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

Dr Olga Gurgula (PhD, LLM) is a Senior Lecturer in Intellectual Property Law at Brunel Law School, Brunel University London, London, UK. 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. On 24 February 2022, Russia launched an unprecedented and unjustified war against Ukraine, which at the time of writing is still ongoing.1 The Russian occupation army has been targeting objects of civilian infrastructure, including hospitals, medical facilities, schools and shelters. Thousands of Ukrainian civilians are being tortured, raped and murdered, including children.2 These horrific actions have been done in a flagrant violation of international law and basic principles of human decency.3 These atrocities are overwhelmingly condemned by international community.4 In response to these terrible actions, many countries, including the USA, UK, EU, Switzerland, Canada, Australia and Japan, have imposed broad economic and financial sanctions against Russia,5 including restrictions on Russia’s oil and gas imports.6 Many international organizations have also demonstrated their condemnation of Russia’s inhumane actions by annulling its participation in numerous international institutions,7 while multinational business has been massively exiting the Russian market.8 These joined punitive measures, which are considered to be the most powerful and costly punishment imposed on a major economy at least since the Cold War,9 are aimed at the Russian economy in to Russia’s to its war against Ukraine and it to its from the Ukrainian In Russia with its economic measures against the and with these is the of to intellectual property which are by the of the that imposed sanctions against Russia its of Russia has changes to its compulsory licensing regime under Article of the as as law that allows the to IP in relation to of This article argues that the of such measures a violation of Russia’s obligations under the on Trade-Related Aspects of Intellectual Property Rights and be with by the WTO as it will be demonstrated in this such measures cannot be justified based on security exceptions under Article 73 TRIPS. is a Russia a set of under Article 73 TRIPS in the WTO law when invoking security it is that in the current Russia be allowed to on this provision at 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. a WTO Member whose unlawful actions have led to an emergency in international relations benefit from security exceptions in to a with its obligations under TRIPS. The invocation of this in such a constitute an abuse of rights. Therefore, Russia, whose actions have led to the current emergency in international relations when it launched a war against Ukraine, cannot benefit from security exceptions under Article 73 TRIPS as it be against good faith and constitute an abuse of rights. This challenges the approach taken by the panel in Russia—Traffic in which has set a dangerous precedent and allowed Russia to shield itself from liability for violating its obligations under GATT by invoking identical security exceptions in Article XXI(b)(iii) GATT in similar circumstances. The IP-related taken by Russia against the compulsory the compulsory licensing regime in Russia is by and of the to Article the Russian in is allowed to a to an the IP This provision also the for a compulsory The is to the and security of the which in in of the the of and of This provision also that the IP be such a and a The of the be On based on Article the Russian its compulsory on to with the of the the also a to provide on the of a to the rightsholders by the Russian compulsory on 2022, as a of its measures, Russia that to the set in the The that the of to be to the IP rightsholders with that actions against Russian and be of the of the the and the In the IP rightsholders from the ‘unfriendly will no in their are their that these measures to in the of that protect by to Russian that have to most of the that are in Russia on 2022, the Russian a compulsory on which contained no of any to the no restrictions with to the of a that be with to the IP have been in the this provision be to any by In to the changes in the compulsory licensing Russia has IP-related that allows the to IP in relation to any and of On 2022, Russia the law to of the Russian Article of which the during and to on of of in of which of the the of on the of intellectual in such and of with which such are This that these the Russian to any IP for of this provision allows the Russian to of the in relation to as as it to the of in of which of the the the law any on the of the in this including the of such The that a broad IP have been with Article of the law has been with which is to changes to the parallel parallel of the of which is by the of and to this provision, the of the of intellectual in of as as of with which such are will violate the to the of such intellectual the of contained in a in with Article On 2022, the Russian to which the Russian of and based on the of a of of in of which the of and of the that the of are of the Russian by the IP rightsholders and with their These the of parallel in while to and of the the IP regime in Russia is for of and of that are in the by the of and the regime is On 2022, the has a of and for which parallel Russia is The includes such as products, and their for and and and a of the the TRIPS principles such as national treatment and In Article TRIPS the on national treatment members to to the of members treatment no that it to its with to of Furthermore, the of in Article that any benefit to a of the