The main methodological concern of this book focuses on how to interpret Articles 7 and 8 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS), in effect, norms that capture what will be labelled the ‘foundations’ of the TRIPS. In brief, this chapter addresses the two main components of this methodological challenge: a clarification on why and how the interpretation of foundational norms should take advantage of the resources that legal theory and political philosophy have coined, and an outline of the substantive legal-philosophical theory that the argument to follow will draw upon.
The chapter is structured into three main sections: the first section deals with the interpretation of foundational norms, the second section addresses the necessary yet thin theory of justice required to interpret Articles 7 and 8 of the TRIPS, and the third section wraps up the expected output of this interdisciplinary methodology.
2.1 Specifying the VCLT: Interpreting Foundational Norms
This first section aims at clarifying how to interpret special legal norms deemed to be foundational. Taking the form of ‘principles’, ‘values’, or ‘objectives’, these foundational legal norms express political and moral values upon which a specific regime is founded. Applied to the example of the TRIPS, the hypothesis is that norms such as Article 7 ‘Objectives’ and Article 8 ‘Principles’ are foundational for the TRIPS and raise specific interpretative challenges in the context of the Vienna Convention on the Law of Treaties (VCLT).Footnote 1 Once interpreted, these norms function as an important guiding light for the interpretation of further TRIPS norms.
The first section has two main subsections. Section 2.1.1 defines foundational norms in the context of the WTO and specifies why interpreting these foundational norms is challenging if one follows the VCLT approach. Facing this challenge, it explains the ‘reflective equilibrium’ approach proposed for interpreting these norms (Section 2.1.2).
2.1.1 Definition of Foundational Norms
This section firstly defines foundational norms as structurally indeterminate norms and secondly, briefly, explores how to position the TRIPS’ foundational norms among the various legal principles in WTO law. The overall objective is to normatively characterise our object of investigation (i.e., Articles 7 and 8 TRIPS).
2.1.1.1 Structural Indeterminacy as Common Feature
For the purposes of this work, foundational norms are defined as structurally indeterminate norms.Footnote 2 I briefly address here three main features of this indeterminate nature: their generality, their vagueness, and the interpretative challenges they raise.
Firstly, the term ‘structural indeterminacy’ is intended to capture a sense of generality. In contrast to legal rules that contain specific provisions (e.g., setting alcohol limits for drivers), foundational norms have a general character (e.g., prohibiting dangerous driving in general). Such norms are thus indeterminate insofar as they cover an unlimited range of situations that cannot be reduced to any other common denominator than, for example, ‘dangerous driving’.Footnote 3 In this sense, foundational norms come to differ from legal rules, which are defined by their specificity.Footnote 4
Secondly, the general abstractness of foundational norms implies that they can be applied in various ways, depending on the specific interpretation of their normative contentFootnote 5 and are often said to be vague.Footnote 6 As Endicott explains, this vagueness is not pathological, but rather a desirable feature of the law.Footnote 7 For instance, as will be shown in Chapter 3, the precise meaning of ‘mutual advantage of producers and users of technological knowledge’ (Article 7 TRIPS) is hard to pin down. The vagueness at issue here is not mere linguistic,Footnote 8 but one that is much more normative in nature and concerns ‘any linguistic expression in which we could conceivably express general evaluative and normative judgements’.Footnote 9 A concept such as ‘mutual advantage’ has this kind of normative dimension.Footnote 10
Raz explains that this type of norm needs to be individuated by means of interpretation and reasoning,Footnote 11 thereby identifying and evaluating the normative parameters of the vague concept. Marmor labels this type as ‘extravagant vagueness’: ‘The main feature of extravagantly vague terms consists in the fact that they designate a multidimensional evaluation with (at least some) incommensurable constitutive elements.’Footnote 12 In other words, these constitutive elements cannot be compared using a single evaluative scale. Marmor contrasts this extravagant vagueness with that of vague terms such as ‘tall’, which only requires a single scale (e.g., a metric scale) and which mainly raise difficulties regarding the limits (e.g., where does ‘tall’ begin and end?). In addition, the term ‘vagueness’ also refers to the unpredictability of applying a foundational norm to a specific case. Because the interpretation of a foundational norm requires a multidimensional evaluation, its application in a particular case is often said to be indeterminate. It is difficult to foresee how to interpret the normative components of ‘mutual advantage’, and the results may change on a case-by-case basis.
This vagueness could be seen as contradicting the ideal of the rule of law: if the law does not provide a clear guidance to its subjects, its effects become unpredictable and legal uncertainty grows. Making the law’s interpretation as predictable and consistent as possible (e.g., by developing consistent case law around these concepts) can attenuate this challenge. Despite these potential tensions with the rule of law, Endicott maintains that it is useful, and arguably even necessary, for the law to include a certain number of vague norms that can help regulate the unpredictable life of a human community. In the meantime, the law should not be obscure or radically indeterminate.Footnote 13
Thirdly, the indeterminacy of foundational norms has implications for the interpretative work to be done. Though every legal proposition needs to be interpreted (including rules which ‘seem’ clear at first glance), foundational norms share the need for great effort of interpretation. This required effort has two main implications for the argument to come.
On the one hand, the main challenge is to prevent arbitrariness in the proposed interpretation.Footnote 14 On the other hand, we need to duly consider that vague norms have a power allocation function. As Endicott and Spence note, vagueness delegates power of interpretation.Footnote 15 It raises an important debate on judicial discretion and how vagueness can be linked to the intentions of the drafters of a legal text (e.g., the legislator).Footnote 16 Structurally speaking, as Marmor notes, the point of courts having an important function in the interpretation of vague terms (such as the concept of ‘mutual advantage’) is that these decisions must be made ex post, on the basis of the particular features of the case.Footnote 17 Vague terms require a contextual and holistic approach in order to address the normative trade-off which they, by definition, demand. Indeed, the legislator might provide some ex ante guidelines on how to define and evaluate some particularly relevant parameters. As explained below, the VCLT can be interpreted as the main set of guidelines for interpretation in international law.
International relations scholars often use the concept of ‘constructive ambiguity’ to refer to ‘the deliberate use of ambiguous language in order to achieve agreement during the negotiation of a legal text’.Footnote 18 From a philosophical perspective, authors try to distinguish vagueness from ambiguity.Footnote 19 For instance, for Marmor, ambiguity refers to a concept that can have several meanings and the main challenge in a particular case is to figure out what the speaker wanted to say given a specific context.Footnote 20 According to that definition, constructive ambiguity seems to refer instead to vagueness rather than to ambiguity, though the use of an ambiguous concept remains possible. In that case, the interpretative challenges are cumulative. Constructive ambiguity exemplifies the interpretative allocation power explained earlier. When drafters agree on a vague formulation, they postpone the exact determination of its meaning, both in time (later) and by a potentially distinct body, for example, a Panel or the Appellate Body (AB).
Overall, these three features of the foundational norms – generality, vagueness, and important interpretative work – arguably characterise norms often labelled as ‘principles’, ‘values’, and ‘objectives’.Footnote 21 For the present argument, Articles 7 and 8 of TRIPS are defined as principles and constitute the focus of this work.
2.1.1.2 The TRIPS’ Foundations among the Principles in WTO Law
A rich body of scholarship has examined legal principles.Footnote 22 The three types of principles applicable to WTO law include: principles of WTO law (for instance of a specific WTO regime, such as the TRIPS), principles of customary international law applied under WTO law, and general principles of law applied under WTO law.Footnote 23 These principles can have different sources such as a treaty or customary law.
The first category of principles of WTO law refers to written or unwritten principles found in WTO law and Agreements, often in Preambles or in particularly prominent provisions.Footnote 24 Hilf has identified several principles in this category of principles of WTO law, including but not limited to: non-discrimination, sovereignty and national defence, trade liberalisation, and sustainable development.Footnote 25
It is important to highlight that legal texts might not always explicitly refer to principles as such. For instance, Article 7 of TRIPS is titled ‘Objectives’ but, as shall be argued at length later, the norms contained therein constitute principles of the TRIPS. Furthermore, a principle can be found at different levels, for example, as general principle for the whole of a WTO Agreement or a specific sub-topic. For instance, the Panel in China – Intellectual Property Rights interprets the term ‘principles’ mentioned by Article 59 of TRIPS. Article 59 of TRIPS uses the term by reference to Article 46 of TRIPS (‘the principles set out in Article 46’). However, Article 46 of TRIPS (titled ‘Other remedies’) does not explicitly mention the term ‘principles’. The Panel therefore interprets the different sentences of Article 46 of TRIPS as principles based on a dictionary definition of the term, writing that the term can be defined as ‘a general law or rule adopted or professed as a guide to action. Each of these sentences of Article 46 contains language that is a guide to action by authorities, and none dictate the precise terms of orders in specific cases’.Footnote 26 The principles entailed by Article 46 of TRIPS are specific to the context of the remedies applicable to secure an effective deterrent to infringement.
