The Gewirthian Needs-Based Hierarchy: A Concept for Prioritising Conflicting Norms in International Law

ABSTRACT International law is divided into functionally detached treaty regimes which lack clear hierarchies between them. Specific rules on how to prioritise among conflicting norms, e.g. between international patent rights under the World Trade Organisation TRIPS regime and the fundamental right to health under United Nations human rights law, are missing. Political sentiments and economic policies often tend to prioritise business interests, including the protection of pharmaceutical patents held by multinational corporations, over contrasting societal interests, which has direct negative impacts on the realisation of economic and social human rights. In this context, this article takes account of moral philosophical reasoning, with particular consideration to the needs-based hierarchy established by Alan Gewirth in his conceptualisation of the principle of generic consistency. The article shows how, when applied to the concept of human dignity, the needs-based hierarchy can provide guidance on adequate prioritisation among conflicting legal norms, suggesting the necessity of protecting the most fundamental human needs over less essential economic interests.


Introduction
The human right to health stipulates the entitlement to a standard of living adequate for the health and well-being of everyone, and explicitly recognises medical care as a necessity for its realisation. 1It is affirmed in several international conventions and declarations, 2 with its most comprehensive affirmation being found in Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), with almost global applicability. 3evertheless, one-third of the world's population lacks adequate access to medicines. 4t is estimated that each year 10 million lives are needlessly lost. 5This is particularly unjust considering that the causative health conditions are treatable, and the suffering preventable, but that those in need cannot access the required medications. 6While the inaccessibility of medicines is caused by a variety of reasons, high drug prices are one of the main determinants, particularly for people living in poverty. 7Medicine prices are considerably influenced by pharmaceutical patents and concomitant exclusive rights over the production, sale, and use of patented products. 8In 1995, the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) internationally harmonised patent rights, establishing the current international patent regime. 9TRIPS requires that patents are made available without discrimination as to the field of technology, meaning that WTO member statesexcepting least-developed countries (LDCs)cannot exclude the patentability of pharmaceutical products. 10As a result, medicine prices increased in many developing countries where pharmaceutical patents were formerly not available. 11ecause of the contrasting interests of the stakeholders protected by the right to health and patent rights, norm conflicts between the two legal regimes are predestined to arise.Where cheaper generic medicines are required to address local healthcare needs, the protection of the right to health may conflict with the protection of patent rights, while the strict protection of patent rights can jeopardise the realisation of the right to health by restricting the affordability of medicines.While these problems were recognised by the Doha Declaration in 2001 12 and re-addressed by the TRIPS Amendment implementing the interim waiver of Doha Declaration paragraph 6 13 as Article 31bis in 2017, recent debates on a TRIPS waiver for Covid-19 vaccines prove that the underlying issues are not yet conclusively solved. 14f we recognise the detrimental impacts of pharmaceutical patent rights and potential conflicts when the requirements of human rights law and intellectual property (IP) law stand in contrast to each other, questions arise concerning a potential hierarchy that can establish parameters for prioritisation.In the knowledge that such a hierarchy is nonexistent under international law, this article analyses whether non-legal considerations may suggest the legitimacy of prioritising certain fundamental human rights above conflicting norms of international IP law.I seek the rationale in moral principles: recognising the vital importance of those human rights that protect life and well-being, and justifying their prioritisation based on the concept of human dignity.Human rights are inherently connected to the dignity held by all human beings without discrimination, solely by virtue of being human. 15Based on this fundamental connection, human rights entail moral claims justified by universal human interests whose validity is not subject to their recognition by positive law.The meaningful acknowledgement and protection of human rights requires further elaboration by legal provisions, 16 yet as 'self-evident' moral norms their legitimacy is not dependent on their recognition by contract or positive law: they exist even where an authority denies their recognition. 17his article analyses the principle of generic consistency (PGC) put forward by the late US philosopher Alan Gewirth, 18 and particularly his conceptualisation of a needs-based hierarchy, to identify whether this moral approach to rights can justify a prioritisation of certain human rights over contradictory international legal norms.The Gewirthian needs-based hierarchy seems particularly well suited for this purpose because it identifies parameters for prioritising among conflicting rights based on their importance for fulfilling basic human needs, emphasising rights that are more essential for agency over less important rights, without disputing their general legitimacy.My rationale for focusing on Gewirth's concept of morality stems from its provision of a practical moral approach to legal interpretation, one that does not require significant changes to the current international legal system.The needs-based hierarchy can thus offer a practical approach to addressing the issue in a way that is compatible with this system.The needs-based hierarchy can offer a practical approach to addressing the issue in a way that is compatible with the current international legal system.In contrast, natural law theory, while potentially providing similarly effective solutions to the problem, is too metaphysical in that its adoption .While an analysis of how the Gewirthian theory interacts with or deviates from these previous legal theories could add to debates on legal theory, such an analysis lies beyond the scope of this contribution. 18Alan Gewirth (1912-2004) was a philosopher and professor of philosophy at the University at Chicago.His works on reason, morality, and human rights challenged traditional perspectives on the philosophy and justification behind (human) rights.
would necessitate a distinct departure from the current legal-political reality.My suggestion to adopt the needs-based hierarchy is made without prejudice to other approaches that may be equivalently suitable for mitigating norm conflicts in international law, such as the objective list theory focusing on basic goods and well-being, or the capability approach that, rather than focusing on rights, focuses on the actual capacity to achieve desired living conditions.A comparison of the different approaches, however, exceeds the scope of this article.

