Malbon, Justin --- "TRIPS-plus Treaty Terms: Dealing with Coercion" [2008] ELECD 214; in Malbon, Justin; Lawson, Charles (eds), "Interpreting and Implementing the TRIPS Agreement" (Edward Elgar Publishing, 2008)

Book Title: Interpreting and Implementing the TRIPS Agreement

Editor(s): Malbon, Justin; Lawson, Charles

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847201447

Section: Chapter 8

Section Title: TRIPS-plus Treaty Terms: Dealing with Coercion

Author(s): Malbon, Justin

Number of pages: 26

Extract:

8. TRIPS-plus treaty terms: Dealing
with coercion
Justin Malbon

1. INTRODUCTION

A number of chapters in this book criticise bilateral Free Trade Agreements
(FTA) between a strong state and a weak state containing TRIPS-plus
terms.1 The general criticism made is that the TRIPS-plus terms are unfair
or exploitative and serve the self-interest of a strong state at the expense of
the interests of a weak state.
This chapter is interested in how it might be decided within a legal frame-
work whether TRIPS-plus terms are unfair or exploitative. An implication
underlying the criticisms is that TRIPS-plus terms are obtained through
coercion or undue influence, or unfair exploitation of the strong party's
dominant position.
Under present law, a treaty is void if procured by the threat or use of
force in violation of the principles of international law embodied in the
Charter of the United Nations. Arguably, a treaty is also void if procured
by the threat or use of economic duress. It seems highly unlikely that the
TRIPS-plus FTAs referred to in this book were attained by the threat of
force. It might be possible to claim they were attained by actual or threat-
ened economic duress. Even on a generous interpretation of the law the
threatened or actual duress needs to be reasonably blatant. There probably
needs to be a threat of the imposition of economic sanctions if the weak
nation does not agree to the treaty terms. Again, it ...