An Elementary Consideration of Humanity? Linking Trade‐Related Intellectual Property Rights to the Human Right to Health in International Law

Abstract

This paper explores methods of achieving linkage in international law between the human right to health and the World Trade Organization (WTO) Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPS)). It explores the relevance to this question of international law's accepted hierarchies, namely jus cogens (peremptory norms), ergo omnes duties (duties “owed to all”) and section 103 of the United Nations (UN) Charter. It argues that these rules collectively prohibit gross violations of any rights including health, and place reasonable limits on all human conduct (including trade) to protect human health and life. It turns to historical support for these assertions, including recent de facto recognition that access to AIDS medicines in Sub‐Saharan Africa presents a legitimate exception to TRIPS rights. The paper further explores interpretive methods in international law for recognizing the prioritized value of human life and health within existing WTO law and dispute settlement processes, including from the Vienna Convention on the Law of Treaties. It concludes that raising health's priority requires a substantive reordering of the normative priorities that drive trade rules. It suggests that a practical strategy for raising the priority of health within decision making by WTO dispute settlement panels and domestic governments is to advance legal argument about health's appropriate location within international law's existing hierarchies.