To Me My X-Men: An Analysis of the European Union’s Engagement with International Intellectual Property Law Through the Prism of a Trade Agreement with the Mutant Nation of Krakoa

The purpose of this Article is to examine the European Union’s external relations with the hypothetical mutant nation of Krakoa through the perspective of intellectual property and human rights filtered through a trade agreement between the parties. In doing so, the potential trade agreement with Krakoa allows for the critical reflection of the scope and application of international intellectual property protection, enforcement, and development but also allows for challenges to this existing standard that are not possible elsewhere due to broader economic and political reasons. It discusses the progressive inclusion of TRIPS-Plus provisions in EU international agreements and how this sets the stage for this trade agreement. This paper identifies the extent to which the EU is seeking higher levels of intellectual property protection in the global sphere and discusses to what extent the use of TRIPS-Plus provisions has clashed with the objective of the promotion and protection of human rights in the EU external action. In essence, what can be learned from a trade agreement between the EU and Krakoa, and how this can be applied to future negotiations of the EU and its trading partners at the international level.


Introduction
The purpose of this Article is to examine the European Union's external relations with the hypothetical mutant nation of Krakoa through the perspective of intellectual property and human rights filtered through a trade agreement between the parties.
In doing so, the potential trade agreement with Krakoa allows for the critical reflection of the scope and application of international intellectual property protection, enforcement, and development but also allows for challenges to this existing standard that are not possible elsewhere due to broader economic and political reasons.It discusses the progressive inclusion of TRIPS-Plus provisions in EU international agreements and how this sets the stage for this trade agreement.This paper identifies the extent to which the EU is seeking higher levels of intellectual property protection in the global sphere and discusses to what extent the use of TRIPS-Plus provisions has clashed with the objective of the promotion and protection of human rights in the EU external action.
This Article is divided into three parts, firstly outlining the scope and benefit of this study.In essence, what can be learned from a trade agreement between the EU and Krakoa?Secondly, this article examines the purpose and limitations of IP within trade agreements.In doing so, following a brief summary of IP at play, this looks at IP and human rights in conflict through trade, but also the linkage of IP and the dual objectives of trade.Throughout, this facilitates the question of how human rights concerns are balanced against intellectual property obligations.Finally, this Article turns to the inclusion of human rights clauses within the international trade history of the EU and some of the issues they face, which will then be transported to the IP-Human rights debate.This Article concludes with some comments on how such a trade agreement will impact future developments of the EU in this field.

Methodology and Scope
'To me my X-men'.Often the rallying call of Prof. X to his students, followers, and soldiers but a phrase which takes a new meaning in the Krakoan Age.Rather, it now serves as a call for identity and extends the offer of Krakoan citizenship to mutants of the world.As such, this narrative pivot, allows the examination to shift from the X-men providing a stand-in for various forms of racism, bigotry, and discrimination,1 to that of a hypothetical nation with pre-defined scope and agency.Thus, allowing the X-men comics to serve as a litmus test of various elements of international law.2In this connection, while Rev. Stryker asks if '[y]ou dare call that…thing…human?!?', we must assume the broad scope of human rights applies to mutants with equal measure.To address the broader question of what it means to be human is beyond the scope of this paper.However, it is sufficient to recall recent narrative developments, 3 external perspectives view both Homo Sapiens and Home Superior as human, save that one has an activated X-gene.Additionally, The UN Declaration on Human Genome and Human Rights offers some guidance from 1 3 To Me My X-Men: An Analysis of the European Union's Engagement… under Article 3 in relation to mutations and Article 6 regarding discrimination based on genetic characteristics.
In doing so, this continues to develop the concept where comics examine areas such as politics, sociology, philosophy, ethics, and of course law, which 'have all positively engaged at some level with the medium'. 4The law exists as a 'dazzlingly complex array of social, cultural, linguistic, and normative practices'. 5At the same time, '[l]iterature, it is said, sheds light on law's gap, rhetoric, and moral stances.It elucidates law's limits and highlights law's exclusion.Interpretation methods conventionally applied to fictional texts can be applied productively to legal texts, and narrative techniques that draw readers into novels and plays can be employed in the service of legal arguments'. 6By combining the two, through the prism of Krakoa, we can not only assess the impact and the influence of the EU's ambitious and comprehensive trade agenda, but we can also account for the wider factors of the legal landscape without having to dwell on or mitigate elements from a self-made hypothetical.As, by and large, legal academics would not be as well versed in game theory, statecraft, sociology, or political studies to effectively create a fully-fledged hypothetical.That is not to say, the narrative writers would be either, but by removing the creation of the hypothetical study from the hands of those who seek to use it as a benchmark, this removes any bias or unintended weighting which may occur when operating in a vacuum.