There is also a further subset of this first category of principles that is relevant here. Following Dinwoodie and Dreyfuss, the international IP ‘acquis’ is a set of principles developed as part of the international IP regime. An acquis ‘describes the body of existing legal principles and commitments to which new members (…) must ascribe’.Footnote 27 In Dinwoodie and Dreyfuss’ proposal, the identification of these principles relies upon an induction similar to the identification of general principles of law, based upon an assessment of national and international IP law, associated jurisprudence, and scholarship.Footnote 28 For example, the US – 110(5) Copyright Panel referred to the acquis of the Berne Convention as part of the relevant principles applicable to the TRIPS.Footnote 29
The second category of principles are principles of customary international law that apply to the WTO and shall be identified by reference to Article 38(1)b of the ICJ Statute. Principles of customary international law are found in general practices that States have accepted as law.Footnote 30 In this category, Mitchell identifies interpretative principlesFootnote 31 such as in dubio mitiusFootnote 32 and effectiveness,Footnote 33 but also the precautionary principle.Footnote 34
The third category of principles involves general principles of law in the sense of Article 38(1)c of the ICJ Statute (‘the general principles of law recognised by civilized nations’). This category encompasses standards common to all, or most legal systems, and standards applicable to international relations. This category, which includes principles such as good faith,Footnote 35 estoppel,Footnote 36 and equality of the parties,Footnote 37 is especially important for procedural matters. Many of these procedural principles are relevant for WTO law.Footnote 38
For the forthcoming arguments I focus on the first category of principles (TRIPS, respectively WTO principles). Articles 7 and 8 of TRIPS fit this category. Firstly, they are formulated in a way that is structurally indeterminate and requires important interpretative effort. This effort bears upon the contextual and holistic approach required in addressing the normative trade-off that these concepts, by definition, entail. Secondly, with respect to their function, these norms cannot be applied syllogistically following a standard method of deduction. They rather gradually impact the interpretation of other norms, as citing the relevant TRIPS’ cases will show. More generally, both articles can be conceptualised as laying down the foundations of the TRIPS by identifying a set of principles and objectives.Footnote 39 In so doing, they draw upon concepts that are expressions of, or which rely upon, broader political and moral values, including ‘mutual advantage’, ‘social and economic welfare’, and ‘balance of rights and obligations’.
2.1.2 Constructivist Interpretation: A Reflective Equilibrium Approach
The next challenge is to interpret these foundational norms. How can one ascribe meaning to concepts such as ‘mutual advantage’, ‘social and economic welfare’, and ‘balance of rights and obligations’ (Article 7 of TRIPS)? The hypothesis is that interpreters of the TRIPS’ foundational norms are caught in a tension between the application of VCLT interpretation methods and the requirement to make their interpretation explicit and intelligible as a requirement of accountability. This requirement is especially important with respect to the inherent normative trade-off found in foundational norms.
This section outlines and defends the use of the reflective equilibrium approach as a method to address this tension. Rather than an alternative to the VCLT, this method instead specifies the implications of Article 31(1) VCLT for the interpretation of foundational norms expressing the object and purpose of a treaty. The reflective equilibrium represents a method to (better) fulfil the requirements of accountability when interpreting foundational norms.
It is important to distinguish two important reflections that need to be kept apart: on the one hand, the methodological proposition (what is called the reflective equilibrium approach) and, on the other hand, a substantive position (the normative presuppositions). The reflective equilibrium approach claims to address the procedural challenges raised by the interpretation of foundational norms. It does not directly address the substantive position defended in this reflective process. The thin theory of justice endorsed in this work will be thoroughly addressed in the next section.
This section briefly recalls the relevance of accountability and then presents the reflective equilibrium approach as a method to address the identified interpretative challenges, followed by potential criticisms of this approach.
2.1.2.1 Accountability as Requirement
Methods of interpretation, such as those prescribed by Articles 31–33 of VCLT,Footnote 40 are used to ascertain the meaning of legal occurrences by focusing on some of the features of the interpretandum.Footnote 41 By contrast, standards of interpretation focus on the quality that a legal interpretation should achieve. The specificity of a legal interpretation (say, in contrast to a literary interpretation) is that interpreters themselves fall under the ambit of the law.Footnote 42 Most importantly, the idea that an interpreter interpreting the law should be accountable is crucial here as an expression of the broader requirement of the rule of law.Footnote 43
The assumption is that accountability at least requires intelligibility and consistency. To be accountable, an interpretation should make explicit and justify the reasons that the process of interpretation draws upon. Intelligibility encompasses a sense of transparency.Footnote 44 This does not imply that these elements ought to be made publicly available, but it demands that the elements of justification should, in principle, be made available to relevant parties.Footnote 45 Drawing upon the qualification of foundational norms as vague, this requirement of intelligibility is especially relevant for the inherent normative trade-off found in these norms. These norms require the important work of identifying, justifying, and evaluating distinct normative parameters.
Furthermore, it should be consistent in the sense of avoiding contradictions. These contradictions might be internal to a specific interpretation, but also to former decisions. Consistency does not prohibit changes in interpretation but instead raises a strong requirement for careful justification. This condition will be addressed later when dealing with conflict of norms in international law and how harmonious interpretation could be used to address genuine conflicts.Footnote 46
This requirement of accountability should be specified in the context of the WTO.Footnote 47 Firstly, Article 3(2) DSU prescribes a clear goal for the overall dispute settlement system and aims at providing ‘security and predictability to the multilateral trading system’.Footnote 48 Secondly, following the strong focus put on dispute settlement, the WTO adjudicative bodies have adopted, especially in their early years, a cautious and overly technical approach to disputes.Footnote 49 This technical approach has functioned adequately in assuring States that the WTO Agreements were interpreted strictly.Footnote 50 It has accordingly had a strong impact on interpretative methods, mainly on the priority given to textual methods.Footnote 51 A premium on a textual approach fits into a State-centric, consensualist approach to international law.Footnote 52 Indeed, somewhat paradoxically, the current deadlock in the AB can be partially explained by the importance given to States.Footnote 53
Thirdly, the structural importance of States and the focus on dispute resolution in the WTO should not obscure the fact that the dispute settlement bodies, especially ABs, have exercised their mandate as a (quasi)-judicial body.Footnote 54 As Van Damme notes, the ABs have chosen from the outset to function as if they were an international court.Footnote 55 The message sent has been clear: ‘this is a legal process; here the law rules’.Footnote 56
Given these contextual specificities, the case of Articles 7 and 8 of TRIPS norms is especially challenging because they compose the ‘object and purpose’ of the TRIPS. As the Panel states in Plain Packaging, ‘Articles 7 and 8, together with the preamble of the TRIPS Agreement, set out general goals and principles underlying the TRIPS Agreement, which are to be borne in mind when specific provisions of the Agreement are being interpreted in their context and in light of the object and purpose of the Agreement’.Footnote 57
But how to apply the VCLT’s approach to these ‘object and purpose’ norms? It clearly appears that the ordinary meaning of ‘social and economic welfare’ (Article 7 of TRIPS), for instance, is strongly disputed and likely relates to the position of the interpreter (e.g., referring to the industrial interests and/or domestic social situation of States).Footnote 58 A contextual interpretation would also be highly disputed, requiring inter alia a qualification of the integration of the TRIPS into the WTO and, more broadly, into public international law. As Marceau explains it, this function is especially important for the WTO Agreements considered a ‘single undertaking’.Footnote 59
To use a teleological approach also raises challenges. The first challenge is one of finding, identifying, and interpreting the object and purpose of a treaty.Footnote 60 This challenge is not decisive in the case of Articles 7and 8 of TRIPS. The second challenge relates to the potential tensions among these different foundational norms. We need to address the ‘internal’ normative conflicts and tensions that Articles 7 and 8 of TRIPS can lead to. For our reflections, the third challenge is the most relevant: how to use a teleological approach without circularity?Footnote 61 It is difficult to refer to the object and purpose in interpreting Articles 7 and 8 of TRIPS. The VCLT remains scarce on how to interpret the very object and purpose of a treaty.Footnote 62 As Dörr and Schmalenbach lay out, this identification phase remains quite elusive: ‘In general, intuition and common sense may provide useful indicators in identifying the object and purpose, with the rule of good faith preventing that aims and objectives are introduced through the back door, which the drafters of the treaty rejected to insert into its terms.’Footnote 63
This question is indeed important for the overall approach that Article 31 of VCLT prescribes, because the object and purpose should be used to address ambiguity resulting, among other things, from the ordinary meaning.Footnote 64 To recall, interpreters of WTO law should engage into a ‘holistic exercise’. As the AB wrote, ‘it should be kept in mind that treaty interpretation is an integrated operation, where interpretative rules or principles must be understood and applied as connected and mutually reinforcing components of a holistic exercise’.Footnote 65 The different interpretative methods aid in accounting for the meaning of a concept such as ‘social and economic welfare’. However, it is evident that no clear and unambiguous meaning will appear and that the recourse to the object and purpose of the treaty faces a risk of circularity.
2.1.2.2 The Reflective Equilibrium
Rather than looking for an alternative to the VCLT, the methodological choice defended here is to use a reflective equilibrium approach, the hypothesis being that this approach can (better) fulfil the requirements of accountability when interpreting foundational norms.
Famously coined by Rawls, the concept of ‘reflective equilibrium’ describes a process of normative iteration.Footnote 66 As Daniels writes, ‘a “reflective equilibrium” is the endpoint of a deliberative process in which we reflect on and revise our beliefs about an area of inquiry, moral or non-moral’.Footnote 67 The first subsection outlines an initial understanding of the reflective equilibrium. The second subsection presents its application to the interpretation of the TRIPS in the form of a blueprint for the investigation to come while the third subsection addresses the relevance of moral arguments in the reflective equilibrium.
