The ‘Rule of Reason’ and the Right to Health : Integrating Human Rights and Competition Principles in the Context of TRIPS

In August 2001 the first public meeting of the American Society of International Law Project on Human Rights and International Trade (‘Project’) was held at the World Trade Institute in Berne, Switzerland. One session of that meeting was devoted to the relationship between human rights and the WTO Agreement in Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’). As part of the follow-up to that meeting, the team leading the Project decided it would be useful to consider several ‘case studies’ that would seek more specifically to identify and analyze situations in which human rights and trade rules interact with each other. This study looks at the manner in which human rights may affect the application of competition rules and principles in the context of the TRIPS Agreement. The analysis begins by observing that rights to life and health are well recognized in human rights law, and that the right to health has been confirmed by the WTO Ministerial Conference in the Doha Declaration on the TRIPS Agreement and Public Health. It proceeds to demonstrate that the TRIPS Agreement rules governing competition provide substantial flexibility in terms of national policy, rule development, and application, and that this flexibility is sufficient to take into account human rights interests. The analysis turns to WTO Appellate Body jurisprudence for support for the proposition that Members are permitted to take into account non-trade interests in interpreting and applying TRIPS Agreement rules