The International Law Relation between TRIPS and Subsequent TRIPS-Plus Free Trade Agreements : Towards Safeguarding TRIPS Flexibilities?

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