Narrating 'international economic law' : methodological pluralism and its constitutional limits

Abstract

Parts I and II discuss five competing “narratives” of international economic law (IEL) as (1) power-oriented “Westphalian public international law”; (2) utilitarian multilevel economic regulation; (3) multilevel constitutional regulation; (4) international private and “conflicts law”; and (5) “global administrative law” (GAL). The jurisprudential and doctrinal incoherencies among these conceptions of IEL contribute to the fact that the worldwide monetary, financial, trading, investment, environmental, development and commercial law systems are often studied and regulated as “fragmented sub-systems” without adequate regard to “interface problems” and to the need for limiting “legal fragmentation” through mutually coherent interpretations of “overlapping treaty regimes”, as required by the customary rules of treaty interpretation. Part III explains that the diverse narratives of IEL result from diverse regulatory objectives and “principles of justice” pursued by rational economic and political actors; human rights call for respecting individual and democratic diversity and related “methodological pluralism” in IEL, bounded by the “constitutional limits” resulting from the “dual nature” of modern legal systems incorporating “inalienable” human rights, constitutional law and jus cogens as integral parts of positive law. Part IV concludes that the universal human rights obligations of all United Nations (UN) member states require integrating human rights law (HRL) and IEL through “cosmopolitan constitutionalism” so as to hold the limited “constituted powers” for multilevel governance of transnational “aggregate public goods” more accountable to citizens as holders of “constituent powers”. As illustrated by rights-based transnational economic transactions and cooperation among citizens, cosmopolitan rights, democratic accountability mechanisms and judicial remedies are the best incentives for civil society, democratic governments and courts of justice to engage with “globalization” and “institutionalize cosmopolitan public reason” challenging the domination of UN and World Trade Organization (WTO) governance by inter-governmental power politics. Such “constitutional reforms” can be realized “bottom-up” by taking the customary rules of treaty interpretation and adjudication more seriously, as illustrated by multilevel legal and judicial protection of cosmopolitan rights in international commercial, investment, criminal law, regional economic and HRL.