Transformative Transatlantic Free Trade Agreements without Rights and Remedies of Citizens?

Ernst-Ulrich Petersmann

Journal of International Economic Law, 2015, vol. 18, issue 3, 579-607

Abstract: Evaluations of the Comprehensive Economic and Trade Agreement (CETA) among Canada and the European Union (EU) and of the ongoing EU–US negotiations on a Transatlantic Trade and Investment Partnership (TTIP) depend on their legal, economic, and political methodologies for multilevel governance of public goods (PGs) like a transatlantic market. In contrast to the American and European post-war leadership for democratic governance of PGs (as recalled in Section I), the CETA fails to adequately protect democratic governance, rights of citizens, and judicial remedies in transatlantic market regulation (Section II). TTIP negotiators likewise prioritize economic and utilitarian group interests in order to limit opposition to a successful completion of TTIP; this risks undermining ‘republican governance’ and rights of citizens as limitations on the longstanding governance failures in the Transatlantic Partnership since the 1990s (Section III). Rather than complying with the EU Treaty requirements to base external free trade agreements (FTAs) on the ‘constitutional values’ that successfully govern market regulation and competition throughout Europe, trade negotiators abuse their ‘executive monopoly’ over transatlantic negotiations so as to limit their own legal, democratic, and judicial accountability vis-à-vis citizens. Civil society and parliaments should resist such ‘disconnected Westphalian governance’ and insist that international treaties with ‘legislative functions’ for protecting transnational PGs must be governed democratically and protect transnational rights and remedies of citizens so as to enable the ‘democratic principals’ to hold governance agents and their limited ‘constituted powers’ more accountable for the ubiquity of ‘market failures’ and ‘governance failures’ that continue to distort transatlantic relations, rule of law, and consumer welfare.

Date: 2015
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