This Article critically examines the proliferation of international legal agreements addressing global health threats like the outbreak of infectious diseases, tobacco use and lack of access to affordable medicines. The conventional wisdom behind this trend is that a global normative shift has occurred which has caused states to regard health as “special” and less subject to the normal rules of international law making because health threats endanger all of humanity. This Article challenges that thesis, arguing that at the same time the number and scope of international health law treaties has grown, developed states have subordinated health law to intellectual property protection for patents and trademarks, both of which erect substantial barriers to the objectives of public health law treaties. To the extent international health law has generated meaningful gains for global population health, it has not done so through a normative shift in how diplomacy works, but precisely because of politics as usual. International public health law gains have come largely from the efforts of an emerging group of middle-income, influential states like Brazil, India, Indonesia, South Africa and Thailand who have sufficient weight to force concessions from wealthier states. Using the parallel histories of international intellectual property treaties and global public health law, the Article demonstrates that the normative force of health-based arguments is relatively weak. To the extent public health advocates urge the adoption of more treaties, as they are now poised to do, they must more squarely address the threat posed by international intellectual property protection and make strategic calculations as to the political feasibility of those agreements given the changing distribution of global economic and political power.
35 Mich. J. Int'l. L. 1 (2014).