A Political Analysis Of International IP Law

Whether the dynamic force of international law lies in the idea or in the politics is still debated. Naturalists consider international law the rationality of man (since Grotius), while the common rationality constitute international law. Positivists hold that international is the order of the sovereign, while international law is the self-limitation of sovereign states through explicit or implicit consent. In the theory of international relations, realists and liberalists tend to focus on the material elements such as power and trade; however constructivists pay more attention to the ideological or conceptual elements in the forming of norms, emphasizing the universal conception, universal culture and universal belief. This essay is a political analysis of the current IP law on the basis of the general theories of international law and international relations. The first part is a general introduction of the basic theory and assumption. On the basis of the development of international law, this article adopts the critical constructivism as its fundamental analytical instrument, which thinks that the forming of conception or rationality in international community is determined by the power and communication. The second part focuses on the traditional justifications of IP rights. As the variable-territoriality should be considered, the traditional theories are faced with more challenges. Additionally, this part gives special attention to human rights in the justification of IP rights. The third part is based on the rational choice theory of states in the international community, adopting different assumptions of gaming theory to analyze the concrete rules of IP law bilaterally or multilaterally. The last part is the conclusion. In light of the analysis above, it is necessary to rethink the justification of international IP rights. Even though it can be justified in the domestic community as an IP right, it is far beyond justifiable against the global background. If the equitable principle and human rights are derogated, it should be doubted.