Hierarchies in International Law
International law evolved fragmentedly in various forums at various times throughout history.Today, it is largely divided into bilateral, regional, multilateral, and international treaties.A major problem with this separation into different treaty regimes is that the individual regimes are not subject to an overarching hierarchical structure. 19Furthermore, international law is governed and upheld by various independently acting international organisations and institutions with oftentimes starkly contrasting interests and/or stakeholders.The lack of a distinct constitutional order thus suggests a need for a hierarchy or similar measure for determining which rules prevail when norms conflict.

The binding nature of human rights law
As a mere declaration, the Universal Declaration on Human Rights (UDHR) is aspirational rather than directly legally binding. 20Yet it has been suggested that due to its nature, its historic importance, and its widespread acceptance, as well as through state practice and opinio juris, the UDHR has become part of customary international law, and is thereby legally binding. 21This idea is contested, however, and not yet ruled upon by the International Court of Justice. 22On the other hand, the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR are both voluntarily accepted by states and are thus legally binding on their members upon ratification. 23Similarly, most regional human rights treaties are legally binding on their members. 24While not all human rights norms have global reach, it seems reasonable to suggest that international human rights law generally is legally binding upon states.This view is supported by the Second World Conference on Human Rights, which concluded in 1993 that ' … the universality of all human rights is beyond question'. 25 predominant weakness of the international human rights system is that it ' … lacks the power to enforce compliance'. 26Without a specialised court enforcing the Bill of Rights, international human rights law relies on states' willingness to uphold it. 27s state action reflects political power relationships, human rights are too often neglected as a direct consequence of power play. 28A further weakness of the UN system is that the Commission on Human Rights only adopts non-binding resolutions. 29Thus, the enforcement measures available under UN human rights law cannot influence governments in the same way as binding court judgments. 30n the context of the right to health, enforceability is further restricted by the ICESCR itself.As the realisation of economic and social human rights is heavily dependent on available resources, 31 Article 2(1) ICESCR, which facilitates progressive realisation, may undermine the enforceability of human rights law by providing an easy defence for non-compliance. 32The human rights regime has further suffered from its limited capacity to deal with new challenges arising from the international economic order and transnational economic actors. 33The experience is somewhat different with regional human rights enforcement which tends to be more effective at protecting human rights. 34egional decisions, however, are not generally referable to disputes outside their respective regions.Thus, while legally binding, human rights law tends to lack meaningful enforcement methods on international level, and these are urgently required.

The enforceability of IP rights under international trade law
As international IP rights derive from international treaties to which states expressly consent, such as through WTO trade agreements, they are directly binding on the member states of such agreements. 35While this is similar to human rights treaty law, WTO law is more easily enforceable than UN law because the WTO can sanction its member states for treaty violations. 36The WTO Dispute Settlement Understanding (DSU) is considered one of its central pillars, upholding the rule of law by ensuring that WTO rules can be effectively enforced in situations of dispute. 37Because it has the possibility of directly imposing sanctions for violations of WTO agreements, the DSU provides an exceptionally strong enforcement mechanism under international law. 38And because the power of its enforcement mechanisms can even exceed the power of democratically elected governments, the WTO tends to have considerable influence over public policy decisions. 39Most other bilateral and multilateral free trade agreements also implement arbitration systems, thereby establishing their own enforcement mechanisms. 40As a result, international trade and IP laws are not only legally binding but also directly enforceable in the international realm without the need for instituting domestic legal proceedings.

Prioritisation in situations of norm conflict
Both international human rights law and international IP law provide rights protecting certain interests of their respective stakeholders.These rights often stand independently alongside each other, or, in some cases, complement each other.For example, the recognition of IP as a human right under Article 17(2) of the EU Charter of Fundamental Rights can provide additional legitimacy to the right to IP. 41 Patent rights can foster medical innovation and thereby make new medicines available; the availability of medicines is one of the main elements of the human right to health. 42On the other hand, however, IP rights under trade law and human rights law may stand in stark contrast with each other.This is exemplified by the detrimental impacts patent rights can have on the accessibility of medicines.Patents provide exclusive rights to innovative industries thereby enabling monopoly positions on the market.This commonly leads to higher prices for patented products, including the prices of life-saving medicines, thus severely restricting their accessibility for people in poverty. 43As a result, the exercise of IP rights hampers the realisation of the human right to health.Both sets of rights are legally valid and thus simultaneously applicable.This prompts the question of whether a hierarchy exists in international law, suggesting the superiority of either of these legal norms.