Reflective Equilibrium as Incremental and Iterative Approach
In facing the question of how to interpret a foundational norm, the reflective process works back and forth between a preliminary interpretation of the norm, its formalisation, and its confrontation with interpretations proposed in the relevant practice(s) (such as case law, interpretations given by relevant States/actors, scholarship, etc.).Footnote 68 ‘Practice’ here broadly draws upon Beitz’s use of this concept to grasp human rights practice, consisting of
a set of norms for the regulation of the behavior of States together with a set of modes or strategies of action for which violations of the norms may count as reasons. The practice exists within a global discursive community whose members recognise the practice’s norms as reason-giving and use them in deliberating and arguing about how to act.Footnote 69
This reflective equilibrium approach seems to capture and better structure what Jonas and Saunders describe in their attempt to interpret the object and purpose of a treaty.Footnote 70 As they write: ‘The metaphor is not a circle spinning endlessly, but rather a spiral spinning gradually inward and coming, literally and figuratively, to a point’.Footnote 71 Similarly, Buffard and Zemanek work with a two-stage procedure to identify the object and purpose of a treaty:
in a first stage, a prima facie assumption of the object and purpose of a treaty must be formed by having recourse to the title, preamble and, if available, programmatic articles of the treaty. This assumption must then be tested in a second stage against the text of the treaty and all other available material and, if necessary, adjusted in the light of that test. The result of that process can then be used as a guideline in the interpretation of other treaty provisions or for assessing compliance with them.
The spatial metaphors used are quite telling: the process is iterative and has a spiral-inspired form.Footnote 73 The spiral gathers different normative propositions in its search for an equilibrium point.Footnote 74 My claim is that the reflective equilibrium outlined below is more precise than these two attempts and can more fully achieve the desired accountability of a legal interpretation.
A Blueprint for the Interpretation of the TRIPS
This subsection formulates a blueprint for the reflective equilibrium approach applied to the TRIPS. The following table summarises the step-by-step approach of the reflective equilibrium. This approach contributes to making the interpretation transparent, explicit, intelligible, and therefore open to contestation at each relevant step of the search for equilibrium.
Overview – using a reflective equilibrium approach to interpret foundational norms
Step 0: identification of a norm as foundational
Step 1: preliminary understanding (akin to an intuitive understanding)
Step 2: map and structure alternative/conflicting interpretations
Step 3: formalisation of the main points of frictions/divergences
Step 4: selection and justification of one’s interpretation by making explicit one’s account of the States’ prerogatives and obligations
=> Preliminary point of equilibrium (object and purpose of the treaty and integration of the treaty in international law)
Step 0 is to identify foundational norms that compose the object and purpose of the treaty in line with the definition provided above. For the sake of this blueprint, I will focus on the clearly identifiable norms entailed by Articles 7 and 8 of TRIPS.
Step 1 tries to formulate a preliminary understanding of this concept and thus is mainly descriptive. However, it should not give a misleading impression of neutrality. This preliminary interpretation is already formulated against the backdrop of a more general normative view about what the TRIPS should be about. This stage does not necessitate fully formulating this general normative view. By analogy with the use of reflective equilibrium for ethical inquiries, it could be compared to something close to an informed intuition formulated against the background of general moral positions.Footnote 75
This preliminary interpretation enters the iterative reflective process. The general objective of Step 2 is to challenge and enrich the preliminary interpretation by means of constructive confrontation with the alternative/conflicting interpretative patterns by the WTO bodies (mainly adjudicating bodies such as Panels and AB), Member States and their various institutions (i.e., governments and courts), civil society actors, but also the experts’ groups, commissions, or scholars commenting on the TRIPS. All these interpreters can be described as part of the TRIPS practice.
Step 2 features an empirical-descriptive dimension in search of what these various interpreters are proposing. Of course, not all interpreters are equally relevant to the practice, and a normative evaluation can weigh each specific interpretation. WTO adjudicating bodies have, by virtue of WTO law (i.e., as prescribed by the DSU), a crucial institutional role to play in interpreting the TRIPS. However, interpreters without any legal authority – such as an NGO – should also be considered as part of a relevant discursive community. Diverging interpretations are useful in identifying potential interpretation patterns. Considering these alternatives avoids presenting legal interpretation as being about ‘discovering’ a single meaning, but rather fully accepts the constructivist nature of interpretation.
In this respect, Articles 7 and 8 of TRIPS represent an additional difficulty because, as Chapter 3 will show, WTO adjudicating bodies have not yet thoroughly interpreted these norms. In this case, Step 2 of the iterative process is about trying to reconstruct what could be, hypothetically, the interpretation favoured by a given actor. The goal is to be as explicit as possible about the assumptions made in the reading of the actors’ behaviours.Footnote 76 On this point, the interpreter must take a decision that can be summarised along two options. Should one base this hypothetical interpretation upon the way actors have behaved in a similar situation (empirical-descriptive ambition) or rather on the way they ought to behave (normative-prescriptive ambition)? Navigating these two options requires clarification of the relevance of moral reflections in a legal interpretation. This point is addressed later.
Step 2 ends with a general overview of the interpretations suggested by the different interpreters found in the practice and step 3 formalises this intermediary result. This formalisation implies identifying and structuring the most important points of divergences and tensions. To use an illustration, it is about marking out the main crossroads where different interpreters take distinct paths. This step is especially important for foundational norms which are, by definition, vague and inherently require evaluation. Step 3 can contribute to making open questions appear.
Step 4 is about selecting and justifying one’s interpretative pattern. For the sake of interpreting an international legal norm, this justification must make explicit one’s presuppositions about States’ prerogatives and obligations.Footnote 77 This condition is meant to strive for the most possible coherence between the interpretation of the foundational norms of an international treaty (e.g., Article 7 of TRIPS) and international law in general. This condition acknowledges the importance of States in international law, and as previously mentioned, more specifically in the context of WTO law. To further the illustration, Step 4 is about choosing one of the roads identified in Step 3 and explicitly specifying why.
Step 4 is where explicit justification and its corollary, the opportunity for contestation, need to be made especially clear. Two components of Step 4 might hence be criticised independently. On the one hand, the account of the States’ prerogatives and obligations can be criticised. Clearly enough, different substantive views are here possible. On the other hand, the justification-providing effect can be criticised. In other words, one might contest that a specific account (criticisable on its own) does justify a specific interpretative choice.
Recall that the delimitation in five steps shall not be understood as something linear, but rather as a spiral-like process. Each step enriches the previous one, thereby bringing a slight impression of repetition. But the repetition is only superficial. It appears because each step takes the previous result and deepens it in moving towards a point of equilibrium. This point is reached when the two dimensions of coherence are fulfilled to a satisfactory level (coherence within the TRIPS and coherence as part of international law). This internal coherence is important for several reasons, ranging from an account about the legitimacy of the law; the prevention of arbitrariness, one of the preconditions of control; and oversight on those who interpret the law (as part of a set of requirements linked to the rule of law).Footnote 78
This point of equilibrium marks the end of the first iteration, but it is not the end point of the reflection. No element of the reflective equilibrium is immune to revision. This idea that all normative elements considered in the search for equilibrium can be revised, adapted, and changed is crucial for the idea of an iterative reflectivity. For instance, a new decision taken by the AB might force a complete revision and the search for a new point of equilibrium.
The Relevance of Moral Arguments
This blueprint makes one question particularly salient: which elements of the reflective equilibrium should be called ‘moral’ in the context of a legal interpretation? To unpack this quandary, let us distinguish between four different understandings of ‘moral’ in the context of the reflective equilibrium, illustrating them with the challenges surrounding the interpretation of ‘social and economic welfare’ (Article 7 of TRIPS). The main objective is to sharpen our understanding of the requirements of the different steps outlined above.
Firstly, in a general sense, moral considerations are directly part of a position on the nature and function of the law. This work is not the place to engage in-depth with these jurisprudential questions. It must, however, be noted that the reflective equilibrium approach is not committed to a Dworkininan position,Footnote 79 but is compatible with a positivist position that acknowledges the need to be values-based (‘normative positivism’Footnote 80). In Besson and Marti’s summary, ‘an adequate legal theory is inevitably value-laden and must be openly normative’.Footnote 81
Secondly, the personal convictions of the interpreter might be called moral. A liberal judge may have a different understanding of ‘welfare’ than a conservative judge. This is an understanding of ‘moral considerations’ that scholars have tried to empirically capture in investigating the profile of interpreters and their impact on interpretative choices.Footnote 82 Furthermore, the fact that some countries choose their judges with the goal of ensuring a broad political representativity can be taken as acknowledgement that the political-moral opinions of judges do matter.Footnote 83
Personal convictions of the interpreter certainly play a role, but in a way that is constrained by interpretation methods and rules of judicial institutions (e.g., iterative process with several judges). As Pirker and Skoczeń note, the focus is rather on how legal decisions are justified through legal argumentation and not on how moral convictions held by the individual interpreters play a role in such decisions.Footnote 84 The following two understandings focus on this point.
