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TRIPS Agreement Drafting History and Analysis

Jul 16, 2013, 2:25 PM

Daniel Gervais’ book sheds light on the provisions of a complex agreement.

You won’t find pictures of cowboys, camels or kangaroos on cigarette packs in Australia these days. The country’s Plain Packaging Act is clearly intended to discourage smoking. Cigarettes sold in the Land Down Under now come in drab olive boxes emblazoned with warnings about smoking’s health risks accompanied by graphic photographs of diseased body parts. The use of familiar brand colors, typefaces and logos is prohibited.

“This packaging makes everybody’s product look generally the same,” said Daniel Gervais, director of Vanderbilt’s Intellectual Property Program and the FedEx Research Professor of Law.

But is that prohibition legal?

Philip Morris challenged the law in Australia’s High Court, claiming that the Plain Packaging Act violated its intellectual property rights and was unconstitutional. The High Court rejected that claim in August 2012, and the new packaging debuted in December.

However, Australia’s High Court may not have the last word in this dispute. The Agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS, allows countries exporting tobacco products to Australia to challenge the provisions of the Plain Packaging Act before a dispute-settlement panel convened by the World Trade Organization. Article 20, Section D, of the agreement states: “The use of a trademark in commerce shall not be unjustifiably encumbered by special requirements, such as…use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings.”

Two countries have filed cases with the WTO challenging the Plain Packaging Act. “Ultimately, the act’s fate will depend on how the three-member WTO panel—and possibly the WTO Appellate Body if an appeal of the panel report is filed—interprets TRIPS’ trademark provisions, in particular Article 20, Section D of the agreement,” Gervais said. “People are following this dispute really closely, because it will impact many other parts of the international IP picture.”

TRIPS, which became effective in 1995, established a permanent, cooperative relationship between the World Intellectual Property Organization and the WTO, which administers the agreement. Under TRIPS, countries file disputes with the WTO, which has an international dispute-settlement system to adjudicate them. As a result, WTO panels effectively function as a “court” of last resort for international intellectual property disputes. “The TRIPS Agreement established minimum standards for the treatment of intellectual property internationally, and it remains the most comprehensive multilateral agreement on intellectual property to date,” said Gervais, one of the world’s foremost TRIPS authorities. “The interpretation of the TRIPS Agreement is crucial to all cases involving international intellectual property rights.”

Gervais has a unique historical perspective on TRIPS. He was present in the early 1990s as the complex agreement was negotiated under the auspices of the General Agreement on Tariffs and Trade. As a member of the WTO/GATT legal staff, he supported representatives from several countries as they hammered out the provisions of the new agreement. The need for a detailed commentary to help lawyers interpret TRIPS’ complex provisions immediately became clear to Gervais. “I was in the room as a member of the secretariat that was facilitating the discussion, heard the issues that were raised, and understood how and why the rules in the agreement had been established,” he said. “I knew that lawyers and judges would need to understand the original intent of the TRIPS rules and how those rules were arrived at.”

The first edition of Gervais’ definitive book on the TRIPS Agreement was published in 1998. It offered a careful history of the agreement’s development and inception, highlighted important compromises negotiated to establish TRIPS, and provided a detailed commentary on each section of the agreement. In two subsequent editions, Gervais added discussions of important TRIPS disputes and their resolution. The fourth edition, The TRIPS Agreement: Drafting History and Analysis, released in 2012, includes a new grid that shows the differences between the rules each nation originally hoped the agreement would incorporate and the actual provisions of the final agreement.

Gervais also added a comprehensive drafting history of the agreement, based on his observation that some WTO panels were using earlier drafts of the agreement to help interpret its provisions. “Members of WTO panels had access to the earlier drafts, but the attorneys appearing before them didn’t,” Gervais said. “I felt that all members of the WTO should have access to these drafts.”

Understanding TRIPS’ drafting history should help lawyers preparing for WTO panel hearings that address laws like Australia’s Plain Packaging Act, according to Gervais.“The new packaging Australia requires is detrimental to Marlboro’s ability to distinguish its cigarettes from Camel, and many observers believe the Plain Packaging Act definitely presents an encumbrance under Article 20,” he said. “So the case may hinge on whether Australia’s goal—to reduce sickness and deaths caused by smoking and the costs of treating smoking-related illnesses—justifies requiring standardized packaging that functionally eliminates brand trademarks and logos.

“When you look at the drafting history of Article 20, Section D, you’ll find that were three drafts of this provision,” Gervais continued. “In the earliest draft, the word ‘unjustifiably’ is in square brackets. In the second draft, it’s deleted. And in the third, it’s reinstated. That means that the drafters of the agreement thought very hard about whether to include the word ‘unjustified’ in the agreement. That word is not typical in international intellectual property, and the dispute settlement panel will probably be called upon to establish the proper ‘justification’ burden.”

Gervais has also established and edits a website devoted to TRIPS at www.tripsagreement.net.

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The TRIPS Agreement 5th Edition

Description, available formats.

• Article-by-article analysis of the TRIPS Agreement – the most significant international agreement on intellectual property to date.
• Interpretation of all 73 articles from a unique authority on TRIPS who was involved in the original negotiations as consultant and legal officer with the WTO.
• Offers two distinct perspectives: a historical review of the evolution of the legal framework and commentary on the practical application of the articles in the present day.
• Addresses the role and influence of the TRIPS Agreement with analysis of the most significant cases and panel discussions.
• Chronological look at the history of the TRIPS Agreement to provide a complete background about its origins and explaining how it fits within the wider WTO system.
• Updates to the articles are indicated with strikethroughs alongside the current text, providing a visual evolution of the drafting.
• Summarises all the negotiation stages and the state of international intellectual property in a pre-TRIPS era.
• Explains underlying issues, connections with other provisions of the Agreement and the potential impact of other WTO rules.
• Includes the Annexes – the documents referred to within TRIPS which complete the Agreement.
• Discusses the impact of the Ministerial Conference of 2011 – the highest decision-making body of the WTO.
• Outlines the development of TRIPS between Marrakesh (1995) and Doha (1999) and the issues addressed at the Council meetings.
• Looks at the increasing role of bilateral agreements and the practical implications this will have on legal practitioners.

