From the late twentieth century onwards, several global virus transmissions have challenged the values and rights of states' in the international legal framework. The emergence of these newly-discovered infectious diseases exposes the lack of a mature legal framework in international public health to provide prompt, concrete and specific guidance during a large-scale emergency. This book argues that a precautionary approach should be taken in the international intellectual property regime in order to enhance access to medicines in a public health emergency. The work investigates the complementary roles of the World Health Organization (WHO) and the World Trade Organization (WTO) in order to promote the harmonisation of the precautionary approach in relation to the patenting of crucial pharmaceutical products. The book analyses the compulsory licensing mechanism in both WTO and GATT jurisprudence focusing on exception provisions, the 'like-product' analysis and the precautionary framework of the (Agreement on the Application of Sanitary and Phytosanitary Measures.
It shows how states could begin to take advantage of the flexibilities of compulsory licensing in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in order to enhance the right to health. By bringing together international trade law and intellectual property law Phoebe Li demonstrates how through the use of risk analysis and the precautionary approach States can still comply with their legal obligations in international law, while exercising their sovereignty right in issuing a compulsory licence of a drug patent in an uncertain public health emergency.
1. Introduction 2. The development of the precautionary approach 3. The precautionary approach in international law: International health and trade 4. Redefinition 5. The different faces of the precautionary approach in TRIPS 6. The different faces of precautionary approach in compulsory licensing 7. Conclusion: the precautionary approach as a means to differentiate health technologies in IP