Finally, the question of why Krakoa as a case study rather than Genosha or Wakanda.Unlike in such examples, we are given access to Krakoa in a more robust manner.Wakanda is famously closed off from the rest of the world, both metaphorically and in some cases physically, while Genosha was a mutant nation, little was discussed from the State's perspective prior to its destruction.In essence, this approach permits the projection of the literature a the heart of the question from 'the abstract into the concrete'. 7In this connection, it has been argued that 'law is inevitably a matter of language' and in combination with literature, confront the 'struggle over certain words or forms of representation'. 8In addition, such an approach attempted to bring the divide where '[m]odern law is born in its separation from aesthetic considerations and the aspirations of literature and art, and a wall is built between the two … Art is assigned to imagination, creativity, and playfulness, law to control, discipline, and sobriety'.9Thus, the use of comics, 'aims to engage more fully with text-image relationships, and the associated but more general relationships between the rational and aesthetic, in a legal context'.10

What is Intellectual Property
This Article generally refers to IP and Intellectual Property Rights, including patents, trademarks, geographical indications (GIs), copyright, and traditional and genetic knowledge.In general, the overall aim of IP rights is that of protecting and facilitating 'innovation', 11 as many scholars have considered IP rights as 'legal constructs which govern the use of information'. 12While IP rights have a long and complex history within the spheres of international trade and politics, this has not be an equal focus between the various elements.While Copyright, Patents, and Trademarks, and to a lesser extent GIs, have been the focus of debate, the protection and scope of traditional and genetic knowledge has often been under-examined in law. 13 However, while the real world has seen some shifts in this, 14 when one factors in the nature of Krakoa, this will become a more contested area of exploitation.This was clearly illustrated in the theft of the Krakoa seeds by the Hordeiculture. 15While this focused more on the 'piracy' aspect of biopiracy due to the nature of Krakoa, it nonetheless shows the underlying issue with the lack of protection at the international level, which in turn allows more traditional occurrences of biocolonialism. 16Scholars have noted that Western-based industries, through the use of patents, have economically exploited indigenous cultural production. 17This has been well noted in the free-riding or appropriation of traditional knowledge by pharmaceutical industries, which has additional drawbacks as indigenous peoples do not share in the technological and medical benefits arising from such exploitation. 18 Aside from the more primary purpose of protecting and promoting 'innovation' in an overarching sense, IP rights are also territorial in nature, i.e. they confer protection on the rightsholder in a particular territory, and they are exclusive, i.e. they give monopoly protection (provided that there are no adequate substitute technologies that might preserve the possibility of competition), for a limited period of time.This territorial nature of IP rights is inextricably linked to the fact that IP law has 11 However, it must be noted that the protection of GIs have a cultural and historical function beyond the protection for the purpose of stimulating innovation.See generally Sunner (2021) and Huysmans (2022). 12Husovec (2019). 13Curci (2010).'In the system of protection of IP in industrial countries, Traditional knowledge related Genetic Resources, has until recently been considered as international public domain because of the confusion of the public domain with the public international legal concept of res communis humantiutis (common heritage of mankind)'. 14Curci (2010).Curci notes that the 'increasing pace of exploitation of this knowledge through modern technological instruments lead the international community to shift the focus of its attention from the ''preservation' of Genetic Resources to their 'ultilization''. 15 Hickman and Yu (2019). 16Curci (2010).Curci defines biocolonialms as 'another term related to the biopiracy and it oftens refers to the pattern whereby the industrialised country corporations extracts raw genetic material from the Developing Country, patents the genetically modified product based on the raw material without prior informed consent and benefit sharing, and then sells the finished project to the providier country at unafforabdily high prices'.See also Maui (2004), Austin (2003) and Banner (2005). 17Gibson (2008Gibson ( , 2014)). 18 Helfer (2003) and Torsen (2006).
