How to Reform the UN System? Constitutionalism, International Law, and International Organizations

Leiden Journal of International Law

Volumn 10, Issue 3, 1997, Pages 421-474

  Petersmann, Ernst Ulrick ^a  

^a GRADUATE INSTITUTE OF INTERNATIONAL AND DEVELOPMENT STUDIES   (Switzerland)

Author keywords

Constitutional law; international organizations; legal philosophy; United Nations

Indexed keywords

EID: 33645877596     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156597000332     Document Type: Article

References (122)

1. J. Monnet, Memoires 617 (1976).
2. General Agreement on Tariffs and Trade 1947, 55 UNTS 194 (1948).
3. Cf., e.g., case 294/83, Les Verts, ECR 1986, at 1339; and Opinion 1/91, ECR 1991, at I-6102.
4. Cf., e.g., BVerfG 22, 293 (1967).
5. WTO Agreement 1994, 33 ILM 1125 (1994).
6. IMF Agreement. 211 UNTS 342 (1945).
7. WTO Agreement on TRIPS, WTO, The Results of the Uruguay Round of Multilateral Negotiations; The Legal Texts 365 (1995).
8. s. TEU, 31 ILM 247 (1992).
9. Statute of the Council of Europe, 87 UNTS 103 (1951).
10. EC Treaty, 295 UNTS 23 (1958).
11. Case 294/83, Les Vests, sKpra note 3, at 1365.
12. GATT 1947, Case 294/83 note 2.
13. DSU, 33 ILM 1144 (1994).
14. WTO Agreement 1994, DSU note 5.
15. Constitution of the ILO, 15 UNTS 35 (1947).
16. See, e.g., J.E. Alvarez, Judging the Security Council, 90 AJIL 1 (1996).
17. DSU, Judging the Security Council note 13.
18. EC Treaty, DSU note 10.
19. Case 70/88, European Parliament v. Council, ECR 1990, para. 25, at 2041.
20. UNCCPR, 6 ILM 386 (1960)
21. UNESCR, 6 ILM 360 (1967).
22. Cf., e,g,, D. McGoldrick, The Human Rights Committee, Its Role in the Development of the Inteinauoiial Ctivcniiiit oii Civil iiiid PolluLiil Rlglus 151 (1994): “[i]i is dear that the views of the HRC do not constitute a legally brading decision as regards the state party concerned”.
23. Cf., A. Eide, C. Krause & A. Rosas (Eds.), Economic, Social and Cultural Rights (1995).
24. Vienna Declaration of the World Conference on Human Rights, 32 ILM 1661 (1993).
25. Cf. E.U. Petersmann, Constitutional Functions and Const:itutional Problems of International Economic Law (1991).
26. UN Doc. S/RES/940
27. EC Treaty, UN Doc. S/RES/940 note 10.
28. TEU, EC Treaty note 8.
29. GATT 1947, TEU, note 2.
30. GATS, WTO, The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 325 (1995).
31. TEU, mpra note 8.
32. Cise 138/79, Roquette Freres v. Council, ECR 1980, at 3333.
33. EC Treaty, SHprn note 10.
34. See, e.g., B. Ackerman, Constitutional Poiitics/Constitutiond Law, 99 Yale Law Journal 453-547 (1959).
35. A. de Tocqueville, Democracy m America 151, edited by Reeve, Bowen Si Bradley, Vol. 1 (1545).
36. UNCCPR, Democracy m America 151 note 21. C/., e.g., McGoldrick, Democracy m America 151 note 23, at 269 et seq.
37. UNGA Res. 217 A(lll), UN Doc. A/SIO, at 71 (1948).
38. Article 25, 1966 UNCCPR, UNGA Res. 217 A(lll) note 21, which also guarantees the right of every citizen “to vote and to t>c clcctcd at gcnvinc periodic clcctiona which shall be hy utlivcridl and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”.