in relation to an IP must be to all members of the TRIPS also minimum standards of for IP which all WTO are to minimum standards of and the of of the of and and with the TRIPS obligations to a under the WTO that to sanctions against a this the of TRIPS The will the IP-related measures by Russia violate its TRIPS will be that Russia cannot on security exceptions under Article 73 TRIPS to its The of the changes to the compulsory licensing regime is that from ‘unfriendly states’ will for the of their their a basic principles and of the TRIPS of since this is on from ‘unfriendly to a of for all when a compulsory such a national treatment under Article TRIPS. This is because Russian to when a compulsory is in relation to their rights. Therefore, this treatment to from ‘unfriendly states’ that with Russian In addition, this compulsory licensing the under Article TRIPS. This is because the from that are will to their be to a compulsory in Article TRIPS a in the of compulsory licensing which allows to be on the of under the compulsory is a by a that the to a the This provision that a WTO Member must when a compulsory such is Article which that be in the of the economic of the it in its Russia to the set in the that to the from the ‘unfriendly will be set at This that such IP rightsholders will no for the of their IP rights. This a violation of Article which that must be in a compulsory is no exceptions to this are in Article TRIPS. no exceptions and under Article TRIPS be to Article This that such an in the compulsory licensing regime is under the TRIPS all WTO including are to a minimum of for IP in their such Russia’s obligations under TRIPS. Article of the law while the to IP in relation to any of set any for such a by the This broad for an to the and the violation of TRIPS In addition, since the IP waiver and the regime on parallel from ‘unfriendly also violate national treatment and principles in TRIPS based on the Article 73 an provision in Article security which be by a WTO Member in that in this be to a from any which it for the of its essential security taken in time of war emergency in international this provision, a WTO Member be from an which it for the of its essential security interests taken in time of war emergency in international the panel in Russia—Traffic in provision that a war emergency in international relations a fundamental of which the in which the of the measures at is to be The of this provision to that WTO have the to protect their essential security interests by measures that be with the TRIPS Therefore, Article 73 TRIPS as an for such that Russia on this provision to its with the obligations under TRIPS This argues that Russia be allowed to as it will be in the this will be against a fundamental of good faith and will constitute an abuse of rights. faith is a that of the of international to Article of the on the Law of be in good In addition, Article of the that in is the to it and must be by in good These of the the obligation of good is to all WTO in their and of the WTO including the security exceptions in Article GATT and Article 73 when and WTO the and the have to the obligation of good in the panel of good faith that all the panel in that must that of the WTO will by their obligations in good as by the of in Article of the the of WTO including security must be in good the of such in faith constitute an abuse of rights. Article of the exceptions in an to abuse of the exceptions contained in this In the panel that and of the of Article is the of of the exceptions of that The is by the that while the exceptions of Article be as a of be as to the obligations of the of the under the of the exceptions are to be in the measures the exceptions must be with to the of the the and the of the The of the to abuse of in the In Article of the GATT to the that its to the Article to the of the panel Member to abuse its to an be to that Member to its obligations as as to the of the abuse is the in its obligation to a and its in the of The of Article in of the of good faith. This at a of law and a of international the of by of this the as the of the of a and that the of a on the field by it must be that is to by a Member of its in a of the of the as a violation of the obligation of the Member Article Article GATT and Article 73 TRIPS that these must be in good an obligation of WTO to from their when these based on the principles of and of the all the in WTO must be in good faith. This also includes the invocation of security exceptions under Article GATT and Article 73 TRIPS. that Russia its TRIPS by on security exceptions under Article 73 is that Russia be allowed to this this provision be when a WTO Member to protect its essential security interests time of war emergency in international is no war in Russia also any war in Ukraine it a the for invoking this provision be such measures taken time of emergency in international is that such an emergency in international relations it is by Russia’s and unjustified war against is in response to this that a of imposed sanctions against Russia, while the in with its against these countries, including by IP-related measures that violate the TRIPS In the when a WTO Member an emergency in international relations by unlawfully invading it be allowed to violate its obligations under a WTO and shield itself from liability by on security exceptions by that it must protect its essential security interests in time of an emergency in international In such Russia’s invocation of this provision be against the of good faith and Russia its obligations as as to the of that the emergency in international relations by Russia’s unlawful actions be in this as its has been by as the the of and the of as a to that Russia’s invocation of security exceptions be against good must be in This will be in Russia be to on security exceptions in Article 73 TRIPS to its of TRIPS as this be against the of good faith. in a recent WTO Russia allowed to on security exceptions to its of a WTO in similar circumstances. This has set a dangerous precedent for of the security exceptions provision in WTO including in relation to Russia’s current of TRIPS. The the approach taken by the panel in Russia—Traffic in an to the current for the invocation of security exceptions that to of such exceptions in and with the fundamental of good faith. 