To Me My X-Men: An Analysis of the European Union's Engagement… generally been created along national lines and drafted at the national level (albeit deeply influenced by international law, including the WIPO conventions and the WTO's and TRIPS).In this connection, the 'lack of understandings between Northern, industrialised countries and least developing countries has lead, in large part, to the exclusion of moral and philosophical views of holders of TK or the ultization of plants'. 19Torsen arguments that IP systems of the past and present are a poor fit for the task of protecting cultural elements associated with indigenous people. 20 Coombe goes so far as to accuse Developed Nations 'of having an inappropriate individual bias towards a Eurocentric model of the author, being predominate market-orientated, and unduly emphasising or enabling the privatisation of knowledge with respect to resources'. 21As such, Krakoa exists as a functional case study, as it possesses both the economic ability to push against such norms.However, a purely economic analysis would be inappropriate to do so.Thus, we must examine where IP and Human rights coexist (if at all possible) and how this possibility may be further expanded or developed going forward.

IP, Human Rights, and Trade in Conflict
In this connection, scholars argued that this new conflict was inherently stemming from the different nature of the IP and human rights systems. 22This conflict can be largely attributed to the expansion of IP protection under TRIPS on the one hand, 23 and the rise of the third generation of human rights on the other. 24TRIPS, and later TRIPS-plus would then increased the tensions between IP regimes and other international regimes. 25In part, a result of the increase of the scope of IP, but also the third generation of human rights also expanded in a comprehensive manner. 26This was evident in the debate leading to UN Resolution 2000/7, 27 which provided a 19 Curci (2010). 20Torsen (2008). 21 Coombe (2005). 22 Chapman (2001), Helfer (2003), Lee (2015) and Grosheide (2010).  . 16, 2001) A resolution by the Sub-Commission that identifies a widening set of conflicts between TRIPS and human rights, including 'the rights to self-determination, food, housing, work, health and education, and in relation to transfers of technology to developing countries'. 24 Daes (2001). 25 Kapczynski (2008).Kapczynski refers to this as the 'new politics of intellectual property'.See also Reichman (2009).hard-line in the conflict between IP rights and human rights.This Resolution, while criticising the TRIPS-Plus agenda and the conflict it created, 28 also suggested that: '[g]overnments and national, regional, and international economic policy forums [need] to take international human rights obligations and principles fully into account in international economic policy formation'. 29  This mirrors the sentiments found within the subsequent General Comment No. 17 released by the CESR Committee.General Comment No. 17 stated that: 'any intellectual property regime that makes it more difficult for a State party to comply with its core obligations in relation to health, food, education, especially, or any other right set out in the Covenant, is inconsistent with the legally binding obligations of the State party'. 30  The conflict between IP rights and human rights is complex, as is the debate surrounding it.This primarily relates to the obligation to balance IP protection with other interests was somewhat reflected in Article 7 of TRIPS. 31However, this provision remains quite general in tone and does not endeavour to expand upon how to achieve this balance between competing rights.In 2005, the CESCR Committee in General Comment No. 17 tried to find such a balance. 32 A full discussion of this debate is far outside the scope of this paper.However, the use of a trade agreement between the EU and Krakoa as a case study allows a birds-eye view of the conflict that could be transplanted or extrapolated to the  . 17, 2000) paragraph 4 'Requests all Governments and national, regional and international economic policy forums to take international human rights obligations and principles fully into account in international economic policy formulation'. 30U.N. Economic and Social Council, Committee on Economic, Society and Cultural Rights, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, U.N. Doc.E/C12/2001/15 (Dec. 14, 2001).para 14. 31 Article 7 of TRIPS states that '[t]he protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations'. 32General Comments No. 17 stated that 'parties thus have a duty to prevent unreasonably high costs for access to essential medicines, plant seeds or other means of food production, or for schoolbooks and learning materials, from undermining the rights of large segments of the population to health, food and education.Moreover, States parties should prevent the use of scientific and technical progress for purposes contrary to human rights and dignity, including the rights to life, health and privacy, e.g. by excluding inventions from patentability whenever their commercialization would jeopardize the full realization of these rights'.
