Does International Law Need a Conscience? Evaluating the India–South Africa Proposal to Suspend TRIPS Obligations and the COVID-19 Vaccines

Abstract

There is undoubtedly a consensus within the international community that ‘vaccine nationalism’ is an undesirable state of affairs. However, states are self-interested actors and in the absence of constraints imposed by international economic law this pursuit of rational self-interest is likely to result in an outcome that is unjust on a global scale. The recent proposal by India and South Africa to suspend TRIPS obligations for the duration of the COVID-19 pandemic has been rejected within the WTO. This proposal constitutes a recognition of the inadequacies surrounding the TRIPS compulsory licensing scheme. Yet, the immersion of intellectual property law within international investment law together with the proliferation of free trade agreements containing TRIPS-plus obligations would likely have made such a proposal unworkable. We argue that the fundamental problem is that the TRIPS Agreement lacks a defined concept of conscience that governs both its operation and interpretation. Such a principle exists in the common law within the field of private law. The principle, in its various doctrinal iterations, navigates the tensions between different parties while serving an underlying purpose of justice within the common law. It has much to offer international intellectual property law.