Citizens and transatlantic free trade agreements : how to reconcile American 'constitutional nationalism' with European 'multilevel constitutionalism'?

Abstract

The EU free trade agreements (FTAs) with Canada and the USA aim at protecting transnational public goods - like a rules-based, transatlantic market - that could be progressively extended to other European and North-American FTA member states and serve as a model for reforming also worldwide trade rules and governance institutions. As explained by democratic and cosmopolitan republicanism and 'law and economics', international law and governance can protect public goods more effectively and legitimately if citizens are empowered as 'democratic principals' and republican 'constituent powers' to hold multilevel governance institutions legally, democratically and judicially accountable for their frequent governance failures. The Lisbon Treaty established a 'cosmopolitan foreign policy constitution' requiring 'protection of its citizens', 'strict observance of international law' and rights-based market regulations also in the EU's external relations (cf. Arts 3, 21 TEU). This contribution criticizes the EU policies of disempowering citizens in FTAs with constitutional democracies and undermining their fundamental rights and judicial remedies. Without stronger accountability to its citizens, the EU cannot address its crises of legitimacy and disregard for rule of law.