Human rights require ‘cosmopolitan constitutionalism’ and cosmopolitan law for democratic governance of public goods
Title: Human rights require ‘cosmopolitan constitutionalism’ and cosmopolitan law for democratic governance of public goods
Author: PETERSMANN, Ernst-Ulrich
Series/Number: EUI LAW; 2013/04
The more ‘globalization’ transforms ‘national public goods’ demanded by citizens into transnational ‘aggregate public goods’, the stronger becomes the need for reviewing ‘Westphalian governance failures’ and related ‘legal methodologies’ (Section I). Resolving the ‘constitutional problems’ and ‘collective action problems’ of multilevel governance (e.g. in terms of constituting, limiting, regulating and justifying multilevel governance powers, participation and representation of citizens in governance and dispute settlement, rule of law protecting cosmopolitan rights) requires supplementing national Constitutions by ‘multilevel cosmopolitan constitutionalism’ empowering citizens and multilevel governance institutions to realize their collective responsibility for protecting human rights, rule of law and other interdependent public goods across frontiers (Section II). The prevailing ‘political realism’ and ‘constitutional nationalism’ neglect the customary law requirements of interpreting international treaties and settling disputes ‘in conformity with the principles of justice and international law’, including ‘human rights and fundamental freedoms for all’, in order to limit democratic accountability of governments (Section III). Human rights and multilevel protection of ‘principles of justice’ require cosmopolitan law based on constitutional, ‘public choice’- and economic regulatory strategies limiting multilevel ‘governance failures’ as well as ‘market failures’ (Section IV). The human rights obligations of all UN member states limit governmental ‘margins of appreciation’ in dealing with economic crises and related austerity programmes (Section V). Governments and courts of justice must reconcile and ‘balance’ civil, political, economic, social and cultural rights depending on their diverse ‘contexts of justice’ and protect transnational rule of law not only in terms of rights and obligations of governments, but also as cosmopolitan rights of citizens as ‘agents of justice’ and ‘democratic owners’ of all governance institutions (Section VI).
Subject: Constitutional pluralism; Cosmopolitan constitutionalism; European Court of Human Rights; European Free Trade Area Court; EU Court of Justice; European law; Human rights; International economic law; Judicial governance; Legal methodologies; Multilevel constitutionalism; Social rights
Table of Contents:
I. Governance failures, justice and legal methodology. -- II. Human rights law (HRL) requires cosmopolitan law protecting public goods beyond state borders. -- III. Interpretation and adjudication of IEL ‘in conformity with principles of justice’ and human rights? -- Which human rights? -- How to construe IEL and its human rights dimensions? -- IV. Constitutional and economic approaches to IEL and their limits. -- Need for comparative legal and institutional research. -- Dialectic evolution of IEL through legal and judicial practices. -- V. ‘Margins of appreciation’ in legal and judicial protection of social rights during economic crises. -- Human rights and the European economic crises. -- The UN Guiding principles on foreign debt. -- Extraterritorial human rights obligations. -- HRL requires cosmopolitan rights. -- VI. Human rights require cosmopolitan law and transnational ‘rule of law’ for the benefit of citizens. -- Need for cosmopolitan law beyond HRL. -- Access to justice: lessons from European Law for UN/WTO law and IEL. -- Multilevel judicial protection of transnational rule of law for the benefit of citizens. -- Conclusion : multilevel constitutionalism depends on ‘struggles for justice’ and ‘cosmopolitan public reason’.
Type of Access: openAccess
Published version: http://hdl.handle.net/1814/30261