Cast into the Stones of International Law

Abstract

This contribution critically considers how assumptions underlying international treaties on intellectual property (IP) reflect, and impact upon, realities. International IP treaties and international agreements that set minimum standards and so harmonize and co-ordinate norm-setting among and within states, frequently codify underlying assumptions about the social, economic, cultural or environmental utility of the standards they aim to globalize. While these assumptions may be correct in particular territorial, historical and socio-economic contexts, once they are engrained in standards that are cast into the stones of international treaty law, they become global norms that are at best difficult, and at times factually impossible to implement, amend or adapt. In worst case scenarios, the habitual implementation of such laws can lead to significant socio-economic, cultural and environmental deterioration. Whenever an implementation of such standards does not materialize the underlying assumptions, the global norms ultimately become redundant, which more broadly challenges their legitimacy. Using the international protection of plant varieties as an example, thisThe authors thank Professor Gregory Radick, University of Leeds, for his comments on the first draft of this paper. Several practical and scientific insights for this contribution were gained during the "Sustainable Seed Innovation Projects I and II" funded by the UK Arts and Humanities Research Council (2017) and the Global Challenges Research Fund (2019) (with the University of Leeds and the Art of Living Foundation, India). The projects resulted in a position paper for the Government of India: