Foxes and Hedgehogs at the Intersection of Human Rights and Intellectual Property

Before the 1990s, human rights and intellectual property operated more or less autonomously, mutually oblivious to each other’s concerns. Human rights being by nature ‘universal’ had their natural home in international law; intellectual property being quintessentially territorial remained the preserve of domestic law. Today, however, not only do human rights imperatives regularly penetrate the domestic law domain, intellectual property has returned the favour by going universal and encroaching on human rights’ international law domain. The result is a rapid proliferation of intersections and entanglements, many of which are harmonious, even synergistic. Other intersections, however, are ravaged by intractable inter-regime and intra-regime conflicts that are still largely under-theorised. Beginning with the diagnosis that these conflicts are principally strategic — rather than ontological — this article argues that resolution can be found both in the nature of legality and in recent scholarly insights into commensurability, comparability, and balancing of norms and interests in law.