In contrast to hierarchical domestic legal structures, international law is commonly regarded as horizontal. 44In essence, international law is divided into functionally detached treaty regimes that frequently omit the provision of a distinct elaboration of their relationship towards one another. 45Furthermore, judicial bodies tend to be reluctant to explicitly address controversial issues surrounding the identification of hierarchical structures between conflicting norms of different treaty regimes. 46As a result no consistently uniform legal hierarchy exists between human rights and IP rights under international law. 47Instead, according to the principle of harmonious interpretation, of Article 31(3)(c) of the Vienna Convention on the Law of Treaties, different treaty regimes should be harmonised by avoiding conflicts through balanced interpretations. 48his can be detrimental to the protection of human rights, where any restrictions adversely impact human dignity. 49ny prioritisation of rights is further subject to the body dealing with a specific dispute. 50Courts and tribunals are required to act within their mandate, meaning that human rights courts follow applicable human rights treaties, potentially prioritising human rights law, while trade tribunals focus on trade agreements, prioritising trade concerns. 51In this respect, the strong enforcement mechanisms provided for by international trade law further jeopardise the adequate observance of comparatively weakly enforced human rights, so that human rights are destined to lose out in situations of conflict.The non-existence of a legal prioritisation of human rights is therefore debilitating to their very purpose.

Morality as a Guideline for Solving Norm Conflicts
The following section examines whether moral philosophical reasoning can suggest the superiority of certain legal norms.This analysis is based on the recognition of the fundamental status of the right to health, but this recognition is not intended to stipulate that the right to health constitutes an absolute right.Absolute rights are inherently superior to other rights as derogations from absolute rights cannot be justified. 52As Article 2(1) ICESCR subjects it to progressive realisation, the right to health cannot be absolute: derogations are permissible at least to a certain extent. 53The right to health should nonetheless be regarded as fundamental in that it provides an essential foundation for protecting the values of human life and well-being.In contrast, IP protection, at least under trade law, is not an end in itself, 54 but rather intended to fulfil the societal objective of promoting progress and development. 55The various limitations imposed on property rights suggest that IP rights are subordinated to public interests and serve the purpose of contributing to the achievement of higher societal aims, including the protection of human life and human dignity. 56onsidering the non-existence of a hierarchy in international law, we might ask whether any valid moral principles outside the realm of purely legal reasoning and black-letter law recognise that fundamental human rights not only justify limitations to IP rights but suggest a certain hierarchical superiority.The following analysis takes up the idea that certain human rights are distinguished from less essential rights not by law but by the fundamental value of human dignity. 57It also takes a humanist approach, specifically concerning the human element in human dignity and human agency, rather than agency as the standalone broader concept of the capacity to engage in purposive action.I adopt the humanist perspective because the human is at the core of human rights, and arguably the main centre of ethical conduct. 5850 Karamanian (n 19) at 238. 51 Ibid. 52de Wet and Vidmar, 'Conclusions' (n 46) 301; Harmen van der Wilt, 'On the Hierarchy between Extradition and Human Rights' in Erika de Wet and Jure Vidmar (eds), Hierarchy in International Law: The Place of Human Rights (OUP 2012) 173. 53ICESCR, art 2(1). 54This article specifically focusses on the conflict between human rights to 'well-being' and IP rights under trade law.An analysis of the concept of IP as a human right exceeds the scope of this analysis. 55Cornides (n 47) 158. 56Ibid.143, 155, and 159. 57Ibid.137; Freeman (n 16) 69. 58Gewirth specifically referred to prospective purposive agents rather than human agents to avoid allowing abusive regimes to deny basic rights by defining subhuman classifications, as occurred in Nazi Germany.While the terminology This distinction may become increasingly relevant in the future when artificial intelligence (AI) learns to act by itself, becoming an agent of its own.It is already relevant in IP: on 30 July 2021, the Federal Court of Australia held in Thaler v Commissioner of Patents that an AI can qualify as an inventor under Australian patent laws, although the decision was revoked in Commissioner of Patents v Thaler. 59

Law and morality
Morality as a concept is not only concerned with human action as such, for it also considers the motives and reasons behind action. 60It prescribes guidelines for everyone's behaviour that take precedence over all other motivations, including self-interest, by determining how anyone ought to act in certain circumstances. 61While various meanings are attributed to the concept of morality, Gewirth argued that a certain core meaning can be constructed: … morality is a set of categorically obligatory requirements for action that are addressed at least in part to every actual or prospective agent, and that are concerned with furthering the interests, especially the most important interests, of persons or recipients other than or in addition to the agent or the speaker.The requirements are categorically binding in that compliance with them is mandatory for the conduct of every person to whom they are addressed regardless of whether he wants to accept them or their results, and regardless also of the requirements of any other institutions such as law or etiquette, whose obligatoriness may itself be doubtful or variable. 62sed on this, it seems appropriate to suggest that the protection of the most important human interests imposes binding moral obligations on everyone, irrespective of whether we personally accept the moral principle as individuals.The weight of such a moral principle elevates the requirement to adhere to it above contradictory legal provisions.