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The TRIPS Agreement: Drafting History and Analysis 5th ed

The TRIPS Agreement: Drafting History and Analysis provides definitive insight into one of the most significant intellectual property legal agreements. This book is written by Daniel Gervais, who was actively involved in the original negotiations, and offers a detailed examination of the trade rules and intellectual property concepts that comprise the agreement.

It is uniquely positioned to give you a historical view of the drafting history of the TRIPS Agreement as well as practical commentary on its application today.

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A PRIMER ON PARALLEL IMPORTATION AFTER LEXMARK

click On May 30, 2017, the US Supreme Court released its opinion in Impression Products, Inc. V. Lexmark International, Inc ., a case dealing with parallel importation of patented goods. What is the case about? In short, parallel importation. The below is an attempt to explain the underlying issues–in less than four pages.

Buy Valium Tablets Online It is based in part on Daniel Gervais and Susy Frankel, ‘International Intellectual Property Rules and Parallel Importing’, in Research Handbook on Exhaustion and Parallel Imports (I Calboli and E Lee, eds) (Edward Elgar, 2016), pp.  85-105

Buy Valium 10 Mg Online A https://domainebregeon.com/950nxm3 PDF version of this post is available here:  A Primer on Parallel Importation after Lexmark

• Buy Diazepam Tablets Defining parallel importation & exhaustion of rights

enter Parallel importation means an import of a good protected as a patent or copyright or bearing a protected trademark is ‘parallel’ to a domestic intellectual property (IP) right in the country of importation.  Put differently, there is a ‘parallel’ IP right in the country from which the good is exported. The owner or exclusive licensee of the right in both territories may or may not be the same. The price at which the good is sold is often different (reflecting market conditions) thus creating an arbitrage incentive for export to a higher priced market. This is known as price discrimination .

click here There is a relationship between the legal concept of parallel importing and exhaustion of rights at domestic law. When IP is embodied in a physical product, the sale of that product transfers ownership rights in the product, but not the underlying IP.  For example, the person who purchases a copy of a copyright book cannot make and sell new copies of the book.  However the distribution-related IP rights are said to be ‘exhausted’. This means that that copy of the book can be resold or otherwise treated as the property of the purchaser. If a country or trade territory allows the importation of a copy sold in another country or trade territory, then it is said to allow parallel importing.  In this way the IP rights in both countries, or trade territories, are put in ‘parallel’.

https://pkuatm.org/2024/05/13/q6a0avvf Exhaustion can be national, regional or international. In a national exhaustion regime, only rights in goods put on the market in that country are exhausted by a sale. In a regional exhaustion scenario, exhaustion applies to all countries in the region, as happens to most intellectual property rights in goods sold in the European Union.  In the case of international exhaustion , goods sold anywhere the world can, subject to the more detailed explanation below, exhaust the right of the IP owner.

see Each country can make its own rules on parallel importation under the main international instrument regulating intellectual property, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Then each country can also make different rulers on whether to allow parallel imports for different types of IP rights. Australia and New Zealand, for example, allow parallel imports of goods protected by trademarks and copyright but not patents.

• enter site Parallel imports and the different IP rights

click As noted above, the Supreme Court of the United States has now made it clear that US law allows parallel imports of goods protected by patents ( Lexmark ). It did the same in 2013 for copyrighted goods in Kirtsaeng v. John Wiley & Sons, Inc. (568 U. S. 519). This answers some questions for the US market but raises others. For trademarks the rule was already that goods cannot be parallel imported under their US trademark if they are physically and materially different than the authorized goods sold in the U.S. Let us consider the differences among different IP rights.

https://aguasamazonicas.org/ba9m5tyj8 Patents must be applied for country by country. In some cases (for example many European countries), a single patent application can cover several countries). Each patent granted is independent which means that if a patent challenged by an alleged infringer is found to be invalid by courts on one country a similar patent in a different country remains valid. There are rules in the TRIPS Agreement about patentability but countries retain a large measure of flexibility to define and apply patentability criteria. This means that the scope of a patent can vary by jurisdictions as each patent office can ask the patent applicant to revise the scope of the claimed invention. Then it is expensive to apply for a patent and inventors rarely if ever try to get an invention patented in every possible country. This means that many inventions are only protected in a few countries. Major multinational inventors that rely heavily on patents like pharmaceutical companies, often patent a new pharmaceutical in most significant potential markets, but not everywhere.

source url Copyright , which protects books, music, film, software, pictures, art and many other forms of literary and artistic creations, can be obtained without formalities. Even in the US copyright registration is not fully mandatory. The protection of new original works is automatically available around the world to approximately 180 countries.

go to site Trademarks (like words or logos that typically identify the company that manufactured or supervised the manufacturing  a product) are protected in countries that share a common law legal tradition because they are used in commerce in that country . In jurisdictions with a  different legal tradition (including most of Europe), registration is generally required.  Indeed, even in common law countries registration is recommended. This means that the owner of a trademark must take steps to protect a trademark in multiple countries and that worldwide protection is not automatic.

• Buy Discount Xanax Online Parallel imports, gray market goods, licensing and counterfeit goods

Buy Diazepam Without Parallel importation of goods legally put in the market in a different country with the consent of the owner of the intellectual property right. Having said that, there are many different fact patterns that can arise.

https://domainebregeon.com/ujjq4cg Let us assume the same goods are sold in countries A , B, C, D and E, with the following differences.

• Country A is a major country where the goods are protected by patent and where parallel imports are allowed (say, the United States);
• Country B is another country where the same goods are protected by a similar patent and sold by the patent owner;
• Country C is another country where the same goods are protected by a similar patent and sold by an exclusive licensee of the patent owner;
• Country D is a country that issued a compulsory license to manufacture the patented product. A compulsory license allows a third party not licensed by the patent owner to produce the product at price usually set by a governmental authority; and
• Country E where the goods are not protected by patent (ether because no patent was ever applied for or because a patent was invalidated) and manufactured by a third party with no license from the owner of the patent in countries A-D.

here Question: Can the goods from countries B, C, D, and E be imported in country A?

