TRIPS in the Context of International Law

TRIPS has led to a number of issues in the context of international law: the relationship between GATT and TRIPS (e.g. freedom of transit), the relationship between the Paris and Berne Conventions with TRIPS (whether rights specified under Paris and Berne were actionable by way of WTO dispute resolution; what the most-favoured nation obligation meant in the context of Berne and Paris), the relationship between the WTO and WIPO (settled by way of an agreement), the direct applicability of TRIPS (not uniformly answered). These issues were partly dealt with by agreements, partly by dispute settlement decisions and partly by decisions of national courts. Increasingly the WTO panels and Appellate Body have been accused of judicial activism in allowing for non-trade obligations and concerns to factor into accepted defences to WTO disputes. Whereas TRIPS flexibilities are certainly more pronounced as compared to the other WTO covered agreements, it has taken a health crisis and a global pandemic to test the true scope of national sovereignty and international solidarity in healthcare in counterbalance to intellectual property rights.