According to natural law theory, 63 for example, a law is only justified if it is rationally moral and for the benefit of the common good. 64For natural law theorists, as Ehrenberg has written, ' … it seems fairly clear that in its central case law has a moral aim'. 65

The concepts of human agency and human dignity
Seeking a valid moral principle to prioritise certain rights above others, it is important to define an objective foundationnamely a fundamental human interest in which the moral principle can be grounded.Gewirth, Reason and Morality (n 61) 1. Emphasis added. 63It must be noted here that the concept of natural law theory is not uncontroversial and that there exists a variety of valid counterarguments and criticism.A detailed analysis of these controversies, however, lies beyond the scope of this article. 64Kenneth M Ehrenberg, The Functions of Law (OUP 2016) 69. 65Ibid.82.A strong reading of natural law theory rejects laws that do not fulfil this purpose, denoting them as not truly legal, i.e. not-law.This radical view is criticised by legal positivists, highlighting the inconsistency in the claim that unjust laws are not-law.Consequently, a weak reading of the natural law theory has evolved, simply suggesting that unjust laws are merely defective.See Ehrenberg (n 64) 69-71 and 80-81.
concepts of human agency and human dignity, which presumably constitute the most essential human values because of their fundamental importance for realising a meaningful human existence.Human agency is the capability of humans to act independently, making voluntary choices according to their free will. 66For this, human agents have generic needs, requirements that need to be fulfilled to facilitate successful action towards a purpose. 67Gewirth categorised generic needs, also referred to as generic goods, into three types: non-subtractive goods, additive goods, and basic goods. 68Non-subtractive and additive goods constitute second-order goods in that they are relative to an individual's status quo of possessions and opinions. 69Non-subtractive goods are goods that retain an individual agent's current standard, while additive goods are required for raising this standard, that is, for achieving a higher level of purpose-fulfilment. 70While the scope of secondorder goods can vary between groups and persons, basic goods can be regarded as first-order as they have the same relevance for all agents. 71The right to food, for example, protects a basic good in that nutrition is a vital prerequisite for the existence of any human, while a right to paid holidays addresses a second-order good in that it increases living standards without being an essential human need. 72Basic goods ' … constitute the general necessary preconditions of action'. 73They include, inter alia, physical and mental capacities, including an agent's freedom, life itself, and physical integrity. 74The notion of physical integrity stipulates that basic goods further include the necessary means for the preservation of life: food, clothing, shelter, health, and the like. 75As basic goods, which can be summarised as comprising freedom and basic well-being, are the fundamental requirements for human agency, they can also be considered basic needs. 76ere, a connection can be drawn to the concept of human dignity, but the latter can be vague and ambiguous. 77In its historical context, dignity was commonly regarded as attached to a certain role or position, belonging to someone holding a particular office, for example.Dignity was entrenched in the social order, with persons of higher standing considered to attract a higher degree of dignity. 78This concept can be labelled 'hierarchical dignity'. 79Kant argued in the eighteenth century, however, that 'human dignity' stems from the human capacity for freedom and rationality, and mandates that human beings are never treated as mere means but as ends in themselves. 80This idea fed into the contemporary moral concept of dignity, human dignity, which recognises the inherently equal worth of all human beings. 81Thus the dignity of the human person is inalienable, or, as per Article 1(1) of the German Constitution, inviolable, and applies equally to everyone simply as an inherent feature of being human. 82Reference to human dignity can be found in all three documents of the International Bill of Rights, with both the ICESCR and the ICCPR stipulating that human rights ' … derive from the inherent dignity of the human person'. 83In other words, it is because humans ought to have dignity that they deserve to be treated equally and with respect. 84hile the contemporary view of human dignity understands the concept ' … as a source of claims toward others', 85 those claims are not further specified other than that every human has the right to respect for their dignity.As the worth of human beings and their rationality ultimately depends on their capability to freely engage in action, human agency can be seen as a prerequisite for human dignity.The Gewirthian basic needs for human agencyfreedom and basic well-beingtherefore also constitute the basic needs for human dignity.For the concept of human dignity, however, these basic needs only constitute the absolute minimum requirements, so the listed goods are non-exhaustive.As human dignity entails the equal and respectful treatment of every human being, the realisation of human dignity requires more than the mere realisation of freedom and basic well-being.

Universally valid moral rules and the needs-based hierarchy
Any identification of an indisputable principle of moral correctness is contentious at best, as can be seen from the wide variety of diverging moral philosophies that have emerged throughout human history.Yet many moral systems share common denominators, for they agree to a certain extent that moral conduct promotes what is good for the community.Discrepancies arise particularly regarding the question of whose interests and which interests should be emphasised, especially when one actor's interests differ from those of others. 86n what he calls 'the problem of the independent variable', Gewirth, therefore, questioned ' … whether there are any objective independent variables that serve to determine the correctness or rightness of moral judgements'. 87In view of the variety of answers provided to ethical questions by various moral philosophical concepts, Gewirth contemplated the possibility of rationally advocating the existence of a supreme moral principle, which provides a unitary and universally valid interpretation of morally right conduct. 88As a supreme moral principle must be capable of resolving all moral conflicts, it is necessary to establish a single precept encompassing all justified moral positions. 89This idea has been criticised on the basis that different valid moral values may 81  contrast with each other, so a supreme moral principle itself may be in conflict with another justified moral value. 90ne of the main problems of defining a single valid rule arises when multiple obligations stand in direct contrast.The requirement to act cannot exceed an actor's capabilities, meaning that an actor is only required to do what they reasonably can perform. 91If it is impossible to provide help to two persons at the same time, an actor cannot be morally obliged to help both.Moral concepts may fail to provide guidance on how to assess which person in need is more deserving of help. 92n such situations, the Gewirthian concept of needs can provide appropriate parameters to assess which person requires help the most.According to Gewirth's 'degrees of needfulness for action', a needs-based hierarchy can be established which prioritises those needs that are most essential to human agency. 93In this consideration, it seems sensible to prioritise the needs of a person whose very basic goods of life or physical integrity are at risk above the needs of a person whose non-subtractive goods, such as recreational property, are at risk.Gewirth thus based his concept of morality on, inter alia, the importance of these basic goods for agency and the recognition of agency as the fundamental requirement for individuals to engage in voluntary and purposeful action.Establishing action as the objective universal feature of all persons and as the central feature of moralityin that morality provides how humans should or should not act -Gewirth derived his supreme moral principle from the concept of action and the agency required to engage in action, in what he calls the principle of generic consistency (PGC).Gewirth accounted for both universality and humanity in his rational derivation of the PGC by basing it on the universality of (human) agency.
