Human Rights, Justice, and Courts in IEL: A Critical Examination of Petersmann’s Constitutionalization Theory

Tao Li and Zuoli Jiang

Journal of International Economic Law, 2018, vol. 21, issue 1, 193-211

Abstract: Petersmann’s works focus on the normative and fundamental issues of international economic law (IEL) with such nonvarying analytical tools as the concepts of human rights, justice, and judicial review and thus can be examined in general in a comprehensive setting including Chinese thought. Based on the purported universal recognition of human rights, Petersmann insists on a paradigm of bottom-up struggles for IEL constitutionalization, but the Universal Declaration of Human Rights does not require radical individualism and rights absolutism in light of its absorption of Chinese thought. Petersmann’s explication of IEL justice is transcendental without sufficient consideration of the positive role governments can play, whereas the Confucian ideological framework ren→li→yi hints at a nascent approach for addressing global poverty and underdevelopment. Petersmann views the courts as the guardian of human rights and justice. However, the Chinese legal system has an increasingly negative attitude toward the incorporation of human rights law into the judicial process, and Chinese courts favor diversified dispute settlement mechanisms partly because of the preference for negotiated solutions. Due to the divergent ideological presumption concerning root values, Petersmann’s theory is fundamentally different from Chinese thought, a difference that cannot be described in the context of pluralism.

Date: 2018
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