Trade, foreign policy, diplomacy and health

7. International Law

David P Fidler

3. Priorities in the production of GPGH

  • Conflicts between GPGH and other GPGs arise in international trade law
  • e.g. GPG of trade liberalization vs GPGH of better environmental protection
  • e.g. access to HIV therapies vs protection of intellectual property rights

Another factor that complicates the use of international law in the production of GPGH involves perceived conflicts between GPGH and other GPGs. These conflicts have arisen most famously in the context of international trade law. Many commentators have analyzed the question whether the GPG of trade liberalization, supported by the international trade law overseen by the WTO, trumps the GPG of better environmental protection pursued through international environmental law. Similar questions have arisen about whether trade liberalization takes priority over public health concerns and the improvement of international labour standards.

Non-state actors can also find themselves at loggerheads over priorities. In the dispute over compulsory licensing and parallel importing of HIV therapies in South Africa, MNCs and NGOs squared off in a bitter controversy about whether access to HIV therapies should take precedence over the protection of intellectual property rights. States can minimize such conflicts over priorities in the drafting of treaties, so international law can be used to finesse priority controversies. Whether the priorities are struck in a way that favours the production of GPGH is, however, not a legal but a political question determined by the give-and-take of diplomacy