In the context of this analysis, the PGC shall not be seen as a single rule capable of solving all moral conflicts, but as an underlying basic principle that guides all other rules by providing a minimum requirement for moral conduct.If valid, the PGC could then be used to identify a moral hierarchy between conflicting legal norms, where international law fails to appropriately define one.

The principle of generic consistency
To demonstrate the significance of the Gewirthian needs-based hierarchy, it is important to elaborate on the conceptualisation and basic scope of the PGC, which Gewirth considered the supreme moral principle.The key point for this article is not how Gewirth derived the principle, or indeed an analysis of its supremacy, but rather how he formulated the concept of rights and generic rights based on the universal necessity of the basic needs of all human agents.
For Gewirth, normative morality cannot be empirically determined, but must rather be based on a feature universally held by all persons capable of morality, irrespective 90 Ibid. 91 of individual opinion. 94He considers this feature as simply 'action' itself, and thus also the agency and necessary conditions for successful action: freedom and well-being. 95uman action generally comprises two generic features: (a) voluntariness, i.e. the agent's control of their actions by means of their unforced choice, and (b) purposiveness, i.e. the intention or reasons for an actor to engage in any action; according to Gewirth, agents view the ends of their actions as good and thus must also regard the means required for successful action as necessary goods. 96The main aim of Gewirth's concept of morality is then to establish an objective, categorically obligatory moral principle which has to be logically accepted by every agent based on the simple fact that they engage in action. 97The agency required for action can therefore be employed as a universal criterion for morality, as everyone has to accept its validity. 98This is because the denial of its relevance would itself require an agent to engage in a voluntary and purposeful action. 99For action to be successful, agents must further claim their rights to freedom and well-being.And '[b]ecause any agent who denies or violates this principle contradicts himself, the principle stands unchallenged as the criterion of moral rightness'. 100ased on the universality of action, and the goods required for any and all successful action, Gewirth derived his supreme moral principle from a logical progression by which agents act towards a purpose they implicitly consider to be good.For this, every agent has to accept the necessity of the basic goods as basic rights for acting towards this purpose, so it necessarily follows that every agent has to claim these rights to fulfil their intended purpose. 101o emphasise its importance, this derivation can be further elaborated.Notably, an agent's evaluation of the goodness 102 of their actions and purposes is subjective, and therefore does not implicitly establish the objective goodness of their actions. 103owever, the necessary means for actionnamely the basic goods of freedom and well-beingare universally required by any agent for them to engage in action.Thus, Gewirth also referred to these features as 'generic goods'. 104While recognising that between different groups and persons diverging views exist as to what is good and what entails well-being, Gewirth demonstrated that these variations do not affect his conception of the basic goods. 105ecause of the universal necessity of the generic goods, which all agents must hold as the generic features of their successful action, all agents must logically claim these as rights simply based on the purposiveness of their agency, and the fact that they want 94 Gewirth, Reason and Morality (n 61) 5-7; Jowitt (n 75) 80. 95 Jowitt (n 75) 80-81. 96Gewirth, Reason and Morality (n 61) 27. 97Ibid.48; Jowitt (n 75) 80. 98 Jowitt (n 75) 80-81. 99Ibid.81. 100 Gewirth, Reason and Morality (n 61) 48. 101Ibid; Jowitt (n 75) 81. 102Critics of Gewirth's theory have contested the assumption that human action is necessarily based on the goal of an actor to do something 'good'.A detailed analysis of these criticisms, however, exceeds the scope of this article.For an example, see EJ Bond, 'Reply to Gewirth' (1980) 11 Metaphilosophy 70, 72. 103Jowitt (n 75) 82. 104Gewirth, Reason and Morality (n 61) 52. 105Ibid.54.
