A Comparative Analysis of Policy Space in WTO Law

Abstract

A common denominator in various fields of global economic rule-making is their significant impact on domestic non-economic interests for the sake of a harmonised global economy. It is particularly true for the three core areas of regulation in the WTO: trade in goods, trade in services and intellectual property protection. The structural bias in WTO law to perceive and regulate the world from a trade perspective however is countered by mechanisms such as Art.XX GATT and Art.XIV GATS which allow WTO Members to recognise and give effect to public interests on the domestic level. In this paper I compare the tools for balancing trade in with non-trade interests under GATT and GATS with the corresponding mechanisms in TRIPS. IP regulation in the WTO has an equivalent, if not stronger, impact on public interests. It should therefore allow a level of recognition and enforcement of these interests equal to that in the other areas of WTO regulation. Although initially designed like the general exception in Art.XX GATT, the TRIPS-consistency test later introduced in Art.8:1 TRIPS has effectively prevented that provision to function as a self-standing right to override individual TRIPS obligations. The specific TRIPS provisions on exceptions and limitations to IP rights further are written and (so far) interpreted as focussing predominantly on the economic interests of right holders. Against this background, I argue for taking the balancing objectives and public interest principles of TRIPS more serious in the process of interpretation and implementation. This is not only supported by general principles of treaty interpretation and the will of WTO Members in the Doha Declaration on TRIPS and Public Health, it also follows from the objective of sustainable development embodied in the WTO preamble and relevant for all WTO Agreements. Such an approach affects the core scope of the international obligation to comply with TRIPS and can often achieve a balance comparable to what WTO rules on goods and services allow.