To Me My X-Men: An Analysis of the European Union's Engagement… broader debate.Partly due to repeated conflicts of terms, the EU negotiating multiple agreements concurrently, and the attempts to standardise the terms across all of its trade policy.The interaction between IP and the right to health, the right to food, and the rights of indigenous peoples respectively remains quite controversial and is, to a certain extent, intertwined with the debate surrounding the principle of sustainable development. 33Possibly the most contested overlap between IP protection and human rights is in the context of the right to health, and in particular, access to vital medicines. 34Again, the narrative nature of Krakoa and its exportation of the 'Miracle Drug' as a core aspect of its trade policy shows the strength of this case study.
The recognition of the right to health has been formalised in a large body of international human rights conventions. 35Article 12 of the ICESCR is the most prominent international provision to address the right to health explicitly. 36Due to the controversies surrounding this provision, the CESR Committee adopted General Comment No 14 on the Right to Health in 2000, 37 marking a significant turning point in the debate.Furthermore, it is essential to note that the Committee broadly interpreted the right to health, 38 which encompasses inter alia the right to access essential medicines.In that regard, the Committee stated that the '[f]unctioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party'. 39This expanded scope of the right to health has been present within Krakoa, in particular the access to programmes and facilities.This prominence and importance, as well as the actual engagement, places the question of the balance between the protection of IP and human rights at the forefront of discussions.In this respect, TRIPS was brought under the microscope as the main cause of limited access to medicines.Article 27(1) TRIPS requires 'new, involve an inventive step and are capable of industrial application' for a patent to be granted, recognised, and protected, to be expanded beyond the tangible medical product but also to the overall pharmaceutical production process. 40In the post-TRIPS era 'so long as an invention meets the technical requirements of patentability, a patent must be granted for an innovative product, including a pharmaceutical compound, even if it would negatively impact the accessibility of drugs'. 41 Following the 'global drug gap', 42 where most of the pharmaceutical resources only supply developed nations, 43 the need to re-frame the patent debate away from its current IP (economic) dominated perspective to a human right perspective became all the more pressing.Efforts to address broader impact factors will, however, also be required, as simply: 'removing the patent barrier will not miraculously produce access to medicines.There will still be the need for funding for drugs, for effective health systems, and for wise selection of medicines'. 44

IP and the Dual Objectives of Trade
At present, the EU is engaging in a variety of trade agreements with a growing number of trading partners, a common trend is that they all include strong trade components and IP provisions.At the same time, Krakoa, while illustrating its ability to be self-sufficinet in most instances, engages the global trade forum as a means to further its poltical objectives moreso than trade for the sake of development. 45 The negotiations processes are, in several cases, still open and subject to diverse and often competing political and economic trends in relation to IP matters.
In doing so, the EU operates from the TRIPS Agreement in providing standardization of terms for all Parties.However, the flaws inherent within the TRIPS Agreement quickly arose.This, in turn, led to calls for vast reform and disparaging comments regarding its suitable for use,as 'market forces and technology have moved beyond [the then] current laws and are now in conflict with them'. 46As such, we have and continue to see shifts to fill this void with the expanded use of bilateral and multilateral agreements. 40Gervais (2003). 41Ho (2007). 42Reich (2000). 43Médecins sans Frontières ( 2001), available at http:// www.msf.org/ source/ access/ 2001/ fatal/ fatal.pdf noting that 'only 10 percent of the global health research is devoted to conditions that account for 90 percent of the global disease burden'. 44Flynn (2003). 45If these two objectives can truly be separate.See generally, Odell (1990) and James et al. (2017). 46 Patry (2011).
To Me My X-Men: An Analysis of the European Union's Engagement… In that connection, it is perhaps worth noting that such barriers can arise from the very nature of acknowledging IP, rights as is the very existence of attributing ownership and recourse to protect the exploitation by the rightful owners, which itself can be then seen as a restriction on trade.However, the progressive inclusion and expansion of IP-focused chapters within the various trade agreements can be seen as a trade-off as part of the negotiations between the parties.For the EU, this would be to further facilitate trade under an EU-led norm, while for Krakoa this would more related to further acceptance of its broader political agenda.To that effect, the expanded inclusion of such terms also illustrates that there is no one size fits all application of IP protection, mirroring many of the issues seen in relation to the negotiation of the TRIPS Agreement.
