How treaties interact with national laws

01 April 2010

Many African countries emerged from colonialism with common-law heritages. When considering treaties such as Paris, Madrid, the PCT and those pertaining to ARIPO, practitioners have been guided by the common-law rule: an international agreement can only become part of the domestic law of a subscribing country when it has expressly been enacted into that national law by an Act of Parliament.

Commentaries on IP treaties have reflected that orthodox doctrine, such as the October 2009 review Make the Most of Africa's IP Organisations.

Recently, watchers of Africa and international bodies including ARIPO and WIPO have noted their tendency away from the orthodox doctrine. A typical section in WIPO's model code says: "The provisions of any international treaties to which [country] is a party shall apply to matters dealt with by this [Act] and, in case of conflict with any provisions of this [Act], shall prevail over the latter."

Constitutionalists may debate whether a specialised statute can change a constitutional principle but evidently the section is there with a view to being obeyed. Versions of the model code have been enacted or proposed in numerous territories, detailed in another October 2009 round-up Africa's Good News Story.

Even without new statutes, the authorities of several countries are diverging from the orthodox doctrine. At the November 2009 ARIPO meetings in Gaborone, Botswana, representatives from Lesotho, Malawi, Namibia and Swaziland stated that the Organisation's trade marks protocol, Banjul, is effective in their jurisdictions. All were regarded as common-law countries and I have identified no specific laws to that effect.

For years after Sudan joined the Madrid Agreement, the Registrar stored notifications from the International Bureau, without action on the basis that under the orthodox doctrine and without amendment of national law, they were of no effect. In recent times, however, their status has been fully accepted by the Office and the courts, apparently without any formal change to the constitution or the Trade Marks Act.