Abstract

While WTO laws are international treaties and hence part of international law, they were not as such regarded as they are found in that corpus. As a result, the role of other public international law within the WTO dispute settlement is not yet clear.  In that whether, the dispute settlement body of the WTO in deciding cases would consult the rules and principles of other public international laws is not well articulated. The paper will examine the applicability of other international laws in the WTO dispute settlement on the basis of the WTO frame work and jurisprudence of international law. Finally, I argue that other international laws can be applied in the settlement of disputes under the WTO in case where they are relevant and proper for the theme.      

Introduction

As provided under art 38(1) of the ICJ statute international treaties are part of international law (As per Art 38(1) of ICJ, sources of international laws are international treaties, CIL, the general principles of law, judicial decisions and the teachings of the most highly qualified publicists of the various nations). Since the WTO laws are multi-lateral treaties between states, they are part of the corpus of international laws. Hence, in areas that the WTO do not address; as usually made in other international cases, other public international laws can be used by the dispute settlement body (DSB) of the WTO. However, mostly, we thought that WTO is an isolated from other public international laws. The applicability or otherwise of parts of international law other than customary international law is not clearly addressed by WTO laws. Besides, if they are to be applied in the dispute settlement, their role in the proceeding is not clear. Are they for mere interpretation or can be served as a proper law in the determination of subject matter is not clear.  In this paper, the applicability of other public international laws which are recognized by WTO laws and other not recognized will be discussed. Accordingly, the Avenues whereby the other public international laws will be applied and their role in WTO proceedings will be discussed. Moreover, the interaction between WTO laws and such other public international laws will be examined. Finally, concluding and suggestion remark are given.          

World Trade Organization (WTO) was established with the main objective of liberalizing multilateral trade, based on the belief that the liberalization of trade brings multiple of benefits to the world population. To this end, the preamble to the Agreement Establishing the WTO (Marrakesh Agreement), provides that “[t]he Parties to this Agreement, recognizing that their relations in the field of trade and economic [endeavor] should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand.” Countries   also join it on the belief that a liberal trade regime will confer these benefits upon those who become members. Moreover, it is noted that the establishment of the WTO in 1995 represented a shift from a multilateral trading system based on diplomacy under the General Agreement on Tariffs and Trade (GATT) regime to one that operates under the rule of law. On the other hand, it is argued that the guidelines of accession process under Article XII of the Marrakesh Agreement are vague and making the accession process demanding and time consuming. It is also contended that the absence of clear guidelines of accession to the WTO has been allowing current Member states to impose “WTO+” obligations on acceding countries, which is more burdensome especially on least developing countries.

 Nepal and Cambodia are among the poorest countries in the world and they were   the first least developed countries (LDCs) to be acceded to the WTO since it was founded in 1995. Their application for membership was motivated by a desire to ensure predictable market access and become eligible for the special concessions available to LDCs under WTO rules. Moreover, the countries hoped to use accession to the WTO as an incentive for accelerating domestic economic, legal and institutional reforms to create a stable business environment and attract foreign direct investment. However, an analysis of their terms of accession confirms the general trend of exacting significant “WTO+” concessions by the developed members from acceding countries although they were agreed to facilitate and accelerate negotiations with acceding LDCs at the 2001 Launch of the Doha Round of trade negotiation.

 Currently, Ethiopia is also in the process of accession to the WTO. Needless to state, WTO accession is not an end in itself but a means to achieve greater national economic development objectives. On the other hand, the process of accession and terms of commitments have been found so demanding and the potential prospects of being a member of the WTO are mixed with potential challenges. As what is accepted during the bilateral negotiation phase finally  binds an acceding country, it would be wise to carefully and strategically negotiate favorable terms rather than rushing to agree to all onerous terms which compromises the national development objectives instead of bringing the anticipated benefits of membership. To this end, learning from the experiences of other countries, notably LDCs, which have passed through the same process while acceding to the WTO, would be significant.

 This article examines the experiences of Cambodia and Nepal during the accession process, accession commitments, and accession implementation with a view to identifying some lessons that can be helpful to other acceding LDCs, particularly Ethiopia, devise successful strategies and avoid some of the mistakes in an effort to gain maximum benefit from their WTO membership. The article contains three parts. Part one deals with the WTO Accession process so briefly. The second part assesses the experiences of Nepal and Cambodia during their accession process, accession negotiations and accession implementation. The last part produces some lessons that can be relevant to Ethiopia and other LDCs from the experiences of Nepal and Cambodia as well as possible recommendations. The study mainly employs secondary data.

Abstract

As a country dealing with a pending WTO accession procedures, Ethiopia is required / expected to go through different legal reforms in order to have WTO-compliant domestic laws. Inter alia, the country specifically needs to review its intellectual property laws to provide a protection for intellectual properties as envisaged under the rule of WTO. However, adopting WTO-compliant rules to protect intellectual property, especially patent, exhibits a cross-road of patent protection and access to patented invention such as pharmaceuticals. It is logical to think that strong patent protection highly challenges an eased public access to the patented invention since the very nature of patent provides a stronger exclusive right to the right holder. To systematically deal with the issue of balancing patent protection to right holders and access to medicine to the public, different countries successfully reformed their laws to facilitate access to medicine while still adhering to WTO’s rules on patent. Thus, scrutinizing areas of reforms under Ethiopian patent law, in order to facilitate access to medicine before joining WTO, would help the country to adopt WTO-compliant rules which exhaustively addresses / exploits all exceptions, flexibilities and legal loopholes available to facilitate access to medicine.

Part One - Introductory Remarks

Before rushing into examining or establishing the details of Ethiopian patent law with regard to its role on facilitating access to pharmaceuticals, it would be helpful to shortly point out the relationship between patent and access to patented innovations in general. Lately, literatures seem to show / define that intellectual properties, especially patentable innovations, and public demand to access patented inventions, as two competing interest (“Monopoly” and “Access”) which hinges on a balance.