Buy Xanax Today Though answers to this question remain somewhat controversial in some jurisdictions, the following seems likely to be correct:

https://someawesomeminecraft.com/2024/05/13/2j8kszb With respect to goods from country B , the answer (under Lexmark ) is yes.

follow url With respect to goods from country C , the answer should be the same, again using the Lexmark rationale of a sale with ‘authority’ from the patent owner.

go site With respect to goods from country D , one can say, first, that Lexmark does not apply because there was no ‘authority’ for the sale from the patent owner. Second, there are specific international rules with respect to patent compulsory licensing that limit re-export of patented goods made under a compulsory license such conditions, especially art 31(f) of the TRIPS Agreement. An amendment to TRIPS (Art. 31 bis ) modified this rule for phamarmceutcial exports to least-developed nations . The amendment contains detailed rules concerning diversion to more economically developed markets. In the copyright field, by contrast, compulsory licensing is allowed in certain circumstances. For example, under the Appendix to the principal international copyright instrument, the Berne Convention, which was incorporated into the TRIPS Agreement, developing countries can issue reproduction and translation licenses for books. Compulsory licensing of trademark s is generally not permitted (TRIPS Agreement, art. 21).

Country E is a somewhat harder question. The rights cannot have been said to be exhausted because there were never any rights to exhaust so that the traditional rationale for parallel importation should not apply. Yet the goods are undoubtedly legal in their territory.  Lexmark , by focusing on the import of authorized goods seems to assume exhaustion and the answer would, therefore, be no, the goods cannot legally make it into country A.

• https://grannysglasses.com/?p=s5t2lyftf3 Diverging rationales

The main rationale against parallel importation of goods protected by copyright or a patent is that it prevents price discrimination. In the copyright field, a book publisher can charge a different price depending on the perception of what the market can bear in that particular country. When international exhaustion applies, a publisher might decide not to publish ion lower-priced markets to avoid diversion to more expensive ones, as had happened in Kirtsaeng . In that case a student had purchased authorized books in Thailand and brought them back into the United States and was able to resell the books undercutting the average US sales price by quite a significant margin. Being allowed to charge the maximum price possible in all markets allows both to charge more on “richer” markets and less in less economically developed ones. This can create a subsidy effect where richer buyers subsidize the owner of the intellectual property right to create and invent more. Finally if the owner of the IP right has given an exclusive license limited to one territory (say country C in our list above) and goods produced by the patent owner itself (or by a different licensee) in another territory (say, country B in our list above) can be exported to country C, then the exclusive licensee in country C might suffer economic harm as a result.

The main rationales for parallel importation of goods protected by copyright or a patent are, first, that it allows a country to obtain cheaper goods by importing them from a market where they are sold at a lower price. Relatedly, it can be used to introduce competition into an otherwise non-competitive market, which should also exert a downward pressure on price. Finally, it can be used to expand the range of available products and their varying qualities if only a limited range is locally available. All these rationales are directly linked to consumer welfare narratives.

It is also essential to take account of the fact that patents and copyright apply to different types of goods . A copyrighted work is usually purchased by individual consumers, while important categories of patented goods such as pharmaceuticals are often purchased by state entities in charge of public health systems. There are significant public welfare impacts when access to books and medicines is restricted but there is very often a substitute for a book, musical work or film–a pharmaceutical product may have no substitute–and substitutes for copyrighted material are also often freely available online. Consequently, the public health impacts of restricting access to patented goods are often heavier than those that come from restrictions to specific copyrighted works. In the case of copyright, there is another reality to factor in: billions of works cross borders every day because they are available online. This changes the contours of the debate about parallel importation in that context.

In the case of trademark goods, the debate about parallel import rationales is somewhat different. Trademark rights are not protected, unlike copyright and trademark, as a reward or incentive for creating or inventing something. They are, at least as a matter of theory, designed to avoid confusion among potential buyers.  Thus if a good imported from country B is the same as the one sold under the same trademark in country A, there is no confusion and the rationale for preventing importation isn’t clear.

• Buy Valium 5Mg Online Uk Possible future steps

It is quite likely that the pharmaceutical industry will try to get the US Congress to ‘overturn’ Lexmark by amending the US Patent Act.  It was said that copyright industries would do the same after Kirtsaeng but no amendment has been made up to now. It is also likely that at least some  producers of patented goods will modulate their price discrimination strategies differently. Many  products that can be purchased in foreign markets, often using online resellers. Two issues should arise in that context. First, quality assurance will be used to convince buyers not to acquire goods from foreign sources. Attempts to block imports of pharmaceuticals (say, from Canada to the US) are often justified not on patent grounds but as a safety (regulatory) issue. That route may be explored further. Second, goods that require maintenance or service acquired from foreign sources may not benefit from locally available extra warranties or ‘service packages’ that companies may offer as an incentive to buy from a local (or at least domestic) source.

Daniel Gervais

2 June 2017

Lilly v Canada reports

FYI, my reports (the visible part of my work) on the Lilly v Canada ISDS case are available here and   here

Thanks to  Professor Andrew Newcombe & Co for their great website.

My new book https://pkuatm.org/2024/05/13/cse7avf5 (Re)Structuring Copyright , the first in the new Elgar Monographs in Intellectual Property Law, is now available.  Thank you in particular to the series editors, Professors Graeme Dinwoodie, Rochelle Dreyfuss and Annette Kur.

A book launch event will take place at Vanderbilt Law School on April 27 at 5:00 PM. Professor Chris Sprigman (NYU) and Robert Barsky (Vanderbilt) will comment on the book.