39. Article 21, 1948 Universal Declaration of Human Rights, supm note 44.
40. On the need for developing international law in pro-democratic directions, including some form of collective democratic security, see J. Crawford, Democracy in International Law (1994); and D. Archibugi & D. Held (Eds,), Cosmopolitan Democracy, An Agenda for a New World Order (1995).
41. 4S. Cf. T. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (192).
42. 1965 World Bank Convention on the International Center for the Settlement of Investment Disputes, 4 ILM 532 (1965).
43. 1982 Law of the Sea Convention, 21 ILM 1477 (1982).
44. EC Treaty, 1982 Law of the Sea Convention, note 10.
45. b2. TEU, EC Treaty note S.
46. GATT 1947, b2. TEU note 2.
47. others” (at 60)
48. Rawls's second principle of justice reads: “[sjocial and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged, consistent with the just savings principle; and (b) attached to offices and positions open to all under conditions of fair equality of opportunity” (see id,, at 302).
49. J.M. Buchanan, in his comparison of John Rawls's theory of justice with Adam Smith's theory of natural liberty, concludes that Rawls's “first principle” (see note 54, Rawls's second principle of justice reads: “[sjocial and economic inequalities are to be arranged so that they are both:) and Smith's principle of natural liberty are “substantially equivalent”, apart from the fact that Rawls puts the emphasis on political freedom, whereas Smith focuses on economic freedom. Cf. J.M. Buchanan, The Justice of Natural Liberty, in G.P. O'Driscoll (Ed.), Adam Smith and Modern Political Economy 124 (1979); “[p]articular interferences that would [.] be classified as ‘unjust’ by Rawlsian criteria would correspond very closely to those Smith classified in the same way”. On the ethical Kantian foundations of Rawls's theory of justice, see Rawls, Rawls's second principle of justice reads: “[sjocial and economic inequalities are to be arranged so that they are both: note 54, at 179-183 and 321-357.
50. Cf., e.g., Ackerman, supru note 38, at 456: “[a]lmost all modern lawyers recognize that, in proposing a ne-w Constitution m tUe name of We tke People, tke Philatlelpliia Convention was acting illegally under the terms established by America's first formal constitution-the Articles of Confederation solemnly ratified only a few years before”.
51. IMF Agreement, suprsi note 6.
52. Resolution of the Board of Governors of the IMF Nos. 31-34, adopted 30 April 1976.
53. Opinion 1/91, suprci note 3, para. 71.
54. For the text and a critical analysis of this Draft Constitution, see E.U. Petersmann, How Can the European Union Be Constitutionalizedf The European Parliament's 1994 Proposal for t Constitution of the Ettropcun Union, 1995 Swiss Review tif Iiitcniiitiuiiui EcuiluilliL Relations (Aussenwirtschaft) 171-219.
55. Article 109(2) UN Charter.
56. For a survey, see V.Y. Ghebali, United Nations Reform Proposals Since the End of the Cold War: An Overview, in M. Bertrand & D. Warner (Eds.). A New Charter for a Worldwide Organization. 79-112 (1997); and M. Bertrand, The United Nations, Past, Present and Future (1997).
57. W.A. Knight, Beyond the UN Systemf Critical Perspectives on Global Governance und Multilateral Evolution, 1995 Global Governance 229, at 252.
58. This applies also to the recent ‘Bertrand proposals’ for “abandoning the idea of improving the current UN Charter, for that document is outdated and henceforth unusable” (at 3), and for creating “an entirely new organization” (at 12) outside the UN system, including, inter idia, i “Global Security Council” dealing simultaneously with questions of security and economy, a “World Parliament”, a “Council of Minorities”, a “World Central Bank”, and “various organisms representing the important elements of civil society” (at 18). M. Bertrand, The Necessity of Conceiving a New Charter for the Global Institutions, in Bertrand & Warner (Eds.), Beyond the UN Systemf Critical Perspectives on Global Governance und Multilateral Evolution note 68, at 1-38. Bertrand admits that “the chance of undertaking an overall reform that would lead to the type of institutions described above is presently [.] almost nil” (at 34).