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under the under Article the panel the of the that and the of the The that in this must be in the of the of relations Ukraine and Russia that a in in Ukraine in February have to this in and to the that is this to the of to for as done in international the the it to the in the of the of these Ukraine since been a to the on a the members of the of with Russia, the and On Russia, and the on the of the with and the in and of The on it in the to the Ukraine on the to the it to economic with the on the Ukrainian the of the the and its Member of the and Ukraine, of the The of the are to and economic with The economic of the for a and the and This of the on In Ukraine, with countries, a in the of the which the by the and the for and in as as international and to of the with to The obligations of all under Article of the to in their international relations from the of against the of any and to their international by in condemned the occupation of of the of the of and the of by the Russian and the of its This to the of which in of war The in Ukraine in by the of economic sanctions against Russian and by On Russia imposed on products, and from that imposed sanctions against it the Member Canada, Australia and Russia also imposed restrictions in with the of to these their and their Russia on the Russian of the of the These restrictions are by Ukraine in this this in the panel considered the of the it with Ukraine that Russia’s actions with its obligations under GATT and in Russia’s the that Russia security exceptions under Article in allowed Russia to liability for violating its In when Russia the of Article the panel which by the panel in the to this the must be considered when the invocation of security the of a emergency in international has been in the of to the actions in time that war emergency in international the invoking has its security to an of is any actions and the of its essential security interests and the actions are the ‘emergency in international as to it 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the essential security that are as measures of these of this is the of In this the panel that members have to measures to protect their essential security the that members have a to on measures to protect their essential security such must be to the emergency that the to The panel it that Russia the measures under to protect its essential security interests of the emergency in international relations in the on the the panel that Russia the for invoking Article XXI(b)(iii) and that the measures at by this is to that when the of the the panel to that the relations the In February the Russian army unlawfully and the of Russia also a in the by the Russian of the Ukraine to the is in response to these unlawful actions that and international led by the and the imposed sanctions to by the panel in and which condemned by the in and in in the of Ukraine and the war in the the of the sanctions Russia with its which also that the of the by Ukraine in Russia—Traffic in This is an that have been considered by the panel when the invocation of security exceptions under Article The of these and an of the for the of the emergency in international relations led to the in the the panel with Russia that an emergency in international it from the for such an emergency that is this to the of to for The an emergency in international relations by the such an emergency of whose this such an the of the of the Russia launched an unlawful of Ukraine and economic its from Russia’s and the of its essential security interests by measures it considered such a has led to the in which the an which condemned as by the in and to by the panel itself in allowed to liability for violating its obligations under GATT by on security a the that Russia’s unlawful actions that the emergency in international relations with Russia with a to on the of the measures the fundamental principles of good faith in international as as a This is the that the panel in Russia—Traffic in itself for of the of the security exceptions provision in good faith. that the of a invoking Article XXI(b)(iii) to a to be an security is by its obligation to and Article XXI(b)(iii) of the GATT in good The panel that obligation of good faith that the exceptions in Article as a to their obligations under the GATT of this interests that it to protect and the as security the of that In addition, as the panel that the the taken to protect essential security interests and such measures must be which also must be considered the of good the of good faith its of the of the security exceptions provision, the panel to this to the invocation of the provision The is the most for the good faith This is because the provision is the good faith of its is as The approach taken by the panel and is against