Principles of Fairness for International Economic Treaties: Constructivism and Contractualism

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but it is not designed to account for fairness. Other accounts, found in moral philosophy. This paper examines two fairness accounts, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known. Scanlon’s contractualist account may be less well-known to legal scholars. After elaborating the basics of the Rawlsian and Scanlonian accounts, the paper sketches how those accounts might apply to World Trade Organization rules and institutions. In particular, it uses Rawlsian and Scanlonian accounts to critique whether the Agreement on Trade Related Aspects of Intellectual Property Rights is fair as to how it deals with access to affordable medicines by persons in low-income countries