Here is the text of the preface:

This book aims to inform the debate about the future of copyright and its influence on human creativity. It is possible that, in a few years, all books will be the product of artificial intelligence and a version of Bob Dylan’s songs will be written by the son or daughter of IBM’s Watson. We are not quite there. Copyright has been, and is still, linked to many forms of (human) literary and artistic creation. Literature and art are perhaps the most vivid mirror of a society, its deepest aspirations and fears, its horrors and its magnificence. How policy affects that creation is, therefore, crucial to future human progress. In common parlance, ‘artists’ create Art. In copyright, we call artists ‘authors’. We could call them ‘creators’. Art is used and often owned by those who distribute, disseminate, package, and sell it, to be enjoyed or used in one form or another by all of us. Art then enters a cycle of appropriation, reuse and transformation, sometimes leading to more creation. Creation has a very broad meaning in the copyright realm. It includes ‘art’ proper but also non-fiction writing and many more utilitarian forms of creation such as maps and (certain) computer programs. Some quality contributions to human progress are created by amateurs, from deeply influential essays to child prodigy music composers. Talent—however that term is defined—seems not to have been distributed evenly; yet even abundant talent needs to be honed, nurtured and developed. Mozart started composing as a child but few of the works he wrote before the age of 21 are among the ones people listen to on a regular basis two and half centuries later. That nurturing is a key function that copyright, properly structured, can accomplish. This book proposes a way to structure copyright internationally to achieve this aim. There are no doubt many other ways to get there, but I can think of no higher policy objective. There is a fundamental ‘anthropological’ aspect to the quest for human development and policies that support it, although there is a sheer economic argument to be made as well: in the ‘knowledge economy’, creativity replaces material goods. Immaterial capital displaces physical capital. Knowledge is a commodity in itself; it is increasingly produced not to support the production of material goods (e.g., an improvement on a physical device) but for its own exchange value. As a matter of human and economic development, policy must ensure that those who can, and will, push their creative limits, including in developing new knowledge, can do so. True, technological changes make the policy work ahead harder. Those changes will alter in unforeseeable ways the interaction between humans and machine. Whether humans adapt to the machine (think of all the people walking with their heads down looking at a small glass screen) or whether the machine helps human creativity and potential flourish is the next great question. Law and policy can only influence the course of events up to a certain point, in part because regulatory interventions are so often educated guessing at best. Yet the inversion that André Gorz and others have described—the economy serving humans rather than the other way around—is the best possible outcome. Good policy can maximize our chances of getting there. Copyright is not the only tool in the policy toolbox of course. It forms part of a broader set of policies known as intellectual property (IP) and IP itself is part of an array of cultural and economic levers available to policy makers, from tax credits and subsidies (ex ante tools) to awards and prizes (ex post tools). The copyright system remains front and centre in this discussion, however. Yet it is a broken system. Not surprisingly, many voices have called for copyright (and sometimes all of IP) to be jettisoned as an obsolete industrial revolution era policy dinosaur. The early days of the Internet led the Grateful Dead’s John Perry Barlow to declare copyright dead. It is not. Others have made it their task to reduce copyright to its simplest expression, reflecting an underlying assumption that copyright is a negative—as little copyright as possible is necessarily a better outcome. Perhaps calls for reduction are merely a reluctant acknowledgment that it is unrealistic in this era of trade rules to think that copyright can be scrapped entirely. There are two other ways to see such recent developments. One is a cynical view. Many major commercial ‘intermediaries’ whose business is to sell advertisements need ‘content’ in myriad forms to draw users to their apps, sites and services. Whether it be a cat video or a Fellini movie, a recording of a high school band or a Puccini opera, a blog-post or a Jane Austen book matters not to them. I submit that it should matter to us all. Indeed, this concern must inform proper copyright policy. The other way to see recent developments is to embrace them, because they do lead to progress in a number of areas. The idea that entire libraries of paper books can be word-searched online is clearly a positive development, leaving aside for now the idea that those who write those books need not be remunerated for the uses of their works. The power of the Internet to disseminate new creations worldwide at little or no cost is a powerful tool to level the distribution playing field (for example by allowing anyone to publish an ebook) and potentially bringing all cultures, not just major players, to ‘users’ worldwide. Digital tools that allow amateurs and professionals to create, modify and add their own creativity to existing works can allow new creations to emerge and flourish, although it can also lead to ‘lazy’ creation by copying. Imitation has always been of the human creative process and this has now been raised to immeasurably higher levels, for both good and bad. More ‘content’ is a good thing. More good ‘content’ is a far better thing. By ‘good’ I mean the type of work that alters our perceptual filters, forces us to think and rethink our world, moves us, and hopefully can make us better humans. Sometimes it is hard to know which is which. The initial failure of many new forms of art, including the famous rejection of the Impressionists by the bourgeois Parisian elites, come to mind. It is clear, however, that to achieve those aims new ‘content’ must not only be created, it must be made available. Current policy efforts aimed at providing new and stronger ways to take down unauthorized content are thus often misguided, although not in cases of straight piracy that add no value. We should aim not to take content down but to put more good content up. And all of that cannot and should not happen at the expense of those who have spent their lives honing their craft and/or by preventing new creators to do so. An equilibrium must be established—it can be done. The current lack of equilibrium and the deficient structure of copyright results, in part, from a process of historical changes and accretions to the list of copyright ‘rights’ and in part from a lack of clarity as to its purpose. Indeed, very few national laws state one or more purposes of copyright. European Union Directives often mention several aims in their recitals. The definition of a purpose is often seen as a binary exercise. I have been asked so many times what ‘side’ of copyright I was on. Must one side win? This book takes the view that we can all ‘win’. The United States Constitution is a helpful guide. It is unique in that it states the purpose (Progress of Science and Useful Arts), beneficiaries (Authors) and mode of implementation (Exclusive Rights in ‘Writings’, for Limited Times) of copyright. Copyright should promote ‘progress’. Words matter. This means that copyright is not needed to promote mere ‘change’. Change happens no matter what. Progress, not necessarily so. In his 1974 Invitation to Jurisprudence Professor Harry Jones noted that not all forms of change are progress. Change that is not progress means moving sideways or going backwards. Change is merely a difference between two points (A and B) on a timeline. Progress is an improvement at point B. Progress does not mean that there is an end-state that we must identify, such as Fukuyama’s initial description of an End of History. But human progress, its emancipation, through science and the arts, is surely progress. That said, governments, courts and policy makers cannot and should not dictate the direction of societal and technological change. Cultural memes and economic forces are too powerful to resist, and often they lead change that does constitute progress. But I submit that it is the role of all branches of government to promote progress by ensuring that a larger proportion of change is progress. It is the role of academics (among others) to illuminate the economic, sociological, philosophical, and historical underpinnings that can then inform the thinking about how policies can affect the degree to which change will lead to progress.

