A Conflict-of-Laws Approach to Competing Rationalities in International Law: The Case of Plain Packaging between Intellectual Property, Trade, Investment and Health

Human rights' limitations in patent law

Economic Sanctions Against Human Rights Violations

This paper examines the interplay between international human rights law and international humanitarian law especially in situations of armed conflict. When this overlap occurs, the general position in international law is that international human rights law shall apply in times of peace as ‘lex generalis’, or general law, while international humanitarian law shall apply in situations of armed conflict as ‘lex specialis’, or special law, thereby displacing or keeping in abeyance general law. The position is reliant on the doctrine ‘lex specialis derogat legi generali’ meaning that special or specific law suspends general law. The paper, therefore, examines the appropriateness of using the doctrine ‘lex specialis derogat legi generali’ in situations of interplay between the two fields of international law, especially when it comes to the question of the sanctity of life. With reference to the duty to protect life, the paper notes that, the doctrine of ‘lex specialis’ does not adequately clarify the coordination which must desirably exist between the two fields of international law, and in any case it places limits on protection of victims. The paper argues, therefore, that, a well-coordinated application of international human rights law and international humanitarian law is vital to ensuring adequate protection of victims during all situations of armed conflict, because the general trend in the world today is to move towards broader protection of victims, and not towards limitation. In conclusion, therefore, the paper advocates for the need to substitute the ‘lex specialis’ doctrine with a more coherent theory which balances the reality of conflict with the respect for humanity and protection of life.

Les principes de protection des intérêts diffus et des biens collectifs :

The investment activity is diverse and can be carried out with the use of intellectual property rights in accordance with the current international and Russian investment law. The article aims to identify the specifics of the application of intellectual property rights as investments and the implementation of intellectual investments, i.e. investments endowed into intellectual property rights. The objectives of the study are to consider the categories of an investment and object of investment activity, intellectual property, exclusive and other intellectual rights, as well as to analyze and determine the features of legal regulation of the activity in question at the international and national levels in the Russian Federation. Based on the results of the systematic analysis with the use of formal legal, comparative and other research methods, it is concluded that investments as a property in a broad sense may include both exclusive and other non-personal intellectual property rights to the results of intellectual activity and equated means of individualization of goods, works, services and enterprises. At the same time, they exclude intellectual property itself as a set of various types of intangible products, moral and other personal non-proprietary intellectual rights by virtue of their inalienable and non-transferable character. It is argued to be the same with respect to the object of investment activity, i.e. the property which the investment is endowed in and is capable to bring income to the investor in the future. Investments into such intellectual property rights can be called as intellectual investments.The legal regulation of investment activity with the use of intellectual property rights has a dual character (in the sense that it is carried out by different investment legislative acts with the similar subject of their regulation) and depends on the type of a particular object used. If intellectual property rights are invested in fixed capital, then they are to be recognized as capital investments and are governed by the Federal Law of February 25,1999 No. 39-FZ “On Investment Activity in the Russian Federation Carried out in the Form of Capital Investments”. If intellectual property rights are used as the object of investment activity, i.e. where investments are endowed in, such intellectual investments are subject to the regulation by the Law of the RSFSR of June 26, 1991 No. 1488-1 “On Investment Activity in the RSFSR”.

Ratner, Steven R. <i>The Thin Justice of International Law: A Moral Reckoning of the Law of Nations</i>.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

The Canada-Colombia Free Trade Agreement (CCOFTA) came into force in August 2011 amidst concerns that the provisions protecting Canadian investment in Colombia could exacerbate the precarious human rights situation. The Agreement concerning Annual Reports on Human Rights and Free Trade between Canada and Colombia was negotiated to address such concerns by enshrining the first ever human rights impact assessment (HRIA) of a free trade and investment agreement (TIA) in an internationally binding instrument. This thesis builds on a growing body of international legal scholarship that has considered the duty of home states of private investors to regulate their activity in the host state so as to prevent them from causing or contributing to human rights and environmental harm. It examines state obligations found in human rights, environmental and general principles of international law to propose that while an obligation might exist for the home state to exercise unilateral regulation of its investors, in the presence of a TIA that could cause or enable private human rights or environmental harm, investor regulation through the TIA can be seen as duty for both the home and host states. In view of the absence of such regulation in the CCOFTA, this thesis will consider if the annual HRIA mechanism is an alternative for preventing human rights and environmental harm caused or enabled by the TIA. It is submitted that while HRIAs of TIAs are a novel concept for which little international practice exists, this mechanism has the capacity to provide concrete evidence of human rights or environmental harm caused or enabled by the TIA, but only if based on a methodological model that uses existing state international human rights law obligations as indicators to measure a change in the human rights situation, draws unequivocal causal links between the investment protection provisions and human rights indicators, and allows for broad public participation, especially from the most marginalized and underrepresented groups in the host state to validate its methodology and findings. While under international law all investment-exporting states might have a duty to conduct HRIA on the effects of a proposed TIA as part of the due diligence to prevent transnational harm, the enshrinement of such assessments in an internationally binding instrument triggers a duty for the home state to, on one hand use the HRIA mechanism to prevent transnational human rights or environmental harm and, on the other hand, structure its annual assessments according to the described model in order to give effect to the duty to prevent. Broad and inclusive participation of the local affected communities from the host state in the HRIA becomes an integral component of the home state duty to prevent that can be expected to reveal any negative effects on the human rights situation from the TIA provisions, as well as the type of action required from both states parties to address them.

