Public Health Emergencies: Reconciling TRIPS and IHR (2005)

Abstract

One of the principal obligations for a government is safe- guarding the public’s health, and in dire circumstances such as an epidemic emergency this commitment converts from a passive duty to an urgent necessity. The global community, and its avatar in the World Health Organization, has taken measures to bolster national and international disease response mechanisms so as to prepare for and respond to future outbreaks stemming from their legal commitments under the International Health Regulations (2005) (IHR (2005)) to do just that. Meanwhile, and intertwined, governments have a strong incentive towards ensuring that researchers into new drugs and products – essential weapons in combating current and future health threats – have their intellectual property rights respected and enforced. The Trade-Related Aspects of Intellectual Property Agreement (TRIPS), governed through the World Trade Organization, seeks to create a global standard for intellectual property rights among its membership. The recent formal adoption of an amendment for to the agreement regarding compulsory licenses is purposed with helping resolve some of the questions that emerge when public health emergencies intersect with intellectual property rights, particularly in regards to ensuring adequate and affordable supplies of an essential but patented product are available in outbreak response. This paper contends that interpreting the amendment to TRIPS through IHR (2005) requires governments who are members to both international legal instruments to adopt legislation facilitating compulsory licenses in response to public health emergencies.

Keywords: public health, global health, intellectual property, health emergencies, international law