Is it Fair?
Edited by Justin Malbon and Charles Lawson
Chapter 8: TRIPS-plus Treaty Terms: Dealing with Coercion
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...
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