This paper discusses the sources of international investment Law and highlighted the distinctive features of this branch of international law vis-a-vis general international law. Bilateral investment treaties have a predominate role in investment relations and this fact raises several questions regarding the relationships between investment and non-investment treaties. Though investment tribunals have seriously examined arguments regarding the interactions between such treaties, thus far no investment tribunal has absolved a party to investment disputes from its investment obligations (nor significantly reduced the amount of compensation to be paid to the injured party) in such cases. Despite the major role of treaties, customary rules of international law play a significant role in investment disputes, prominently to fill gaps in existing treaty law (lacuna) and interpret the particular treaty provisions in light of customary law. General principles of law played a significant role in the formative period of international investment law, prominently in the oil concession arbitrations and in the pre-BIT era (such as in the Iran-US Claims Tribunal) but recent empirical studies indicate that they are largely neglected by contemporary arbitral tribunals. The relative insignificant role of general principles of law in contemporary investment jurisprudence may be explained by the interrelationships between the various sources of international investment law (the growing numbers of treaties and tribunals' pronouncements regarding customary rules) as well as inherent vague character of this source of law. Though 'judicial decisions' are considered as a 'subsidiary' source of public international law, almost all investment awards include numerous references to prior decisions of investment tribunals. Writers' publications are also considered as a 'subsidiary' source of international law but they are often cited by investment tribunals. In stark contrast to the practice of the ICJ, the WTO Appellate Body and the European Court of Human Rights (which rarely refer to writers' opinions), investment arbitrators refer to scholarly writings in almost all instances.Different rules deriving from various sources of investment law may contradict each other, and investment tribunals have resorted to some rules of public international law regarding such inconsistencies (prominently the principle of 'lex specialis'); but they have effectively not applied the hierarchical rules embodied in Article 53 of the Vienna Convention regarding jus cogens, and Article 103 of the UN Charter regarding the superiority of the Charters' obligations vis-a-vis investment treaties.

This article charts the difficulties refugee law – and more widely the legal regime governing international protection – has encountered from the outset in dealing with asylum-related claims by persons fleeing armed conflict. It analyses the origins of the prevailing “exceptionality approach”, which regards such claims as unable to succeed unless they can make out a special case. It explains why its opposite, the “normalcy approach”, equally does not resolve underlying problems. The “war-flaw” is seen to consist in the failure of international protection to analyse claims by persons fleeing armed conflict by reference to the correct international law framework. Whilst the development within refugee law of a human rights approach has been a major achievement, its inability to deal effectively with armed conflict-related claims is located in its conspicuous failure, or unwillingness, to recognize that international law regards international humanitarian law as the lex specialis in situations of armed conflict. Curiously, despite the increasing acknowledgment of the complementarity of international human rights law and international humanitarian law by human rights bodies, the human rights paradigm remains stuck trying to analyse such situations exclusively in international human rights law terms. It is argued that this “war flaw” afflicts not only contemporary refugee law but also current human rights jurisprudence dealing with problems of refoulement, and regional protection schemes such as subsidiary protection within the European Union. Tentative suggestions are made as to how the prevailing international human rights law paradigm can be revised to take account of international humanitarian law and as to how the two branches of international law can be applied in tandem.

Challenges Ahead in International Economic Law

The rendezvous between intellectual property rights and human rights has awakened slumbering legal spirits. Miscellaneous legal phenomena are now nestled in the intersection between intellectual property rights and human rights. However, the interplay between human rights and intellectual property rights is bizarrely characterized by amity and hostility. Naturally, therefore, situating indigenous intellectual property at the intersection of intellectual property and human rights becomes a daunting task. However, the dilemma is often overstated especially from the point of view of conventional intellectual property rights. At the outset of this Article, I shall be exploring the history and the development of the relationship between human rights and intellectual property rights. In the followng section, I shall be examining the extent to which intellectual property rights are entrenched in the international human rights instruments. The last section shall be devoted to exploring the phenomenon of locating indigenous peoples' rights at the interface between intellectual property rights and human rights and reflecting on the ensuing issues—an aspect which has seldom been considered in the existing literature.

