History International Law

With no carrots on offer, USTR Michael Froman won’t have Crowbar Carla’s influence on Indian IP policy

PrashantReddyTwenty years ago, when India finally signed the Agreement on Trade Related aspects of Intellectual Property Rights (“TRIPS”), it did so after several years of arm-twisting by “Crowbar Carla”, as Carla Hills, the then United States Trade Representative (“USTR”) was called by the media. Ms. Hills earned the moniker “crowbar” because of her diplomatic strategy of “crowbar diplomacy”. American economic might was used as a “crowbar” to pry open the closed economies of America’s trading partners.

Those days, the American economy was in dire straits with an ever-widening trade deficit, a fact attributed to two issues. The first was the common complaint amongst Americans that the rest of the world was indulging in protectionism. The second was that a significant portion of American exports were intellectual property and that a lot of trading partners did not have laws that protected American intellectual property. “Crowbar Carla” was tasked by the then American administration to use trade weapons such as “Super 301” and “Special 301” to exert pressure on trading partners to modify their trading policies under the threat of trade sanctions. Her bigger political goal was to use these trade weapons to prod countries like India to sign TRIPS without too much fuss. To the credit of the American administration, they were aware of the limits of brute political power and sweetened the deal by throwing in the offer of allowing Indians to export more textiles to the U.S. Textiles were and continue to remain one of the most lucrative exports from India earning the country its fair share of foreign currency. Given the dire straits of the Indian economy in 1990-91, it didn’t take much for “Crowbar Carla” to convince the Indians to sign the TRIPS. The Indian delegation which finally signed the deal at Marrakesh was headed by a Union Minister called Pranab Mukherjee – today he is the President of India.

Starting with amendments in 1994 to the Copyright Act to recognise the copyright in software programs, the Indian Parliament embarked on a massive legislative agenda to introduce new intellectual property rights as was required by TRIPS. In 1999 and 2002, the NDA government amended Indian patent law. It also enacted a new law for geographical indications in 1999 and a new Protection of Plant Varieties & Farmer’s Rights Act, 2001. In 2005, it enacted the third amendment to the Patents Act, 1970 and brought back product patents for pharmaceuticals and agrochemicals after a 35-year prohibition. Each one of these new laws and amendments were a result of India signing TRIPS, an act which is directly attributable to Ms. Carla’s diplomatic prowess. With such immense powers to influence international trade policy, the USTR is certainly one of the most powerful bureaucrats in the American establishment. The question is how much has changed in the last decade? Does the incumbent USTR Michael Froman have as much power as “Crowbar Carla”?

Carla Hills (left) was the United States Trade Representative under President George H. W. Bush between 1989 and 1993. Michael Froman has held that office since 2013.

Carla Hills (left) was the United States Trade Representative under President George H. W. Bush between 1989 and 1993. Michael Froman has held that office since 2013.

Going by news reports in the recent past, it would appear that Froman has managed to extract significant concessions from India on its intelelctual property policy. Apparently Froman, in recent testimony to American lawmakers has commented that the US is making good progress with the new Modi government on the issue of IP protection. While Froman did not provide details of the actual negotiations, there has been gossip from the civil society organisations in India that the government is going to make serious concessions such as the introduction of a data exclusivity regime for pharmaceuticals apart from a possible drug-patent linkage system. The data exclusivity regime will ensure that generics cannot rely on innovator clinical trial data for a certain timespan in order to get regulatory approvals. This will delay the introduction of generics into the market. The drug-patent linkage system on the other hand is meant to ensure that the drug regulator doesn’t provide regulatory approval to those drugs which are still under patent protection. The Drug Controller General of India (“DCGI”) had planned to introduce such a system few years ago but was forced to backtrack after a serious backlash from the manufacturers of generics. They argued that the DCGI was meant to regulate only safety and efficacy and that he was neither, equipped nor required to enforce patent rights under the law.

The big question is whether the Modi government will actually concede to these demands.

