Is Colonialism an Anomaly of the Past, Now Corrected by the Processes of Universalism?
16 June 2020
Muhamad is a German-born Kurd that has lived and studied in the UK since the age of six. He has just completed his undergraduate studies at the University of Warwick and will be commencing with his Legal Practice Course at BPP in September. He is a future trainee at White & Case LLP where he hopes to practise commercial law and aspires to become the youngest partner the firm has ever seen.
International law is narrated as a Eurocentric phenomenon bearing its genesis in colonial activities, and its correction after the period of decolonisation. In providing this narrative, writers like Singh recognise colonialism as an unfortunate, but necessary, occurrence for the transformation of erstwhile colonies to sovereign states. In achieving this transformation, apologists propose that underpinning universalist endeavours led to the correction of the international legal framework. Indeed, the framework has now accepted former colonies as welcome sovereigns. As a result, it is suggested that the once colonised are no longer coerced and dominated by European sovereigns. Sceptics, such as I, dispute this view as romanticised, parochial and evasive of the realities of international law today.
Formal colonialism has come to an end, and by extension, the overtly forceful appropriation of land and subsequent exploitation of people. Nevertheless, I argue that certain defining features of colonialism continue to permeate some universal systems today. These include, inter alia, a barrier to commerce leading to the homogenisation of Western values across the globe, the exploitative exercise of influence in international fields of law and politics, and the false promise of an equal system. I begin by establishing a relationship between colonialism and universalism by engaging with Anghie’s literature. This will help to elucidate how (sometimes) the concept of universalism has been skewered to legitimate colonial endeavours. Thereafter, I examine the extent to which these findings can explain a) the process facilitating the universalisation of intellectual property rights (“IPR”) and, b) the immediate impacts this process had on developing nations (“DNs”), with a particular focus on India. By arguing that this system echoes colonial tendencies, I conclude by affirming the continuing relevance of colonialism as a conceptual category.
Universalism, Colonialism and International Law
Universalism reflects the idea that there is a universal applicability of a theme to all humans by reason of their humanity. It is an ethically neutral and fluid concept. Nevertheless, the pretence of an existing universalist system is capable of, and has been used as, a vehicle to legitimate egregious colonial motives. In justifying this, an analysis of Vitoria’s literature will ensue. Undoubtedly, Vitoria’s epoch is not wholly reflective of the history of European colonialism. However, Waswo rightfully observes that later events such as the contributions of Grotius or the ‘Scramble for Africa’ entailed substantially similar colonial features.Thus, Vitoria’s narrative will suffice to demonstrate a nuanced relationship between universalism and colonialism.
One of Vitoria’s most influential pieces focuses on the Spanish conquest of the Indian people.7 In short, Vitoria was perplexed by the legitimation of the conquest which was grounded on an ostensible universal jurisdiction garnered by the Pope through divine law. The divine law denoted that the Indian people’s infidelity demoted them from humans to ‘heathens’, thus granting the Spanish Christians an unassailable right to appropriate the Indian’s land. However, Vitoria refuted this because the divine law did not encompass the Indians, and thus the jurisdiction of the Pope could only govern his people. Therefore, an alternative system was needed that subjected the Spanish and Indian alike. Vitoria proposed that the natural law filled this void. Indeed, the Indian, like the Spaniard, possessed faculties of reasoning, as evidenced by Vitoria’s fascination of their political system. Laudably, Vitoria then praises the Indian and introduces her to a system that is colour-blind, ethnically-neutral and, in one word, universal. However, he then laboriously asserts that the natural laws necessitate the right to commerce. Where this natural right was inhibited, retaliation in the form of war became lawful. Thus, the Indian’s refusal to commerce resulted in the convenient imposition of Western values through colonial attacks.
Anghie analyses this narrative by shedding light on some of the colonial themes mentioned earlier. Firstly, he asserts that the discovery of universal laws are often consequences of a sovereign’s encounter with a barrier to commerce. With hopes of maximising her economic superiority, the sovereign nation (coercively) incorporates a people into an all-encompassing field of law. The incorporation serves to allow the sovereign to legitimately homogenise her (Western) values across the globe. Secondly, little regard is paid to whether the non-European wishes to enter this system.14 Under the guise of universalism, the colonial endeavour is represented as an enticing opportunity which must logically, and forcefully, be ascribed to. However, the universalist system is a paradox; it superficially embraces equality but spurs exploitation. By following this framework, I will now identify to what extent the universal system of intellectual property (“IP”) echoes similar colonial tones.
