Commitment and Compliance in International Law: A Study of the Implementation of the WTO TRIPS Agreement in Nigeria and South Africa
| Date | 01 June 2012 |
| Published date | 01 June 2012 |
| Pages | 191-228 |
| DOI | 10.3366/ajicl.2012.0031 |
| Author | Olu Fasan |
The creation of the World Trade Organization (WTO) in 1994 expanded the scope of international trade law beyond the traditional border measures covered by the old General Agreement on Tariffs and Trade (GATT 1947), to a significantly greater area of national regulatory activity, such as foreign investment, trade in services and intellectual property rights (IPRs). Thus, in addition to incorporating the GATT, the WTO treaty introduced the following new agreements: the General Agreement on Trade in Services (GATS), the Agreement on Trade-Related Investment Measures (TRIMS) and the Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS). Of these new treaty obligations, the TRIPS Agreement is the deepest and, arguably, most controversial, both in terms of the scope and intensity of the compliance obligations it imposes on member states, and the potential conflict between its substantive obligations and the policy priorities of many of these countries.
The broadening of the scope of WTO law was accompanied by the strengthening of its enforcement mechanism so as to ensure compliance of WTO members with the legal rules. The overarching compliance obligation is set out in article XVI.4 of the WTO Agreement, which states that each member ‘shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements’. Every WTO member therefore has a legal obligation under the treaty to bring its domestic laws and practices into conformity the international trade rules.
However, the binding nature of the compliance obligation raises important questions about the effectiveness of WTO law. Does it have an impact on the behaviour of member states? Are states voluntarily complying with the TRIPS commitments? What factors are shaping their behaviour? Fifteen years since the TRIPS Agreement entered into force,
Under Article 65 of TRIPS, developed countries were obliged to implement the agreement by 1 January 1996; paragraph 2 of article 65 grants developing countries up to 1 January 2000 to implement the agreement; and article 66.1 grants least-developed countries up to 1 January 2006. However, on 29 November 2005, the Council for TRIPS agreed to extend the TRIPS implementation period for least-developed countries to 1 July 2013.
it is useful to examine how and to what extent it is being followed by WTO member states, particularly the developing countries. The focus on developing countries is particularly important because of the disproportionate nature of the implementation challenge that the agreement poses for many of these countries. For instance, while many of the legal, regulatory and administrative requirements of the TRIPS Agreement reflect the standards and practices already well established in the developed countries, for most developing countries, such institutional structures would either need to be createdFor a discussion on the implementation costs of WTO Agreements, see J. M. Finger and P. Schuler, ‘Implementation of Uruguay Round Commitments: The Development Challenge’, 23(10)
This article examines developing countries’ compliance with the TRIPS Agreement through the experiences of South Africa and Nigeria. The aim is to compare how and to what extent these two countries have complied with their TRIPS obligations and to explore the reasons for their behaviour. The rest of the article is structured as follows. Part II briefly explains the theoretical and analytical contexts. Part III provides an overview of the TRIPS Agreement, including its negotiating history. Part IV sets out a comprehensive analysis of the current status of each of the substantive TRIPS Agreement commitments in South Africa and Nigeria. Part V seeks to explain the compliance behaviour of the two countries and any differences between them. Part VI highlights the main conclusions that can be drawn from the implementation experiences of the countries.
The basic argument of this article is that, despite the traditional reliance on the principle of
Consent and ownership are thus critical legitimacy factors that can affect the state's compliance behaviour.
See J. M. Broughton and A. Mourmouras, ‘Is Policy Ownership An Operational Concept?’, Working Paper No. 272, IMF, p. 202.
Legal positivists argue that consent is the only way to establish rules that legally bind sovereign states.I. L. Lukashuk, ‘The Principle Pacta Sunt Servanda and the Nature of Obligations Under International Law’, 83(3)
This is a rationalist perspective, which is based on the assumption that states are motivated in their actions by the calculation of interests. There is an alternative viewpoint, represented by the constructivist or normative school, which emphasises the role of value or moral commitments in shaping states’ compliance behaviour. According to this school, compliance is not induced by a calculation of costs and benefits, but rather by a normative commitment to a system and the values that it represents. For this ‘value of the regime’ argument, see R. O. Keohane,
The choice of South Africa and Nigeria is dictated by two factors. The first is the similarities and differences in the domestic institutional and socio-economic circumstances of the two countries. South Africa is clearly a cross between a developed and a developing country, while Nigeria has the characteristics of both developing and least developed countries. The structural similarities and differences in the institutional and socio-economic situations in the two countries should result in some divergence as well as convergence in the compliance behaviour of these countries, with South Africa more able and willing to implement the TRIPS Agreement than Nigeria.
The second factor is the different approaches that both countries took to the Uruguay Round negotiations. While South Africa was broadly supportive of most of the negotiations, including that on the TRIPS Agreement, seeing them as a mechanism to lock in its unilateral domestic reforms that began in the early 1980s, Nigeria saw the whole process more or less as an imposition by the developed countries. The different approaches that both countries took to the negotiation of the TRIPS should also support, to some extent, the theoretical argument that
The impetus for increasing the normative standards of intellectual property (IP) and for bringing the international regulation of IPRs into the GATT became stronger in the late 1970s, as the developed countries began to question the ability of the World Intellectual Property Organization (WIPO), traditionally the global regulator of IPRs, to provide for effective protection and enforcement of IPRs. They expressed concerns that the standards in some of the WIPO treaties were weak and vaguely specified, and that the WIPO system did not provide adequate mechanisms for enforcing obligations.
See UNCTAD-ICTSD,
Thus, a key part of the negotiating objectives of the developed countries during the Uruguay Round was the introduction of the TRIPS Agreement in order to extend GATT/WTO principles and disciplines, including a strong enforcement mechanism, to the protection of IPRs. Developing countries, on the other hand, opposed attempts to incorporate substantive standards of IPR protection into the GATT/WTO system. Despite the strong protestations, however, the developed countries pushed through the agreement using a combination of trade incentives and threats of trade sanctions.
E.-U. Petersmann, ‘Constitutionalism and WTO law: From a...
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