Unlike in the times of “Crowbar Carla”, the current USTR has far fewer trade weapons in his arsenal, thanks to WTO laws which place restrictions on the manner in which the US can impose trade sanctions on trading partners. The favoured weapon of the Americans in the old days was hiking up tariff barriers on the imports from foreign countries but the very rationale of the WTO system is to ensure non-discrimination in tariffs between different trading partners. It is therefore questionable whether the U.S. can get away by imposing tariff barriers on imports from India. The USTR of course can embarrass India by painting a sorry picture of the country’s intellectual property policy in its Annual 301 reports – these reports are handy tools for American lobbyists to prod lawmakers in their countries to ramp up pressure for more action. However unlike the nineties, when India was promised greater access to the American market, the American establishment doesn’t appear to be offering any carrots to the Indian government. So where is the incentive for the Modi government to make concessions to the Americans? Why would Modi risk a serious backlash from the powerful combine of the generic pharmaceutical industry and patient group? Will an administration with a strong nationalist sentiment be seen as caving into American pressure in exchange for nothing? Add to this the fact that India is now a massive importer of American defence and nuclear technology and you wonder why the Modi administration would make any concessions to the Americans.

International Intellectual Property

Froman’s testimony is more likely a result of the Indians agreeing to consider the American demands. This usually means that the bureaucrats in the negotiating group will draw up notes and send them to the relevant ministries for comments. The Department of Industrial Policy and Promotion, the Health Ministry, and the Pharmaceutical Department of the Ministry of Chemicals will all express their opposition. Meanwhile, lobbyists from the generic pharmaceutical industry would have leaked the notes to the media and created a furore. The RSS and the Swadeshi Jagran Manch will register their protest. The bureaucrats in the Indo-US Trade Policy Forum will most likely cite the media furore to express their inability to accept American demands, especially when India gains nothing in return.

The cycle will then repeat itself, until the Americans find a way to actually cause economic damage to India without bombing it.

(Prashant Reddy is a Delhi-based intellectual property lawyer.)

Human Rights International Law

CAT out of the bag?

The Rajya Sabha recently referred the Prevention of Torture Bill, 2010 (“the Bill”) to a Select Committee of Parliament. The ostensible purpose of this Bill is to bring the Indian law into compliance with the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT”), which India signed in 1997. The preamble of the Bill unambiguously notes that India is a signatory to the CAT, and that it is ‘necessary to ratify the said convention and to provide for more effective implementation’. What is surprising then, is the gaping discrepancy between the provisions of the Bill and the CAT. The structure of the Bill overall condones torture more than penalising it, and calling it the “Prevention of Torture Bill, 2010” seems rather ironic. This article will concentrate on the most basic difference between the two instruments: how the definition of torture contained in the Bill is narrow and fails to capture a lot of conduct that the CAT considers ‘torture’.

The Bill defines and punishes torture in clauses 3 and 4. A combined reading of these clauses suggests that a person will only be punished for torture under this definition if (i) they are a public servant, or have been abetted by a public servant, or have the acquiescence of a public servant, and (ii) commits an act that either causes grievous hurt, or causes mental or physical danger to the life, limb or health of the victim, and (iii) commits this act with the intention of extorting information or a confession which may lead to the detection of an offence or misconduct, and (iv) does so on some discriminatory ground. All four grounds must be satisfied before someone can be punished for torture under the Bill. This does not comply with the CAT for several reasons.

First, clause 3 read with clause 4 of the Bill indicates that only the person who actually committed the act of torture may be punished. A public servant who abets, consents, acquiesces, or conspires in an act of torture cannot be punished under the Bill. This does not comply with article 4 (1) of the CAT, which requires state parties to criminalise attempt, participation, and complicity in torture.

Second, the Bill only punishes acts that intend to extort information, or a confession that may lead to the detection of an offence or misconduct, and are done with some discriminatory purpose. The definition of torture under the CAT, however, delineates four purposes for torture. These are (i) obtaining information or a confession from the victim or a third person; (ii) punishment for an act the victim has committed or is suspected of having committed; (iii) intimidation or coercion; or (iv) discrimination of any kind. The formulation in the Bill ignores the second and third factors, and only punishes if the first and last factors are found simultaneously. Thus, if, as an example, grievous hurt by a public official for purely discriminatory purposes is not torture under the Bill, but is so under the CAT.

