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

Constitutional pluralism, regulatory competition and transnational governance failures

Published online: 11 March 2024All 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 1) to comply with UN and WTO law and the ‘sustainable development goals’ (SDGs). Europe’s multilevel constitutionalism succeeded in progressively limiting such transnational governance failures; but it has no equivalent outside Europe (Section 2). Geopolitical power politics and nationalism prompted China, Russia and the USA to resist ‘constitutional politics’ in UN/WTO governance and ‘environmental constitutionalism’ (Section 3). 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 4). 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 through private-public partnerships supported by citizens (5)

Multilevel governance of sustainable development in the World Trade Organization

Since 1995, the environmental, social and legal dimensions of the sustainable development obligations continue being neglected in many WTO practices. This ‘WTO governance failure’ is linked to ‘constitutional failures’ in multilevel governance of public goods; it requires national and plurilateral leadership for sustainable development reforms notably by democracies protecting human and democratic rights and public goods like the UN sustainable development goals. This contribution describes the multilevel regulatory challenges at national, regional and worldwide levels of governance

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)