CP fails – TRIPS is outdated and shouldn’t be incorporated in the modern world

Public international law interacts with intellectual property laws in numerous negotiating fora and intergovernmental organisations. I have long been envious of my public international law colleagues; their field has been through many cycles of purposive meaning-making, including holding on to a sense of direction of the world order, and normative scholarship as a transformative project. In contrast, international intellectual property law has remained mired in its private law origins, unable or unwilling beyond some very important but limited pockets (see here and here), to confront how these rights work to entrench and enhance existing imbalances in wealth and power. For this reason, it is significant that the first intervention during the pandemic by an eminent public international lawyer is to call for a termination of the Trade Related Intellectual Property Rights (TRIPS) Agreement.

In her elegantly pitched 2022 Annual Michael Kirby lecture, Prof Orford raises the prospect of applying rebus sic stantibus, a modification of obligations initially assumed by parties to the TRIPS Agreement due to a change in material circumstances. Prof Orford pokes substantive holes at the aura of solidity and self-evidence with which the core elements of the TRIPS agreement are defended to show instead that the basis of the agreement is precarious and historically contingent. From this perspective, the TRIPS waiver becomes a campaign against ‘false necessity’ – a recognition that the presuppositions of the international patent system are far from a natural order of things and is merely what we have ‘temporarily refrained from challenging and remaking’.