the international that is to fundamental as as the of all WTO The by the panel of the for the emergency in international relations allowed the which unlawfully the emergency in the to This has set a dangerous precedent for in which a WTO while an emergency in international including a war against and violating its obligations under a WTO be to shield itself from liability by invoking security This the of a WTO and the of security the of essential security interests of a that itself in a to an emergency in international relations has been by its and has no as to measures that violate its obligations under a WTO in to protect its essential security interests of its The to these by the panel in security exceptions of any in the abuse is the in its obligation to a and its in the of an of security exceptions by the Russia—Traffic in this article an to the current for the invocation of security that a WTO in such must an of a a WTO security in good faith. while the panel in Russia—Traffic in a for security exceptions in the of under Article GATT must and an of a WTO Member has security exceptions in good faith. Therefore, the invocation of the security exceptions provision must be in The is to a WTO Member security exceptions in good faith. WTO are to on security exceptions to protect their essential security interests in time of war emergency in international based on the of good be to such security exceptions such a war emergency in international relations by their unlawful the of the faith is the panel to the of the of security as by the panel in are to during the when the security exceptions provision in good as the current as an of the security provision, is considered to be This that a WTO Member has a to measures it to protect its essential security the panel that the security provision in this that the of the of Article 73 TRIPS has been such a WTO Member be to on security exceptions and has no to any measures that violate the TRIPS is also to that in such as the Russia’s war against Ukraine, be no in that Russia is an and its actions, of Ukraine, are the of an emergency in international the when the security provision by a WTO Member in good and since it is the of a WTO panel to on the of actions that have an emergency in international the panel of that have the of actions of a WTO In that have been as unlawful by the most the cannot be the for on security exceptions under Article 73 TRIPS. must be also in it is to the of a also the approach will In this is an Russia, that unlawfully its it is that is such a on good and as in the Russia—Traffic in and the of Ukraine in February be to the of an emergency in international relations in as it is the of a WTO panel to a WTO Member is for an the changes to the of security exceptions will such This is because is no of the of actions that led to an emergency in international the good faith invocation of security exceptions be In that the panel to the of the of security exceptions in Russia—Traffic in and in Therefore, the changes in this article will as an in the of security exceptions that will to and will no changes to the in this field in the approach to the of the Russia—Traffic in the panel have an This is as the emergency in international relations by Russia’s unlawful of Ukraine in The unlawful of such actions by the in and to by the panel in Therefore, Russia have been allowed to security exceptions as a for violating its obligations under GATT as this the of good faith and an abuse of its rights. The in its that Russia security this must be By unlawfully invading Ukraine and committing terrifying atrocities against civilians, including Russia has gravely violated many international This also includes its actions in the field of IP when it changes to its compulsory licensing regime with no compensations to the rightsholders from ‘unfriendly states’ and a blank IP waiver in relation to any products, including its regime for parallel importation. These actions violate fundamental principles of national treatment and as as Russia’s obligation under TRIPS that obliges all members to provide minimum standards of IP protection. must be to at the WTO by Russia to its as by by on security exceptions contained in Article 73 TRIPS. This provision allows a WTO Member to measures, which are with for the of its essential security interests in time of war and in international is in this article that Russia cannot on this provision as this will be against the of good faith. This is because the current emergency in international relations by Russia’s unlawful of Ukraine, for which it by numerous Russia, in with its in the of IP-related measures that violate TRIPS. Therefore, Russia’s that have been as unlawful by the most cannot be the for on security exceptions under Article 73 TRIPS. In such Russia’s invocation of this provision be against the of good faith and a In this the in Russia—Traffic in has set a dangerous the invocation of security exceptions in Article GATT provision with Article 73 in similar the panel that Russia this the the panel from the for the of the emergency in international relations to Russia’s of and of the of in led to the that allowed the to liability for violating its obligations under GATT based on security is in this article that this approach must be The of the must the of a WTO Member security exceptions in good faith. the panel with the for this This such a WTO an emergency in international relations by its unlawful actions, liability for violating a WTO by invoking security the of this

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