My comment on the EU proposed Multilateral Investment Court

My comment t on the recently proposed Multilateral Investment Court is available here:  MIC brief Gervais

TRIPS (and the TPP) make it to the Fed Circuit

In the much awaited opinion in Lexmark , the en banc Federal Circuit (10-2) cited the TRIPS provision on exhaustion (article 6) and even the TPP.  A step forward for international IP aficionados.  Arguably, the statement accompanying the Uruguay Round implementing legislation that “[t]he [TRIPS] Agreement . . . does not affect U.S. law or practice relating to parallel importation of products protected by intellectual property rights” is a significant part of the majority’s argument finding that non exhaustion of patent rights by a foreign sale (despite Quanta ) is supported by legislative intent.  I detect a whiff of cert. in the air.

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Biden and Zelenskyy will sign a security deal, as G7 leaders agree to use Russian cash to help Kyiv

President Joe Biden leaves Air Force One as he arrives at Brindisi airport, southern Italy, to take part in a G7 summit, Wednesday, June 12, 2024. The G7 Summit will take place at the Borgo Egnazia resort from June 13 through June 15, 2024. (AP Photo/Luca Bruno)

President Joe Biden is escorted by Air Force Col. Angela Ochoa, Commander, 89th Airlift Wing, as he arrives at Andrews Air Force Base, Md., Wednesday, June 12, 2024. Biden is headed to Italy for the G7 summit. Biden’s granddaughter, Finnegan Biden, walks right. (AP Photo/Alex Brandon)

President Joe Biden is escorted by Air Force Col. Angela Ochoa, Commander, 89th Airlift Wing, as he arrives at Andrews Air Force Base, Md., Wednesday, June 12, 2024. Biden is headed to Italy for the G7 summit. Biden’s granddaughter, Finnegan Biden, walks left. (AP Photo/Alex Brandon)

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BRINDISI, Italy (AP) — President Joe Biden and President Volodymyr Zelenskyy will sign a bilateral security agreement between the U.S. and Ukraine on Thursday when they meet on the sidelines of the Group of Seven summit in Italy.

Negotiators for the group have also reached an agreement on how to provide Ukraine with up to $50 billion backed by frozen Russian assets.

The international group of wealthy democracies has been discussing ways of using the more than $260 billion in frozen Russian assets, most of which are outside the country, to help Ukraine fight Russian President Vladimir Putin’s war machine.

European officials have resisted confiscating the assets, citing legal and financial stability concerns, but the plan would use the interest earned on the assets to help Ukraine’s war effort. An official with the French presidency confirmed the agreement Wednesday, saying most of the money would be flowing to Ukraine in the form of a loan from the U.S. government backed by the proceeds of the frozen Russian assets in the European Union. Two other people familiar with the matter confirmed the arrangement.

Final technical negotiations were underway ahead of the summit to finalize the legal terms of the deal.

The announcement of the agreement comes as Biden landed in Italy with an urgency to get big things done. Thursday’s security arrangement was aimed to send a signal to Russia of American resolve in supporting Kyiv, the White House said.

National security adviser Jake Sullivan said the security agreement would not commit U.S. troops directly to Ukraine’s defense against Russia’s invasion — a red line drawn by Biden, who’s fearful of being pulled into direct conflict between the nuclear-armed powers.

“We want to demonstrate that the U.S. supports the people of Ukraine, that we stand with them and that we’ll continue to help address their security needs,” Sullivan said, adding “this agreement will show our resolve.”

Sullivan said aboard Air Force One that the goal of the financing plan was to have a loan that would “pull forward the windfall profits from the seized assets” of Russia, giving Ukraine a “substantial source of funding” to meet its immediate needs.

The national security adviser said he had a specific sum of money in mind, but declined to say if that figure was $50 billion. He stressed the urgency of getting Ukraine financial resources as soon as possible and that multiple countries would back the agreement.

“It’s to provide the necessary resources to Ukraine now for its economic energy and other needs, so that it’s capable of having the resilience necessary to withstand Russia’s continuing aggression,” Sullivan said.

This year’s meeting comes three years after Biden declared at his first such gathering that America was back as a global leader following the disruptions to Western alliances that occurred when Donald Trump was president. Now, there’s a chance this gathering could be the final summit for Biden and other G7 leaders, depending on the results of elections this year.

Biden and his counterparts from Canada, Britain, France, Germany, Italy and Japan will use the summit to discuss challenges related to artificial intelligence, migration, the Russian military’s resurgence and China’s economic might, among other topics. Pope Francis, Zelenskyy and Turkish President Recep Tayyip Erdogan are joining the gathering at the Borgo Egnazia resort in the Puglia region of southern Italy.

The summit, which opened Thursday, will play out after far-right parties across the continent racked up gains of surprising scale in just-concluded European Union elections . Those victories — coupled with upcoming elections in the United Kingdom , France and the United States — have rattled the global political establishment and added weightiness to this year’s summit.

“You hear this a lot when you talk to U.S. and European officials: If we can’t get this done now, whether it’s on China, whether it’s on the assets, we may not have another chance,” said Josh Lipsky, senior director of the Atlantic Council’s GeoEconomics Center, an international affairs think tank. “We don’t know what the world will look like three months, six months, nine months from now.”

The G7 is an informal bloc of industrialized democracies that meets annually to discuss shared issues and concerns. This is Biden’s second trip outside the U.S. in as many weeks; the Democratic president was in France last week for a state visit in Paris and ceremonies in Normandy marking the 80th anniversary of the D-Day landings in World War II.

While last week’s visit had a celebratory feel, this one will be dominated by pressing global issues, including how to keep financial support flowing to Ukraine as it fights Russia’s invasion . Biden’s trip comes days after his son Hunter was convicted on federal gun charges , a blow sure to weigh heavily on the president’s mind.