Third, clause 3 of the Bill defines acts that are committed with the intention of extorting information or a confession as torture. However, clause 4 (the punishment section) only punishes acts that intend to extort information or a confession that may lead to the detection of an offence or misconduct, and are done with some discriminatory purpose. Thus, many acts that amount to torture under clause 3 are not punished under clause 4. For example, grievous hurt caused by a public official to extort information that is not caused with a discriminatory purpose will not amount to a punishable act under clause 4. This inconsistency violates article 4(1) of the CAT, according to which each state must ensure that all acts of torture are offences under its criminal law. If an act is defined as torture but not punished, it would clearly violate this provision.

While the Bill does not comply with the CAT for many other reasons as well, the most startling fact that that it employs an understanding of torture that is far more restrictive than that the CAT mandates, while at the same time trying to comply with the CAT. The gap between the CAT and the Bill becomes more glaring when we examine the jurisprudence and development around the CAT internationally and in other national jurisdictions. It is therefore essential that the Bill’s definition of torture to be amended if the Indian state intends to realistically comply with the CAT.

(Sanhita Ambast writes on international law and international relations.)

International Law

India and the new aggression – Part 1

Sanhita Ambast writes about international law and international relations.Map Reproduction Courtesy of the Norman B. Leventhal Map Center at the Boston Public Library.

Map Reproduction Courtesy of the Norman B. Leventhal Map Center at the Boston Public Library.

An extremely interesting enquiry today is the Indian state’s engagement with international law. Despite its growing stature in the international community, India is still not signatory to several important international instruments and does not implement several other treaties that it is signatory to. This exceptionalism warrants examination, especially when India’s oft-stated reason for not signing and complying with international law is the regime’s inherent politicisation and prevalent hypocrisy. The contest between international law and international politics is not new, and recent developments – from the war against Iraq to the failure of the Bashir arrest warrants – raise the following crucial question: is there really an international law distinct from international politics?

I hope to explore both these questions –of India’s engagement with international law and of the line between international law and politics – in a series of pieces dedicated to the result of the recent Review Conference on the Rome Statute of the International Criminal Court (ICC) which took place in Kampala, Uganda earlier this year. Here the international community, by consensus, adopted a definition for the crime of aggression and agreed to a plan for its implementation. Resultant notable amendments to the Rome Statute include the definition of a ‘crime of aggression’ being linked to an ‘act of aggression … constituting a manifest violation of the United Nations Charter’ [article 8 bis]; the ability of the ICC to prosecute aggression independent of the Security Council in certain circumstances [article 15 bis]; more leeway to states in terms of accepting ICC jurisdiction and an increased role for the prosecutor.

It is interesting that that these amendments impact India’s four reasons for not signing the Rome Statute, which are explained here. First¸ India has been concerned about the wide range of powers conferred on the Security Council in the Rome Statute and the control a political body will exercise on what should be a purely legal process. This, prior to the Review Conference, included the Security Council’s monopoly over acts of aggression and article 16 of the Rome Statute (which allows the Security Council to delay ICC prosecutions indefinitely). Second, India is opposed to certain crimes under the jurisdiction of the Rome Statute – in 1998, the Rome Statute did not criminalise the use of nuclear weapons and other weapons of mass destruction. Furthermore, crimes against humanity and war crimes were defined too broadly for India’s liking and included ‘internal’ matters that should fall within the ‘domestic’ jurisdiction of states. Linked to this is India’s third objection to the Rome Statute, the idea of complimentarity and the jurisdiction of the ICC to decide when a country was ‘able and willing’ to prosecute (article 17, Rome Statute). And finally, India is suspicious about the strength of the office of the prosecutor as this power may be used in a politically motivated, arbitrary and unfair manner.

While I shall address the various impacts of the Kampala amendments in subsequent pieces, the same broad argument will run through all of them. The landscape of public international law, international humanitarian law, and international criminal law has evolved in the past decade. As a result, many of India’s concerns regarding the ICC have changed, have become irrelevant, or would be better served by engagement not boycott. This is not to say that India must sign the Rome Statute. Instead, the recent amendment to the Rome Statute, read with legal developments in the past decade, provides an important opportunity for India to reassess its policy towards the ICC, attempt reframing its objections in a more contemporary language, and consider engaging more actively with it.