'Access to Medicines for All': WTO Rules, the Human Right to Health and the Hierarchy of International Law

Abstract

The epidemiology and political economy of the global health gap has provoked struggle over TRIPS and access to medicines for HIV/AIDS and other health needs in developing countries. This in turn raises broader questions about the WTO regime’s impact on health and its relationship to other international legal norms, such as states’ legal obligation to realize progressively the human right to the highest attainable standard of health. A critical review of WTO treaties and jurisprudence identifies concerns with the regime’s treatment to date of health-related measures. In WTO dispute settlement, a state’s binding human rights obligations must not only guide WTO treaty interpretation but be given full effect, in line with the international legal hierarchy in which human rights norms are “constitutional”, enjoying primacy over other norms such as WTO intellectual property rules. This hierarchy can and should be reflected in the creation, interpretation and operation of the WTO regime.