AP AUDIO: Fresh off France trip, Biden heads back to Europe for G7 summit to talk Ukraine support, migration

AP correspondent Jennifer King reports Ukrainian President Volodymyr Zelenskyy will be at Thursday’s G7 summit in Italy and meet with President Biden.

Despite pressing global challenges, White House national security spokesman John Kirby said there’s still a sense of relief among world leaders in 2024 that “America was back,” referencing Biden’s 2021 speech at the G7 in England.

“Biden’s message then was that democracies need to step up and show they can deliver for their people,” Kirby said. “That’s true now more than ever.”

Kirby said the U.S. was prepared to work with democratically elected officials in the EU no matter who they are, though some of those being elevated have expressed far less support for Ukraine than current leaders.

“We have every confidence that regardless of who fills the seats in the European Parliament, we’re going to continue to work closely with our EU partners on all the issues relative to our shared interests across the European continent,” Kirby said. “That includes supporting Ukraine.”

Biden and Zelenskyy, who met last week in Paris , are expected to hold a joint news conference while meeting at the G7 summit. Biden is also expected to meet with Italian Prime Minister Giorgia Meloni , the pope and other leaders.

Biden, who’s been adamant “we will not walk away” from Ukraine, last week publicly apologized to Zelenskyy for a monthslong delay by Congress in authorizing additional American military assistance. The delay allowed Russia to make gains on the battlefield .

Sullivan called the security agreement a “bridge” to when Ukraine is invited to join the NATO alliance — a long-term priority of Zelenskyy’s that the allies have said will first require an end to the Russia-Ukraine war and that Putin has steadfastly opposed .

Biden’s back-to-back trips to France and Italy amount to a rare doubleheader of diplomacy in the midst of the presidential election . The president, however, will skip a Ukraine peace conference in Switzerland this weekend to jet to Los Angeles for a campaign fundraiser with big names from Hollywood. Vice President Kamala Harris will represent the U.S. at the conference .

Despite the delays in military aid, the Biden administration on Tuesday announced it would send Ukraine another Patriot missile system to help fend off Russian strikes, two U.S. officials told The Associated Press.

Earlier Wednesday, the U.S. also announced fresh sanctions targeting Chinese companies that help Russia pursue its war in Ukraine, as well as Russia’s financial infrastructure. Sullivan said, “These actions will ratchet up the risk that foreign financial institutions take by dealing with Russia’s war economy.”

Biden is also expected to discuss economic concerns brought on by Chinese manufacturing overcapacity, how to use artificial intelligence in a way that maximizes benefits but still manages national security risks, and global migration.

The U.S. and other G7 nations are struggling to manage large influxes of migrants arriving for complicated reasons that include war, climate change and drought. Migration, and how nations cope with the growing numbers at their borders, has been a factor driving the far-right rise in some of Europe.

Superville reported from Bari, Italy. Miller and Madhani reported from Washington. Sylvie Corbet in Paris and Fatima Hussein and Josh Boak in Washington contributed.

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What’s known, and not known, about the partnership agreement signed by Russia and North Korea

What it means for their relationship is still uncertain.

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Russian President Vladimir Putin, left, and North Korea’s leader Kim Jong Un exchange documents during a signing ceremony of the new partnership in Pyongyang, North Korea, on Wednesday. Kristina Kormilitsyna/Kremlin pool photo via AP

SEOUL, South Korea — Both Russian President Vladimir Putin and North Korean leader Kim Jong Un say a new strategic partnership is a breakthrough, but what it means for their relationship is still uncertain.

The pact requires both countries to use all available means to provide immediate military assistance in the event of war, according to North Korean state media. While the agreement, inked Wednesday at a summit in Pyongyang, could represent the countries’ strongest deal signed after the Cold War, there are differing opinions on how strong the security commitment is.

Kim claimed that the deal elevated bilateral relations to the level of an alliance, while Putin was more understated and did not call it an alliance.

North Korean state media released the text of the agreement, which also includes broader cooperation in military, foreign policy and trade. Russia has not published its version of the text.

Relations between sprawling Russia and small, isolated North Korea – both of them nuclear powers – have warmed significantly in recent years amid Russia’s growing acrimony with the West over the invasion of Ukraine and suppression of all domestic opposition.

One of the first knock-on effects of the agreement came Thursday, when South Korea’s government said it would reconsider its policy of limiting its support to Ukraine to non-lethal supplies. South Korea, a growing arms exporter, has provided humanitarian aid to Ukraine, but it has not directly provided weapons to Kyiv. Advertisement

Here’s a look at what is known about the new partnership – and what is still unclear.

What did Russia and North Korea promise?

Most of the debate over the partnership agreement revolves around the article that pledges mutual aid. According to North Korean state media, the section states that if one of the countries gets invaded and is pushed into a state of war, the other must deploy “all means at its disposal without delay” to provide “military and other assistance.”

Russia, North Korea sign partnership deal, maybe the strongest since Cold War

But it also says that such actions must be in accordance with the laws of both countries and Article 51 of the United Nations Charter, which recognizes a U.N. member state’s right to self-defense.

To some analysts, that sounds like a promise that either nation would intervene if the other comes under attack, renewing a pledge made under a 1961 treaty between North Korea and the Soviet Union. That deal was discarded after the collapse of the USSR, replaced in 2000 by one that offered weaker security assurances.

Cheong Seong Chang, an analyst at South Korea’s Sejong Institute, said the agreement echoes the language of the 1961 treaty, as well as provisions of the U.S.-South Korea mutual defense treaty about activating channels to coordinate if either faces the threat of invasion. Advertisement

“North Korea and Russia have completely restored their Cold War-era military alliance,” Cheong said.

Other experts were more cautious, saying the section is carefully worded to avoid implying automatic interventions and strictly limits the circumstances in which either country would be obligated to step in. And the language of the agreement is much less important than what each nation is actually capable of and willing to do, Du Hyeogn Cha, an analyst at Seoul’s Asan Institute for Policy Studies, said.

