The CP merges CIL (customary international law) into PIL (public international law) by asserting i-law’s “right to regulate.” Credible follow-through is key.

What do these insights from public international law mean for IP treaties generally, and those incorporated into the WTO legal order in particular? In the words of the ILC, there is ‘little reason of principle’31 to depart from the notion described above when applying and interpreting rules of TRIPS and the IP treaties it incorporates. While WTO dispute settlement is no forum of universal jurisdiction, the Appellate Body (AB) has, already in its very first decision, confirmed that WTO law does not operate in ‘clinical isolation’32 from other rules of international law. When Panels and the AB consider claims under the covered agreements (rather than based on non-WTO rules), they must construe the rights and obligations flowing from WTO rules ‘within the overall context of general international law’.33 In several decisions, WTO adjudicators have accepted and applied this approach.34 The same must be true for other WIPO-administered treaties, and indeed the (internal and external) conduct of international organizations dealing with IP, such as the European Patent Office (EPO). While one can for example point to the WIPO Global Challenges division as evidence of engagement with the outer (international law) environment,35 such evidence is not required for relying on custom and other generally applicable rules of international law. As the default rule is their continued relevance, one would need to show that for example by agreeing to the Patent Co-operation Treaty (PCT) or by setting up the EPO, states wanted to create self-contained regimes.

From this starting point of continued relevance of custom and general (international law) principles, research approaches can zoom in to address interesting scenarios where public international law might offer fresh perspectives and additional insights into legal questions arising in international IP treaties and institutions. For example, customary international law recognizes the eminent domain of the state as the main entity tasked to regulate in the public interest within its jurisdiction under the so-called ‘right to regulate’ or ‘police powers’ doctrine.36 While the exact contours of this principle remain somewhat ambiguous, the basic idea is that states generally retain the right to protect public interests in a non-discriminatory, bona fide way.37 As a basic expression of state sovereignty, this principle does not need to be ‘imported’ into IP treaties38—it predates their existence and merely requires proper recognition in the increasingly dense system of treaty obligations to protect and enforce IP rights in a particular way. International investment law has acknowledged the right to regulate in an increasing number of ISDS decisions—not least in the PMI v Uruguay Award regarding tobacco packaging where the investment allegedly expropriated were trademarks registered in Uruguay.39 One might hence ask where and how TRIPS (or other IP treaties) address this right, and whether there is evidence that states intended the respective treaty rules as exhaustive formulation of this key principle? If such evidence is missing, there is in principle room to rely on the right to regulate under customary international law.

The questions raised above cannot be addressed in detail here. Suffice to say that an important distinction needs to be made when drawing analogies from how the right to regulate has often been operationalized, especially in the international investment context. The nature of that regime’s focus on protecting the assets of foreign investors against state interferences (like takings and other ‘unfair’ or ‘inequitable’ treatments) means that the right to regulate here is equally focused on justifying such interferences. In the IP context, much more common are situations where IP owners complain about state measures that regulate private law relations among IP owners, competitors, specific users, or the general public—for example via subject matter exclusions, exclusive rights, exceptions, and limitations, or compulsory licenses. Since those IP policy levers significantly affect incentives for developing, as well as access to, essential goods such as medicines, educational material, and key technologies, they certainly form part of the eminent domain of the state to regulate. Based on a key distinction between states interfering in private property (by means of takings or other deprivations) and states regulating private property (including via private law relations),40 any judicial review of the latter should usually afford more discretion to states in balancing the various interests involved.41 Here, the state essentially mediates between different constituencies and groups in a society—rather than acting in a vertical (top-down) relation to its citizen.

In the international IP context, art. 20 TRIPS and art. 17 BC are examples of specific allowances for state interferences, while most IP treaty rules on substantive protections or remedies concern situations of regulating property. Given the significant leeway WTO Panels have afforded to WTO Members when applying IP-specific embodiments of the right to regulate (such as ‘unjustifiability’ in art. 20 TRIPS) in the context of interferences,42 one should expect an equal (if not more) amount of discretion afforded to state regulation. Looking at the way for example the three-step test as core benchmark for exceptions and limitations has been construed by WTO Panels, this surely has not been the case.43 At this point, a public international law approach can add significant value by offering a comparative, broader picture. Interpreting the relevant IP treaty rules with a customary right to regulate in mind would reorient the perspective from one that is centred on the interests of IP owners to one that encourages states to take all affected interest into account and balance them as suited for their domestic context. As I have argued elsewhere, both the specific treaty terms of the three-step-tests as well as the overall approach to treaty interpretation in the TRIPS context allow this.44 In fact, TRIPS’ objectives call for an approach that permits states to protect public interests and to determine what level of protection and enforcement is ‘conducive to socio-economic welfare’.45 The Doha Declaration on TRIPS and Public Health further confirms that within TRIPS and the IP treaties it incorporates, the right to regulate first and foremost (but not necessarily exclusively) operates through a flexible interpretation of its provisions.46

C. A Plurality of Global Legal Orders

The example of the right to regulate shows how customary international law as part of a wider public international law framing offers additional insights and approaches for research on IP. This framework can situate international IP law within a plurality of global legal orders, and point towards: (1) general (international) law as a tool for gap-filling and addressing unresolved issues in specialized systems like IP; as well as (2) other areas of law (such as trade, cultural heritage, investment, or human rights) which may serve as useful fields of comparison. This links to the discussion on fragmentation and diversification of international law already hinted at above. Its complexity however cannot satisfactorily be tackled by public international approaches alone—not least because the rule systems that interact and overlap often do not form part of (traditional) public international law but transcend its boundaries in various ways. To better capture this ‘global legal pluralism’, my second example for research approaches hence relies on a broader, multidimensional conception of international IP law developed in Section I.