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'Fragmentation' and 'judicialization' of international law as dialectic strategies for reforming international economic law
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0975-3346; 0976-2329
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Trade, Law and Development, 2013, Vol. 5, No. 2, pp. 209-255
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PETERSMANN, Ernst-Ulrich, ‘Fragmentation’ and ‘judicialization’ of international law as dialectic strategies for reforming international economic law, Trade, Law and Development, 2013, Vol. 5, No. 2, pp. 209-255 - https://hdl.handle.net/1814/33822
Abstract
International economic law (IEL) continues to evolve through dialectic processes of unilateral, bilateral, regional and worldwide regulation. The human rights obligations of all UN member states call for ‘normative individualism’ in economic regulation and justify ‘fragmentation’ of state-centred treaties so as to protect human rights and international public goods more effectively for the benefit of citizens. The ‘structural biases’ and often indeterminate rules and principles in competing treaty regimes for multilevel governance of interdependent public goods require protecting transnational rule of law for the benefit of citizens based on ‘consistent interpretations’, ‘judicial comity’ and ‘cosmopolitan re-interpretations’ of IEL so as to protect not only rights of governments, but also of citizens. The political resistance and ‘veto powers’ of self-interested government executives in the UN and the WTO are increasingly circumvented by ‘constitutionalizing’ and ‘judicializing’ IEL ‘bottom-up’ through bilateral and regional agreements and adjudication. International courts cooperating with domestic courts in protecting cosmopolitan rights have been more effective in protecting cosmopolitan rights and other ‘aggregate public goods’ than ‘Westphalian international courts’ prioritizing rights of governments over rights of citizens.