Invoking Article 73 TRIPS in good faith: no recourse to ‘security exceptions’ for Russia’s violation of TRIPS

Abstract

By unlawfully invading Ukraine and committing terrifying atrocities against civilians, Russia has gravely violated many international laws. This also includes its recent measures in the field of intellectual property (IP) law: (i) the changes to its compulsory licensing regime with no compensations to the rightsholders from ‘unfriendly states’ and (ii) a blank IP waiver in relation to any products, including changes to its regime of parallel importation.

These IP-related measures violate fundamental principles of Trade-Related Aspects of Intellectual Property Rights (TRIPS), national treatment and most-favoured-nation, and Russia’s obligation under TRIPS that obliges all members to provide minimum standards of IP protection. In addition, this article argues that such measures cannot be justified based on security exceptions under Article 73 TRIPS. This is because the invocation of the security exceptions provision, which allows a WTO Member to protect its essential security interests during an ‘emergency in international relations’, must be undertaken in good faith.

Therefore, Russia, whose unlawful actions have led to the current emergency in international relations when it launched the war against Ukraine, cannot benefit from security exceptions under Article 73 TRIPS as this will be against good faith and will constitute an abuse of rights. Furthermore, this article challenges the approach taken by the panel in Russia—Traffic in Transit, which has set a dangerous precedent and allowed Russia to shield itself from liability for violating its obligations under GATT by invoking an identical security exceptions provision contained in Article XXI(b)(iii) GATT in similar circumstances.