Institutional fragmentation of international intellectual property law in a world society : ontological ethos, structural biases and regime interaction

Abstract

Fragmentation — as a powerful and defining metaphor about rule complexity and regime proliferation in international legal scholarship — is not a new issue in international legal studies, but it remains pivotal. However, there are no adequate studies on the phenomenon and debate of institutional fragmentation from the perspectives of the ontological ethos of international law and structural biases in international legal scholarship. The purpose of this study is to use the phenomenon and debate of institutional fragmentation in international intellectual property law to explore the ontological ethos of international law and structural biases in some fields of international legal scholarship.

Through revisiting the debate of institutional fragmentation in international legal studies, it is argued that the so-called institutional fragmentation phenomenon manifests the ontological ethos of international law (primarily diversity and decentralization) in a globalized and still decentralized world society, and international law has not been threatened by or lost in this phenomenon. The benefits and rationalities of the institutional fragmentation phenomenon are underestimated. Institutional fragmentation is an exaggerated and projected rhetoric, and it exposes the structural biases in both international law (namely imbalances and injustices due to embedded hierarchies of preferences and interests) and some fields of international legal scholarship (namely ineffective assumptions and arguments resultant of Eurocentrism, especially those expansionist and idealistic narratives of the potentials of contemporary Western-dominated international law), as well as their mutual coproduction for the legitimacy of the current Western-dominated and Euro-centric international legal system. Thus, the phenomenon and debate of institutional fragmentation concerns not only the specific conflicts and techniques of managerialism in international law, or merely the tension between formalism and realism in the international legal scholarship, but also exposes the ontological ethos of international law and structural biases in some fields of international legal scholarship.

Moreover, the regime interaction perspective is more effective than the institutional fragmentation rhetoric in illuminating the ontological ethos of international IP law in a world society. Using an international comparative approach, the thesis conducts three case studies on the interaction of international IP regimes (between the WIPO treaties and WTO TRIPS Agreement, in the Asia-Pacific Region and the European Union). The “law of universal gravitation” and “structure of tensional integrity” illuminate the interactive interplay and structural inter-forces among regimes. Regime proliferation and interaction manifest the dynamic processes of accretion and accumulation in the making of international IP law and establishment of international IP regimes.

On the future institutional development of international IP law in this world society, there are four trends in perspective: the rise of regionalism and decline of multilateralism, the competition between China and the US, the evolving authority and legitimacy of regimes, and a new opportunity for global governance and global justice. The rise of China and other new powers may offer an opportunity to rectify the structural biases and systematic violence in international IP law with a more democratic and balanced approach to the making of international IP law and establishment of international IP regimes.