From Fragmentation to Coherence: A Constitutionalist Take on the Trade and Public Health Debates

Abstract

In view of the potential conflicts between trade liberalization commitments and public health measures, this paper proposes four concrete approaches to resolve them: interpretative, legislative, human rights and global principle of subsidiarity. The interpretative approach relies upon the assistance of VCLT. The legislative approach focuses on the role of the drafter of a given international agreement in defining the relationship between itself and other international agreements. It also addresses the role of international organizations or treaty bodies as international law-makers in mitigating regime collision. The human rights approach, with the overarching right being right to health, aims to empower individuals and endorse greater weight to public health in the weighing and balancing processes. The global principle of subsidiarity aims to direct the international organization concerned to be sensitive to values external to it. These four approaches are then to be linked by a constitutionalist approach toward international law thereby advocating a global constitutional order.

Keywords: global consitution, fragmentation of international law, public health, WTO, WHO