Multilevel judicial governance of international trade requires a common conception of rule of law and justice

Journal of International Economic Law

Volumn 10, Issue 3, 2007, Pages 529-551

  Petersmann, Ernst Ulrich ^a,b,c  

^a Department of International and European Law ^*

^b EUROPEAN UNIVERSITY INSTITUTE   (Italy)

^c UNIVERSITY OF GENEVA   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34548419690     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgm019     Document Type: Article

References (71)

1. On the distinction between 'international law of coexistence' and 'international law of cooperation' see: W. Friedmann, The Changing Structures of International Law (1964).
2. The speech of Kofi Annan is reproduced in UN document GA/105000 of 19 September 2006.
3. Cf. J. Rubenfeld, "The Two World Orders', in G. Nolte (ed.), European and US Constitutionalism, (2005), at 280, 283, 293: the post-war US support for internationalism and multilateralism was 'for the rest of the world, not for us", even though America's commitment to internationalism in economic affairs is recognized as serving US interests.
4. J. Rawls, The Law of Peoples (1989), at 117.
5. On my personal experiences, as the first 'legal officer' ever employed by GATT, which only happened in 1981, with GATT's anti-legal, diplomatic traditions see: E.U.Petersmann, The GATT/WTO Dispute Settlement System (1997), at Introduction.
6. See: E. U. Petersmann, From 'Member-Driven Governance' to Constitutionally Limited 'Multi-level Trade Governance' in the WTO in G.Sacerdoti, A.Yanovich and J.Bohanes (eds), The WTO at Ten. The Contribution of the Dispute Settlement System (2006), at 86-110.
7. F. J. Garcia, 'Globalization and the Theory of International Law', Boston College Law School, Faculty Paper 93 (2005).
8. In this sense: E. U. Petersmann, 'Constitutionalism and International Organizations', 17 Northwestern Journal of International Law & Business (1996) at 398, 415 ff.
9. For overviews of these theories see F. J. Garcia, Trade, Inequality and Justice: Toward a Liberal Theory of Just Trade (2003);
10. A. Beviglia Zampetti, Fairness in the World Economy: US Perspectives on International Trade Relations (2006).
11. Cf. R. Dworkin, Law's Empire (1986), at 225, 243: 'Law as integrity asks judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process, and it asks them to enforce these in the fresh cases that come before them, so that each person's situation is fair and just according to the same standards.'
12. On the pursuit of 'order' rather than 'justice' in international political relations see: R. Foot, J. L. Gaddis, and A. Hurrel (eds), Order and Justice in International Relations (2003);
13. J. Thomson, Justice and World Order (1992).
14. US Court of Appeals for the Federal Circuit, judgment of 21 January 2005 (Corus Staal), available at (http://www.fedcir.gov/opinions/04-1107.pdf). In the Corus Staal dispute, the US Supreme Court denied petition for certiorari on 9 January 2006 (http://www.supremecourtus.gov/docket/05-364.htm), notwithstanding an amicus curiae brief filed by the EC Commission supporting this petition ('We argue that the Federal Circuit went too far by construing the Uruguay Round Agreements Act to make considerations of compliance with international obligations completely irrelevant in construing a Department of Commerce anti-dumping determination, and further argue that the Department's "zeroing" methodology-held invalid by both a WTO Appellate Body and a NAFTA Binational Panel-is not entitled to Chevron deference because it would bring the United States into noncompliance with treaty obligations.' (available at http://www.robbinsrussell.com/pdf/265.pdf).
15. Cf. P. J. Kuijper, 'WTO Law in the European Court of Justice', 42 Common Market Law Review (2005) 1313, who claims (at 1334) that 'it is difficult to point out one specific moment at which it can be established beyond doubt that WTO rules have been breached, even after a decision of a panel or report of the Appellate Body', and 'that it is rarely or never possible to speak of a sufficiently serious breach of WTO law' by the political EC institutions justifying the EC's non-contractual liability for damages pursuant to Article 288 EC Treaty.
16. For a discussion of this dictum by Justice Holmes see: T. Sowell, The Quest for Cosmic Justice (1999), at 169.
