This is a guest post from Prof. Ernst-Ulrich Petersmann, European University Institute Florence
The geopolitical conflicts and related trade wars (eg against China and Russia), climate change and other environmental disasters, global health and food crises, Russia’s military invasions and war crimes in Ukraine confront the UN and WTO legal systems with trade, investment, environmental, security, human rights and international criminal law conflicts of existential importance for humanity. Why do most UN and WTO diplomats and their international legal advisors fail to protect international rule-of-law in UN and WTO governance? How should reasonable citizens and democratic institutions respond to human disasters like the UN prediction of more than 140 million climate change refugees by 2050? The new monograph by Prof E.U.Petersmann on TRANSFORMING WORLD TRADE AND INVESTMENT LAW FOR SUSTAINABLE DEVELOPMENT (OUP March 2022, 360 pages) explores answers to these and related economic, political and legal questions (the book and its summary are available on the OUP website). As Russia’s wars against the liberal order further undermine UN and WTO governance, reasonable citizens, democratic institutions and also lawyers must no longer neglect the ‘constitutional challenges’ facing humankind as discussed in the 9 chapters of this book.
UN law and the UN Sustainable Development Agenda (SDA) prescribe human rights, democratic governance, rule of law and other constitutional principles for multilevel governance of the universally agreed sustainable development goals (SDGs). Yet, in legal practices, these constitutional principles remain ignored by many authoritarian governments, as illustrated by Putin’s imperial wars. This lack of legislative, administrative and judicial implementation of UN and WTO treaty rules on human rights, rule of law and the SDGs explains the ubiquity of ‘market failures’, ‘governance failures’ and ‘constitutional failures’ undermining the SDGs. It also illustrates the ’constitutional nature’ of the regulatory challenges. The necessary changes in the output-legitimacy of UN/WTO governance require corresponding changes in the input-legitimacy by more inclusive, participatory and deliberative democracy, as it has emerged in citizen-driven economic, environmental and multilevel democratic and judicial European governance of public goods.
The overview and summary of the book in Chapter 1 explain why the UN and WTO rules on protecting human rights, rule-of-law and sustainable development cannot be realized without strengthening democratic and republican constitutionalism in multilevel governance of public goods. Chapter 2 on ‘governance failures’ documents how UN and WTO law and governance fail to protect sustainable development effectively. Chapter 3 relates the destruction of the WTO dispute settlement system by the US Trump administration, and the geopolitical conflicts and trade wars caused by authoritarian abuses of powers, to the decline of democratic constitutionalism, the increasing authoritarianism (eg in China and Russia) and regulatory competition between state-capitalism, business-driven neo-liberalism, Europe’s ordo-liberal constitutionalism and third world conceptions of regulation. Chapters 4 and 5 explain the ‘constitutional economics’ and multilevel, ordo-liberal constitutionalism underlying Europe’s common market constitution, monetary constitution and ‘foreign policy constitution’, which have enabled EU leadership for multi-party interim appellate arbitration in the WTO and for the European climate legislation providing for the decarbonization of economies and carbon border adjustment mechanisms. Chapter 6 demonstrates why the more than 380 WTO panel, appellate and arbitration findings – by complying with the customary rules of treaty interpretation and with judicial administration of justice – successfully avoided violations of UN human rights obligations of WTO member states. Chapters 7 and 8 discuss investor biases in investor-state arbitration and the multilevel judicial comity among national and European courts in avoiding ‘judicial overreach’ through ‘proportionality balancing’, judicial deference and ‘administration of justice’. Chapter 9 describes the European Green Deal and rights-based, multilevel climate litigation as examples for how the input- and output legitimacy of UN climate governance should be improved by strengthening democratic and republican constitutionalism.
In a globally integrated world, path-dependent national ‘constitutionalism 1.0’ and functionally limited ‘treaty constitutions 2.0’ constituting multilevel governance institutions for protecting public goods (like the UN and its 15 Specialized Agencies, the WTO) can no longer effectively protect human rights and the SDGs without multilevel legal and institutional safeguards protecting human rights inside and beyond state borders. Constitutionalism – as a reasonable self-limitation of ‘bounded rationality’ of human beings and of their domination by passions, rational egoism and animal instincts – offers the most effective ‘political invention’ against abuses of power at home and abroad. But constitutional democracies cannot survive unless citizens and their democratic and judicial institutions assume democratic and cosmopolitan responsibilities beyond constitutional nationalism (based on constitutional contracts, national Constitutions, democratic legislation, administrative and judicial protection of rule-of-law). Citizens must defend their constitutional and democratic rights also through multilevel constitutionalism constituting, limiting, regulating and justifying multilevel governance of the SDGs, for instance by holding governments legally and democratically accountable for legislative, administrative and judicial (non)implementation of UN/WTO guarantees of equal freedoms, non-discriminatory competition, rule of law, human rights and related SDG commitments. Democratic constitutionalism is about protecting reasonable disagreements by means of a limited ‘overlapping consensus’ among citizens with diverse worldviews and moral convictions. Hence, constitutional pluralism and regulatory competition among diverse neo-liberal, state-capitalist and European ordo-liberal regional economic systems remain the inevitable future. Yet, authoritarian wars on the liberal order require democratic alliances defending human rights at home and abroad. Even if the myth of Sisyphus rolling stones uphill may appear absurd, we know from Albert Camus’ interpretation of this myth - and from the history of democracies - that ‘struggles for justice’ remain a necessary part of defending liberty against tyranny at home and abroad. Citizens must overcome their ‘rational ignorance’ vis-à-vis multilevel governance of public goods and learn why reforming trade and investment law must become part of their democratic struggles for sustainable development.
