Transatlantic free trade agreements : lack of EU leadership for reforming trade and investment law?

Abstract

Should the EU design transatlantic free trade agreements (FTAs) as a power-oriented “international law among states,” a “democratic law among peoples,” or as a “cosmopolitan law among individuals” as the legitimate “constituent powers” and “democratic principles” of all governance agents in the twenty-first century? Why are fundamental rights so important for reforming “disconnected UN/WTO governance,” so as to render multilevel protection of transnational public goods (PGs) more effective for the benefit of citizens? FTAs protecting the rights and remedies of citizens have been uniquely successful in European integration, for instance by limiting “governance failures” and “market failures” (e.g. through constitutional, competition, labor, social and environmental law, and judicial remedies). Yet, the EU neglects its “cosmopolitan foreign policy mandate” in FTA negotiations with non-European countries. European citizens criticize transatlantic FTAs for disregarding fundamental rights and judicial remedies inside the EU. Rather than exercising leadership as a “protector of citizens” in the necessary reforms of “disconnected UN/WTO governance” of transnational PGs by designing FTAs among democracies as “cosmopolitan international law,” the EU institutions prioritize bureaucratic self-interests in reducing legal, democratic, and judicial accountability vis-à-vis citizens in the trade policy area, thereby aggravating the EU’s legitimacy—and rule-of-law-crises.