17. Cf. E. U. Petersmann, 'Multilevel Judicial Governance in the WTO Without Justice?', in M.E. Janow (ed), The WTO at 10: Governance, Dispute Settlement and Developing Countries (2007).
18. The quotation is from paragraphs 241-2 of the ICSID arbitration award of 23 June 2003 in the case Laewen Group v. United States (published in Journal of World Investment 2003, at 675 ff.), which concerned a Missisippi jury award of $500 million damages and procedural biases against a foreign investor.
19. See A. O. Sykes, 'Public versus Private Enforcement of International Economic Law: Standing and Remedy', 34 Journal of Legal Studies (2005) 631.
20. Cf. E. U. Petersmann, 'Prevention and Settlement of Transatlantic Economic Disputes', in E. U. Petersmann and M. Pollack (eds), Transatlantic Economic Disputes: The EC, the US and the WTO (2003), 3, 55ff.
21. G.Abi-Saab, "The WTO Dispute Settlement and General International Law', in R. Yerxa and B. Wilson (eds), Key Issues in WTO Dispute Settlement: The First Ten Years (2005), 7-8.
22. Rufus Yerxa, "The Power of the WTO Dispute Settlement System', in Yerxa and Wilson, above n 19, 3-4.
23. See the legal advice by the EC's legal advocate Kuijper, above n 13, at 1332-34.
24. See E. Posner and J. C. Yoo, 'Judicial Independence in International Tribunals', 93 California Law Review (2005) 1, at 6, who define the function of international tribunals as providing states with neutral information about the facts and the law in a particular dispute.
25. Cf. E. A. Posner and F. P. de Figueiredo, 'Is the International Court of Justice Politically Biased?', 34 Journal of Legal Studies (2005) 599-630.
26. D. Z. Cass, The Constitutionalization of the WTO (2005), at x. Following seven chapters arguing against constitutionalization of international relations, her Chapter 8 concludes that 'trading democracy, not merely trading constitutionalization, should be the key to WTO constitutionalization in this century' (at 242). Cass admits at the end that her 'received account' of Anglo-Saxon constitutionalism has, indeed, 'been revealed as neither descriptively adequate nor normatively appealing' (at 240).
27. See, e.g. Kuijper, above n 13, 1313-41, who criticizes the rule-oriented 'Kupferberg jurisprudence' of the ECJ as politically 'naïve' (at 1320).
28. At the request of the political EC institutions, the EC Court has refrained long since from reviewing the legality of EC acts in the light of the EC's GATT and WTO obligations. In the United States, courts are barred by legislation from challenging the WTO-consistency of US federal measures.
29. Cf. J. A. Restani and I. Bloom, 'Interpreting International Trade Statutes: Is The Charming Betsy Sinking?' 24 Fordham International Law Journal (2001) 1533. On the controversial relationship between the 'Charming Betsy doctrine' of consistent interpretation and the 'Chevron doctrine' of judicial deference see: A. Davies, 'Connecting or Compartmentalizing the WTO and United States Legal Systems? The Role of the Charming Betsy Canon', 10 Journal of International Economic Law (2007) 117-49.The European Court of Justice has a long history of ignoring GATT and WTO rules at the request of political EC bodies which have often misinformed the EC Court on the meaning of GATT/WTO rules and dispute settlement reports (e.g. in Case 112/80, Dürbeck, ECR 1981, 1095, the Commission misinformed the EC Court on an unpublished GATT dispute settlement finding against the EC, and the Court relied on this information without verifying the obviously wrong information submitted to the Court).
30. Cf. A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000).
31. 'Dualist conceptions' of democracy as two-track processes are also widespread in the US, as shown by B. Ackerman, We the People, Vol. 1 (1991) and 2 (1998).
32. C. L. Eisgruber, Constitutional Self-Government (2001), explains why democratic legislatures and elections provide only an incomplete representation of the people, and why judicial interpretation and application of the Constitution by courts are integral parts of constitutional selfgovernment.
33. Cf. A. Stone Sweet, The Judicial Construction of Europe (2004).