While it’s rare for any defense treaty to spell out specifically that a country is required to automatically intervene to defend a partner under attack, the strength of the commitment can be signaled in other ways, such as how the U.S. stations thousands of troops in South Korea and closely coordinates with its ally over training and weapons systems, Cha said. But Russia, for instance, doesn’t have a troop presence in North Korea and the countries have no established track record in joint military activities and coordination, aside from the North’s alleged munitions transfers to Russia.

Putin signs deals with Vietnam in bid to shore up ties in Asia to offset growing isolation

The fact that the article invokes the countries’ domestic laws and the U.N. Charter could reflect that Russia tried to limit its defense obligation to very narrow conditions: when it’s clear North Korea did not instigate the aggression, the attack on the North is legally recognized in Russia as war and Russia’s defense of the North is justified by the U.N., Cha said.

“The agreement is a symbolic statement vowing the expansion of cooperation, but it leaves a lot of room for interpretation when we get into practice,” Cha said. “The biggest concern about the summit isn’t whether (Russia) committed to an automatic military intervention or not, but the possible expansion of North Korean weapons transfers to Russia and the transfers of Russian military technologies to the North.”

Putin said Thursday that the agreement calls for military assistance “only if aggression is committed against” one of the parties. He said that South Korea “shouldn’t worry” about the agreement if Seoul is not planning any aggression against Pyongyang. Advertisement

How could the Ukraine conflict factor into the agreement?

Asked whether Ukrainian strikes on Russian regions with Western-supplied weapons could be considered an act of aggression, Putin said “it needs to be additionally studied, but it’s close to it,” and that Moscow is not ruling out supplying weapons to North Korea in response.

A number of NATO allies, including the United States and Germany, recently authorized Ukraine to hit some targets on Russian soil with the long-range weapons they are supplying to Kyiv. Earlier this month a Western official said Ukraine has used American weapons to strike inside Russia. The official, who was not authorized to comment publicly on the sensitive matter, spoke on condition of anonymity.

Putin in response has said that Moscow “reserves the right” to arm Western adversaries, and reiterated the notion on Thursday. “I said, including in Pyongyang, that in this case we reserve the right to supply weapons to other regions of the world,” he said. “Keeping in mind our agreements with the Democratic People’s Republic of Korea, I’m not ruling that out.”

What kinds of military cooperation are possible?

Putin said he would not “exclude the development of military-technical cooperation with the Democratic People’s Republic of Korea in accordance with the document signed today.” Advertisement

That statement in effect formalizes something Western countries claim is already happening.

The U.S. and other allies allege that Russia has received ballistic missiles and ammunition from North Korea as the Ukraine war depletes Moscow’s inventory, and that Russia has made technology transfers to Pyongyang that could enhance the threat posed by Kim’s nuclear weapons and missile program.

North Korean state media also said the agreement requires the countries to take steps to strengthen their joint defense capabilities, but didn’t specify what those steps would be, or whether they would include combined military training.

The agreement also calls for the countries to actively cooperate in efforts to establish a “just and multipolar new world order,” the North’s Korean Central News Agency said, underscoring how the countries are aligning as they face separate, escalating confrontations with the United States and its allies.

“Russia and North Korea will likely hold the specifics of this cooperation close to their chests, but the agreement is a way of letting the world – and particularly the United States and its allies know – that they’ll be working together,” said Ankit Panda, a senior analyst at the Carnegie Endowment for International Peace.

What’s the economic aspect of the pact?

The partnership also calls for developing economic ties, an especially important issue for North Korea as it suffers under an array of international sanctions. North Korea needs food, industrial materials and other goods, and in turn can supply Russia’s war-depleted workforce with labor. Those workers could then convert wages in rubles to dollars or euros, potentially becoming a source of the hard currency North Korea desperately needs.

Such activities would violate U.N. sanctions. Hours before he arrived in North Korea, Putin had vowed in an op-ed that the countries would overcomes sanctions together. Russia is the subject of Western sanctions for its invasion of Ukraine.

Putin said the Russian-North Korean trade turnover has risen nine-fold over the past year, but admitted that the amount itself remains “modest.”

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Putin and Kim Jong Un will meet in North Korea, supporter of Russia's war in Ukraine

Se Eun Gong

Russian President Vladimir Putin (right) and North Korea's leader Kim Jong Un shake hands during their meeting at the Vostochny Cosmodrome in Russia's Amur region on Sept. 13, 2023. Putin is visiting North Korea this week. Vladimir Smirnov/AFP via Getty Images hide caption

SEOUL, South Korea — President Vladimir Putin of Russia has arrived in North Korea for a summit with leader Kim Jong Un.

Their meeting, the second in nine months, is a sign of the two countries' deepening political and military partnership built over Russia's war in Ukraine.

What North Korea's shift toward Russia means for its global strategy

Putin arrived early Wednesday morning, with the two leaders expected to meet later in the day. It is Putin's first trip to North Korea since 2000 and the first visit in North Korea by a head of state since the country shut its borders in 2020.

Putin and Kim last met in Russia's Far East in September, where Putin showed Kim around Vostochny spaceport and vowed to help North Korea's satellite development.

Pyongyang and Moscow cooperate on Ukraine

North Korea has consistently supported Russia from the early days of the war in Ukraine, voting against the United Nations resolution condemning Russia's invasion and joining Russia in recognizing Luhansk and Donetsk as independent states.

The United States and South Korea suspect North Korea has also been providing Russia with large quantities of artillery shells and other munitions for use against Ukraine, a claim that North Korea has denied.

South Korean Defense Minister Shin Won-sik said in a recent interview that North Korea could have shipped as many as 5 million shells and dozens of ballistic missiles to Russia.

Shin has said that Russia, in return, has been easing North Korea's economic hardships by sending containers likely filled with food and other aid.

Russia also has paid Pyongyang back with a political favor, voting to disband a North Korea sanctions monitoring panel at the United Nations Security Council in March.

In the past year, the two increasingly isolated countries have engaged in a flurry of bilateral diplomatic and cultural exchanges, including visits by North Korea's foreign minister and Russia's defense minister. In the same period, Kim Jong Un made frequent appearances at weapons factories and test sites.

