The Gewirthian Needs-Based Hierarchy: A Concept for Prioritising Conflicting Norms in International Law

Abstract

ABSTRACTInternational law is divided into functionally detached treaty regimes which lack clear hierarchies between them. Specific rules on how to prioritise among conflicting norms, e.g. between international patent rights under the World Trade Organisation TRIPS regime and the fundamental right to health under United Nations human rights law, are missing. Political sentiments and economic policies often tend to prioritise business interests, including the protection of pharmaceutical patents held by multinational corporations, over contrasting societal interests, which has direct negative impacts on the realisation of economic and social human rights. In this context, this article takes account of moral philosophical reasoning, with particular consideration to the needs-based hierarchy established by Alan Gewirth in his conceptualisation of the principle of generic consistency. The article shows how, when applied to the concept of human dignity, the needs-based hierarchy can provide guidance on adequate prioritisation among conflicting legal norms, suggesting the necessity of protecting the most fundamental human needs over less essential economic interests.