34. Cf. A. M. Slaughther and W. Burke-White, 'The Future of International Law is Domestic (or, the European Way of Law)', 47 Harvard International Law Journal (2006) 327, 329: 'the future effectiveness of international law will turn on its ability to influence and alter domestic politics.' The authors define the major functions of international law in terms of 'strengthening domestic institutions', 'backstopping domestic governments' where they fail to act, and 'compelling action by national governments.' My own publications focus less on the inter-state functions of international guarantees of freedom, non-discrimination, due process of law and human rights than on their potential intrastate functions and 'domestic policy functions', for example, in terms of strengthening the 'enabling constitution' and 'limiting constitution' of states, empowering citizens and courts vis-à-vis abuses of foreign policy powers, and requiring all state organs to contribute to the collective supply of international public goods, cf. E. U. Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law (1991).
35. On national and European 'constitutional pluralism' as foundation of European integration law see: M. Poiares Maduro, 'Contrapunctual Law: Europe's Constitutional Pluralism in Action', in N.Walker (ed.), Sovereignty in Transition (2003), 501-37.
36. Cf. N. Krisch and B. Kingsbury, 'Global governance and Global Administrative Law in the International Legal Order', 17 European Journal of International Law (2006) 1-15.
37. On the notion of 'judicial governance' and the legal and democratic functions of courts see, e.g. A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000), according to whom (at 137) constitutional courts perform four basic functions: (i) they operate as a 'counterweight' to majority rule; (ii) they 'pacify' politics; (iii) they legitimize public policy; and (iv) they protect human rights.
38. See J. H. Jackson, The World Trade Organisation: Constitution and Jurisprudence (1998).
39. See D. Z. Cass, 'The Constitutionalization of International Trade Law: Judicial Norm-Generation as the Engine of Constitutionalization', 12 European Journal of International Law (2001) at 39-75.
40. See J. O. McGinnis and M. L. Movsesian, 'The World Trade Constitution', 114 Harvard Law Review (2000) 511-605;
41. P. M. Gerhart, "The Two Constitutional Visions of the World Trade Organisation', 24 University of Pennsylvania Journal of International Economic Law (2003) 1-75, contrasts the 'inward-looking, economic vision of the WTO' in helping member countries addressing internal political failures with the 'external, participatory vision of the WTO' helping WTO members to address concerns raised by policy decisions in other countries.
42. See, for example, P. M. Gerhart, 'The WTO and Participatory Democracy: The Historical Evidence', 37 Vanderbilt Journal of Transnational Law (2004) 897-934.
43. See J. O. McGinnis, 'The WTO as a Structure of Liberty', 28 Harvard Journal of Law and Public Policy (2004) 81-8.
44. J. Trachtman, "The WTO Constitution: Toward Tertiary Rules', 17 European Journal of International Law (2006).
45. See, for example, Petersmann, above n 31, Oxford: Hart Publishers; N. Walker, "The EU and the WTO: Constitutionalism in a New Key', in G. de Burea and J. Scott (eds), The EU and the WTO: Legal and Constitutional Issues (2001).
46. T. Cottier and M. Hertig, "The Prospects of 21st Century Constitutionalism', 7 Max Planck Yearbook of United Nations Law (2003) at 261.
47. Cf. L. R. Helfer and A. M. Slaugther, 'Why States Create International Tribunals: A Response to Professors Posner and Yoo', 93 California Law Review (2005) 1-58.
48. Cf. L. R. Helfer and A. M. Slaugther, 'Toward a Theory of Effective Supranational Adjudication', 107 Yale Law Journal (1997) 273-391.
49. The claim by Posner and and Yoo, above n 22, at 55 that the success of the ECJ and the ECtHR cannot be replicated outside "political communities" overlooks the potential of functionally limited, citizen-driven 'legal and economic communities' protected by multilevel judicial governance based on common 'principles of justice'. On the important role of national and European courts in the progressive 'judicialization' and 'constitutionalization' of international law in Europe see A. M. Slaugther, A. Stone Sweet, and J. H. Weiler (eds), The European Courts and National Courts (1997).
50. Cf. J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996) at 315-328. This constitutional concept of democracy limits alternative, majoritarian conceptions of democracy.
