New Challenges for a World in Flux
Edited by Linda Yueh
Chapter 3: Constitutionalism and the Regulation of International Markets: How to Define the ‘Development Objectives’ of the World Trading System?
3. Constitutionalism and the regulation of international markets: how to define the ‘development objectives’ of the world trading system? Ernst-Ulrich Petersmann INTRODUCTION: ECONOMIC AND DEMOCRATIC CONSTITUTIONALISM AS ‘CATEGORICAL IMPERATIVES’? Scientific conceptions – for instance, of international economic law – often operate as intellectual barriers to alternative, possibly more realistic conceptions. Just as a fly inside a bottle may see neither the glass barrier nor the way out, so can power-oriented conceptions of international law impede mutually beneficial cooperation among free citizens across national frontiers.1 The economic theory of markets, human rights and democratic constitutionalism are European inventions par excellence that have spread over the entire world. Yet, the normative foundations underlying these European institutions are not universally shared. Just as the welfare of Florence during the Renaissance was closely linked to its Republican constitutions and to its open economy, so are the linkages between constitutions, open markets and economic welfare in the EU obvious to Europeans. For example, not only are all 27 member states of the European Community (EC), just as all 47 member states of the Council of Europe, committed to the need for ‘European constitutional law’, as acknowledged in the judicial interpretation of the European Convention on Human Rights (ECHR) by the European Court of Human Rights (ECtHR), and of the EC Treaty by the European Court of Justice (ECJ), as ‘constitutional charters’ protecting fundamental freedoms and constitutional democracy. All European states also participate in the worldwide negotiations on far-reaching legal reforms of the law of the World Trade...
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