The conceptualisation of IP protection as a restriction on trade places IP as an ever-more salient and central feature within trade agreements, and as a result, a growing importance within the EU trade agenda.Furthermore, this expansion is seen as part of the increase in the strength afforded to IP enforcement provisions.For example, the Free Trade Agreement between the EU and South Korea, 47 obligates the party to ensure effective remedies to prevent and combat IP infringement.However, such sections are required to be interpreted in light of the obligations under Articles 7 and 8 of TRIPS.As such, where there is significant scope for human rights considerations, it would be more likely that Krakoa would push towards such a position rather than towards more restrictive IP rights.
While one can argue that increases in IP protection provisions would be a restriction on trade, IP can also serve as a mechanism or a tool to enhance trade.From this perspective, there is a strong economic argument that IP provisions and the increased scope and enforcement ability of such provisions contribute to innovation and economic growth through an increased flow of trade. 48Broadly, this argument is centred on the idea that by providing 'adequate and effective' protection, the IP rightsholder would be incentivised to trade in the nation in particular or be willing to invest in the production of protected work. 49Thus, IP provisions could be viewed as a strong incentive facilitating Foreign Direct Investment (FDI) at the global level. 5047 Free trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part signed 12 October 2010, OJ L 127, 14 April 2011.Hereafter the EU-Korea Agreement. 48See generally Duguet and Lelarge (2012), Sakakibara and Branstetter (2001), Weng et al. (2009), Rafiquzzaman (2002) and Falvey et al. (2006). 49 Maskus and Penubarti (1995).In this connection, Maskus and Penubarti suggest a two-fold (and somewhat opposing) approach to how increased IP protection leads to economic growth.Firstly, the higher levels of protection provide stability and certainty to foreign companies, thereby further incentivising them to export their product to the market without fear of infringement.Secondly, this increased level of protection would restrict trade by preventing the domestic firms from following success in the market and developing their own competing version of the IP in question. 50 Gangopadhyay and Mondal (2012).Gangopadhyay and Mondal note how IP protection is at least needed at minimum levels to sustain the innovation.Sweet and Maggio (2015).Sweet and Maggio argue that while 'stronger intellectual property laws have a positive impact on a country's ability to expand its productive frontier and apply tacit and explicit innovative advances' this may be limited by the broader production and capital capacities of the economy of the State in question.
While there is debate regarding the precise correlation of IP protection provisions and FDI, the majority of scholarship suggests that more substantial levels of IP protection encourage and facilitate trade-related investment. 51As such, the expansion of IP protection serves to both enhance, while concurrently, restrict trade. 52This dual nature can be seen to confirm and continue the 'multifaceted and ambiguous' relationship between international trade and IP protection. 53

Human Rights Clauses Within the European Union Trade Policy
At the same time the EU has vastly expanded its trade policy, objectives, and associated methodology to achieve these aims, the EU has also been systematically including human rights clauses and considerations within the trade agreements. 54This has been in the broader sense of ensuring the reflection and recognition of human rights, but from an IP perspective, we've seen gradual inclusion as a strong aspect in the balancing equation, as touched on above.
There is no question that the EU exists with the power to regulate whatever arena it enters. 55There is, however, a question over the precise level of this power and influence and in recent years the EU has gone from a leading figure, 56 to 'emerging as a global rule-maker'. 57Nonetheless, the ability to successfully and strongly shape international maters is seen as a central aspect of the EU's presence. 58This ability is often linked to the EU's 'goal achievement' in the international sphere. 59However, this itself is problematic in its use as this puts forward the claim that the EU is abusing its position by exporting its own values.
