Legitimacy and the Trips Agreement

44 Pages Posted: 22 Feb 2002

See all articles by Daya Shanker

Daya Shanker

Deakin University - Bowater School of Management and Marketing


The adherence of sovereign states to international rules and regulations without the presence of regulatory authority which is normally the case in domestic law, has always been a matter of serious discussion in the jurisprudence of international law. Franck espoused a concept of legitimacy which is a function of perception of those in the community concerned that the rule or the institution has come into being endowed with legitimacy, that is in accordance with right process and more legitimate a rule or institution is, greater is its compliance pull. Franck analyzed legitimacy in terms of four factors: (a) determinacy, (b) symbolic validation, (c) coherence and (d) adherence (to a normative hierarchy). An analysis of the TRIPS Agreement in terms of the above four factors suggest that the TRIPS Agreement does not possess the above factors sufficiently to attract compliance. The inherent weakness of the TRIPS Agreement is in the text which does not introduce certainty and the Dispute Settlement System has not been very successful in introducing process determinacy. The circumstances in which TRIPS was prepared and adopted also impair the validity. It has been suggested that certain urgent changes are required in the TRIPS Agreement to make it a legitimate international treaty.

Keywords: TRIPS, Dispute Settlement System, WTO, Legitimacy, Process Determinacy, Validity

Suggested Citation

Shanker, Daya, Legitimacy and the Trips Agreement. Available at SSRN: https://ssrn.com/abstract=300899 or http://dx.doi.org/10.2139/ssrn.300899

Daya Shanker (Contact Author)

Deakin University - Bowater School of Management and Marketing ( email )

Burwood, Victoria 3125
+61 3 9244 6770 (Phone)
+61 3 9251 7083 (Fax)

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