국제경제법상 보편주의와 지역주의의 상보적 발전 : 지적재산권의 국제적 보호를 중심으로

Abstract

Universalism became official through the concept of the international community, which was acknowledged through practices and principles. The Vienna Convention on the Law of the Treaties, a treaty law enforced in 1969, was the first international document to mention an international society. Article 53 defines jus cogens as “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” The same was stipulated in Article 53 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, which was enforced in 1986. Also, the Draft Declaration on the Rights and Duties of States declares that “the states of the world form a community governed by international law.”Regionalism has long been regarded as an important concept in international relations. The phenomenon, wherein close and concentrated economic, political, and social exchanges occur between countries in the same region or in adjacent neighborhoods based on geographic distribution, can be said to be regionalization, whereas towards that end, the artificial and political process of fine-tuning policies between countries and of forming beneficiary relations can be said to be regionalism, a concept opposed to universalism. That is, regionalism refers to the position by which to maintain regional spontaneity and yet promote solidarity and cooperation, based on regional specificity. Regionalism, under international law, generally does not necessarily form rules/principles or substantial portions of international human rights law or international economic law. The problem of regionalism is raised chiefly in connection to the problem of the universality of international law, and when reflecting regional specificity to amend and apply general rules, regionalism takes the pattern of norms. Such regionalism assumes a stronger meaning when, in the regional scope of effects, it implies principles or rules in the regional scope of validity, or means regional limitations in the scope of the validity of universal rules or principles. In the former case, rules and principles carry a positive meaning, making them binding only on the member countries in a specific region. In the latter case, regionalism carries a negative meaning, exempting countries in a specific region from universal rules or principles. Such concerns and doubts about the WTO system that various countries had led to the widening spread of the FTA system. As seen in the through DDA negotiations, the member countries were disappointed about the WTO system under which they had to sharply confront each other, and felt that the trade system that they wanted would be distant. They thus moved to pursue FTAs to effectively establish their own trade systems. While overcoming the time- and effort-consuming multilateral trade system required reaching a consensus, FTAs are now being widely used. Regionalism pursues cooperation in a region, an economic bloc, and some countries, and the FTA-centered regionalism in the field of trade, shedding regional constraints, moves to pursue cooperation between countries, with the aim of promoting commerce. In the field of trade, regionalism focuses on conducting trade between countries, and FTAs between countries are also included in the concept of regionalism. Specifically, regionalism in the field of trade, through regional trade agreements, refers to governments’ measures to promote and liberalize trade, or to cooperation in lifting trade barriers by shedding regional constraints. It is very important to note that through discussions of universalism, international law is operated under a single global system. It should not be forgotten, though, that international law will be influenced by regional systems formed through treaty reservation and the approval for regional arrangements aimed at promoting international cooperation. Arguments over universalism and regionalism will lead to global negotiations to conclude multilateral treaties, which in turn will influence the final texts of multilateral treaties. The absence of a consensus and the difficulty of integrating different cultures make it very difficult to adopt international treaties. Thus, international treaties with universal characteristics must reflect the regional differences, which is a great challenge for international law.