The third understanding of ‘moral considerations’ refers to the type of resources that an interpreter uses. For instance, in searching for a putative ‘ordinary meaning’ or to explore context or telos, an interpreter could draw upon resources prepared by economists or by philosophers. Both contribute to the understanding of what ‘social and economic welfare’ means. The idea is not that legal interpretation turns to philosophical resources and claims that, as such, they should be considered as legally binding. These resources are used by an interpreter in the application of legally prescribed interpretative methods. Imagine looking for the purpose of ‘welfare’ as part of a teleological interpretation. Choosing one or several such purposes relies upon underlying assumptions about welfare and why it is valuable. From an interpreter’s perspective, how can one justify the selection of one or several purposes? In answering this question, the interpreter draws upon case law and doctrinal work. But with respect to the latter, when is a doctrinal contribution a legal resource and when does it cease to be? Does the labelling of a specific journal/conference as being about the law render it a legal resource? Would an article published in a leading philosophy journal be considered a non-legal resource? The determination of a legal resource for the purpose of the legally prescribed interpretative work should be kept open.Footnote 85
The fourth understanding of ‘moral considerations’ is about explicitly dealing with evaluative and normative choices inherent in vague concepts such as welfare. The difficulty arises as soon as the interpreter refers, for instance, to a dictionary definition of welfare.Footnote 86 For the sake of using and prioritising specific aspects of the definition, the interpreter will have to make evaluative and normative choices.Footnote 87 Interpreters must refer to overarching norms (e.g., values) in guiding their decision. The point is not only about the personal position of the interpreters, but about the necessary normative assumptions in their work and the way these can be expressed. Interpreters must provide justification for the types of normative arbitrage they consider relevant.
This fourth understanding of ‘moral considerations’ relates back to Step 4 of the reflective equilibrium. Step 4 requires that the interpreter makes clear what they presuppose in terms of the States’ prerogatives and obligations. Using the shorthand of the hypothetical speaker (Marmor), an important part of the work relates to the clarification of the assumed account of the States’ prerogatives and obligations. As Suttle notes, ‘where an object and purpose is not explicitly stated, then, it will always be the case that interpreters are constructing one, based on assumptions or metaphorical ascriptions of particular motivations to the States parties thereto’.Footnote 88 This demand for intelligibility is intrinsically linked to the requirement of accountability. It should be possible to understand why a specific interpretation has been favoured.
However, as already mentioned, it is not clear whether the interpreter should consider the actual behaviours of States (observable in studies of international relations) or a morally desirable behaviour (how States ought to behave). Suttle distinguishes between explanatory, moral, and political approaches.Footnote 89 The explanatory approach is led by the ambition to model the current behaviours of States. The geopolitical reality is taken as the benchmark for defining which position the interpreter should endorse. This approach draws upon methods of the social sciences, mainly international relations and political science.
The moral approach does not refer to this ‘reality’ but instead takes a normative perspective and asks: what ought States need to do in a particular situation? This approach draws upon moral theory (and the related fields such as political philosophy) to formulate a vision about how the world ought to be organised and what contributions States ought to make.
The political approach also takes a normative perspective though not one that is embedded in a comprehensive moral view, instead relying upon shared understandings that are to be found in the public political culture of the international community and the legal system that it has enacted. For Suttle, this political approach reflects Rawls’ later work.Footnote 90
These three approaches are general propositions that can be useful in defining the type of ‘moral considerations’ required by Step 4. Firstly, the three propositions reflect different objectives. One could have an empirical-descriptive objective and endorse the explanatory approach. The interpretation that this hypothetical speaker identifies will then reflect the current power relations and the contemporary positions held by States with respect to a specific issue. By adopting a moral or political approach, the interpreter constructs a more normative-prescriptive interpretation, bringing a more critical perspective into interpretation. Secondly, the reflective equilibrium approach is best viewed as an example of the political perspective. It takes international law as it broadly exists and functions now as a given.
One significant challenge includes empirically informing a normative project and trying to specify which norms have a realistic chance of revision (based upon empirical assumptions), even though States might have an obligation to change these norms. Whether or not they succeed in doing so is a different question – the point here is rather that this putative obligation is part of an account of what a State should do.Footnote 91
Overall, this approach reflects what Buchanan has called ‘progressive conservatism’.Footnote 92 The ‘conservative’ dimension of this approach refers to the constraints accepted. It broadly considers as a given the existing international law and the assumptions it embeds, for instance, about the normative desirability of States with sovereign prerogatives and the importance of human rights as obligations for the same States. The ‘progressive’ dimension refers to the most promising norms already entailed by a specific legal regime.Footnote 93 Articles 7 and 8 of TRIPS could be considered promising norms because the concepts they entail might be used to suffuse normative critical force into the foundations of the TRIPS. Dinwoodie and Dreyfuss use a similar approach when they claim that the identification and clarification of the international ‘acquis’ can promote a reconceptualisation of the IP regime.Footnote 94 This ‘reconceptualisation’ is the result of the justificatory exercise of identifying and interpreting the principles of the international IP system. This interpretative effort presents an opportunity to challenge and improve the alignment of normative standards (mainly principles) with the way specific legal regimes and their norms are interpreted and applied.Footnote 95
In conclusion of this discussion of the four different understandings of ‘moral considerations’, the interpretation of the foundational norms, Articles 7 and 8 of TRIPS will firstly refer to resources coined by philosophers in order to obtain the best possible understanding of the vague concepts at stake (third understanding of ‘moral considerations’). Secondly, it will formulate and justify the favoured interpretation of Step 4 in light of an account of the States’ prerogatives and obligations (fourth understanding, understood in a normative-prescriptive sense, and not in an exclusively descriptive sense).
2.1.2.3 Criticisms
Critics can approach the reflective equilibrium perspective in multiple ways: the plurality of points of equilibrium, the lack of critical force, and transparency as a danger.Footnote 96
Plurality of Results
The interpretation that results from the aforementioned iterative process is but one possibility for giving meaning to the elements in question. How can one choose which is the most adequate points of equilibrium? The reflective equilibrium contributes to outlining different interpretations and, most importantly, to highlighting their respective normative presuppositions. It improves intelligibility and hence accountability by clarifying where diverging interpretations occur and how they relate to different underlying accounts. In this context, the result of the method is comparable to a mapping of different points of equilibrium and their justification. This result can prove very useful in certain contexts, for example, as a basis for negotiations between the parties of a dispute, considerations for a judgement/decision, or elements of a scholarly contribution to the interpretation of a particular norm.
Applied to the overall project of this book, this criticism recalls that the reconstruction proposed is one possibility among many. The result of the book’s investigation is to be evaluated considering the coherence it might bring about between the interpretation of key TRIPS’ norms, their current interpretation by WTO bodies, and a thin ideal theory of the States in international law along republican-sufficientarian lines.
Lack of Critical Force
The method of reflective equilibrium can be criticised for its lack of critical force. Forst describes the kind of approach outlined here as ‘practical positivism’, meaning theories that ‘regard legitimate justice claims as claims immanent in already established institutional contexts of social cooperation that are fixed in legal-political terms’.Footnote 97 Forst is right to underline that the approach does give important weight to current institutions and norms. In this sense, this approach seems ill-equipped to face profoundly unjust legal regimes whose foundations are morally problematic. In such cases this methodological approach could amount to a defence or modest amelioration of an unacceptable status quo. To take Buchanan’s expression again, the ‘progressive conservatism’ approach does not seem adequate if the foundations of the legal regime are deeply unjust. This point might in turn be criticised because it raises the difficult question of how to identify whether a specific regime is deeply unjust or moderately unjust.
Notwithstanding this limitation, the main reply to this line of criticism consists of clearly delineating what the reflective equilibrium method can achieve. The reflective equilibrium approach is here used as part of a legal interpretation. This interpretative exercise remains internal to the law but strives to bring to the fore the kind of reflections used in the process of ascribing meaning to legal norms. As Waldron notes when he draws upon the notion of ‘dignity’ as being an internal resource to the law, ‘we evaluate law morally using (something like) law’s own dignitarian resources’.Footnote 98
The reflective equilibrium approach is by no means exclusive but rather complements other more critical approaches.Footnote 99 An approach that is focused on moral principles fully external to existing law could fundamentally call into question the way that international trade law is conceived of or, even more radically, to imagine a world in which States no longer exist (assuming instead, for instance, something like a world State). This kind of more critical approach can prove very useful in exercising stronger criticism of current institutions and how they function.Footnote 100 Their main drawbacks will be their missing – or modest – capacity to engage in action-guiding, non-ideal prescriptions for the institutions and the law as they exist here and now.Footnote 101
Transparency as a Danger
The last line of criticism focuses on the potential implication of using the reflective equilibrium. Using such a method could diminish a required discursive space. The potential problem is not that interpreters favour interpretation X (though said interpretation could be criticised), but rather that they make explicit why.Footnote 102 Transparency can be an obstacle if it means that individuals who otherwise agree on a course of action (i.e., an interpretation) suddenly realise that they do not agree on the reasons for the said course of action. Put in more political terms, the requirement to explicitly present why a specific interpretation has been chosen could diminish the room for political arrangements in the form of overlapping consensus. Especially for a WTO adjudicating body (in the context of strong sovereign claims held by Member parties), evasiveness regarding the reasons that have led to a specific interpretation might sometimes be useful.
However, as explained above, the requirement of transparency to make accountability possible is itself an emanation of the set of principles summarised in the concept of the rule of law. A panel interpreting a legal norm of the TRIPS should not just use any method to get the most consensus-oriented decision. Transformed into an extreme version, any information about a Court’s reasoning in favouring one interpretation could be said to threaten the possibility of overlapping consensus. On the contrary, the method presented here is developed against the background of an opposite conviction: a Court should use methods prescribed by the law (VCLT in our case) and that are able to fulfil the conditions set by the rule of law, such as, primarily, accountability.
