How Necessity May Preclude State Responsibility for Compulsory Licensing Under the TRIPS Agreement

Abstract

This article argues that a rule based on rules of State responsibility under international law might provide an equally persuasive basis for improving access to affordable and essential medicines. Ordinarily, the problem of accessibility and affordability of essential medication for HIV/AIDS, malaria, and tuberculosis is viewed as humanitarian in nature and as a permissible exception to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Here, however, the article proposes the use of targeted licensing of essential medicines to facilitate access for citizens of those countries with major health pandemics without bearing State responsibility for departing from the TRIPS Agreement. This argument is based on necessity as a customary international legal principle to relieve State responsibility at a time of grave and imminent peril. While this is not the first argument for nations breaking from international law, it is, nevertheless, a necessary consideration in the access to medicine debate in order to remedy such problems.

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