The Limits Of Sovereign Equality Under Trips: A TWAIL Analysis Of The Pharmaceutical Patent Regime In India
Keshavi Sablok, BITS Law School
The concept that there is a law in the international space implies the existence of international law as one set of legal rules, principles, and institutions that govern behavior of different States at a global scale. This law has tried to base its premise on the concept of neutrality, equality, and consent. Despite this, the Third World Approaches to International Law (TWAIL) seek to critique the consequences of globalizing international law. TWAIL scholarship further argues how formally universal legal orders reproduce unequal material power, thus becoming a way of hegemony for particular states. The following paper will be analyzing this very dynamic through the case of Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as a hegemonic actor and its consequences on the earlier emancipatory Indian patent regime.
The premise of international law is based on the fact that states are legal persons and equal bearers of rights and voluntary consent. It is on upon this basis that one could argue that the TRIPS agreement ought to be universally beneficial or harmful, equally, to all members of the WTO. This ‘rather formal concept of equality’ is central to international law, in order for the treaties to be seen as politically neutral.
Originally, India's Patent Act, 1970 only dealt with process patents, leaving behind the notion of product patents. This was a deliberate attempt by the government that allowed others to make the same product as long as they used a different method. TRIPS, on the other hand, set out minimum standards of patent protection that must be met by all WTO members. In order to align itself within the ambit of TRIPS and WTO, India had to introduce the amended Patent Act in 2005.