The Universalisation of Intellectual Property Rights
The universalisation of IP, like the aforementioned Spanish conquest, stemmed from a barrier to commerce. In the twentieth century, major pharmaceuticals in the US became increasingly frustrated by the financial losses they were incurring when patented medicines were being manufactured in DNs without authorisation. Commenting on this, Birnhack astutely notes that in the past, where patents were only protected domestically, many manufacturers would circumvent the patent protection by relocating manufacturing hubs to unbound jurisdictions. Given this flaw, a pragmatic attitude culminated in the West that a universal system of IPR was necessary. Like in Vitoria’s context, what was contemplated was the transplant of Western values onto a foreign people. In seeking this, Birnhack posits that Western nations were ensuing a renaissance of colonial appropriations of legal systems. If correct, then colonialism continues to be a relevant conceptual category. However, unlike Birnhack, I posit that the transplant of Western values is not colonial per se, but that the way in which this is achieved, and its implications, certainly can be. This is a crucial nuance to bear in mind because the appropriation of foreign legal systems rarely arises through military means anymore. Instead, the underlying domination that fulfils this goal is exercised through evolving means.
One way of understanding how such (colonial) domination has evolved can be illustrated by evaluating the role played by the ‘Intellectual Property Committee’ (“IPC”). The IPC comprised of thirteen major pharmaceutical companies in the 1990s who strived to globalise IPR. In doing so, they recognised the importance of channelling IP reform discourse from the World Intellectual Property Organization (“WIPO”), to the GATT Round of Multilateral Trade. Indeed, the IPC was of the opinion that the WIPO was a barrier to commerce. This perception stemmed from the fact that the WIPO was not a traditional political arena fixated on economic progress but rather focused on IP discussions via a democratic mandate. Hence, the absence of an economic focus inhibited Western nations from flexing their (economic) influence on DNs. Consequently, DNs, like the developed nations, could participate in the international framework in an unencumbered manner. Throughout its participation, the DN’s consistently rejected Western attempts to globalise IP due to the fear that such an endeavour would only cultivate one-sided benefits. Hence, one may convincingly suggest that a novel sense of universalism accrued, whereby the WIPO gave effect to the voices of the developing and developed world by virtue of their commonality: humanity. If plausible, it can be concluded that this sense of universalism was capable of correcting the wrongs of colonialism.
In response, however, the IPC strategically sought to influence Western nations to raise IP discussions in the Uruguay Roundby portraying the matter as a universal commercial issue. If successful, it was believed that Western countries could negotiate global IPR by threatening DNs with unfavourable trade deals if they resisted. Needless to say, the Western nations agreed with the IPC. Subsequently, the issue was raised in the Uruguay Round and the WIPO’s jurisdiction was thus undermined. It may be convincingly argued that the IPC exercised a colonially-reminiscent level of influence in achieving this. Indeed, up until the inception of the IPC, the WIPO had existed as the sole forum for IP discussions, which efficaciously fostered egalitarian values by working under a democratic mandate free from economic exploitation. Yet, when this laudable commitment to democracy was perceived as a barrier to commerce, the IPC sought to construct a better, Western-serving, international framework (see below). Crucially, while it is conceded that the IPC’s desire to not be perennially undercut was not colonial, the means exercised in ensuring this arguably were. Indeed, in effectuating this endeavour, the fluid concept of universalism i.e. IP being a global commercial right, was skewered to trap the DNs in a newly constructed Western commercial forum (see the next section). Undoubtedly, the consent of the DNs was circumvented, and again, like Vitoria’s natural law, the concept of universalism was utilised to legitimate the colonial silencing, and forceful incorporation, of the DNs. 
Once the issues were raised in the Uruguay Round, the chiselling of a new universal system commenced. Western countries leveraged their economic domination to ensure the silencing of the DNs. The US, for example, told DNs that if they wanted access to ‘free trade’ they would be required to comply with the global IP endeavour. Subsequently, the DNs succumbed to the economic influence and accepted the agreement. Western values with one-sided motivations were going to be printed in foreign jurisdictions, and the developing world was (again) captured in the Western homogenisation process. Contrarily, some scholarship has tenuously deemed this occurrence as a mere negotiation exercise where Western nations simply ‘had the better bargaining chips’. Conversely, Gana refutes this narration by categorising the negotiations as coloniallyinspired acts of duress. She convincingly justifies this by arguing that the DNs had hitherto shown great dependency on the Western pharmaceutical and food markets. With lives at risk, the Western nations exploited this misfortune by flexing their economic dominion and subsequently curtailing the discretion of DNs. In turn, this resulted in the ascertainment of a false idea of consent. Therefore, the internationalisation of IPR demonstrates that universalism failed in correcting colonialism, thus rendering it (colonialism) as a relevant conceptual category.
The next part of this essay will consider to what extent the defining features of colonialism can be illustrated once the developing world had been incorporated into the Western system.
