Revisiting public health emergency in international law: a precautionary approach
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Date
26/06/2012Author
Li, Phoebe Hung
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Abstract
This work develops a means to encourage states to take advantage of the flexibilities of
compulsory licensing in the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) which promotes access to medicines in a public health
emergency.
In pursuing this solution, the precautionary approach (PA) and the structure of risk
analysis have been adopted as a means to build a workable reading of TRIPS and to help
states embody the flexibilities of intellectual property (IP). This work argues for a PA
reading of TRIPS and that states have the precautionary entitlements to determine an
appropriate level of health protection from the perspective of “State responsibility” in
international law. A philosophical review is conducted followed by the examination of
existing international legal instruments including the WTO Agreement on the
Application of Sanitary and Phytosanitary Measures, the WHO International Health
Regulations, the Codex Alimentarius, and the Cartagena Protocol on Biosafety. The PA
has been found to have a pervasive influence on risk regulation in international law, yet
the application is fraught with fragmentations in different legal regimes. In order to
reach a harmonious interpretation and application of the PA in the WTO, the legal status
of PAs of different WTO instruments have been analysed. Further, a comparative
study on PAs in terms of legal status in the exemptions of the WTO and TRIPS
obligations has been proposed. The political and moral basis for compulsory licencing
in a public health emergency has been bolstered through the interpretation and the
creation of legal status of the PA in WTO/TRIPS law.