The precautionary approach under the right to health dilemma

Abstract

This paper examines the mechanism of compulsory licensing after the interpretation of the Doha Declaration. It argues that the notion of precaution has been incorporated into the Trade Related Aspects of Intellectual Property Rights Agreement through the exclusion of patentable subject matter and the interpretation of the Doha Declaration. In addition, state practice in recent years also demonstrates that precaution has been implemented into the application of compulsory licensing under a public health emergency. This paper scrutinises the health exceptions in World Trade Organization laws and suggests that the device of compulsory licensing is related to the scheme of provisional sanitary and phytosanitary measures which reflects the spirit of precaution.

Keywords:

• precaution
• compulsory licensing
• health exception

Acknowledgements

This paper was first presented at Bileta Conference, Winchester, 21–23 April 2009. The author would like to express her gratitude to Professor Graeme Laurie, Dr Abbe Brown and Dr James Harrison for their comments and support. However, any errors and omissions are those of the author.

Notes

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