59. The Commission on Global Governance, Our Global Neighbourhood (1995). This report recognizes that “democracy offers the most favourable foundations for peace and stability in international relations” (at 58), and “democracy, whatever form it may take, is a global entitlement, a right that should be available and protected for all” (at 62). Yet, notwithstanding the correct finding that “global governance can only flourish [.] if it is based on a strong commitment to principles of democracy, nationally and internationally”, the report does not indicate how to attain the necessary democratic reforms.
60. Cf. Petersmann, The Commission on Global Governance, Our Global Neighbourhood note 26.
61. Cf. t.U. Petersmann, The foreign Policy Constitution of the European Union: A Kantian Perspective, in U. Immenga, W. Moschel D. Reuter (Eds.), Festschrift für E.J. Mest-macker 433-447 (1596).
62. Id.
63. I. Kant, Perpetual Peace, in H, Reiss (Ed-), Kant: Political Writings 9S (1991).
64. Cf. E.U. Petersmann, Rights and Duties of States and Rights and Duties of Their Citizens, in U. Beierlin, M. Bothe, R, Hofmann & E.U. Petersmann (Eds.), Festschrift für R. Bernhardt 1087-1128 (1995).
65. WTO Agreement, Rights and Duties of States and Rights and Duties of Their Citizens note 5. Cf. E.U. Petersmann, The GATT/WTO Dispute Settlement System, International Law, International Organizations and Dispute Settlement (1997).
66. TEU, WTO Agreement note S; and EC Treaty, WTO Agreement note 10. QC Intergovernmental Conference 1996, Report of the Reflection Group, EU 1996, e.g. para. 29. For a survey of the reform proposals, see E.U. Petersmann, Proposals for a New Constitution for the European Union: Build-irig-Blocks fora Constitutioml Theory arid Constitutional Law of the EU, 32 CMLRev. 1123 (1995).
67. Art. B Draft Treaty of Amsterdam (not yet published).
68. For a political science explanation of the role of individual litigants and national courts in constructing the EC legal system, see, e.g., A.M. Burley & W. Mattli, Europe Before the Court: A Political Theory of Legal Integration, in 46 International Organization 41-76 (Winter 1993). Economists argue that the proper assignment of individual rights is a prerequisite for the avoLdartcfi of ‘market failures’. Economic rights enable individuals to fully develop their human potential and promote individual material welfare, whici is a prerequisite for fully enjoying civil, political, and other liberties.
69. On the Kantian theory oi mternationai law, according to which national and mternationai law must be based on human rights and constitutionalism promotes rule-oriented cooperation and peace not only at home but also abroad, and on the empirical confirmation of the Kantian assumption of the imerrektionship between international peace and constitutional democracy in recent peace research studies, see e.g., F.R. Teson, The Kantian Theory of International Law, 1992 Columbia Law Review 53, at 74 et seq.; and E.U. Petersmann, institutionalism and International Organizations, 1997 Northwestern Journal of International Law and Business 398.
70. IMF Agreement, On the Kantian theory oi mternationai law, according to which national and mternationai law must be based on human rights and constitutionalism promotes rule-oriented cooperation and peace not only at home but also abroad, and on the empirical confirmation of the Kantian assumption of the imerrektionship between international peace and constitutional democracy in recent peace research studies note 6.
71. TEU, IMF Agreement, note 8.
72. GATT 1947, TEU note 2.
73. Treaty on the North Atlantic Treaty Organization, 34 UNTS 243 (1949).
74. Constitution of the Western European Union, 19 UNTS 51 (1948).
75. WTO Agreement, Constitution of the Western European Union note 5.
76. For the text of this decision, and the GATT/WTO provisions and discussions on the ‘interface problems’ of trade and environment, see E.U. Petersmann, International and European Trade and Environmental Law After the Uruguay Round 40-52 and 99-117 (1995).