The presented paper discusses the convergence of international humanitarian law and international human rights law in armed conflicts. International human rights law and the human rights law converge and interact with each other because natural law is at the core of both these disciplines of public international law. Although international humanitarian law is a lex specialis, the general rules regarding the interpretation of treaties clearly indicate that international human rights law must be interpreted in the context of other rules of international law, and its possible derogations must be compatible with other international obligations of the state, including humanitarian law. In the event of a conflict between international humanitarian law and international human rights law, the mechanism for resolving conflicts between the standards was supplemented by an interpretation based on the principle of ‘system integration’ of the International Court of Justice which results in the ‘humanization’ of international humanitarian law. The evolution of the case-law of the European Court of Human Rights, which takes into account the international humanitarian law as the reference norm that should be referred to, demonstrates the close relationship between these areas of law. In the case of the application of universal and regional instruments of international human rights law, we are dealing with the ‘humanitarianization’ of these rights.

Few areas of international law exist in such close, but complex, proximity to other areas of legal regulation as international human rights law. While humanitarian law is conceived of specifically to address the kinds of situations which arise in warfare and the dynamics which underpins them, the relevance and applicability of human rights standards is more subtle and context dependent. This chapter examines the role lex specialis occupies in international legal reasoning. It seeks to use these understandings to shed some further light on the issues of applicability where humanitarian law is concurrently applicable alongside human rights norms. In a very real sense then human rights and humanitarian law cohabit the same factual space during armed conflict. The chapter highlights some important aspects of the complex and nuanced interrelationship between these two bodies of law, focusing on lex specialis as the central bridge between them. Keywords: armed conflict; humanitarian law; international human rights law; international law; legal reasoning; lex specialis

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in its design and implementation procedures, does not reflect a human rights approach. There is an ever-growing community of critical voices, however, requiring that human rights should serve as a corrective to intellectual property rights and their implementation in the context of TRIPS. The crucial question is, of course, how this goal may be accomplished. Under TRIPS, human rights constitute non-essential exceptions to intellectual property rights. However, obligations under international human rights law (IHRL) can only be a relevant consideration if either the World Trade Organisation (WTO) itself or its members, when acting as such—or both—are bound by IHRL. If this should be the case, the question as to the exact relationship between the norms under TRIPS and those of IHRL will arise. Is IHRL hierarchically superior to WTO law? This chapter will show that both the WTO and its members, as such, are the bearers of obligations under IHRL and that, in many instances, norms of IHRL will have to be held to rank above “international trade law”. This should have consequences in particular for the way the WTO enforces TRIPS within its dispute settlement system. The rules of treaty interpretation under customary international law (as codified in Article 31 of the Vienna Convention on the Law of Treaties of 1969) offer substantial scope for human rights considerations to play a role in WTO dispute settlement. Attempts at establishing conformity between TRIPS and IHRL should, moreover, take account of extraterritorial obligations flowing from the various UN human rights treaties, specifically also the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, and their implications for state conduct. States parties to the ICESCR are not only obliged to observe Covenant provisions where the effects of any of their actions are confined to the domestic level, but also if their conduct, for example within the WTO, affects the economic, social and cultural rights (ESCR) of populations in other countries. The Committee on Economic, Social and Cultural Rights (CESCR), the body of independent experts supervising implementation of the ICESCR—which so far has proven highly capable of advancing the cause of ESCR globally—should adopt a more proactive approach in defining extraterritorial obligations under the ICESCR, also in relation to WTO law, and should further be bold enough to adopt a clear stance in cases of conflict between TRIPS and IHRL.

This book examines intellectual property (IP) protection in the broader context of international law. Against the background of the debate about norm relations within and between different rule systems in international law, it constructs a holistic view of international IP law as an integral part of the international legal system. The first part considers norm relations within the international IP law system. It analyses the relationship of the two main unilateral IP conventions to the World Trade Organisation (WTO) Agreement on Trade Related Aspects of International Property Rights (TRIPS), as well as the relationship between TRIPS and subsequent Free Trade Agreements (FTAs). The second part discusses alternative rule systems for the protection of IP. The third part identifies important intersections and links between the traditional system of IP protection and other areas of international law related to environmental, social, and economic concerns. These include free trade in goods; biological diversity, genetic resources, and traditional knowledge; multilateral environmental agreements (MEAs) on climate change; and access to medicines and food. This analysis provides significant insights into the nature and quality of international law as a legal system. The fourth part identifies appropriate norms within the international IP system that can respond to these complexities and linkages.