International Economic Law in the 21st Century: Need for stronger ‘democratic ownership’ and cosmopolitan reforms

Abstract:

This article, accepted for publication in the 2012 Polish Yearbook of International Law, argues that – in order to make international economic law (IEL) a more effective instrument for protecting human rights and other public goods – citizens and courts of justice must insist on interpreting and developing IEL ‘in conformity with principles of justice’ and human rights, as required by the customary methods of treaty interpretation (I). By empowering citizens through legal and judicial remedies, cosmopolitan rights can strengthen the legal and democratic accountability of governments for their ‘duties to protect’ public goods (II). The ‘dual nature’ of modern legal systems resulting from their incorporation of ‘inalienable’ human rights requires justifying IEL in terms of ‘normative individualism’ and reasonable interests of all citizens (III). Human rights and democratic constitutionalism entail not only changes of the ‘rules of recognition’ (IV) and require ‘judicial balancing’ as the ‘ultimate rule of law’ (V). They also protect individual and democratic diversity and ‘reasonable disagreement’ (VI). The article discusses ten areas of increasing synergies between IEL and human rights law (VII- IX). Arguably, the normative proposition of justifying and designing IEL in terms of constitutional principles of justice and cosmopolitan rights is confirmed by the empirical fact that cosmopolitan legal systems (e.g. in European commercial, trade, investment and human rights law) tend to realize their declared objectives more effectively than state-centred ‘Westphalian legal regimes’ (X-XII).