De-Fragmentation of International Economic Law Through Constitutional Interpretation and Adjudication with Due Respect for Reasonable Disagreement
Title: De-Fragmentation of International Economic Law Through Constitutional Interpretation and Adjudication with Due Respect for Reasonable Disagreement
Author: PETERSMANN, Ernst-Ulrich
Citation: Loyola University Chicago International Law Review, 2008 (Fall/Winter), 6, 209-248
... Just as founding European economic law "on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States" has contributed to sixty years of democratic self-government and peace in Europe, constitutional interpretations of WTO rules in conformity with the universal human rights obligations of WTO Members can strengthen rule of law not only among governments, but also for the benefit of the individual rights and consumer welfare of their citizens. ... The European Court of Justice ("ECJ"), the European Court of Human Rights ("ECtHR") and the European Free Trade Area ("EFTA") Court used citizen-oriented "constitutional interpretations" to transform the intergovernmental European Community ("EC") treaties and the European Convention on Human Rights ("ECHR") into "constitutional instruments" protecting rule of law and fundamental rights of citizens on the basis of constitutional principles common to the member states of the EC and the ECHR. ... Even though the various UN reports on the human rights dimensions of WTO agreements have identified potential conflicts between GATT/WTO rules and the human rights obligations of all WTO Members, GATT and WTO dispute settlement reports almost never refer to human rights principles in their interpretation of the "public interest clauses" of WTO law (e.g. the right under GATT Article XX to protect human health). ... Constitution) also suggests that international market competition depends on an "empowering constitution" (e.g. protecting citizens rights and regulatory agencies for the correction of market failures) as well as a "limiting constitution" (e.g. limiting abuses of private market power as well as public powers) so as to protect rights and obligations not only of governments, but also of citizens engaged in, and benefiting from, international economic cooperation. ... In response to these "constitutional changes," citizens, courts, parliaments, human rights bodies, and democratic governments argue ever more for "constitutionalizing" international economic law by enlarging the "intergovernmental reasoning" in the WTO through "human rights approaches," stronger parliamentary oversight, an advisory inter-parliamentary WTO body, and citizen-oriented "cosmopolitics" (P.Lamy) based on "cosmopolitan constituencies" supporting open markets and consumer-driven competition. ... Such arguments for constitutionalizing intergovernmental power politics have descriptive as well as normative dimensions: - The "humanization of international law" since World War II, notably by the universal recognition and judicial protection of "inalienable" and "indivisible" human rights in national and international law and the recognition of "community interests" in ever more international legal instruments, may justify contextual, positive legal arguments for citizen-oriented "constitutional interpretations" of international rules for the benefit of citizens, as illustrated by the jurisprudence of regional economic and human rights courts, investor-state tribunals, UN human rights bodies and citizen-oriented guarantees in the law of worldwide organizations (protection of core labor rights by the ILO, humanitarian interventions protected by the UN Security Council, etc). - Yet, as constitutional protection of individual rights usually results from struggles of citizens rather than from initiatives by the rulers, calls for "multilevel constitutional restraints" on multilevel trade governance involve also normative arguments for constitutional re-interpretations of international law (e.g. of intergovernmental EC rules) and for a constitutional re-construction of intergovernmental organizations as a "realistic utopia."
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