Of course, there might be pragmatic reasons to limit what is expected from a judicial body in terms of justification. We should not expect a Panel to produce a comprehensive theory of justice for every interpretation it has to make. But it should at least produce a justification transparent enough to allow external actors to understand its decision and critically engage with it, providing them with the opportunity to contest it on legal grounds.
2.2 Contours of a Republican-Sufficientarian Approach
As explained, the reflective equilibrium approach requires a clarification of the substantive normative presuppositions on States’ prerogatives and obligations (i.e., the ‘moral considerations’ required by Step 4 of the reflective equilibrium). This section aims at delivering what will be called a ‘thin’ ideal theory of these presuppositions.
To recall, the two parts of this methodological chapter are independent. One can accept the methodology put forward in the first methodological part (reflective equilibrium), while disagreeing with the substantive arguments pertaining to the thin ideal theory of this second part. Nevertheless, ensuring the validity of the methodological argument necessitates some elements of ideal theory in order to clarify the substantive presuppositions required for Step 4.
The first section addresses the contours of the republican and sufficientarian account that this work will adopt. The second section addresses two criticisms and the third section summarises the findings of this chapter.
2.2.1 Non-domination and Sufficientarianism
This section starts by briefly presenting the contours of a thin ideal theory, then discusses in detail the republican conception of the State, and finally outlines and justifies the obligations of a republican State.
2.2.1.1 The Contours of the Thin Ideal Theory
The thin ideal theory should present a preliminary account of the States’ prerogatives and obligations. As explained, the meaning of a concept such as ‘social and economic welfare’ (Article 7 of TRIPS) is hardly possible to determine without more broadly contextualising what States should do for their own population and for human beings in general. What is needed is hence an initial clarification of the status of sovereign States as international lawmakers (prerogatives), and how these States should behave in an international order characterised by the presence of the TRIPS, the WTO, and international law. The (normatively) expected behaviours are apprehended with the concept of ‘obligations’.
These two main components (prerogatives and obligations) of a thin ideal theory are best conceived of as being in a dynamic relation with one another. For instance, the obligations of States are not strictly limited to respecting current legal norms. An account of the State’s obligations can justify a moral-political requirement to revise existing or craft new international legal norms. Depending on the contours of these obligations, States should actively pursue a reform agenda of the TRIPS, the WTO, or the international legal order in general.Footnote 103 Obligations should be understood, for the time being, as encompassing both legal and moral-political obligations.
The two main elements of the thin ideal theory (prerogatives and obligations) are addressed in the philosophical literature as questions of justice.Footnote 104 International justice focuses on the relations among States.Footnote 105 In contrast, global justice not only focuses on States as bearers of justice-based obligations but also addresses the situation of human beings within and across States and takes a broader view on the potential bearers of justice-based obligations.Footnote 106 In general, the literature on international and global justice has a strong focus on distributive justice.Footnote 107 It mainly, but not exclusively, investigates how specific goods, resources, or rights are distributed and how these distributive patterns should be changed.Footnote 108 As Laborde and Ronzoni rightly notes, an account of justice should also address the power structures leading to specific distributive patterns.Footnote 109 Global political justice examines ‘the creation and reform of institutions and the fairness of background contexts in which decisions are made’.Footnote 110
For the present argument, we can draw useful resources from these different strands of literature. The focus on international law brings the argumentation to focus closely on States as lawmakers. Beyond law-making obligations, the responsibilities of States must serve in making sense of justice-based obligations generated by the specific situations that individuals, companies, or other relevant actors find themselves in. Global justice scholarship on trade and poverty, but also on the mobility of individuals should in that sense be seen as resources for the arguments to come.Footnote 111 The attention put on States as part of the international law focus of this work does not exclude private companies. On the contrary, one of the challenges for the TRIPS is making room for them and assigning them specific responsibilities. IP rights are very often held by private companies seen as having a special responsibility to the public at large (e.g., pharmaceutical companies).
When it comes to defining the substance of the thin theory of justice, the approach favoured here is to adopt an overlap strategy focusing on the common ground between different approaches to justice.Footnote 112 This offers the advantage of concentrating on the elements that can be accepted by different positions on justice and that prove useful for the purpose of developing an approach from within the international IP regime.
The common ground is made of two elements. Firstly, it focuses on ‘extreme deprivation’ (i.e., circumstances which render decent life for individuals impossible) and on ‘basic political and economic inequalities’ (i.e., seriously unjust inequalities in political power and a lack of access to important bodies and forms of social cooperation).Footnote 113 This common ground will be reconstructed along a republican and sufficientarian position on justice,Footnote 114 the republican dimension focusing on the relevance of freedom understood as non-domination and the sufficientarian dimension focusing on the relevance of basic needs that enable a decent life.Footnote 115
In order to develop these two elements in the context of current international law, States need to be reconstructed as political communities organised around the normative ideal of freedom defined as non-domination. On this basis, we will explain how their justice-based obligations in the context of current international law can be described as sufficientarian and republican.
2.2.1.2 A Republican Conception of the State
This section presents the core elements of a republican approach to the State. It briefly addresses the underlying definition of freedom as non-domination for an individual, before showing its relevance for the State. The objective is not to fully account for the rich and complex scholarship on republicanism, but rather to lay out an initial understanding of republican freedom and how it might enrich our understanding of the relevance of States for international law in general, and for the TRIPS in particular.
This section is organised into two subsections: the key components of republican freedom and the idea of the free republican State.
Republican Freedom
To start with, the generic concept of freedom is defined as the capacity to lead one’s life according to one’s plans without being at the mercy of others.Footnote 116 This understanding of freedom is strongly linked to the concept of ‘autonomy’, thereby highlighting the importance of the concrete opportunity and capacity to lead one’s life in the way one considers satisfactory.Footnote 117
The republican concept of ‘domination’ highlights a threat to this freedom: ‘to be put at the mercy of others’.Footnote 118 A person is not free if they are at the mercy of others without any opportunity to track and control potential interferences. In this situation, the person is said to be under domination. An individual is dominated by another individual or entity when the latter has the capacity to interfere arbitrarily with certain key choices that the individual can make. ‘To interfere with’ means worsening the situation of an individual by affecting one’s ability to consider choices independently (i.e., by influencing the range of options available, the expected payoffs of these options, and/or the actual outcomes of these options).Footnote 119
In some liberal accounts, freedom might be defined as a function of the number of interferences (according to the principle ‘the fewer, the better’), but not of the modus of such interference.Footnote 120 In contrast, here it is the quality of the interference that matters: interference should not be arbitrary.Footnote 121 The focus therefore relies upon a specific type of threatening interference: arbitrary interference.Footnote 122 According to Pettit’s influential definition, interference is arbitrary if the interferer does not have to track the ‘relevant interests’ of the interferee,Footnote 123 writing in 2008 that, ‘interference will be non-arbitrary, to the extent that, being checked, it is forced to track the avowed or avow previous interests of the interferee; and this, regardless of whether or not those interests are true or real or valid, by some independent moral criterion’.Footnote 124 This definition has been the object of rich scholarship that Pettit and other republican authors have further developed.Footnote 125
Republican theorists have focused on the requirement to promote non-arbitrary interferences, that is, interferences that must respect certain procedural requirements meant to oblige them to track the relevant interests of interferees.Footnote 126 In brief, these requirements should prevent individuals from being put at the mercy of others. As Bellamy argues, these requirements should ensure that individuals can exercise deliberative control in a situation in which they are recognised as independent reasoners with an equal status.Footnote 127 By contrast, in a situation of domination, individuals can be directly coerced, but also manipulated, deceived, or indirectly threatened by making potential consequences explicit.
Three elements of this republican definition of freedom are particularly important. Firstly, freedom should always be seen as existing within social relationships (with other individuals or with institutions and political communities). In this context, the importance of a secured enjoyment of freedom defined as non-domination is particularly attractive as a relational account; that is, an account that considers the multiple patterns of influence that exist among individuals, institutions, or political communities.Footnote 128 It can also consider the particular risks attached to the imbalance of power among different actors and the sometimes-diffuse risks that these relations can represent in terms of (potential) arbitrary interferences.
Secondly, within these relationships, some actors retain the potential to exercise arbitrary interference upon others even if they eventually choose not to.Footnote 129 This is the example of the benevolent master. Although the master might be the best possible master for twenty years, they might wake up one morning and turn against their slave and drastically limit their freedom. The mere capacity of the master to do so is a threat to individual freedom. To guard against this potential risk of interference, individuals must be empowered to be free or, as Valentini writes, enjoy freedom as a kind of ‘independence’.Footnote 130
Thirdly, trying to diminish this domination is a matter of building procedural guarantees that change the modus of interactions, moving from an arbitrary to a non-arbitrary measure. Measures can include strong constitutional guarantees, robust protections of individual rights, mechanisms forcing consideration of the interests of affected individuals, and contestatory democracy. On this point, the capacity of the individuals/groups concerned with directly controlling institutions/individuals exercising power is key.Footnote 131 The idea of citizenship as the realisation of this political equality, then, is a crucial idea for republicanism. As Bellamy puts it, avoiding domination ‘implies a condition of equal respect among citizens, therefore, in which each can look the other in the eye through enjoying equality of status in the making of the collective decisions that govern their lives’.Footnote 132 In this respect, the objective of ensuring protection against arbitrary interferences is also about securing political equality among the members of a given political community.Footnote 133
The Idea of the Free State
This objective to ensure individual freedom defined as protection against domination has important repercussions for the freedom of political communities, especially for States. The key argument is that the freedom of a State is instrumentally relevant for the freedom of its members (the citizens/residents of the State). If the State is dominated, its members cannot be said to be free. As put by Laborde, the republican ideal calls for free individuals as members of a self-determined political community.Footnote 134
The key issue concerns defining freedom as non-domination for States. To start with, States, like individuals, can be dominated by different types of actors,Footnote 135 including other States, coalitions of States, international institutions created by States, private companies, NGOs, or even transnational criminal groups (such as a mafia).Footnote 136 Just as is the case for individuals, these dominating entities can interfere arbitrarily in the interests of the State where there is no institutional mechanism to force these entities to take the interests of the dominated State into account.
