International Economic Law in the 21st Century

Constitutional Pluralism and Multilevel Governance of Interdependent Public Goods

Ernst-Ulrich Petersmann

• Publisher: Hart Publishing
• Year: 2012
• Print ISBN: 9781849460637
• eBook ISBN: 9781847319814
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The state-centred 'Westphalian model' of international law has failed to protect human rights and other international public goods effectively. Most international trade, financial and environmental agreements do not even refer to human rights, consumer welfare, democratic citizen participation and transnational rule of law for the benefit of citizens. This book argues that these 'multilevel governance failures' are largely due to inadequate regulation of the 'collective action problems' in the supply of international public goods, such as inadequate legal, judicial and democratic accountability of governments vis-a-vis citizens. Rather than treating citizens as mere objects of intergovernmental economic and environmental regulation and leaving multilevel governance of international public goods to discretionary 'foreign policy', human rights and constitutional democracy call for 'civilizing' and 'constitutionalizing' international economic and environmental cooperation by stronger legal and judicial protection of citizens and their constitutional rights in international economic law. Moreover intergovernmental regulation of transnational cooperation among citizens must be justified by 'principles of justice' and 'multilevel constitutional restraints' protecting rights of citizens and their 'public reason'. The reality of 'constitutional pluralism' requires respecting legitimately diverse conceptions of human rights and democratic constitutionalism. The obvious failures in the governance of interrelated trading, financial and environmental systems must be restrained by cosmopolitan, constitutional conceptions of international law protecting the transnational rule of law and participatory democracy for the benefit of citizens.

Index

Introductory Note

References such as ‘138–9’ indicate (not necessarily continuous) discussion of a topic across a range of pages. Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed. Because the entire volume is about ‘international economic law’, the use of this term (and certain others occurring throughout the work) as an entry point has been restricted. Information will be found under the corresponding detailed topics.

abuses

of administrative powers 129–30

of economic power 4, 39, 248, 492

of foreign policy powers 11, 72, 252, 309, 331, 369, 401

of governance powers 247, 479

of government powers 172, 198, 361, 457

of market power 76, 187, 261, 280, 346, 362, 378

of power 11, 27, 36, 116, 283–4, 382–3, 491–3

of regulatory powers 191, 194, 372, 401

access to justice 20, 53, 142, 196, 205, 354, 360–1

accountability 26, 71, 84, 93, 127, 157, 208

corporate 83, 204, 234–5

democratic 24, 85, 152, 181, 320, 401, 519

judicial see judicial accountability

legal 24, 61, 153, 235, 241, 284, 302

adequate food 416–17

adjudication 31, 77–8, 118, 136–7, 141–2, 144, 168

common law of 274, 298–9

economic 14, 308, 512

investment 244, 293, 437, 456, 464–5, 467, 469

rights-based 456–64

administration of justice 37, 76, 85, 101, 130, 300–1, 306

administrative constitutionalism 86, 124, 131

administrative law(s) 84–5, 109, 127–30, 275, 316, 319, 321

administrative powers 66, 128, 275, 320

abuse of 129–30

delegated 85

administrative restrictions 37, 127–8, 188, 264, 285, 304–5, 458

admission of amicus curiae briefs 293, 388–9, 395

Africa 32, 70, 78, 118, 271, 429–30, 483–4

agents 15, 23, 123–4, 197, 242, 275, 452

aggregate public goods 25, 27, 30, 34, 39, 56, 58, 77, 92, 96, 108, 171, 488, 497

agricultural subsidies 47, 348, 417, 422, 425–6, 428, 431

agriculture 95, 298, 303, 313, 329, 348–9, 417–22

Alexy, R 12, 15–16, 84, 133, 144–5, 252–4, 464

Alston, P 170, 174, 260, 309, 316, 339–40, 343

amicus curiae briefs 13, 243–4, 292–4, 312–13, 353, 388–9, 480

Andean Community 56, 63, 70, 148, 168, 201, 222

Anglo-Saxon countries 30, 161, 184–5, 213, 251, 264, 356–7

anti-dumping measures 136, 316, 422

Antigua 468, 472

appellate review 13, 296, 299, 471, 508

applied tariffs 420, 423

arbitral awards 15, 18, 289–90, 292, 297–8, 405, 469–72

arbitral tribunals 8, 44, 118, 291–3, 332, 448, 471–2

arbitration 12–13, 17, 80, 154, 192, 289, 291–3

commercial 13, 15, 79, 81, 288–9, 298–9, 354

investment 13, 20, 274, 293, 405, 479

investor-state 79–80, 119–20, 274–5, 289–93, 296–9, 471–2, 507–8

procedures 290–1, 313, 433, 469

arbitrators 12–14, 289, 291, 293, 297, 306, 354

Argentina 27, 54, 208, 234, 272, 332, 470–4

audiovisual products 79, 198, 269, 325

autonomy

human 176–8, 212, 497

personal 163, 178, 185, 374, 385

bailouts 6, 8, 52, 67, 406, 506

prohibition 5, 66–7, 195

balance of payments problems 46–7, 195

balancing 37, 118–19, 144–5, 459–62, 464–5, 467–74, 477–9

constitutional 174, 213, 509

judicial 54, 133, 186, 190, 221, 232, 234

paradigms 308–18

principles 247, 345, 413–14

proportionality see proportionality, balancing

bananas 52, 169, 211, 217–20, 223, 348, 403

Bangladesh 292–3, 431

banking bonuses 60

banking practices 51, 179–80, 208, 287

banking regulators 122, 333

banking supervision 50, 60, 125, 178

banks 4, 8, 24, 37, 50, 61, 66–7

basic human rights 86, 146, 330, 335

BATNA (Best alternative to a negotiated agreement) 103–4, 424

Besson, S 9–10, 135, 396

Best alternative to a negotiated agreement (BATNA) 103–4, 424

Bhopal 179, 234–5

bilateral agreements 1, 13, 116, 120, 149, 268, 287

bilateral economic agreements 49, 120, 148

bilateral investment treaties 13, 48, 52–3, 100–3, 116, 289–97, 469–74

BITs see bilateral investment treati...

Table of contents

• Cover
• Title
• Copyright
• Table of Contents
• Abbreviations
• Tables Summarizing ‘Normative Premises’ and Case Law Examples
• Table of Cases
• Table of Legal Instruments
• Introduction and Overview: The Crisis of International Economic Law
• I How Should International Economic Law be Designed in Order to Protect ‘Interdependent Public Goods’ More Effectively?
• II The Emergence of Cosmopolitan IEL Based on Respect for ‘Constitutional Pluralism’
• III ‘Civilizing’ and ‘Constitutionalizing’ IEL Requires Cosmopolitan Restraints of Public and Private Power
• IV Legal and Political Strategies for Making Multilevel Economic Regulation Consistent with Human Rights
• V Regulating the ‘Tragedy of the Commons’ and ‘Interdependent Public Goods’ Requires Transnational Rule of Law
• VI Transnational Rule of Law Must be Justified by an ‘Overlapping Consensus’ on Principles of Justice
• VII The Need for Constitutional Reforms of the Law of International Organizations: The Example of the World Trading System
• VIII From ‘Constitutional Nationalism’ to Multilevel Judicial Protection of Cosmopolitan Rights in IEL
• Conclusions and Research Agenda for IEL in the Twenty-First Century
• Bibliography of Repeatedly Quoted Books
• Index