Through the Lomé Conventions and later in their successor, the Cotonou Agreement, the EU has a long and somewhat nebulous history regarding its engagement in a developmental framework with its African, Caribbean, and Pacific (ACP) 51  Maskus (2000), Gould and Gruben (1996), Sweet and Maggio (2015), Maskus (1998) and Maskus and Penubarti (1995). 52Sunner (2022). 53Ruse-Khan (2012). 54For example, many of the EU-negotiated trade agreements require the observations and respect to the UN Declaration of Human Rights to act as a guiding reference for the trade agreement.Often this obligation is Article 2,3, or 4 within the overall agreement, to give some indication of its importance or priority.However, the more comprehensive trade aspects can mitigate this. 55 Drezner (2007) and Lavenex (2014). 56 Bradford (2012) and Jacoby and Meunier (2010).  5Commission (2007).Further noting that 'single market framework and the wider EU economic and social model increasingly serving as a reference point in third countries as well as in global and regional fora.This is driven by a unique combination of factors intrinsically linked to the setting up of the single market'. 58 Bretherton and Volger (2006).Bretherton and Volger note 'the ability to exert influence externally to shape the perceptions, exceptions and behaviour of others.Presences does not denote purposive external action, rather is a consequence of being.In particular, presence reflects two intimately interconnected sets of factors that determine the reputation and status accorded to the EU by external audiences'. 59Jørgensen et al. (2011).For an overview of this within the framework of the EU see Oberthür and Groen (2015).

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To Me My X-Men: An Analysis of the European Union's Engagement… trading partners.The general nature of these human rights clauses relates to 'a mutual arrangement by which a government takes, or promises to take, certain policy actions in support of which an international financial institution or other agency will provide specific amounts of financial assistance'. 60However, the broader human rights clauses included in the Cotonou Agreement can be viewed as the EU extension of its 'idea of human rights to international systems and has developed its external relations based on human rights'. 61The introduction of the human rights clauses within the agreements is itself dependent on the power dynamics between the Parties, as is the actual enforcement of the clause.In this regard, Crawley and Blitz note that 'the inclusion of a 'human rights clause' in the Cotonou Agreement is illustrative of the primary tool that the EU already has at its disposal to leverage improvements in access to international protection and human rights'. 62However, the question of the mandatory nature of human rights clauses within agreements was not restricted to the negotiations with the ACP nations. 63The inclusion of such right clauses was noted as a significant point of tension during the negotiations of trade agreements between the EU and Mexico, and more recently in relation to CETA.While this has been seen as an obstacle in negotiations, the mentality of the Krakoa state has been to not only accept the existing framework but to excel under it and to turn it to their advantage.Thus, unlike the ACP nations, Krakoa not only has the economic and political ability to trigger such clauses against the EU, Krakoa also has Magento. 64 There is significant criticism relating to the human rights clauses.One of, if not the most, levied grounds of criticism is that such clauses operate as an extension of neo-colonialism. 65The criticism of neo-colonialism is centred on the role of the EU as an international actor, but also as an (arguably self-appointed) international mediator.The claim of neo-colonialism is further seen with the long-held criticism that the EU is seeking to export its rules concerning human rights issues. 66This criticism connects well with the critical approach to the inclusion of IP protection as the imposition of 'Western standards'.So, by rejecting human law, Krakoa appears to push back against this imposition.Or rather it would if addressed directly within the narrative.The claim of neo-colonialism, or at least the strong colonial undertones within the human rights clauses, is then linked to the question of the implementation 60 Killick (1998). 61Horng (2003). 62 Crawley and Blitz (2018). 63Smith (1998). 64 Hickman and Yu (2019). 65Neo-colonialism can be broadly defined as the practice of using globalisation and cultural imperialism through a capitalistic filter to directly, or indirectly influence a developing country.For a further discussion of the origin and development of neo-colonialism see generally, Sartre (2001), Brown (2001) and Langan (2017). 66 Kelemen (2010).While Kelemen discusses the issue in relation to the exportation of environmental standards, lessons may still be drawn by this approach; Smith (2010).Smith notes how the EU seeks place EU standards as the new global norm.and actual use of the clause. 67This criticism focuses on the impact of the agreements on the receiving Parties, 68 primarily centring on the claim that the scope of protection and enforcement sought was 'broad and asymmetrical'. 69

Conclusion
Following from, and in part as a result of the Treaty of Lisbon, the EU has taken a more progressive and engaged approach to the recognition of human rights considerations within its external action policy.In doing so, this is reflective of the shifts within the EU, but the broader reflection of how the 'growth in importance of human rights goes hand in hand with a rising consensus that the global economy needs to be regulated in a more balanced way in order to secure basic ethical principles and the most fundamental values of society'. 70 However, there remains a lingering question of how this balance is achieved, in particular within the context of IP rights as presented in this article.Over the last twenty-five years following the TRIPS agreements, the EU, with other developed nations have pushed IP 'harmonisation forward at a pace that is greater than is apparently possible within the framework of the WTO'. 71In doing so, the various trade-based agreements have only increased the EU's position as a regulatory power and were further seen in the attempts by the EU to shape and dictate these preferences to its trading partners.
