Constitutionalism and WTO law: From a state-centered approach towards a human rights approach in international economic law

Petersmann, Ernst‐Ulrich

doi:10.1017/cbo9780511494512.005

Cited by 25 publications

(8 citation statements)

References 6 publications

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“…This has certainly been advocated by some (Alter; Bronckers). Others have taken a different tack, and have advocated the "constitutionalization" of the WTO based on individual human rights (Petersmann 2002(Petersmann , 2003. This view has been criticized, both as involving a very narrow concept of human rights and its "takeover" by trade law (Alston), and as providing only a limited basis for balancing the aims of market liberalization against other social preferences embodied in regulation (Picciotto 2003).…”

Section: Discussionmentioning

confidence: 99%

The WTO's Appellate Body: Legal Formalism as a Legitimation of Global Governance

Picciotto

2005

Governance

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The creation of the Appellate Body (AB) of the WTO entails an unprecedented delegation of power to an international adjudicator, since the WTO requires states to ensure compliance of their domestic regulations with the sweeping obligations in WTO agreements. This is legitimized in some academic analysis and much political rhetoric in terms of the rule of law, suggesting that the role of the adjudicator is merely to apply the precise words of the texts agreed by states, according to their natural meaning. The AB has supported this, by adopting a formalist approach which combines an objectivist view of meaning with a legalistic style of judgement. However, both the general structure and many of the specific provisions of the WTO agreements are indeterminate and raise issues of interpretation which were known to be highly contestable. Although the delegation of adjudication in its early phase was considered to be of a narrow technical function, in the current phase interpretation is more clearly seen to involve a flexible application of principles to cases in the light of the policies involved. The AB's role would be better legitimized by adopting a more open epistemology and reasoning which could be accessible to a wider constituency. However, it is constrained by fear of usurping the political legitimacy of the governments to which it is primarily accountable, and they in turn are motivated by a reluctance to admit to their domestic constituencies how much power has been transferred to supranational instances such as the AB.

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Section: Discussionmentioning

confidence: 99%

The WTO's Appellate Body: Legal Formalism as a Legitimation of Global Governance

Picciotto

2005

Governance

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“…Petersmann (2002) is probably the only paper that squarely addresses this issue. He does not put into question the historic role for Art.…”

Section: The Mandate and Coverage Of Ntmentioning

confidence: 99%

Legal and Economic Principles of World Trade Law: National Treatment

2012

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“…Perhaps it also explains why even such universalists as Kant ([1795] 2005) wanted to see "cosmopolitan law" restricted only to a "right of visit." He did not conceive of it as a legislative program or as an ever-expanding list of "human rights" (Held 1995), such as an alleged "right to free trade" (for a daring expansion of this cosmopolitan law, see Petersmann 2002).…”

Section: Th E Problem Of "Universality"mentioning

confidence: 99%

“…He thereby dissolves both the "state" as the "ontological primitive" of political science as well as the supremacy of "constitutional law" that gives coherence to legal ordering. Curiously enough, these topics re-emerge, however, in the attempts to bring "the state back in" -especially after the disasters of largescale deregulation of the global fi nancial system -and in the "fragmentation" and constitutionalization debates in international law (Dupuy 1997;Fassbender 2005;International Law Commission and Koskenniemi 2006;Petersmann 2002).…”

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confidence: 99%

Constitutionalizing Governing and Governance in Europe

Kjaer

2010

Comp Sociol

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Th is article explores the limits of Anne-Marie Slaughter's liberal theory of (international) law. Despite her admirable interdisciplinary work, Slaughter falls prey to proposing largely technical solutions based on best practices and buttressed by universal norms. She thereby misses the purpose of law as a source of meaning, not to mention the historicity and content-independent authority of law that can be legitimized only politically. Despite all universality, a closer look reveals that the practices of the US are taken to be best practices which then make them part of an imperial project. Th ey are not a means of mediating between the inevitable cultural, political, and historical tensions that are part of our predicament.

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Constitutionalism and WTO law: From a state-centered approach towards a human rights approach in international economic law

Cited by 25 publications

References 6 publications

The WTO's Appellate Body: Legal Formalism as a Legitimation of Global Governance

The WTO's Appellate Body: Legal Formalism as a Legitimation of Global Governance

Legal and Economic Principles of World Trade Law: National Treatment

Constitutionalizing Governing and Governance in Europe

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