Is it Fair?
Edited by Justin Malbon and Charles Lawson
Chapter 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 framework 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 threatened 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 seems unlikely that the TRIPS-plus FTAs have been obtained through economic duress deﬁned in this way....
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.