As a consequence, stemming from these developments, tensions between human rights and IP rights have emerged.Within many of the agreements in the years following TRIPS, the human rights clauses and the IP protection and enforcement measures were clearly separated.To the point that the human rights clauses were often mitigated or qualified under the notions of proportionality and balance, they would appear to satisfy an obligation rather than actively shape the following agreement.However, as the concept of human rights began to develop over the subsequent decades, its place within the discussions became more prominent.From this, we saw the explicit linkages with trade and IP obligations became evident that the various IP provisions were underpinned by the (economically motivated) political will to develop and expand IP protection within the trade relationship between the EU and Third Countries.
Within the context of a trade agreement with Krakoa, the EU would be facing a similar push towards a more balanced position between protecting human rights and intellectual property right, as seen in previous agreements with its South and Central 67 This primarily relates to the asymmetrical application or assumed acceptance of rights.See generally, Forsythe (2000), Mentus (2004) and Sikkink (2004). 68Allee and Peinhardt (2011), Büthe and Milner (2009), Haftel (2010), Kerner (2009) andHafner-Burton (2009).Hafner-Burton notes how 'lawmakers argued that bilateral market agreements were not the place to combat repression because other policies were available to do the job'. 69Simmons (2014). 70 Geiger and Izyumenko (2018). 71Lippoldt (2003).

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To Me My X-Men: An Analysis of the European Union's Engagement… American trading partners.While these agreements marked a highpoint for human rights in IP considerations, this was not as enthusiastically carried over to subsequent trade agreements.However, due to the nature of Krakoa and the rapid expansion of its international footprint, as well as the broad political and economic ability to back up its negotiations, we would see similar if not identical provisions requiring a stronger human rights aspect in IP in other agreements.As such, this gives rises to the potential that the EU and its future trading partners would be required to account for this new level going forward, thereby continuing the developments, and pushing them as the new norm.Thereby achieving a stronger and more present human right approach to IP protections in the international trade sphere, reflective of the often preamble but without the trade-mandated compromised, and further calling back to the attempts of previous agreements to introduce and continue to engage with a balance such as this.
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23 U.N. Economic and Social Council, Sub-Commission on the Promotion and Protection of Human Rights, Intellectual Property and Human Rights, Resolution.2001/21, U.N. Doc.E/CN.4/Sub.2/RES/2001/21 (Aug 26 U.N. Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc.E/CN.4/Sub.2/1994/2/Add.1 (Apr.20, 1994).See also U.N. Economic and Social Council, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Draft Principles and Guidelines for the Protection of the Heritage of Indigenous People, Final Report of the Special Rapporteur, U.N. Doc.E/CN.4/Sub.2/1995/26, Annex 1 (June 21, 1995). 27U.N. Economic and Social Council, Sub-Commission on Promotion and Protection of Human Rights, Intellectual Property Rights and Human Rights, Resolution.2000/7, U.N. Doc.E/CN.4/Sub.2/ 28 U.N. Economic and Social Council, Sub-Commission on Promotion and Protection of Human Rights, Intellectual Property Rights and Human Rights, Resolution.2000/7, U.N. Doc.E/CN.4/Sub.2/RES/2000/7 (Aug.17, 2000) paragraph 11 'actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights'. 29U.N. Economic and Social Council, Sub-Commission on Promotion and Protection of Human Rights, Intellectual Property Rights and Human Rights, Resolution.2000/7, U.N. Doc.E/CN.4/Sub.2/RES/2000/7 (Aug