Post-incorporation: The Legal Framework of TRIPS in India
The controversial incorporation into a universal system begot the Agreement on Trade-Related Aspect of Intellectual Property (“TRIPS”). Essentially, the TRIPS Agreement required all member states to domestically implement minimum levels of protection in every area of IP. These were known as minimum standards. In theory, this construction sought to epitomise a benignant endeavour trying to strike a balance between the DNs’ desire for a lax IP framework, and the developed nations’ push for stringent laws. In pursuing this balance, the drafters appeared to cater to some of the DN’s needs e.g. assurances of shared economic growth. Thus, some former colonies emerged faintly optimistic to have a relationship with their former administrators.37 Indeed, TRIPS was enticingly presented as a universalist system that was capable of correcting the wrongs of colonialism.
However, the practicalities of the minimum standards were deemed a misnomer by significant DNs. Mgbeoji perceptively illustrates this point by suggesting that what appeared to be a floor for IP standards was in fact a ceiling i.e. an unreachable goal. Beyond the economic reasons, I hope to extend Mgbeoji’s metaphor and argue that the difficulties of the minimum standards also lay in the fact that they were ultimately Western values impatiently seeking to overthrow DNs’ understandings of IP. India provides a good case study and is thus discussed below.
Cultural forfeiture in Ind
India’s accession to the TRIPS Agreement can be persuasively characterised as colonial. In demonstrating this, a focus is placed on how the meticulous drafting of certain TRIPS provisions forced India to discard, both, its patent laws as well as a fundamental feature of its constitutional personality, namely the access to medicine.
Prior to the TRIPS Agreement, India’s patent framework was inspired by a post-independence ideology of facilitating the social right of access to medicine. In ensuring this, the Patent Act 1970 was passed with a focus on restricting the potency of patents in the pharmaceutical industry. It was held that by limiting the monopoly on medicine, its accessibility would increase. The Act achieved this by restricting the awarding of patents in the pharmaceutical industry to the process of the product as opposed to the product itself. In discerning between the two, Basheer helpfully elucidates that patents for process were much weaker than product patents, which in turn made it easier for manufactures to create affordable generic versions. In justifying this unique patent framework, Prime Minister Gandhi asserted that India ‘envisages a better world in which medical discoveries would be free of patents and there would be no profiteering from life or death’. Ultimately, this vision crystallised into a major component of India’s constitutional personality.
Post-TRIPS accession, India’s patent laws were deemed as falling short of the minimum standards and required subsequent amendments. In achieving this change, India, like all DNs, were granted an initial ten-year transition period to fully comply with the TRIPS Agreement. At a first glance, the extension period may strike as benevolent – indeed, the Western world appeared to recognise the additional support that India needed.
Conversely, a closer analysis can render the extension period as a sham which instead hastened colonial aspirations. While in other areas of the TRIPS Agreement the transition period operated as promised, the field of patents required DNs to adopt an unsettling interim framework. This framework included the introduction of exclusive marketing rights (“EMRs”). EMRs are patentlike rights which vests the applicant with exclusive rights to sell and distribute a product, but unlike a patent, lacks the exclusive manufacturing rights. Nevertheless, Basheer convincingly posits that to the detriment of India, EMRs and patents were in fact equivalent because India’s lack of IP expertise meant that domestic manufacturers would be unable to recreate complex drugs.Unsurprisingly, the Indian policymakers ‘resented’ this requirement.
The resentment revolved around the fact that India was required to accept that its patent laws were barriers to commerce that needed to be changed instantly. Basheer argues that the meticulous drafting of the TRIPS Agreement exploited India’s lack of manufacturing expertise of complex IP goods. Hence, the interim framework which was superficially presented as a substandard of the patent laws in fact manifested as an exploitative and complete Western patent framework. This meant that India was hurried in dropping its legal framework, and by extension, the means that protected the constitutional right of access to medicine. This was a fatal blow to the Indian people. As Sarkar aptly argues, the EMR framework caused India to lose ‘a part of its selfhood’ in this dynamic process of Western homogenisation. Read as such, the TRIPS system was paradoxically presented as an enticing universal system catering to the needs of India, but instead benefitted the West by legitimating the appropriation of both a legal system, and the nation’s constitutional personality.
By considering Anghie’s analysis of the Spanish conquest, it became clear that certain defining features were prevalent in Europe’s colonial history. Thereafter, I argued that these features were echoed in a postcolonial context and were not corrected by modes of universalism. Indeed, by analysing the internationalisation of IP and the moments after the TRIPS Agreement was signed, it became clear that these colonial tendencies were present, albeit in nuanced contexts.
Therefore, I conclude by reiterating that colonialism has come to an end, but the inherent defining features continue to permeate some international legal frameworks. Hence, to deem colonialism as an anomaly of the past, or a necessary occurrence for today’s correcting universalist systems, is parochial and evasive of harsh realities. The concept of universalism is capable of correcting the wrongs of colonialism, as the WIPO illustrated, but it is only able to do so where it acts upon the voices of the most vulnerable. Where universalism fails in this regard, and it often does, colonialism continues to be a relevant conceptual category.
