Jean Monnet Center at NYU School of Law


4. Human Rights as Constitutional Restraints on the Law and Powers of International Organizations

The "paradox of liberty", i.e. that real freedom and legal constraints condition each other,
applies to both national as well as international law. Article 28 of the UDHR - according to which "(e)veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized" - reflects the insight that protection and promotion of human rights are often no less dependent on intergovernmental rules and policies (e.g. on collective security, international division of labor, prevention of terrorism) than on national implementing measures. Article 24 of the ICESCR confirms implicitly that human rights entail obligations not only for states but also for their collective exercise of government powers in international organizations. 47

If human rights require international law and international institutions to be so structured as to promote and protect human rights across frontiers: How can human rights be rendered more effective in the law of worldwide organizations? The various UN Declarations on the "Right to Development" call upon international organizations to incorporate human rights into their policies and to promote participation of individuals and civil society organizations in the work of international organizations.48 Yet, in intergovernmental organizations (like the UN) and "producer-driven" organizations (like the WTO and ILO), "top-down reforms" for strengthening human rights and democratic rule-making procedures remain slow because many diplomats and influential industries (including their worker representatives in the ILO) prefer to avoid limiting their powers and privileges in specialized agencies and benefit from continuing the classical international law approach of treating citizens as mere objects of international law that should be kept out of intergovernmental organizations.49 Also many lawyers, economists, political scientists and ordinary citizens doubt whether the universal recognition of human rights requires the EC and worldwide organizations to evolve into human rights organizations and to supplement the international human rights guarantees by "international constitutional law".50 Especially in the US with its long-standing reluctance to submit itself to international human rights law and its traditional focus on civil and political rather than economic and social human rights, convincing citizens, governments and courts of the need for economic and social human rights remains a political challenge which appears unlikely to be met by governments, business and courts in the US.51

History suggests that democratic participation in the exercise of government powers rarely comes about "top-down" without prior "bottom-up pressures" and "glorious revolutions" by citizens, parliaments and courageous judges defending human rights vis-à-vis abuses of government powers and fighting for democratic reforms of authoritarian government structures. The postwar Bretton-Woods Agreements and the UN Charter presented such hard-fought-for "revolutions" in international law designed at extending freedom, non-discrimination, rule of law and social welfare across frontiers, even though diplomats carefully avoided the politically charged language of "international constitutional law" (e.g. in contrast to the "Constitution of the ILO" of 1919).

A. Human Rights and the "Constitutional Functions" of International Guarantees of Freedom, Non-discrimination and Rule of Law

All human rights need to be made effective and mutually balanced through national and international rule-making and rule-implementation. Reciprocal international guarantees of freedom, non-discrimination, rule of law, transparent policy-making, social safeguard measures and wealth-creation through a mutually beneficial division of labor - such as those in the 1944 Bretton-Woods Agreements, the ILO Constitution, GATT 1947 and the 1994 WTO Agreement - aim at extending basic human rights values across frontiers. In this respect, they can be understood as serving "constitutional functions" for the legal protection of human rights values at home and abroad.52 Of course, "not all international rules serve constitutional functions", and the lack of adequate constitutional safeguards in the law of international organizations facilitates "intergovernmental collusion" endangering democratic governance and human rights.53 For example, the general exceptions and safeguard clauses in the WTO Agreement leave each government broad discretion as to how economic freedoms should be reconciled with other human rights subject to "necessity" and non-discrimination requirements (e.g. in GATT Article XX, GATS Article XIV, Article 8 of the TRIPS Agreement) that are similar to those in human rights law. Yet, the move from "negative integration" in GATT 1947 to "positive integration" in the WTO may endanger protection of human rights and democratic governance in areas such as health protection and intellectual property law54
The focus of GATT/WTO law is neither on de-regulation nor on distributive justice, but on optimal trade regulation through welfare-increasing non-discriminatory internal regulation (rather than welfare-reducing discriminatory border restrictions or export subsidies). GATT and WTO jurisprudence has so far hardly ever challenged the sovereign right of GATT and WTO member states to protect the human rights of their citizens through non-discriminatory internal or international social rules (e.g. ILO-conventions, human rights treaties, environmental agreements) if procedural due-process requirements had been met (e.g. for risk-assessment procedures prior to the application of sanitary measures, consultations with exporting countries that were adversely affected by environmental regulations unilaterally adopted in importing countries).55 Should WTO law follow the example of EU law and integrate human rights and social rules more explicitly into WTO law and jurisprudence? Or should human rights and international income redistribution be left to other "specialized agencies" like the various UN human rights bodies, the World Bank and the ILO? Is interpretation of WTO law in conformity with human rights, as required by general international law, sufficient for ensuring coherence between human rights and trade law?

