Need for a New Philosophy of International Economic Law and Adjudication

Ernst-Ulrich Petersmann

Journal of International Economic Law, 2014, vol. 17, issue 3, 639-669

Abstract: Section I explains why the human rights obligations of all UN Member States call for a new philosophy of international economic law (IEL) in order to protect rights of citizens and their democratic demand for transnational public goods (PGs) more effectively. Section II discusses five different conceptions of IEL and the need for their ‘legal integration’ so as to promote more ‘public reason’, democratic participation, legal coherence, and ‘proportionality balancing’ in multilevel governance of transnational PGs. Section III argues that the ‘functional institutionalism’ underlying UN and WTO law—albeit necessary for limiting ‘prisoner dilemmas’ and other collective action problems in multilevel governance of international ‘aggregate PGs’—must be embedded into ‘cosmopolitan constitutionalism’ in order to protect human rights and other ‘aggregate PGs’ more effectively through ‘participatory’ and ‘deliberative democracy’, democratic accountability mechanisms, and stronger legal and judicial remedies of citizens compensating for the inadequate parliamentary control of multilevel economic regulation. Transforming ‘disconnected UN/WTO governance’ into ‘cosmopolitan republicanism’ requires ‘responsible citizenship’ and cosmopolitan rights protecting individual autonomy (e.g. ‘market freedoms’), democratic autonomy and other ‘aggregate PGs’ (res publica). ‘Constitutional’ and ‘legislative balancing’ of economic and non-economic rules must be complemented by case-specific ‘judicial balancing’ and justification with due respect for ‘principles of justice’ (including cost-benefit analyses).

Date: 2014
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