77. Singapore Ministerial WTO Declaration, 36 ILiM 218 (1997).
78. Protocol of Provisional Application, 55 UNTS 308 (1947).
79. WTO Agreement, Protocol of Provisional Application note 5. For a survey and analysis of the Uruguay Round negotiations, see, e.g., J. Croome, Reshaping the World Trading System-A History of the Uruguay Round, WTO (199S); E.U, Petersmann, The Transformation of the World Trading System Through the 1994 Agreement Establishing the WTO, 6 EJIL 161-221 (1995); and E.U. Petersmann & M. Hilf (Eds.), The New GATT Round of Mukikteral Trade Negotiations, Legjkl and Economic Problems, 2nd td. Oft tkt US-and sometimes EC-iKideisViip in the Uruguay Round negotiations see also J. Wiener, Making Rules in the Uruguay Round of the GATT, A Study of InternationsJ Leadership (1995).
80. Cf. GA'l r, The Texts of the Tokyo Round Agreements (1986).
81. WTO Agreement, The Texts of the Tokyo Round Agreements note 5.
82. The text is reproduced in, eg., WTO, The WTO Dispute Settlement Procedures 78 (1995). Q'i. GATT 1947, WTO Agreement note 2.
83. GATT 1947, supm note 2; and GATS, iuprA note 34.
84. WTO Agreement, GATT note 5.
85. Cf. E.U. Petersmann & J. Chakarian, Meshing Multilateral Regimes: WTO Law, Multilateral Environmental Agreements and Dispute Settlement, in D. Leebron (Ed.), The Multilateral Trade Regime in the 21st Century; Structural Issues (not yec published).
86. GATT 1947. Meshing Multilateral Regimes: WTO Law note 2.
87. World Bank, World Devetopraent Report (1997).
88. 1948 Universal Declaration of Human Rights, World Bank note 44.
89. On the need of a more effective “naiionil security constitution” even in the USA, see, e.g., H.H. Koh, The National Security Constitution, Shaiiii Puwci After the Iran-Contra Affair (1990).
90. cy. E.U. Petersmann, The External Powers of the Community and the Union: Proposals for Protecting the Interests ofEU Citizens, in J.A. ‘Winter et al. (Eds.), Reforming the Treaty on European Union 265-277 (lyyfe).
91. TEU, The External Powers of the Community and the Union: Proposals for Protecting the Interests ofEU Citizens note 8.
92. See, e.g., note 125 infra.
93. Cf Pprprsmann, note 125 infra. note 78. at 1164-1170; U. Everling, Will Europe Slip on Bananas? The Bananas Judgment of the Court of Justice and National Courts, 33 CMLRev. 401-437 (1996); and E.U. Petersmann, Darf die EG das Volkerrecht ignorieren?, 1997 Europaische Zeitschrift für Wirtschaftsrecht 325-331
94. SiiQ Peterfimann, suprtj note 11 Chapter 1.
95. On the universality of human rights, which Kant derived from his moral ‘categorical imperative’ (“[a]ct in such a way that you always trear humanity, whether in your own person or in the person of any other, never simply as a means, bm always at the same time as an end”), cf-Teson, suprtj note 11 note 81, at 62 rt secj.
96. Already A.V. Dicey's famous ‘Introduction to the Study of the Law of the Constitution’ (1885) was criticized as contradictory because it did not explain how ‘parliamentary sovereignty’ and ‘rule-of-law’ could be reconciled. As regards US constitutional law, Ackerman, On the universality of human rights, which Kant derived from his moral ‘categorical imperative’ note 38, concludes (at 471): “[i]n contrast to some other modern constitutions, we Americans hold that our rights are ultimately to be defined by the People acting tirougii the higher JawraaJdng system, not by some group of philosopher-judges engaged in a deep inquiry into the nature of human rights. We are democrats first, though not democrats of the monistic persuasion” (as in democracies based on ‘parliamentary sovereignty'). Yet, also Ackerman recognizes the potential dangers oi ‘dualist democracies’; “I myself would support a political movement that sought to lead the People of the United States to enact a modern Bill of Rights, and entrench it in the West German way against subsequent revision by some future American majority caught up in an awful neo-Nazi paroxysm” (at 471).
