2024/01/15 by Sojun Park, Lauren C. Konken · 1 voice
Business, Management and Accounting · Social Sciences · #Intellectual Property and Patents #International Arbitration and Investment Law #World Trade Organization Law
paper · pdf · doi:10.1007/s11558-023-09525-0
openalex publication_date 2024/01/15 · openalex created_date 2025/10/10 · openalex updated_date 2026/07/23
Abstract Treaty exceptions have long been viewed as essential to the design of international agreements. Yet, agreements also leave ‘room to maneuver’ through the use of constructive ambiguity, that is, by defining treaty terms with deliberately ambiguous words. When are countries more likely to exploit this treaty ambiguity? What does this exploitation look like? We argue that in democratic countries, where states face continued pressures to react to domestic needs, governments are more likely to legislate unambiguous circumstances in which they can apply international treaty exceptions. We argue this should be especially true in developing democracies facing external pressure from foreign firms and developed countries to legislate public policy with their external interests in mind. We test our theory in the context of the World Trade Organization (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement and compulsory licensing legislation for HIV/AIDS drugs between 2000 and 2012. We find that when public access to medicines for HIV/AIDS is limited but in high demand, democratic governments are more likely to legislate explicit public health protection under TRIPS exceptions, especially in developing countries with high rates of foreign patent ownership. We conclude that such exploitation is most likely when countries seek to prevent precedents by action, or adjudication, that better define constructively ambiguous treaty terms.