Geneva Rhetoric, National Reality: The Political Economy of Introducing Plant Breeders' Rights in Kenya

Abstract

The article is about implementing obligations under Article 27.3(b) of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). However, concerned with the fragmentation of international law in a globalised world, the article uses Kenya as a case study to interrogate the apparent choice and latitude in Article 27.3(b). At the TRIPS Council, Kenya has sought to locate Article 27.3(b) within a wider frame by adroitly norm-borrowing, and it canvassed for integrating norms and principles from other multilateral agreements into TRIPS. Yet, when introducing plant breeders' rights into domestic law, Kenya fails to either explore the apparent latitude or deliver on its rhetoric in Geneva. I explain this decoupling between Geneva rhetoric (ritual) and domestic law (behaviour) as another symptom of what Steinberg [(2002), 'In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO', International Organization, 56 (2), pp. 339-74)] characterises as 'organised hypocrisy' of the World Trade Organisation. In demonstrating that fragmentation in global legal architecture may not automatically emerge in domestic law, the article draws out the significance of attending to a domestic political economy of law-making.

Examining plant variety protection in Nigeria: Realities, obligations and prospects

“…Table outlines four international treaties relevant to plant variety protection, namely TRIPS, UPOV, CBD and ITPGRFA, alongside their statuses in Nigeria. Sources: Treaty texts, Rangnekar () and the author's additional inputs.…”

Plant Variety Protection Regime in Relation to Relevant International Obligations: Implications for Smallholder Farmers in Kenya

“…With respect to plant varieties, TRIPS through its article 27.3(b) brought forth the mandatory requirement that IP protection must be provided “either by patents or by an effective sui generis system or by a combination thereof.” TRIPS does not aid countries by providing template treaties or a sui generis framework and it is therefore upon each country to define what an “effective sui generis system” is for itself, taking into account national interests and concerns to the extent that these are not inconsistent with TRIPS . The sui generis option presents a wide policy choice and with it possibilities for disharmony between systems developed by countries (Rangnekar, ). Regardless, for a sui generis system to remain “effective” it must at the very least, provide for an IPR and also be consistent with the national treatment and most‐favored nation principles of TRIPS (Rangnekar, ).…”

Towards a flexible plant breeders’ rights system in Kenya

“…Regardless, for a sui generis system to remain 'effective' it must at the very least, provide for an IPR and also be consistent with the national treatment and most-favoured nation principles of TRIPS (Rangnekar, 2013).…”

“…Through the law users of protected varieties and seeds may undertake permissible activities on the protected material without infringing upon the rights of the holder of PBRs. The scope of protection and exceptions to PBRs therefore impinges upon other users of plant varieties and seeds (Rangnekar, 2013).…”

“…for itself, taking into account national interests and concerns to the extent that these are not inconsistent with TRIPS. 60 The sui generis option presents a wide policy choice and with it possibilities for disharmony between systems developed by countries (Rangnekar, 2013).…”