to be successful in their actions. 106In other words, all agents must at least claim that other agents shall not interfere with the generic goods necessary for their agency, which Gewirth therefore also called 'generic rights'. 107These rights are generic in that they satisfy the most essential needs of all agents and summarise all other rights, which, ultimately, are merely specifications of the rights to freedom and well-being.According to Gewirth, these generic rights may further be defined as fundamental in that they are superior to other rights that contradict them. 108As the rights to freedom and wellbeing are the ' … most general and proximate necessary conditions of all … purpose-fulfilling actions', 109 without which any purposive action is impossible, they are human rights required by all human beings in order to occupy agency. 110From this fundamental necessity, Gewirth found that the basic rights, and only these, are inviolable, so all agents have the right to claim that all other persons not only shall but must refrain from interfering with their generic rights. 111Gewirth's suggestion that, following the dialectically necessary method, the existence of these generic goods logically connotes that every agent has a right to these goods is not uncontroversial and has been subject to criticism.Regis, for example, highlights that it may be possible for an agent to enjoy the generic goods without having to claim a right to them; this can be problematic as under the dialectically necessary method a claim is merely backed by need, and not by evidence. 112Proclaiming the existence of such specific basic rights, furthermore, does not ensure that their correlative duties are recognised, just that they ought to be recognised. 113ontinuing with Gewirth's argumentation, the rights as presented so far are claimed by individual agents in consideration of their self-interest, and thus they are prudential but not moral in nature. 114Morality can only be established in conduct that favourably considers persons other than the actor. 115According to Gewirth, however, every prospective agent can and must claim the generic rights necessary for their agency, so that this rights claim is made by all agents alike. 116It follows that there is a universal claim to the generic rights, whereby every agent must logically accept that all agents possess the same basic rights. 117If agents failed to acknowledge the generic rights of others, they would be contradicting themselves as they would be ' … both affirming and denying that being a prospective purposive agent is a sufficient condition of having rights to freedom and well-being'. 118This claim too is not uncontroversial and was frequently debated by Gewirth's critiques.Friedmann, for example, indicates that Gewirth's argumentation lacks regard for other legitimate grounds for an actor to claim rights. 119Singer considers Gewirth's reference to prudential rights as unnecessary and potentially counterproductive in that the concept of a prudential duty to do something in someone else's interest arguably lacks a philosophical foundation. 120Gewirth nonetheless maintained his perspective that every agent must admit that the grounds upon which their own rights are based also provide the foundation for all other agents having the same rights. 121s explained so far, generic rights entail a negative feature that requires all agents to refrain from interfering with other agents' basic rights.For Gewirth, generic rights are also positive in that they require that agents help other persons to achieve and safeguard their freedom and well-being. 122In other words, where persons lack the capacity to satisfy their basic needs themselves, other agents shall provide aid to them if this can be undertaken without exceeding a 'comparable cost'. 123It thus follows that the universal necessity of basic needs for human agency entails both generic rights as well as generic obligations. 124In light of this, derived from the above-mentioned logical progression and the principle of generalisation, Gewirth formulates his supreme principle of morality as the PGC, which states: Act in accord with the generic rights of your recipients as well as of yourself. 125e PGC derives its justification as a moral principle from two main factors: first, from its universality, as it is logically derived from the fact that all agents must engage in purposive action, and, second, from its recognition of humanity, as the PGC prescribes respect for the recipients of such actions.This entails both respecting the recipients' purposive actions as well as their rights as persons in general. 126The PGC is a moral principle in that it is both self-regarding and other-regarding, requiring agents to favourably consider the interests of others as well as of themselves. 127ewirth provided rationally deduced answers to two of the essential questions of moral philosophy, namely whose interests and which interests shall be favourably considered by morally right conduct.The PGC prescribes that the rights of all agents must be treated equally, meaning that the generic rights held by all human agents have to be respected. 128Additionally, based on the needs-based hierarchy, the PGC acknowledges the superiority of the generic or basic rights, that is, it favourably considers the rights to freedom and well-being based on their essential importance for purposive action. 129Furthermore, Gewirth recognised hierarchical structures within the scope of these generic rights by placing a higher emphasis on those rights that are more essential for the preservation of life itself. 130In regard to the conceptualisation of action, this hierarchy is justified when considering that while all basic goods are required for actions to be successful, certain basic goods are essential for an agent to be able to act in the first place. 131The latter holds especially true for life itself and the means required to sustain life, although this is not to suggest that life is the only necessary precondition for successful action.
At this point, it must be noted that because Gewirth intended to prescribe a universally applicable supreme moral principle, his views are not unanimously accepted, and diverging opinions are accompanied by criticism of the PGC.In particular, the PGC has been criticised for being too simple, for it derives a very strong conclusiona supreme moral principlefrom a rather plain premise, the concept of agency. 132A further problem of constructing a normative concept of morality, in the sense of a morality that is rational in itself and independent of individual opinions, is that it may be impossible for it to find acceptance in a pluralistic world. 133According to Bond, it is particularly unfortunate that Gewirth simply derived the bindingness of the PGC from logic alone, to the end that immoral behaviour or moral evil would be simply perceived as a logical error. 134hile further analysis of the criticisms of the PGC exceeds the scope of this article, it is submitted that by eliminating subjective factors, and focusing only on the objective and universal requirements for action and agency, Gewirth provided a moral method for legal interpretation based on ' … the recognition that action is the universal and necessary context of all moralities'. 135s with most theoretical concepts, we cannot rule out the various problems with Gewirth's derivation of the PGC from the concept of action, which means improvements would be needed before the PGC could be categorised as the supreme moral principle.Nonetheless, it can be advantageous to utilise the parts of the concept that are less controversial and may function on their own.I thus argue that the needs-based hierarchy can be considered as a concept for prioritisation among conflicting norms of international IP law and the human rights to health and life where other means fail to provide adequate solutions.
this analysis aims to provide guidance on whether ethical and moral considerations can support the prioritisation of rights protecting fundamental human interests.With respect to the concept of human dignity, it is thus proposed that certain human rights, especially those that protect freedom and well-being, ought to be prioritised over less essential rights, such as the right to IP.