97. The different constitutional concepts are explained by Ackerman, Dicey's famous ‘Introduction to the Study of the Law of the Constitution’ note 38, in the following terms; “[f]or the dualist, constitutional protection of rights depends on a prior democratic affirmation on the higher lawmaking track [.]. The dualist's Constitution is democratic first, rights-protecting second. For the committed foundationalist, this priority is reversed. The Constitution is first and foremost concerned with the protection of the right Rights; it is only after these rights-constraints have been satisfied that We the People are constitutionally authorized to work their will” (at 468).
98. Following the political overthrow of the last Florentine Republic by the Medicis, D. Gianott! elaborated a new draft constitution in exile (cf. D. Gianotti, Republica Florentina, A Critical Edition and Introduction by G. Silvano (1990)), in which he emphasized the need for separatum of powers based on the distinction of four state functions (elections, foreign and security policy, legislation, execution) and three dccision-making phases (initiation of proposals, deliberation and decision, judicial review). In contrast to John Locke's distinction between three govertiment functions (legislation, execution, foreign policy), the now prevailing theories (notably by Montesquieu, Madison, and Kant) distinguish between legislative, executive, and judicial government powers without specifically addressing for-eign policy powers. But this separation oi powers rested on the understanding (e.g. by Ch. Montesquieu, De I'Esprit des Lois, Livre XI, Chapitre VI (1748)) that the Executive would implement its foreign policy powers in conformity with international law. This constitutional function of international law is often ignored by politicians and rent-seekers benefiting from foreign policy discretion and from the ideology of the primacy offoreign policy. Cf. E.U. Petersmann, The different constitutional concepts are explained by Ackerman note 26.
99. Kant's booklet on Perpetual Peace, see note 75, Republica Florentina, presented in 1795 as a draft treaty consisting of nine articles with a supplement and an annex, differed from earlier projects (e.g. by Abbe de Saint Pierre in 1713) by linking the reforms of international law proposed in Kant's six ‘preliminary articJes’ to reforms of dornestic constitutional laws proposed in Kant's three ‘definitive articles’ (Article 1: “[c]he civil constitution of each state shall be republican”; Article II: “[t]he law of nations shall be founded on a federation of free stales”; Article III: “[t]he rights of men, as citizens of the world, shall be limited to the conditions of universal hospitality”). As shown by Kant's detailed commentary on the draft treaty, the underlying assumption was that representative constitutional government, separation of powers, protection of individual rights, and a ‘covenant of peace’ among independent republican states would promote a gradual convergence of nationaf interests and the ‘primacy of domestic policy’ also in international relations. See M.C. Jacob (Ed.), Peace Projects of the Eighteenth Century (1974).
100. Cf. A. Hamilton. J. Madison 8c J. Jay. The Federalist Papers, Chapter IT.C (1788).
101. Cf., e.g. Article 3 of the WTO Agreement on Safeguards, in GATT, The Results of the Uruguay Round of Miiltikteral Trade Negotiations, The Legal Texts 316 (1994).
102. Cf., e.g., the preamble to the TRIPS Agreement, Article 3 of the WTO Agreement on Safeguards note 7 (“[r]ecognizing that intellectual property rights are private rights”) and the numerous WTO provisions on private access to judicial review (e.g. in Article 42 of the TRIPS Agreement), in id., at 366 and 388
103. Moreover, a determinatiorv “shall only be made where all parties have been given the opportunity to make thejr views known”. Cf., e.g., Article 21 of Council Regulation (EC) No. 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community, OJEC (No. L 349) 1, 20 (1994).
