTAs. By looking at norms in general international law, the TRIPS Agreement, and in TRIPS-plus FTAs which determine this relationship, the main research question is whether and when TRIPS flexibilities can prevail over TRIPS-plus obligations in FTAs.”
Henning’s key thesis is that the emerging set of ‘safeguard’ clauses in TRIPS-plus FTAs offers an interesting way out for developing countries that are at the receiving end of harsh FTA’s. They often can be used to achieve policy space similar or equivalent to that offered by TRIPS flexibilities. However, this requires the willingness and ability of interested FTA parties to do so. Only time will tell whether these clauses possess nothing more than mere parchment value or whether they will ultimately help preserve TRIPS flexibilities….