A relevant question directly concerns the exact object of domination. As with individuals, this question is best addressed by focusing on the specific choices that a person or State should be free to make without arbitrary interference. As Pettit holds, the benchmark for determining what types of choices are meant here is the definition of a set of particularly salient elements in relations among individuals and with a public authority, what he calls ‘basic personal liberties’.Footnote 137 This list of basic liberties can of course evolve and is subject to ongoing philosophical but also political disputes.Footnote 138 But functionally, assuming that we can define this set of basic liberties, they represent the domain protégé of the individual where protection against domination should be the strongest.
A similar argument can be made for the State. We need to determine sovereign liberties that are said to be crucial for the State and its capacity to engage in relationships with others. The exact list of these liberties is open. In international law, this question is directly linked to the definition of sovereignty. What sovereignty refers to is by definition open to discussion and is meant to change over time. As Endicott argues, what sovereignty entails or requires is not determined once and for all but reflects a certain evolution in the normative qualifications and expectations that are formulated for a good political community.Footnote 139 In turn, this means that the evolution of the contours of sovereignty depends upon the nature and structure of the international order and on the behaviour of other relevant actors.Footnote 140 The normative agreement reached on those putatively necessary liberties that a political community organised as a State should enjoy is operationalised through international law.Footnote 141 For our investigation, this means that domination can be especially problematic if it impacts one of these sovereign liberties.
Personal liberties/sovereign liberties have been identified as the set of liberties deserving of protection against domination. Given these potential objects of domination, two criteria have emerged which, taken together, outline a limit to the permissible level and seriousness of domination. These two criteria rely upon the ‘extent’ and the ‘intensity’ of domination, as discussed in the republican literature.
The intensity of domination depends on ‘how arbitrary the interference can be, how easy it is for the dominator to interfere, and how severe are the measures that can be taken.’Footnote 142 The intensity of domination depends on the conditions in which domination is exercised, especially if the interferee has mechanisms available for preventing domination. The capacity of the interferer to easily interfere with the interferee (e.g., in terms of the cost of interfering) is also an important component of this intensity.
The extent of domination depends on ‘which areas of a person’s life are subject to arbitrary interference, and the range of their options’Footnote 143 and is directly linked to the definition of the liberties that are seen as necessary for an individual or a State. On this basis, domination can be all-encompassing, including a wide range of interests. With respect to States, domination could be economic, political, military, and social.
The multifaceted domination connects to democratisation and constitutionalisation (both of and through international law) as mechanisms for preventing domination.Footnote 144 This dimension appears especially important if looked at from the perspective of Forst’s approach. For him, domination is arbitrariness defined as ‘the rule of some people over others without legitimate reason’.Footnote 145 As a proponent of the right to justification, his idea of domination involves being subjected to a normative order that cannot properly be justified to the individual. Justification cannot remain exclusively hypothetical but needs to involve participation in actual institutions. This is a strong argument not only for the democratisation of international law.Footnote 146
As presented thus far, republicanism understood as a normative ideal for preventing domination is a rather agent-centred perspective.Footnote 147 It is focused on two agents – an individual or a State (or other institutional agents previously mentioned) – that exercise and/or suffer domination. This agent-centred approach is arguably the best way to explain key insights of the republican approach, but it remains insufficient.
In this context, Allen suggests three additional dimensions of domination: institutional agenda-setting, structuring of interests, and the constitution of subject-positions.Footnote 148 These three dimensions are not directly agent-focused but rather pertain much more to the structures in which agents interact with each other and to the conditions in which the relevant structures are set. As Laborde and Ronzoni argue, domination is both agential and structural. Only agents can dominate, but the structures in which agents act determine their power relations and the resources they have.Footnote 149
For the present investigation, this means that we should consider direct agential domination (e.g., the United States exercising direct pressure on its partners in order to obtain a change in their bilateral trade policy), but we should also be able to identify and challenge structural patterns of domination. When focusing on interpreting international law, this means considering how international trade law is set (domination in law-making, such as Allen’s agenda-setting; structuring of interests; and constitution of subject-positions), how the same law is interpreted by judicial bodies (domination in adjudication), and finally how the law is applied by the relevant actors (domination in the application of the law and/or in the transposition into domestic law).Footnote 150
2.2.1.3 The Obligations of the Republican State
Based on this preliminary definition of freedom as non-domination for individuals and States, we can turn to a preliminary qualification of the State’s obligations as a matter of justice. The main argument is to define these obligations along a sufficientarian approach to global justice. Recall that this qualification is part of the thin ideal theory required to be as explicit as possible regarding Step 4 of the reflective equilibrium.
This section is organised into three subsections: a qualification of freedom as non-domination as normative ideal, a presentation of sufficientarianism, and a specification in the form of the capability approach.
Non-domination as Normative Ideal
In general, the ideal of non-domination briefly outlined above is a normative model intended to guide both the organisation of the State internally and its behaviours externally. As Honohan writes, ‘domination is a matter of degree; even if we cannot eliminate domination entirely, we may aim to reduce or minimize it’.Footnote 151 The ideal of non-domination represents a normative ideal for external policy.Footnote 152
For the forthcoming argument, the obligations of States to minimise domination with respect to other States (through the mediation of international law and/or bilateral policy) and towards individuals who are not residents of the State in question are key. These two elements are the two issues mentioned above when outlining the overlapping strategy chosen for this work: a focus both on ‘basic political and economic inequalities’ and ‘extreme deprivation’.
The first issue regarding obligations towards other States is key because it represents a lens through which to address WTO challenges. Formulated in republican terms, the challenge is one of identifying and addressing potential risks of domination within and through WTO law. This bears upon law-making and adjudicating mechanisms in the WTO, but also on the effects of WTO law on States, especially less powerful ones. For the argument to come, this means looking for structural patterns of domination or agential domination in WTO law, or enabled by WTO law, especially with respect to the TRIPS.Footnote 153 This first type of obligation is particularly important in situations where powerful trade partners, such as the United States under President Trump, use direct threats. The key question is what a republican interpretation of the TRIPS as multilateral treaty could do against these threats.
The second issue on the obligations towards individuals is a classical issue within global justice. From the perspective of a relatively affluent State, it raises the question about what is due to every human being as a matter of justice.Footnote 154 The key rationale for the republican State is to try to prevent domination of every human being. As explained by Lovett, deprivation is a concern for republicanism for several reasons.Footnote 155 Without resources, a State (for instance an LDC) cannot satisfy the most basic needs of its population and will also not be able to represent its citizens in international negotiation processes.Footnote 156 Similarly, Laborde argues that without basic resources, democratic accountability will be out of reach.Footnote 157 In extreme situations, the obligation to prevent domination within a State is the locus of the classical debate on the conditionality of sovereignty in cases of gross human rights violations and the putative obligation to intervene.Footnote 158
For the time being, the focus remains on the general and very broad republican ambition to at least prevent domination (if the State is the source of domination), and arguably to positively contribute to fighting other sources of domination. This justifies a general obligation of assistance that can manifest in the form of direct aid (development aid for instance), but also an obligation to create or reform international institutions affecting individuals and States.Footnote 159
A Sufficientarian Approach
In specifying this general objective, different positions are conceivable. The determination of the best (normatively speaking) mechanisms to fulfil this responsibility is the subject of dispute among republican theorists.Footnote 160 The position promoted here can be qualified as ‘sufficientarian’.Footnote 161 Its basic idea is that the primary obligation of a republican State is to make it possible for every individual to reach a certain threshold in terms of their capacity to live a decent life.Footnote 162
In general, a position is said to be sufficientarian when it claims that a threshold in terms of goods, resources, and rights is sufficient (though maybe minimally) for living a decent life. Expressed in terms of domination, absence of the minimal conditions required to live a decent life is one of the gravest forms of domination. It negates the claim held by human beings to be able to live their life in a minimally satisfactory way. Especially important is the insight that a republican-sufficientarian approach to justice needs to conceptualise justice among individuals living on the planet (in a geographical sense), but also across time (across generations).Footnote 163 Global trade rules have a deep impact on how resources are shared and how challenges are met from the perspective of intergenerational justice.
In brief, every human being ought to reach a certain threshold in terms of the capacity and the resources to live a decent life. But who can define this threshold and what currency of justice should we consider?Footnote 164 Firstly, this sufficientarian position is said to be non-comparative in that it does not rely upon a comparative perspective between different individuals. In contrast to egalitarian models of global justice, the main injustice is not in the relative discrepancy between individuals. It is rather due to the absolute deprivation experienced by individuals.Footnote 165 However, it makes sense to allow for instrumental arguments against economic/political inequalities. If these inequalities become so important as to represent an instance of domination (even if they do not translate into actual interferences), then republicans have a strong argument for preventing them, even if all stakeholders have reached the threshold of a decent life.