104. For a criticism, see E.U. Petersmann, Constitutional Principles Governing the EEC's Com-mercitd Polaj, tn M. Maresceau (Ed,), The European Community's Commercial Policy After 1992: The Legal Dimension 21-61, at 50 et seq. (1993); Petersmann, Moreover, a determinatiorv “shall only be made where all parties have been given the opportunity to make thejr views known”., note 81, at 237 et seq. and K.J. Kuilwijk, The European Court of Justice and the GATT Dilemma; Public Interest Versus Individual Rights? (1996).
105. J. Locke. Two Treatises of Civil Government, Vol. II. Chapter 12 (1690).
106. Id.
107. Cf. the Enghsh translation of the judgment, reproduced in 33 ILM 388-444, at 395 (1994).
108. Administrative Court Frankfun am Main, Decision of 24 October 1996, Cases 1 E 798/95 (V) and 1 E 2949/93 (V).
109. Cf. Petersmann, Administrative Court Frankfun am Main note 78, at 1164 et seq. Some German courts referred to the legal principle, reflected e.g. in Article 234 of the EC Treaty, Administrative Court Frankfun am Main note 10, that international treaties concluded by EC member states before the entry into force of the EEC Treaty (like the GATT 1947, Administrative Court Frankfun am Main note 2) “shall not be affected by the provisions of this Treaty” (Article 234); this Community law principle of “EC integration in conformity with international law” should be applied also to “mixed international agreements” (like the WTO Agreement, suprn note 3) concluded by both the EC and its member states after 1958. Cf. E.U. Petersmann, Commentary of Article 234, in H. von Groeben, J. Thiesing & C.D. Ehlermann (Eds.), EG-Vertrag Kommentar, 5th ed. (1997).
110. Kant, Administrative Court Frankfun am Main note 78 note 75.
111. Kant's fifth “Preliminary Article” for the treaty on Perpetual Peace provided that “no nation shall forcibly interfere with the constitution and government of another”. See Kant, Administrative Court Frankfun am Main note 78 note note 75, at 96. According to Teson, Administrative Court Frankfun am Main note 78 note note 81, at 92 “a reading more consistent with the rest of Kant's views, however, is that the nonintervention principle is dependent upon compliance with the First Definitive Anicle. Internal legitimacy is what gives states the shield of sovereignty against foreign intervention. Since morally autonomous citizens hold rights to liberty, the states and governments that democratically represent them have a right to be politically independent and should be shielded by international law from foreign intervention Sovereignty is to be respected only when it is justly exercised*.
112. GATT 1947, Kant's fifth “Preliminary Article” for the treaty on Perpetual Peace provided that “no nation shall forcibly interfere with the constitution and government of another”. note 2; and GATS, Kant's fifth “Preliminary Article” for the treaty on Perpetual Peace provided that “no nation shall forcibly interfere with the constitution and government of another”. note 34.
113. EC Treaty, GATT note 10; and Draft Treaty of Amsterdam, GATT note 79.
114. EC Treaty, EC Treaty note 10; and Protocol 11 to the ECHR, HRLJ 86 (1994).
115. Cjise 26/62, Van Gend en Loos, ECR 1963, at 1.
116. For a criticism of the GATT case-law of the EC Court of Justice, see, e.g. Petersmann, Cjise 26/62 note 78, at 1164-1170, as well as Petersmann, Darf die EG das Vdlkerrecht ignorierenf, Cjise 26/62 note 109, at 326-331.
117. WTO Agreement, For a criticism of the GATT case-law of the EC Court of Justice note 5.
118. EC Treaty, suprii note 10; and GATT 1947, WTO Agreement note 2.
119. 23; and Eide et al. (Eds.), EC Treaty note 24.
120. TEU, EC Treaty note note 8.
121. Id.
122. Cf. D. Held, Democracy and the Global Order (1995).