51. Cf. E. U. Petersmann, 'Human Rights, Markets and Economic Welfare: Constitutional Functions of the Emerging UN Human Rights Constitution', in F. M. Abbott, C. Breining-Kaufmann, and T.Cottier (eds), International Trade and Human Rights. Foundations and Conceptual Issues (2006) 29-68.
52. Cf. e.g. Article XVI:3 WTO Agreement, Article11 Agreement on Safeguards.
53. Cf. e.g. Article XVI:4 WTO Agreement, Article 1 Agreement on TRIPS.
54. On these complementary 'conflict of laws' approaches, 'global administrative law approaches' and 'constitutional approaches' in the WTO regulation and limitation of trade policy powers see: E.U.Petersmann, 'Introduction and Overview', in C. Joerges and E. U. Petersmann (eds), Constitutionalism, Multilevel Trade Governance and Social Regulation (2006), xxi-xxxviii.
55. This concept continues to be used not only by the EC Court, but also in many judgments of the European Court of Human Rights since the Court's decision in Loizidou v Turkey (preliminary objections), Series A No 310 (1995) 20 EHRR 99 Section 75(2).
56. On the ancient Greek concept of 'law as participation in the idea of justice' see C.J.Friedrich, The Philosophy of Law in Historical Perspecitve (1963), Chapter II. The Greek and Roman words for 'law' (dikaio, jus) and 'justice' (dikaiosyni, justitia) have an identical core.
57. L.L.Fuller, The Morality of Law (1969), at 96.
58. For Fuller's criticism of positivist conceptions of law, see L.L.Fuller, 'Positivism and Fidelity to Law - A Reply to Professor Hart', 71 Harvard Law Review (1958) 630.
59. Cf. James Madison, The Federalist (1790), 51: 'justice is the end of government. It is the end of civil society. It ever has been and will be pursued until it is obtained, or until liberty be lost in the pursuit.'
60. Cf. K. W. Abbott, 'Toward a Richer Institutionalism for International Law and Policy', 1 Journal of International Law and International Relations (2006) 9-34; S. R. Ratner and A. M. Slaugther (eds), The Methods of International Law (2004).
61. Cf. Petersmann above n 5, at 4-24.
62. Cf. E. U. Petersmann, 'Multilevel Trade Governance in the WTO Requires Multilevel Constitutionalism', in Joerges and Petersmann (eds), above n 50, at 5-57.
63. The quotations are from I. Kant, 'What is Enlightenment? (1784)', in C. J. Friedrich (ed), The Philosophy of Kant Immanuel Kant's Moral and Political Writings (1993) at 145-8. On Kant's conception of an international and cosmopolitan 'law of freedom'
64. see, e.g. Parts V and VI in B. Sharon Byrd and J. Hruschka (eds), Kant and Law (2006).
65. Cf. T. Hobbes, Leviathan R. Tuck (ed.), (1991), Chapter 21, at 146: 'A free man is he that... is not hindered to do what he has a will to.' On the concept of freedom as legal non-interference in classical English political philosophy
66. see: I. Berlin, Liberty H. Hardy (ed.), (2002), 17 Off.
67. On the interrelationships between human rights, fundamental rights, fundamental freedoms and 'market freedoms' in European constitutional law see the contributions by J. Kûhling, Fundamental Rights, and T. Kingreen, Fundamental Freedoms, in A. v. Bogdandy and J. Bast (eds), Principles of European Constitutional Law (2006), 501ff, 549ff.
68. See Petersmann, above n 54 and R. S. J. Macdonald and D. M. Johnston (eds), Towards World Constitutionalism. Issues in the Legal Ordering of the World Community (2005).
69. Cf. E. Ramirez Robles, 'Political and Quasi-Adjudicative Dispute Settlement Models in EU Free Trade Agreements', WTO Staff Working Paper 2006-09.
70. A recent example of concurrent jurisdiction of international dispute settlement bodies for environmental disputes is the ECJ judgment of 30 May 2006 (Mox-Plant Case C-459/03, Commission v Ireland), in which the Court decided that EC member states are not allowed to submit disputes potentially involving EC law to dispute settlement bodies other than the ECJ; EC member states must inform and consult EC bodies prior to seizing other international tribunals. For additional examples of concurrent jurisdiction of international arbitral tribunals and the ECJ for environmental disputes among EC member states see: N. Lavranos, 'The Mox Plant and Ijzeren Rijn Disputes: Which Court is the Supreme Arbiter?', 19 Leiden Journal of International Law (2006) 223-46.
71. Cf. E. U. Petersmann, Justice in International Economic Law? From the 'International Law among States' to 'International Integration Law' and 'Constitutional Law', (I) The Global Community Yearbook of International Law and Jurisprudence (2006) 105-46.