Intellectual Property in the WTO Volume I
Research Handbooks on the WTO series
Edited by Carlos M. Correa
Chapter 3: Minimum Standards vs. Harmonization in the TRIPS Context: The Nature of Obligations under TRIPS and Modes of Implementation at the National Level in Monist and Dualist Systems
Denis Borges Barbosa* Article 1 Nature and Scope of Obligations 1. (a) Members shall give effect to the provisions of this Agreement. (b) Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. (c) Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice. The effect of TRIPS provisions Some international legal instruments are created to be inductive, not prescriptive. Indicating areas or principles to which its parties agree, those inductive instruments (sometimes described as soft law1) simply declare the extent of such agreement, or purport to propitiate voluntary actions by the signatories. By stating in its very first provision that ‘Members shall give effect to the provisions of this Agreement’, TRIPS dispels any doubts about its prescriptive nature. The legal duty that requires that the TRIPS Agreement shall be made effective results not only from the specific consent from the member states to do so, but also from a general rule of international law: The requirement to implement an international agreement is implicit in the obligation to perform it in good faith. The obligation to perform in good faith (‘pacta sunt servanda’) is established by Article 26 of the Vienna Convention * The author must thank Professor David Vaver for his the attentive review of and suggestions offered on this study. 1 Defined as...
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