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Begin New Search Author Ernst-Ulrich Petersmann Publication Year within 25 Years

1. Human Rights, International Economic Law and Constitutional Justice: A Rejoinder

Author:
Ernst-Ulrich Petersmann
Publication Date:
11-2008
Content Type:
Journal Article
Abstract:
All academics learn from discussion and criticism of their published views. Hence, I congratulated the EJIL editors, Alston in 2002 and Weiler in 2008, when they invited a response to my articles in EJIL. Following the insulting EJIL comments by Alston in 2002, this is the second time in my 37 years of academic teaching that a 'commentator' has imputed to me intoxicating views which I never expressed. Six years after the confabulations by Alston and Howse, Howse remains committed to misrepresenting rather than discussing my legal arguments. Clarifying, in fewer than 2,500 words, the reasons for this 'Alice in Wonderland non-discussion ' would have been more enlightening if my Australian and Canadian commentators had respected correct academic citation before publicly putting forth their aggressive legal phantasms. Here I want to suggest ways in which such an exchange may be more constructive.
Topic:
Human Rights
Political Geography:
Canada and Australia

2. Human Rights, International Economic Law and 'Constitutional Justice'

Author:
Ernst-Ulrich Petersmann
Publication Date:
09-2008
Content Type:
Journal Article
Abstract:
According to J. Rawls, 'in a constitutional regime with judicial review, public reason is the reason of its supreme court'; it is of constitutional importance for the 'overlapping, constitutional consensus' necessary for a stable and just society among free, equal, and rational citizens who tend to be deeply divided by conflicting moral, religious, and philosophical doctrines. The European Court of Justice (ECJ), the European Court of Human Rights (ECtHR), and the European Free Trade Area (EFTA) Court successfully transformed the intergovernmental European Community (EC) treaties and the European Convention on Human Rights (ECHR) into constitutional orders founded on respect for human rights. Their 'judicial constitutionalization' of intergovernmental treaty regimes was accepted by citizens, national courts, parliaments, and governments because the judicial 'European public reason' protected more effectively individual rights and European 'public goods' (like the EC's common market). The 'Solange method' of cooperation among European courts 'as long as' constitutional rights are adequately protected reflects an 'overlapping constitutional consensus' on the need for 'constitutional justice' in European law. The power-oriented rationality of governments interested in limiting their judicial accountability is increasingly challenged also in worldwide dispute settlement practices. Judicial interpretation of intergovernmental rules as protecting also individual rights may be justifiable notably in citizen-driven areas of international economic law protecting mutually beneficial cooperation among citizens and individual rights (e.g. of access to courts). Multilevel economic, environmental, and human rights governance can become more reasonable and more effective if national and international courts cooperate in protecting the rule of international law for the benefit of citizens (as 'democratic principals' of governments) with due regard for human rights and their constitutional concretization in national and international legal systems.
Topic:
Government
Political Geography:
Europe

3. Multi-Level Judicial Trade Governance without Justice? On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System

Author:
Ernst-Ulrich Petersmann
Publication Date:
12-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
The fragmented nature of national and international legal and dispute settlement regimes, and the formalistic nature of the customary international law rules on treaty interpretation and conflicts of laws, offer little guidance on how national and international judges should respond to the proliferation of competing jurisdictions and the resultant incentives for forum shopping and rule shopping by governments and non-governmental actors in international economic law. Due to their different jurisdictions, procedures and different rules of applicable laws, national and international judges often interpret international trade law from different (inter)national, (inter)governmental, constitutional and judicial perspectives. This paper explores the judicial functions of national and international judges to reach justified decisions based on positive law, on the basis of transparent, predictable and fair procedures, and to interpret international treaties “in conformity with principles of justice.” Chapters I to III explain some of the “principles of justice” underlying international trade law and argue that international rules for a mutually beneficial division of labour among private citizens should be construed with due regard to the human rights obligations of governments. Chapters III and IV propose to strengthen international cooperation among national and international courts, for instance by negotiating additional WTO commitments to interpret domestic trade laws in conformity with the WTO obligations of the countries concerned and to settle WTO disputes over private rights primarily in domestic courts, without transforming essentially private disputes into disputes among governments.
Topic:
Development, Government, International Trade and Finance, and Non-Governmental Organization
Political Geography:
Europe

4. State Sovereignty, Popular Sovereignty and Individual Sovereignty: from Constitutional Nationalism to Multilevel Constitutionalism in International Economic Law?

Author:
Ernst-Ulrich Petersmann
Publication Date:
12-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
This paper discusses the basic constitutional problem of modern international law since the UN Charter: How can the power-oriented international legal system based on “sovereign equality of states” be reconciled with the universal recognition of “inalienable” human rights deriving from respect for human dignity and popular sovereignty? State representatives, intergovernmental organizations, international judges and non-governmental organizations often express different views on how far the universal recognition of human rights has changed the subjects, structures, general principles, interpretative methods and “object and purpose” of international law (e.g. by the emergence of erga omnes obligations and jus cogens limiting state sovereignty to renounce human rights treaties, to refuse diplomatic protection of individuals abroad, or domestic implementation of international obligations for the benefit of domestic citizens). The paper explains why effective protection of human rights at home and abroad requires multilevel constitutional protection of individual rights as well as multilevel constitutional restraints of national, regional and worldwide governance powers and procedures. While all European states have accepted that the European Convention on Human Rights and EC law have evolved into international constitutional law, the prevailing paradigm for most states outside Europe remains “constitutional nationalism” rather than “multilevel constitutional pluralism.” Consequently, European proposals for reforms of international economic law often aim at “constitutional reforms” (e.g. of worldwide governance institutions) rather than only “administrative reforms”, as they are frequently favoured by non-European governments defending state sovereignty and popular sovereignty within a more power-oriented “international law among states.”
Topic:
Economics, Nationalism, Politics, and Sovereignty
Political Geography:
Europe and United Nations

5. Justice in International Economic Law? From the 'International Law among States' to 'International Integration law' and 'Constitutional Law'

Author:
Ernst-Ulrich Petersmann
Publication Date:
12-2006
Content Type:
Working Paper
Institution:
European Research Papers Archive
Abstract:
The UN Charter and the Vienna Convention on the Law of Treaties require interpreting treaties and settling international disputes “in conformity with the principles of justice and international law.” This contribution discusses procedural and substantive principles of justice which the international judge may take into account in interpreting international economic agreements. The “sovereign equality of states” underlying the “international law of coexistence” as well as the “international law of intergovernmental cooperation” must be interpreted in conformity with the universal recognition of human dignity as a source of inalienable human rights. The universal recognition of economic and social human rights further requires taking into account solidarity principles, as proposed also by the sociological approach to international law. The constitutional structures and citizen-oriented functions of the law of international economic organizations liberalizing and regulating mutually beneficial market transactions among citizens require judges to engage in a careful balancing of state-centered and citizen-oriented principles of international law, including respect for the emerging human right to democratic decision-making. This modern “international integration law” and the increasing number of “international constitutional rules” promote the reconciliation of the various state-centered approaches, human rights approaches, sociological approaches and policy-approaches to international law as a system not only of international rules and “legal pluralism” but also of constitutionally limited decision-making processes and struggles for human rights.
Topic:
Economics, Human Rights, International Law, Treaties and Agreements, and United Nations
Political Geography:
Vienna