Secondly, the threshold’s definition is often addressed in the negative, focusing on situations in which there is a consensus that the threshold has not been reached (such as a famine, a war, or an environmental catastrophe). In TRIPS-relevant cases, we could intuitively think of several situations in which the threshold question is relevant, including access to essential medicine to secure health, seeds to secure food, and published material to secure education and participation in public life. These three domains do not exhaust the general domain of sufficiency, but they represent important, arguably compulsory, parts of it. Within each of these domains, we need to define the sufficientarian threshold of what is essential. As exemplified by the WHO’s list of ‘essential medicines’, we need to define what is needed for a decent life in IP-relevant areas.Footnote 166 An important part of Chapter 3 will be dedicated to answering this question by drawing upon international human rights law.
The Capability Approach
Overall, both the domain (such as in the three examples of health, food, and education previously mentioned) and the threshold might be integrated into a capacity-based conception of sufficientarianism. This is a possible answer to the question of the currency used to define the threshold that individuals should achieve. This conception focuses on the human capacities that should be guaranteed to make a decent life possibleFootnote 167 and relies upon a thin theory of the human life, based upon the importance of some basic interests and capacities for our human agency.Footnote 168
One of the best-known capacity-based approaches is the capabilities approach, as coined most famously by Sen and Nussbaum.Footnote 169 Robeynes and Biskov define it thusly: ‘capabilities are the doings and beings that people can achieve if they so choose’.Footnote 170
The different conceptions gathered in the capability approach involve a double shift: one shift away from the mere formal rights and freedoms that individuals can have towards more concrete functioning, in effect, the exercise of a particular capability, and the other a shift away from the focus put on ‘means’ (e.g., money) towards a focus on the ‘ends’, also called ‘real freedoms’ by Sen.Footnote 171 This double shift extends the realm of analysis by including the conditions (personal, sociopolitical, environmental) in which an individual lives and their capacity to convert a set of means, resources, or opportunities into a functioning life.Footnote 172 According to Sen, ‘functionings represent parts of the state of a person, in particular the various things that he or she manages to do or be in leading a life’.Footnote 173 A person’s ‘capability’ refers to various ‘combinations of functionings that are feasible for her to achieve’.Footnote 174 Means, resources, and opportunities are important, but mainly in the context of the capacity of the individual to concretely use them. The capability scholarship has investigated the relevance of the ‘conversion factors’ which ease or make this conversion more difficult. As for the conditions, we might distinguish between personal conversion factors (e.g., metabolism or physical condition), social conversion factors (e.g., public policies or social norms), and environmental conversion factors (e.g., climate or pollution, but also transportation systems or the stability of buildings).Footnote 175
Republican and capability theorists share important common concerns,Footnote 176 one of which can be expressed negatively: they are discontent with a certain definition of freedom as non-interference. Both think that an account that equates freedom with the absence of interference (e.g., by the government) is not satisfactory. Expressed positively, both focus on the requirements for someone to be a free person. In Pettit’s summary, the parallel between these two accounts lies in their ‘emphasis on the connection between freedom and non-dependence (…). The aspiration, quite rightly, is to get rid of dependency, not just destitution’.Footnote 177 In facing this type of situation, republican and capability theorists both underline the relevance of the social and environmental factors through which people can exercise a form of control on their choices and avoid dependency upon others’ will.
Both approaches share also common challenges, including the question of whether, and if yes how, to determine a set of basic liberties/capabilities that should be guaranteed in priority.Footnote 178 A related question is how thin or thick the normative assumptions of what is required to live a ‘decent’ life should be. Nussbaum has argued that we need a thin theory of the ‘good life’ (based on a re-interpretation of Aristotle’s moral and political philosophy in her work) in order to pinpoint particularly important capabilities. Her list of ten capabilities that every human being needs in order to live a decent life is the result of this argument.Footnote 179 Notwithstanding the requirement to assume a certain position on the good/decent life, Nussbaum has always claimed that these ten capabilities are very generic and that their specification needs to be highly context-specific, thereby addressing a large part of the paternalism criticism. The focus is on a range of capabilities that a person can combine and choose from according to their view of the good life, though minimal assumptions about what is needed to be able to choose in the first place are unavoidable. This focus on context and conversion capacity explains why the capability approach often resonates for minorities-focused approaches.Footnote 180
Other authors have resisted proposing a list of required capabilities.Footnote 181 On the contrary, they have tried to define criteria that potential capabilities need to fulfil.Footnote 182 Sen’s approach is characterised by recourse to the device of the ‘we have reason to value’ capability as a key standard of choice.Footnote 183 This point is interesting in considering the right of people to have a say in determining which capabilities they consider most important for their life and for giving them priority in distributive schemes.
As explained above in trying to identify basic liberties (both for the individual and for political community), republicans must face a similar challenge. On the one hand, they acknowledge the normative nature of this task and the requirement to clarify one’s assumptions about the capacities an individual needs to live a decent life. On the other hand, they also pinpoint the risk of paternalism in defining for the people what is important.
Finally, both approaches share a common interest for institutional arrangements meant to protect freedom.Footnote 184 The capacity of individuals to co-determine, as a political community, the institutional features of their social life (including the legal norms), is crucial for both approaches. This applies within the State, in different ways (such as control on the elected representatives and government, democratic practices linked to the ideal of citizenship, rule of law, etc.).Footnote 185 It also affects the legal arrangements States choose as part of their international relations. In this sense, the interpretation of the TRIPS as general legal framework should foster freedom as capabilities of its different members, mainly States. The impact of these legal arrangements on freedom (in a positive or negative sense) is a key common interest of both republican and capability theorists. This explains why a growing literature has used a capability approach to assess legal regimes and to propose improvements.Footnote 186 The areas of human rights law,Footnote 187 private law,Footnote 188 labour law,Footnote 189 trade law,Footnote 190 and IP lawFootnote 191 have been addressed by theorists.
2.2.2 Criticisms
Several criticisms can be formulated against the approach proposed here. All of them refer to ongoing discussions within the philosophical scholarship on international and global justice. In addressing these criticisms, it is crucial not to lose sight of the general methodological objective set for this work: to provide a method of legal interpretation for foundational norms of the TRIPS.
This section discusses two types of criticisms: the absence of obligations beyond one’s borders for States and the too-exclusive focus put on States.
2.2.2.1 No Obligations beyond One’s Borders
Firstly, the approach can be criticised for wrongly assuming that a State has justice-based obligations beyond its borders. For a minority of scholars, a State has justice obligations almost exclusively to its resident population, and not beyond its borders. If it has specific obligations, then these are minimal and can be summarised under the idea of duties of assistance for emergency situations.Footnote 192 These theorists contest the notion that a State (mainly a liberal-democratic State) has obligations of distributive justice towards other States and individuals.
A pragmatic reply to this criticism is to focus on the overlapping strategy chosen (‘extreme deprivation’ and ‘basic political and economic inequalities’). Firstly, it is assumed that a State has justice-based obligations when it interacts with other States (e.g., through bilateral trade policy), but also through the creation, interpretation, and application of international legal norms such as WTO law. Secondly, the argument presented here does not rely upon the existence of fully fledged distributive obligations comparable to those which the State has towards its own population. We will come back to this distinction in explaining the difference between human rights duties (jurisdiction-based) and responsibilities for human rights.Footnote 193 Thirdly, the TRIPS – and WTO law – include norms in which States acknowledge their obligations when they act beyond their borders. As shall be discussed later, Articles 66 and 67 of TRIPS are interesting examples.Footnote 194
2.2.2.2 The Exclusive Responsibility of States
Secondly, the approach proposed could be criticised for putting an exclusive focus on the responsibility of States. Conceptually, the republican approach is well equipped to identify and prevent domination exercised by private companies. The republican approach focuses on the modus of interaction (arbitrary or not) and the potential threat to basic liberties that it might represent. It is hence fundamentally open to considering diverse sources of threat, and not only public authority. This is especially the case for international organisations, companies, and other transnational entities.
However, the present investigation focuses on the responsibility set within the context of international law and, as such, most directly addressed to Member States. In Chapter 3, we will address in more detail the responsibility of private companies. This responsibility is important as some of the TRIPS’ provisions, such as Article 66(2) of TRIPS (explicitly mentioning ‘enterprises’), are structured on these two levels of responsibility (both the State and private companies).
2.3 Output: Interpretation, Policy, Framing
Wrapping up this methodological chapter, the reflections have thus far focused on the main output of the reflective equilibrium approach: a coherent interpretation of the TRIPS’ foundational norms, such as Articles 7 and 8 of TRIPS. The methodology presented creates two additional outputs. The first section addresses the policy-guiding insights of the reflective equilibrium while the second section discusses its contribution to a renewed framing of the TRIPS.
2.3.1 Legal Interpretation and Policy-Guiding Insights
Applying the reflective equilibrium to the interpretation of the TRIPS foundational norms opens two paths which are important to distinguish between: a legal-interpretative path and a policy-guiding path. The interpretative path is relevant for the different bodies in charge of interpreting the TRIPS including WTO dispute settlement bodies, but also WTO’s and IP-relevant agencies such as WIPO. Most importantly, this interpretative path is also crucial for States which, when designing or revising their domestic IP legislation, need to clearly view what is required regarding their international legal obligations as TRIPS Member parties.
