On the Constitution of John H. Jackson

A Tribute to John H. Jackso

Transatlantic trade agreements and adjudication without ‘protection of citizens’ and their fundamental rights? College of Europe Policy Brief #15.16, October 2016

Executive Summary > The EU Charter of Fundamental Rights (EUCFR) is an integral part of EU law constituting, limiting, regulating and justifying EU powers and their exercise, including trade policy powers and EU free trade agreements. > The EUCFR protects fundamental rights, democracy, ‘public reason’, democratic support and legitimacy of the EU, the rule of law and other public goods also in the trade policy area. > The EU-Canada Comprehensive Economic and Trade Agreement and the Transatlantic Trade and Investment Partnership risk dis-empowering citizens, undermining their fundamental rights and judicial remedies, and ‘re-fragmenting’ international investment law. > EU citizens rightly challenge the disregard by EU institutions for the Lisbon Treaty’s ‘cosmopolitan foreign policy mandate’ for external EU trade and investment policies and EU trade agreements. > Rather than exercising EU leadership for citizenoriented reforms of trade and investment agreements, EU institutions emulate poweroriented foreign trade policies by excluding rights of citizens under free trade agreements so as to limit their own legal, democratic and judicial accountabilities vis-à-vis citizens. > The potential welfare gains and ‘geopolitical importance’ of transatlantic free trade agreements justify civil society struggles against a ‘refeudalization' of EU powers

Constitutionalism and International Organizations

Peaceful cooperation among individuals and among states has be- come a globally recognized policy objective. The worldwide trend to- wards deregulation, market economies, protection of human rights and democracies reflects an increasing recognition that individual freedom, non-discrimination and rule of law are the best conditions for promoting individual and collective self-determination and social welfare. But in contrast to the long-standing constitutional theories for national democracies, there is a troubling paucity of theory on how to achieve a peaceful international order based on worldwide liberal rules. During the first half of the 20th century, government policies in international relations continued to be dominated by power politics, protectionism and pragmatic trial and error with tragic experiences of government failures, such as wars and unnecessary widespread poverty

Constitutionalism and International Organizations

Peaceful cooperation among individuals and among states has be- come a globally recognized policy objective. The worldwide trend to- wards deregulation, market economies, protection of human rights and democracies reflects an increasing recognition that individual freedom, non-discrimination and rule of law are the best conditions for promoting individual and collective self-determination and social welfare. But in contrast to the long-standing constitutional theories for national democracies, there is a troubling paucity of theory on how to achieve a peaceful international order based on worldwide liberal rules. During the first half of the 20th century, government policies in international relations continued to be dominated by power politics, protectionism and pragmatic trial and error with tragic experiences of government failures, such as wars and unnecessary widespread poverty

The UN sustainable development agenda and rule of law : global governance failures require democratic and judicial restraints

Published online: 23 December 2022The 2030 United Nations (UN) Sustainable Development Agenda defines its 17 Sustainable Development Goals (sdg s) in terms of human rights and multilevel governance of related public goods. The global health pandemics, environmental crises, and geopolitical trade wars reveal governance failures and related ‘constitutional failures’ to protect human and constitutional rights effectively by democratic legislation, administrative and judicial remedies of citizens, and transnational rule of law. The sdg s require stronger, multilevel legal restraints on ‘market failures’ (like environmental pollution), ‘governance failures’ (like insufficient remedies against abuses of executive powers) and ‘constitutional failures’ (like neglect for transnational rule of law and the ‘Anthropocene’). Democratic legislation and citizen-driven, administrative, and judicial remedies must strengthen accountability of governments for decarbonizing economies and protecting human rights (e.g., environmental and public health protection). Worldwide protection of the sdg s requires reforming multilevel governance beyond Europe’s multilevel constitutionalism in order to prevent policy conflicts through transnational rule of law and ‘constitutional embedding’ of UN/World Trade Organization (wto) governance

Constitutional pluralism, regulatory competition and transnational governance failures

All UN member states use constitutionalism for protecting national public goods. The current human disasters – like wars of aggression, suppression of human and democratic rights, global health pandemics, climate change, ocean pollution and biodiversity losses, disregard for rule-of-law – reflect transnational governance failures and ‘constitutional failures’ (section I) to comply with UN and WTO law and their ‘sustainable development goals’ (SDGs). Europe’s multilevel constitutionalism succeeded in progressively limiting such transnational governance failures; but it has no equivalent outside Europe (section II). Geopolitical power politics and nationalism prompted China, Russia and the USA to resist ‘constitutional politics’ in UN/WTO governance and ‘environmental constitutionalism’ (section III). Constitutionally unbound ‘totalitarian states’ (like China and Russia) and business-driven, neo-liberal interest group politics (notably in the USA) disrupt the rules-based world trading system (section IV). The less UN member states follow the example of European Union law to constrain foreign policies by constitutional principles like human rights and rule-of-law, the more important become plurilateral, second-best responses (like trade, investment and environmental agreements conditioning market access on respect for human rights and greenhouse gas reductions) in order to ‘de-risk’ global interdependencies, promote regulatory competition, create ‘democratic alliances’ containing executive power politics, and protect the SDGs (V)

European economic and environmental constitutionalism as driver for UN and WTO sustainable development reforms

The Introduction recalls why the progressive transformation of European economic integration law into European community and constitutional law remains the most successful example for using regional law and jurisprudence for promoting also global community law. Section I explains why authoritarian and neoliberal rejection of “transnational constitutionalism” undermines collective protection of global public goods demanded by citizens. Section II describes how Europe’s multilevel democratic constitutionalism continues to enable the European Union to exercise leadership for UN and WTO legal reforms such as compulsory WTO adjudication and international emission trading systems aimed at mitigating climate change by reducing carbon emissions. Section III uses the examples of competing internet regulations in China, Europe and the USA, and of international criminal law (like the arrest warrant of the International Criminal Court against Russian President Putin), for explaining the limits of constitutional and institutional restraints on UN and WTO governance

China and the future of international economic law : European perspectives on the way forward

Human civilization is characterized by the transformation of power-based into rules-based social, economic, legal and political orders protecting rights of citizens against abuses of public and private power. All UN member states have adopted national Constitutions (written or unwritten) aimed at constituting, limiting, regulating and justifying governance powers for protecting public goods (PGs). Globalization and its transformation of national into transnational PGs also prompt states to participate in treaties of a higher legal rank protecting transnational PGs like human rights, rule-of-law and the sustainable development goals (SDGs). The current non-compliance with UN and WTO rules, illegal wars of aggression, violent suppression of human and democratic rights, global health pandemics, climate change, ocean pollution, overfishing and other biodiversity losses reflect ‘governance failures’ (e.g. to limit ‘market failures’) and ‘constitutional failures’ (e.g. to protect human and democratic rights and the SDGs). The geopolitical rivalries among totalitarian governments and democracies render constitutional UN and WTO reforms unrealistic. They entail ‘regulatory competition’ (e.g. among trade and investment agreements) and plurilateral responses aimed at limiting abuses of power (like collective countermeasures against Russia’s illegal wars and war crimes) and at protecting transnational PGs (like plurilateral ‘climate change mitigation clubs’, appeal arbitration among WTO members, regional human rights and security agreements). The power politics disrupting the UN and WTO legal systems is bound to promote regionalization of economic law, re-globalization of supply chains, and geopolitical rivalries resulting from conflicting value priorities and neglect for the human rights underlying the SDGs