 Matthew Craven, Colonialism and Domination (1st edn, Oxford Handbook 2012) 1-3.
 See Prabhakar Singh, 'Indian International Law: From a Colonized Apologist to a Subaltern Protagonist' (2010) 23 Leiden Journal of International Law.
 Due to the scope of this essay, a predominant emphasis is placed on the first defining feature, which will in certain sections, be supplemented by reference to the latter elements. Moreover, a concrete definition of colonialism is not given in order obviate unduly limiting the evolving nature of colonialism and domination in the modern context.
 Krzysztof Gawlikowski, 'From False “Western Universalism” Towards True “Universal Universalism”' (2004) 14 Dialogue and Universalism 13.
 Richard Waswo, 'The Formation of Natural Law to Justify Colonialism, 1539-1689' (1996) 27 New Literary History 745-747. 7 See Francisco de Vitoria (1557/1917) De Indis et de Iyre Belli Relectiones, ed Ernest Nys, translation by John Pawley Bate, Washington DC, Carnegie Institute of Washington.
 Ibid 127.
 Ibid 133.
 Waswo (n 6) 752.
 Antony Anghie, 'Francisco De Vitoria and the Colonial Origins of International Law' (1996) 5 Social & Legal Studies.
 Ibid 333-334.
 Ibid 336. 14 Ibid 324.
 Antony Anghie, 'The Evolution of International Law: Colonial and Postcolonial Realities' (2006) 27 Third World Quarterly 14-16.
 Malcolm D Evans, International Law (5th edn, Oxford University Press 2018) 6-9.
 Andreas Rahmatian, 'Neo-Colonial Aspects of Global Intellectual Property Protection' (2009) 12 The Journal of World Intellectual Property 5-9.
 Michael D Birnhack, Colonial Copyright (1st edn, OUP Oxford 2014) 11-15.
 Rahmatian (n 17).
 Birnhack (n 18) 19-20.
 Rahmatian (n 17) 11-14.
 Ibid 16-17.
 Keith Aoki, 'Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World Order of International Intellectual Property Protection' (1998) 6 Indiana Journal of Global Legal Studies 17-19.
 Rahmatian (n 17) 18.
 The Uruguay Round was the 8th round of trade talks at the GATT.
 It is here where a competing notion of universalism is brought into global discourse.
 Shamnad Basheer, 'Trumping TRIPS: Indian Patent Proficiency and the Evolution of an Evergreening Enigma' (2018) 18 Oxford University Commonwealth Law Journal 23-25.
 Rahmatian (n 17) 24-26.
 Aoki (n 23) 31-35.
 Peter Drahos, Negotiating Intellectual Property Rights (1st edn, Palgrave 2002) 23-25.
 Ruth L Gana, 'The Myth of Development, the Progress of Rights: Human Rights to Intellectual Property and Development' (1996) 18 Law & Policy 322-325.
 Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 3; 33 I.L.M. 1197 (1994).
 Rahmatian (n 17) 4-6.
 Marrakesh Agreement (n 34) Article 66 discusses the special transition periods offered to the least developed countries. 37 Shahid Alikhan and R. A Mashelkar, Intellectual Property and Competitive Strategies In the 21st Century (2nd edn, Kluwer Law International 2004) 122-124.
 Ikechi Mgbeoji, 'TRIPS and TRIPS Plus Impacts in Africa' (2007) 192 Osgoode Hall Law School of York University 269-270.
 Ibid 274-277.
 This comprises of, among other things, the excessive funding necessary to set up IP infrastructure, investing in legal expertise and enforcement mechanisms.
 Murphy Halliburton, India and the Patent Wars (1st edn, Cornell University Press 2017) 7-11.
 Basheer (n 27) 14-18.
 See the following inquiry, Rajagonala Ayyangar, Report on the Revision of the Patents Law (September 1959) 63.
 Robert L Ostergard, 'Intellectual Property: A Universal Human Right?' (1999) 21 Human Rights Quarterly 156-160.
 Marrakesh Agreement (n 33) Article 66 discusses the special transition periods offered to the least developed countries.
 Ibid Article 65 (4).
 Basheer (n 27) 25-28.
 Department-Related Parliamentary Standing Committee on Commerce, 35th Report on India and WTO (4 April 1998) accessed 19 March 2020.
 Basheer (n 27) 26-28.
 Tanika Sarkar, 'How to think Universalism from Colonial and Post-Colonial Locations: Some Indian Efforts.’ (2008) 4 Studies across Disciplines in the Humanities and Social Sciences 235.