The notion of acceptance of law in the implementation of rules : the WTO TRIPs Agreement in Lesotho

• DOI: 10.10520/EJC177232
• Published date: 01 January 2013
• Author: Kuenaesele Ramabele-Thamae
• Pages: 115-155
• Date: 01 January 2013

THE NOTION OF ACCEPTANCE OF LAW IN

THE IMPLEMENTATION OF RULES: THE

WTO TRIPS AGREEMENT IN LESOTHO

KUENAESELE RAMABELE –THAMAE*

ABSTRACT

The TRIPs Agreement came into force in 1995, as an

annex to the Agreement Establishing the World Trade

Organization (WTO), the WTO Agreement.

1

By ratifying

the WTO Agreement, members automatically and

necessarily became bound by agreements that came with

the formation agreement. As a result, all WTO member

states became bound to implement the TRIPs Agreement.

The TRIPs Agreement is the prevailing international

instrument on intellectual property (IP) and it sets out the

minimum IP standard for all WTO member states. Lesotho

became a member of the WTO in 1995. Despite this, the

country has up to now failed to implement the agreement

into the national IP law. No steps have as yet been taken to

commence the implementation. Lesotho’s national IP law

is therefore still below the prevailing international

standard set by TRIPs. This paper looks at challenges of

implementation of the agreement in the context of Lesotho.

The notion of acceptance of law is applied here as a test for

successful implementation. This test is derived from Hart’s

theory of law or jurisprudence on what constitutes a

municipal legal system and it looks at how the law is

perceived by those responsible for implementation. Various

factors that affect or influence acceptance are outlined and

discussed. It is shown that Lesotho fails the test of

*Lecturer, National University of Lesotho, Faculty of Law, Department of Private

Law, kuenaesele@yahoo.com.

1

Annex 1c, Agreement on Trade-Related Aspects of Intellectual Property Rights.

116 The Notion of Acceptance of Law in the Implementation of Rules

acceptance due to lack of awareness of IP and a number of

other factors that have contributed to failure to implement

the agreement.

Introduction

Intellectual property rights (IPRs) play a significant role in the

economic, social and cultural development of any country.

2

The

introduction of IPRs to the field of trade through the WTO

agreement on Trade Related Aspects of Intellectual Property

(TRIPs) enhanced this. The TRIPs Agreement came into force in

1995 with the aim to harmonize global IP protection. It therefore

sets out a minimum standard of IP protection for all WTO member

states. This was done to facilitate global trade by removing

restrictions and disputes that were seen to arise from different

intellectual property regimes and to address trade in counterfeit

goods.

3

A uniform standard of IP protection and enforcement for all

WTO members was seen as a means to amicably settle economic

disputes in international trade relations.

4

The coming into effect of

TRIPs linked intellectual property to international trade for the first

time.

Under the TRIPs Agreement, member states were given varying

periods of time to comply with its provisions depending on their

level of economic development.

5

Developed countries fell within the

general transition period of one year, developing countries four years

while least developed countries (LDCs) were given a 10 years

2

Colston C. & Middleton K., Modern Intellectual Property Law, 2nd Ed, 2005,

Cavendish Publishing, London, p31.

3

Understanding the WTO: Intellectual Property: Protection and enforcement,

www.wto.org/english/thewto_e/whatis_e/.

4

TRIPS introduced a multilateral framework of principles, rules and disciplines to

address international trade in counterfeit goods. As stated in the Preamble of the

TRIPS Agreement.

WIPO Legislative Assistance provided by the World Intellectual Property

Organization (WIPO) in relation to the Implementation of the Agreement on

Trade- Related Aspects of Intellectual Property Rights (the TRIPs Agreement) and

the Doha Declaration; http://www.wipo.int/cfdiplaw/en/trips/

5

Articles 65 and 66.

LLJ Vol. 20 Nos. 1 & 2 117

transition period, which ended on 1 January 2006.

6

The 10 year

period was in view of the special needs and difficulties that least

developed developing countries would face in the process of

implementation through reform of their laws and putting up proper

measures for enforcement.

7

Among these are economic and

administrative constraints.

8

None of the LDCs was able to bring its

domestic legal system into conformity with the agreement by the

stipulated deadline. As a result, in October 2005, the LDCs as a

group made a request to the WTO TRIPs Council for extension of

the implementation period by fifteen years.

9

The TRIPs Council

against heavy opposition from the United States of America and

other developed countries granted an extension of seven and a half

years to the LDCs on 29 November 2005 to 1 July 2013.

10

In

addition, LDCs are not bound to provide or enforce patents or

exclusive marketing rights on pharmaceutical products until 1

January 2016.

11

A further extension by 8 years was granted by the

6

Article 65.1 gives transitional period for developed countries, Art 65.3 for

developing countries and Art 66.1 for least developed countries.

7

In terms of Article 66.1 of the TRIPs Agreement, the 10 year period was in view of

the special needs and requirements of the least developed countries, their

economic, financial and administrative constraints and their need to create a viable

technological base.

8

Cosbey A., The Sustainable Development Effects of the WTO TRIPs Agreement: A focus

on developing countries, International Institute for sustainable development,

Winnipeg

9

In terms of Art 68, the TRIPs Council has a mandate to monitor operation of the

agreement and compliance of members with their obligations and must afford

members the opportunity to consult on matters related to trade related aspects of

intellectual property rights. The Council is also mandated to provide assistance to

members in relation to dispute settlement procedures.

Problems advanced in the request for an extension period included ''special

economic needs, critical human resource and administrative constraints in terms of

technical capabilities, inadequate technical base, competing needs against grave

financial constraints and finally underdeveloped legal systems unable to deal with

effectively with enforcement of IP protection''. The problems were presented by

LDCs as a group, not as per country.

10

Document IP/C/40, 30 November 2005, www.wto.org.

11

The Least developed countries are not bound to apply or enforce Art 5 and 7 of

Part II of the TRIPS Agreement with respect to pharmaceutical products until 2016.