B. Human Rights Require International Constitutional Law

Since the Greek republics in the 5th century BC, constitutionalism has emerged in a process of "trial and error" as the most important "political invention" for protecting equal liberties against abuses of power. The continuing evolution of national and international constitutionalism can be defined by six interrelated core principles which are recognized in the constitutional laws of most democracies: (1) rule of law; (2) limitation and separation of government powers by checks and balances; (3) democratic self-government; (4) human rights; (5) social justice; and (6) the worldwide historical experience that protection of human rights and "democratic peace" cannot remain effective without international law providing for reciprocal international legal restraints on abuses of foreign policy powers.56

The legal concretization of these core principles in national constitutions (e.g. in national
catalogues of human rights), and increasingly also in international "treaty constitutions" (such as the EC Treaty and the ILO Constitution), and their mutual balancing through democratic legislation, legitimately differ from country to country, from organization to organization, and from policy area to policy area. There are also valid "realist" reasons why "democratic peace" may be possible only among constitutional democracies, and power politics may remain necessary to contain aggression from non-democracies where human rights are not effectively protected.57 Yet, are there convincing arguments why "constitutionalization" of international law and international organizations may be "a step too far"?58 Are "international constitutional law" and "cosmopolitan integration law", as explained by Kant and confirmed by European integration law, indispensable for limiting abuses of foreign policy powers and protecting equal human rights and democratic peace across frontiers? 59

The universal recognition of human rights, and the adoption by almost all states of national constitutions and international treaties committed to the promotion of human rights, reflect the worldwide experience that human rights cannot remain effective without constitutional safeguards, democratic legislation and international law protecting freedom and rule of law across frontiers through legal restraints on abuses of power. History and constitutional theory confirm that liberty, democracy, market competition and social justice are not gifts of nature but "constitutional tasks".60 Rule of law may be possible in a dictatorship. Effective protection of equal human rights, however, is logically and practically inconceivable without rule of law, limitation and separation of government powers, democratic self-government, social market economies identifying and satisfying consumer demand, and respect for international law.61 Since the basic function of democratic constitutions is to protect the "rights retained by the people" (Ninth Amendment of the US Constitution) against abuses of all government powers, and most foreign policies become effective by taxing and restricting domestic citizens, constitutional restraints on foreign policy powers are no less necessary for the protection of human rights than restraints on domestic policy powers. 62

How then can the "Lockean dilemma" be overcome that most national constitutions grant governments broad discretionary foreign policy powers which can easily undermine domestic constitutional restraints (e.g. by redistributing income among domestic citizens through "voluntary" trade restrictions)? Most countries have learnt through experience that unilateral national constitutional restraints on foreign policy powers cannot effectively deal with the "Janus face problem" of foreign policies, e.g. the fact that foreign policy discretion to discriminate among 200 sovereign states offers governments more than 200 possibilities for discriminating among domestic citizens trading with foreign countries and for taxing and redistributing income of domestic citizens through trade restrictions. Due to the relational nature of most foreign policy goals (such as "democratic peace" among democracies, freedom of trade between exporting and importing countries, exchange rate stability between different currencies), foreign poliy abuses can be legally limited most effectively through reciprocal international law rules. Such rules tend to offer also more precise substantive and procedural "benchmarks" for parliamentary, judicial and intergovernmental review of foreign policy measures than the usually vague national constitutional rules for foreign policy-making. As noted above, reciprocal international guarantees of freedom, non-discrimination and rule of law can also serve "constitutional functions" for protecting and extending human rights values across frontiers and for "constitutionalizing"63 discretionary foreign policy powers on the basis of "higher" international law and its enforcement through national and international courts and stricter parliamentary and democratic control.