In universalist theories, moral rules ought to promote the good of everyone, so morality requires that an act is other-regarding and not simply performed in the actor's selfinterests.When supplemented with the Gewirthian concept of needs, which prioritises those human needs that are most essential for human well-being, morality can provide clear guidance on how to prioritise legal requirements in situations of norm conflicts under international law.This is in accordance with the concept of an inalienable human dignity, which stipulates a certain core value attached to humanity which must not be denied.
Gewirth acknowledged the inherent value of all human beings, implying that all persons must be regarded as ends in themselves, and provided a rationale for establishing which interests ought to be prioritised in situations of conflict.The rational consideration of the equal worth of all persons is generally in accordance with universalist moral theories.By employing human agency as the determining factor, Gewirth established the existence of a hierarchy of rights prioritising the most essential needs for agency over second-order needs.The greatest emphasis is placed on life itself, granting superiority to all goods necessary to sustain life. 136cknowledging that the basic or generic needs of human agency likewise constitute the most basic preconditions for life in dignity, the PGC can similarly be employed to suggest the superior importance of protecting human dignity.Considering that denying the PGC is to contradict one's own agency, it can also be suggested that denying the PGC is to contradict one's own human dignity. 137The PGC, therefore, provides a rational moral justification for the fundamental concept of human dignity.This connection to human dignity is of particular importance because human rights are derived from the dignity inherent to all human beings.Consequently, I propose that the needs-based conceptualisation of the PGC can be utilised to identify and prioritise those human rights that are most important for human dignity over less essential rights 138 and that the Gewirthian basic rightsto freedom and well-beingshould constitute the standard against which the legitimacy of all other laws is scrutinised. 139In other words, because the needs-based hierarchy indicates the superiority of those rights that are most essential for the realisation and protection of human life and wellbeing, 140 I propose that when the concept of basic human needs is applied to the 136 Gewirth, Reason and Morality (n 61) 62-63. 137Beyleveld and Brownsword (n 67) 110; Beyleveld (n 113) 8. 138 Beyleveld and Brownsword (n 67) 86. 139Jowitt (n 75) 83. 140Gewirth regarded dispositional freedom as equally important for agency as well-being in the sense that an agent cannot act purposively without being alive, nor without having freedom: Gewirth, The Community of Rights (n 93) 49.I believe that while freedom is the substantial requirement for an agent to engage in purposive action, life and basic well-being are essential for an agent to act in the first place.Nonetheless, I acknowledge that agents are often willing to give up their life and well-being to fight for the protection of their freedom.Gewirth even considered threats to freedom as a potential preliminary threat towards the protection of life: concept of human dignity, the PGC can serve to morally justify the prioritisation of those human rights that protect human dignity.This proposal can be illustrated by reference to the monopolistic pricing of patented medicines and its impact on the realisation of the right to health in developing countries.The human right to the highest attainable standard of health is explicitly recognised by the ICESCR, which is ratified by and thus legally binding for 171 state parties. 141In contrast, the TRIPS Agreement, which is binding upon all 164 WTO member states, grants patent holders exclusive rights and monopolistic market positions, including the de facto freedom to set high prices for urgently required medications. 142As unaffordable pharmaceutical pricing jeopardises the realisation of the right to health, these rights contradict each other, a norm conflict that urgently requires mitigation.The solution, however, is not necessarily to suggest that pharmaceutical patent rights should be abolished; a balanced approach is required that restricts the exclusive rights provided by patents to the extent necessary for protecting basic human needs.The current application and enforcement of patents generally lack such a balance despite the importance of protecting public health being recognised both by the TRIPS Agreement and the WTO Ministerial Conference. 143In particular, economic and political power imbalances lead to a situation where the rights of IP holders are overprotected while legitimate exceptions for the protection of public health, provided in Articles 30 to 31bis TRIPS, are ignored or actively suppressed.A particularly unjust example of the problems of exclusive rights on pharmaceuticals lies in the fact that under certain conditions, purely economic monopolistic pricing strategies may de facto lead to higher prices for medicines in developing countries than in industrialised markets. 144pplying the Gewirthian needs-based hierarchy to these norm conflicts could mitigate the adverse impacts of pharmaceutical patents on the affordability of medicines by defining a hierarchy based on human needs, thereby identifying limitations to the legitimacy of excessive pricing which states would be required to uphold.Patents ultimately provide a legally accepted restriction of competition law, which in return requires balancing mechanisms to prevent abuse.By establishing a hierarchy based on basic needs and basic rights, the needs-based conceptualisation can aid in defining when the introduction of such measures becomes necessary.In simple terms, the needs-based hierarchy provides that when two rights stand in conflict, the right that is more needed for action takes precedence. 145Thus, the right to health, which includes the right to not die from preventable causes, ought to take precedence over the protection of purely economic interests of wealthy industries.
