War, armed conflict, and the security exception in the TRIPS Agreement

This article critically examines the meaning and scope of the security exception in Article 73(b)(iii) of the TRIPS Agreement (which mirrors Article XXI(b)(iii) of the GATT) in the context of the ongoing Russia-Ukraine war. Drawing on the seven relevant decisions of the WTO dispute settlement panels that have considered both Article XXI(b)(iii) of the GATT and Article 73(b)(iii) of the TRIPS Agreement, this article provides key insights and clarity regarding some of the controversial issues and questions that have arisen regarding these provisions, especially as it concerns measures relating to intellectual property rights that have either been implemented or proposed in response to the ongoing armed conflict. Among other things, the article demonstrates that the phrase ‘emergency in international relations’ encompasses situations other than war and armed conflict. It also clarifies that it is not within the competence of WTO Panels to attribute responsibility for a war or an emergency in international relations. Finally, the article contends that third party states that are not directly involved in the ongoing war, but that have been affected by the conflict, can also implement intellectual property-related sanctions pursuant to Article 73(b)(iii) of the TRIPS Agreement.