The second policy-guiding path is also built on reflections on how to interpret TRIPS foundational norms, but it goes beyond the interpretation of existing TRIPS norms. In brief, the argument runs as follows: policy-guiding arguments are formulated as a way of pursuing the normative objectives identified in the interpretation of the TRIPS as it currently stands. This internal approach presupposes and takes advantage of an existing political consensus expressed in the form of the foundations of the TRIPS (such as the parameters of Article 7 of TRIPS, for instance). This synergy is also exploited by Dinwoodie and Dreyfuss when they claim that the principles identified as part of the international acquis can have the function of ‘lawmaking templates’ (policy).Footnote 195 They offer a framework from which negotiators could start.
From the perspective of its target audience, this policy-guiding path is directed at States, both in their domestic capacity and in their international law-making capacity. The focus of this work is on the latter option, including mainly bi- or plurilateral trade policy led by WTO Member States and the revision/creation of specific international IP norms.
The two paths are different with respect to the legal status quo. The first interpretative path focuses on the law as it is, trying to interpret it in a specific way. As explained above, it is a specification of the approach required by the VCLT. The policy-guiding path not only considers the law as it is but also aims at changing it. Thus, the types of obligations at stake are different. A State has the legal obligation to respect its international law obligations. However, the same State does not have a legal obligation to initiate the drafting of a new international IP Agreement, but it can have a moral-political obligation to do so. In that sense, part of the justice-based obligations of States could be about changing the TRIPS.
The distinction between these two paths is not as clear-cut as it might appear at first glance. Firstly, some institutional-political acts do not change the text of an international treaty but instead impose a specific interpretation as part of the legal interpretation rules. For instance, as Chapter 3 will discuss, the Doha Declaration is not stricto sensu a revision of the TRIPS (the TRIPS text remains as it is), but it does change the way the TRIPS must be interpreted. It could be argued that the Doha Declaration, as authoritative interpretation, is the result of moral-political obligations of WTO Members. Alternatively, it could be argued that the Declaration was the result of a legal obligation not based on the TRIPS itself but based on other international obligations such as human rights obligations.
More generally, soft law approaches aiming at providing guidance on how to interpret a legal norm lie at the junction of the two paths described here.Footnote 196 Soft law approaches recall that the realm of legal obligations (vs. the realm of moral-political obligations) evolves because of the changing interpretation of legal obligations.
Human rights are here an especially interesting category. As will be explained in the discussion on the interface between IP and human rights, they can be used as interpretative resources for the TRIPS, but they mainly represent duties and responsibilities for States. Human rights duties cannot be limited to a harmonious interpretation approach. States could arguably have a human rights duty to redesign the TRIPS and/or to design and implement new international treaties (such as the Marrakesh Treaty for visually impaired people).Footnote 197 At the same time, actors might attempt to justify this policy effort based on moral-political obligations. In that case, the argument will be directly linked to the account provided as part of the thin ideal theory (the State’s prerogatives and obligations).
2.3.2 A Framing of the TRIPS
The reflective equilibrium generates a further output: a renewed framing of the TRIPS, which can be described as both a component and an output of the reflective equilibrium approach.
This section firstly defines the concept of framing, secondly addresses its functions, and thirdly discusses potential criticisms.
2.3.2.1 The Concept of Framing
Framing is a communicative public act with a strong normative dimension.Footnote 198 The person or institution framing the reality is engaged in an act of selection and construction of specific elements of the reality.Footnote 199 Scholars with an empirical-explanatory ambition have worked with the concept of framing as key to explaining public discourses and mobilisation patterns.Footnote 200 Kapczynski, for instance, has written a seminal piece on the access to knowledge movement (‘A2K’) as a way to make sense of public mobilisation around IP issues.Footnote 201 In this context, framing is used to explain the emergence and development of certain agendas (i.e., ways to structure the questions and challenges raised by legal norms).Footnote 202
Related concepts have been used in IP scholarship.Footnote 203 For instance, Okediji uses the term ‘narratives’ with similar focus and ambition.Footnote 204 For her, the three types of narratives she identifies in international IP discussion (human rights narrative, cultural narrative, and welfare-enhancing narrative) are ‘linked conceptually in the efforts to reframe the justifications for intellectual property protection to reflect the interests of developing countries or to resist the strengthening of intellectual property rights globally’.Footnote 205 In his reconstruction of the TRIPS’ history, Gervais also identifies four narratives used by distinct stakeholders to account for the existence and content of the TRIPS (a coercion narrative, a bargain narrative, an ignorance narrative, and a self-interest narrative).Footnote 206 Bannerman uses ‘remodeling’ to clearly state the active project of changing the way we look at global intellectual property rules and the content of these rules.Footnote 207
2.3.2.2 The Functions of Framing
As part of a legal investigation on the TRIPS, the concept of framing can fulfil different functions. Dinwoodie and Kur identify three main functions for the act of framing: as enacting constraints, as justifying, and as shaping. As they write, the justifying function is the most adequate for a legal investigation: ‘(…) it gives us a way of thinking about, assessing, and evaluating intellectual property law. But it should also lend itself to the way policymakers think about framing intellectual property law’.Footnote 208
This is the key objective of this book: shaping a specific understanding of the objectives of the TRIPS and the functions that this Agreement should play in (troubled) international trade relations. This framing will find its place in the justificatory discourse addressing the legitimacy criticisms of the international IP system. As Land notes, the initial framing of an issue (What is at stake? What are the most pressing issues?) is key because of the lasting effect and the path dependency it generates.Footnote 209 Along republican-sufficientarian lines, this account of the State’s prerogatives and obligations is itself the product and driver of a framing about freedom, sovereignty, and other important values. The human rights duties and responsibilities of States will thus here play an important function.Footnote 210
Depending on its conception and usage, a framing can reify the status quo (emphasising the constraints bearing on reality and underlining the difficulty of changing them) or it can stimulate imagination to think about novel interpretations or policy changes. As Chon explains, ‘recognizing the constructed quality or sociality of seemingly stable shared social concepts then frees up space for rethinking existing social and legal arrangements, rather than reverting to the politics of the possible’.Footnote 211 Similarly, Okediji refers to narratives as ‘countervailing norms’ to ‘deploy against the pervasive reach of intellectual property rights in developing countries’.Footnote 212 Framings can be used, then, as countervailing normative resources.Footnote 213
Moreover, the reflection on the framing is meant to open conceptual and normative links towards distinct scholarship on social movements in the IP community.Footnote 214 The content developed here could be fruitful as a contribution to the structuration of the claims raised by these movements. Arguing from ‘below’, Land claims that justice-based approaches to IP ‘create space for the powerless, and in particular those affected by rights violations, to claim their rights’.Footnote 215
More generally, it connects to the public, communicative nature of the framing. Attempting to reframe the TRIPS also constitutes a claim about a certain way to tell the story of the TRIPS: where it comes from, what objectives it has, and which actors it empowers or constrains.Footnote 216 This story-telling dimension is a crucial part of an incremental legal philosophy ambitious to be action-guiding.
To take an example, Dinwoodie and Kur have identified five dimensions of the reframing of the international IP system (economics, trade, development, culture, and human rights). They present the relevance of these dimensions using the image of IP law as a tree:
- human rights are the ground in which the roots of the tree are anchored and from which nourishment is derived; – (economic) incentives are needed and must be monitored so as to determine the strength and structure of the trunk and its branches; – culture (and other forms of interaction with society) stand for the climate and other environmental influences shaping the form and density of the foliage; – trade corresponds to the forest management whose policy decides on mono-cropping, (over-)harvesting or sustainable and organic growth.Footnote 217
This example shows potential content of the framing and illustrates nicely its communicative aspect. It is a powerful tool to mobilise mental images and shape the way in which individuals and institutions approach a specific issue and assign relevancy or urgency to particular questions and topics.
2.3.2.3 Criticisms
Numerous scholars have critiqued the concept of ‘framing’. Firstly, Drahos has underlined the requirement to be clear about what a framing-based approach can realistically deliver. Considered a communicative act, framing ‘will rarely work on its own. It needs the support of other mechanisms such as modelling, a process in which weaker actors sometimes displace hegemonic models by placing alternative models of regulation on the table.’Footnote 218 This line of criticism is compatible with the definition and function of ‘framing’ proposed above. Any analysis of the TRIPS relies upon a framing that should be made explicit and which, even in a modest way, could contribute to the two paths of action identified above.
The second line of criticism concerns different possible framings. It echoes the similar criticism on the plurality of interpretations possible. On the one hand, the use of framing in this work is not the same as in the scholarship where framing is used as explanatory variable of reality (e.g., to explain public mobilisation against stronger IP protection). In this work, whether the framing accurately explains reality is not the relevant concern. As addressed above, the question is more whether the framing appears plausible in terms of normative reconstruction of the legal foundations at stake.
On the other hand, it is possible to reconstruct the TRIPS’ normative foundations in a number of ways that may conflict with each other.Footnote 219 While the framing developed in the coming chapters claims to be promising in opening new fields of interpretation and policy-making efforts, there is no requirement to search for a meta-criterion capable of selecting a winner among multiple framings.
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