Gewirth acknowledged that basic rights are both negative and positive in that under certain circumstances the achievement of freedom and well-being may not only require non-interference but active assistance. 146Recognition of positive rights could then further aid the realisation of the right to health by defining the responsibilities of the pharmaceutical industry.This could, for example, add normative force to Hunt's softlaw "…'Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines', submitted to the UN General Assembly in 2008". 147Defending this claim requires further analysis to scrutinise whether the Gewirthian theory can in fact successfully justify such an imposition of positive obligations, but for this article it suffices to highlight that the needs-based hierarchy at least establishes a negative right, meaning patentees have a duty to not interfere with the realisation of the right to health by refraining from implementing excessive pricing strategies, and policymakers and governments are obliged to ensure that this duty is upheld.Gewirth found that negative rights implicitly entail the positive obligation to refrain from causing harm. 148rom a consequentialist perspective, 149 the suggested restrictions of patent rights could be criticised using an argument that can be termed the 'incentive debate'.In essence, exclusive rights granted by patents are intended to provide research incentives for the development of new technologies, which in the field of pharmaceuticals results in new medicines that can mitigate disease burdens in the future.It may thus be argued that a limitation of patent rights reduces the incentive for engaging in highrisk high-cost pharmaceutical research, jeopardising the basic well-being of future generations.The incentive argument has been subject to heated debates for the better part of at least the past three decades.As a detailed analysis of these debates exceeds the scope of this contribution, it suffices to highlight a few selected counterarguments.First and foremost, when accounting for actual consequences, unaffordable medicines do not save lives now or in the future.Second, as the utilisation of the needs-based hierarchy is not about abolishing patents but about balancing conflicting rights, patents and their concomitant incentives generally remain in place.Only reducing medicine prices for those who otherwise cannot afford the products at all is unlikely to negatively impact research incentives as the industry retains its capability to recoup investments in wealthy markets.Additionally, as our experience with neglected tropical diseases indicates, patents already fail in providing incentives for research into diseases that predominantly affect poor populations. 150Lastly, the overprotection of patents may itself create obstacles for future innovation, by preventing other researchers from utilising existing knowledge. 151All in all, and in particular because the pharmaceutical sector is among the most profitable of industries, a balanced approach to norm conflicts is thus unlikely to undermine the incentives provided by patents.

Conclusion
In his works on the PGC, Gewirth established his moral principle based on logical progression, specifying that all human agents, by necessity, have equal rights to the generic needs required for their agency, which consist of the rights to freedom and well-being.By further introducing the concept of a needs-based hierarchy, prioritising those needs that are most essential for protecting human life and realising well-being above other secondary needs, the Gewirthian theory can be utilised to determine a hierarchical structure among conflicting norms.When applied to the concept of human dignity, which constitutes the foundation of human rights law, Gewirth provides an objective moral principle which stipulates the superior importance of fundamental human rights.
Drawing attention to contemporary issues concerning the patentability of pharmaceutical products and its implications for their availability and accessibility in the developing world, and particularly the ongoing debates regarding a TRIPS waiver in the context of the COVID-19 pandemic, it becomes apparent that the current system leaves too much room for lengthy discussions.These extended debates effectively lead to prioritised protection of IP rights, which delays the accessibility of life-saving drugs with the direct consequence that human life is lost to preventable causes.With the lack of a legal hierarchy in international law, an ethical framework based on the needs-based hierarchy could help mitigate this problem by providing clear guidance on how to prioritise among conflicting legal norms.
Rev1; Human Rights Watch, 'Seven Reasons the EU is Wrong to Oppose the TRIPS Waiver' (3 June 2021) <www.hrw.org/news/2021/06/03/seven-reasons-eu-wrong-oppose-trips-waiver>accessed7 June 2023; ISHTIP, 'Academic Open Letter in Support of the TRIPS Intellectual Property Waiver Proposal' (12 July 2021) <www.ishtip.org/?p=1186> accessed 7 June 2023; European Parliament, 'At a Glance: World Trade Organization TRIPS Waiver To Tackle Coronavirus' (2021) <www.europarl.europa.eu/RegData/etudes/ATAG/2021/690649/EPRS_ATA(2021)690649_EN.pdf>accessed 7 June 2023. 15dreas R Ziegler and Bertram Boie, 'The Relationship between International Trade Law and International Human Rights Law' in Erika de Wet and Jure Vidmar (eds), Hierarchy in International Law: The Place of Human Rights (OUP 2012) 272; Kerri Woods, Human Rights (Palgrave MacMillan 2014) 5. 16 Koen de Feyter, Human Rights: Social Justice in the Age of the Market (Zed Books 2005) 60; Michael Freeman, Human Rights: An Interdisciplinary Approach (2nd edn, Polity Press 2011) 67; Woods (n 15) 20 and 69.17Woods (n 15) 5 and 7.This suggestion may be objected to by legal positivists and realists who suggest that as a human construct the law has validity in its own right, without requiring a moral justification.This interpretation starkly con- trasts with natural law theory, which suggests that humans have natural rights based on moral values derived from either ' … god, nature or reason': Hans Kelsen, General Theory of Law and State (Harvard University Press 1949) 392