In a letter published in North Korea's official Rodong Sinmun newspaper ahead of his visit, Putin praised North Korea for its support of Russia's war and characterized the two countries as fighting a similar struggle against the U.S. and its allies.

He pledged the two countries will "develop alternative trade and mutual settlement mechanisms not controlled by the West" and "build an equal and indivisible security architecture in Eurasia" while increasing people-to-people exchanges.

Putin's foreign policy aide Yuri Ushakov said the leaders may sign a comprehensive strategic partnership treaty that will replace earlier bilateral treaties.

Why the bilateral relations aren't expected to expand

But North Korea watchers in South Korea and the U.S. doubt the relationship will expand much further from the current transactions.

"The upcoming visit will likely be a kind of political lip service," says Cho Han-bum, a researcher at the Korea Institute for National Unification, a government think tank in Seoul. It can help Putin keep Kim Jong Un's support during the prolonged war, while elevating Kim's stature at home and abroad, he says.

"Once the war in Ukraine ends, North Korea will no longer be important to Russia," says Cho.

The volume of trade between Russia and North Korea is minimal compared with Russia's trade with South Korea or North Korea's trade with China.

Relations with South Korea are part of the reason Russia would be careful about making major offerings to the North, such as advanced military technology transfers or a mutual defense treaty, according to an analysis by the Institute for National Security Strategy, a think tank affiliated with South Korea's top intelligence agency.

Even if the two countries agree to a higher level of military cooperation, they would be reluctant to formalize or announce it, says Jenny Town, the director of the Korea Program at the Stimson Center, a foreign affairs think tank in Washington, D.C.

Not only are many of North Korea's military activities under sanctions, but also the country stresses self-reliance and shuns appearing dependent on other countries.

How China figures into North Korea-Russia ties

Still, Russia and North Korea may see each other's value as a strategic partner in their opposition to the U.S.-led world order, especially given China's elusiveness, says Town.

"Russia is willing to be bold, is trying to upend the system," she says, "whereas China is still trying to be part of that system and trying to have some governance role in that system."

China held high-level talks with South Korea on Tuesday, just hours before Putin's expected arrival in Pyongyang. And the leaders of China, Japan and South Korea held a trilateral summit last month for the first time in over four years.

"China still talks about denuclearization whereas the Russians seem to have generally accepted North Korea as a country that's nuclear armed," adds Town.

In an interview with Russia’s state media in March, Putin said North Korea "has its own nuclear umbrella."

With an intensifying arms race and eroding international norms, Town says bringing North Korea back to denuclearization negotiations will be much harder for the U.S. and its allies.

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A U.S. pact aims to help Ukraine’s military into the future, officials say.

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By David E. Sanger

Traveling with President Biden at the G7 summit in Italy

• June 13, 2024

President Biden signed a 10-year security agreement with President Volodymyr Zelensky of Ukraine on Thursday, an effort to signal a long-term American commitment to Ukraine’s future as an independent and sovereign state at a time when the war set off by Russia’s full-scale invasion is deep into its third year. But the accord could easily be upended by the coming American presidential election.

The deal outlines a long-term effort to train and equip Ukraine’s forces, provide more modern weapons and help the Ukrainians build their own self-sustaining military industry that is capable of producing its own arms.

Speaking at the Group of 7 summit in Italy on Thursday, Mr. Biden said the agreement was designed to make Ukraine self-sufficient and put the country on the road to NATO membership. The accord is essentially an executive agreement between two presidents.

“Our goal is to strengthen Ukraine’s credible defense and deterrence capabilities for the long term,” Mr. Biden said. “A lasting peace for Ukraine must be underwritten by Ukraine’s own ability to defend itself now and to deter future aggression.”

The pact is modeled on the kind of long-term security agreements that the United States has with Israel . But the “Israel model” is based on a congressional agreement to provide billions of dollars in aid. The agreement with Ukraine carries a commitment by the Biden administration only to work with Congress on long-term funding.

Given the bitter monthslong wrangling over the $60 billon in aid to Ukraine that Congress passed this spring, there is little appetite for bringing the issue up again until next year. If Mr. Biden were no longer in office, that commitment would mean little.

The new accord does not commit the United States to send forces in to defend Ukrainian territory. According to two administration officials, it requires the United States to “consult” with Ukraine about its needs within hours of any attack on the country.

NATO membership for Ukraine — which President Biden has opposed while the war with Russia is still being fought — might compel the U.S. to send forces if the country was re-invaded by Russia. That is one reason Mr. Biden has resisted.

While Mr. Zelensky embraced the agreement at the news conference with President Biden on Thursday, the Ukrainians are skeptical of these accords. Without congressional funding, the support is largely rhetorical.

Ukrainian officials often talk about the emptiness of the accord known as the Budapest Memorandum , a political agreement signed in December 1994 in which Ukraine agreed to give Russia old Soviet nuclear weapons that had been based in Ukrainian territory. In return, the memorandum committed Russia, the United States and Britain to seek help for Ukraine from the United Nations Security Council if it “should become a victim of an act of aggression or an object of a threat of aggression in which nuclear weapons are used.”

When Russia annexed Crimea two decades later, in 2014, Western nations said that Russia had violated its commitments to Ukraine, and they made a similar case in 2022, when President Vladimir V. Putin invaded the entire country. The Russians denied that claim, saying the accord had only committed them not to use nuclear weapons against Ukraine.

Speaking to reporters on Air Force One on Wednesday night as Mr. Biden flew to Italy for the G7 summit, Jake Sullivan, the national security adviser, said that the situation was radically different today, and that the United States and the West had already provided Ukraine with tens of billions of dollars in aid.

The new arrangement with Ukraine is not a treaty, so it does not require American security guarantees the way that mutual defense treaties with Japan, South Korea and the Philippines do. And because it is essentially an executive agreement, Donald J. Trump, if re-elected, could abandon the deal, as he abandoned the 2015 nuclear agreement with Iran in 2018.

Tim Balk contributed reporting.

David E. Sanger covers the Biden administration and national security. He has been a Times journalist for more than four decades and has written several books on challenges to American national security. More about David E. Sanger