C. Human Rights as Incentives for "Decentralized Ordering" and a "Self-Enforcing Constitution" Across Frontiers: The Subsidiarity Principle

The EU "principles of liberty, democracy, respect for human rights and fundamental freedoms" (Article 6 EU Treaty) are reflected also in the explicit Treaty requirements that actions by the Community shall be "in accordance with the principle of subsidiarity" and "not go beyond what is necessary to achieve the objectives of this Treaty" (Article 5 EC Treaty); decisions shall be "taken as openly as possible and as closely as possible to the citizen" (Article 1 EU Treaty). Similar to the historical experiences inside many federal states, the EC Treaty objective of an "internal market ... without internal frontiers in which the free movement of goods, persons, services and capital is ensured" (Article 14) was to some extent achieved only after the empowerment of self-interested market participants to enforce access to foreign markets and freedom of competition through independent "guardians of the law" (e.g. competition authorities) and courts against governmental and private market access barriers and restraints of competition.64 The political EC Treaty goals "to establish progressively an area of freedom, security and justice" (Article 61 EC Treaty) and a "common foreign and security policy" are likewise linked to a "basic rights strategy", as reflected in the Treaty commitment "to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms" inside and outside the EC (cf. Articles 6, 11 EU Treaty).

In the context of worldwide organizations, human rights are no les important for promoting not only individual and democratic self-government and legitimacy, but also decentralized enforcement of rule of law and decentralized coordination across frontiers among billions of autonomous citizens participating in global economic as well as political markets.65 For example:

D. Human Rights, Common Market Rules, Competition and Trade Rules: How to Construe Liberty Rights and their "Indivisibility"?

Human rights historically evolved in particular civil, political, economic and social contexts before the modern recognition that "all human rights are universal, indivisible and interdependent and interrelated."74 How should human rights to liberty and equality be construed in the particular context of the law and powers of international organizations (like the EC and WTO)? European Community law, for instance, protects

Community law requires to interpret these various treaty provisons in a mutually coherent manner. Just as in some member countries (like Germany) the national constitutional guarantees of freedom to pursue a trade or business are construed to protect also individual rights to import and export subject to constitutional and legislative restraints, it was only logical for the EC Court of Justice to interpret the corresponding Community guarantees of "freedom to choose an occupation" and "freedom to conduct a business"76 in conformity with the EC Treaty's customs union principle and to recognize "freedom of trade as a fundamental right".77 The Court likewise construes the EC's common market rules and competition rules (e.g. Articles 81:1, 82) as individual "market freedoms" which can be directly enforced by individuals through the courts.78 In contrast e.g. to modern US antitrust adjudication which tends to interpret US antitrust rules almost exclusively in the light of economic efficiency criteria and consumer welfare79, the interpretation by the EC Court of the EC's common market rules and competition rules takes into account not only economic criteria but also the contribution of the "market freedoms" and competition rules to the realization of a single internal market and to the protection of individual freedom and individual access to courts.80

The comprehensive EC guarantees of individual economic liberties differ from the constitutional and legal traditions in countries (like England and the USA) where domestic courts accord higher standards of judicial review and protection to civil and political freedoms than to economic liberties in view of the fact that constitutional law and competition law have guaranteed a common market and market competition in these countries long since. 81 In other countries (like Germany) which have experienced dictatorial governments colluding with cartellized industries in suppressing the economic and political liberties of their citizens, the constitutional liberties have been construed by courts as protecting maximum equal freedoms of citizens (subject to constitutional limits and democratic legislation) in economic markets no less than in political markets.82 EC law suggests that this comprehensive constitutional protection of liberty rights, in the economic area no less than in the political field, offers more protection for citizens in countries and international organizations (like the EC) which do not benefit from centuries-old constitutional guarantees of a common market and long-standing antitrust law protecting undistorted competition (as in the USA). This is even more true if the manifold instrumental functions of human rights (e.g. for handling the social problems of limited knowledge, decentralized coordination, mutually beneficial division of labor, conflicts of interests, abuses of power, incentives for savings and investments, decentralized enforcement of rule of law) are taken into account. From the human rights perspective of the more than 1 billion people living on less than one dollar a day, the marketplace for goods (e.g. food) and services (e.g. job opportunities, education and health services) is no less important for survival and self-development than the marketplace for politics and ideas.

E. Consequences of the Indivisibility of Human Rights in European Integration Law: Lessons for Global Integration Law?

The EC Treaty clearly recognizes the European historical experience that economic, political and legal freedom cannot be separated, and that abuses of private economic power (such as the collaboration of cartelized industries with dictatorial governments in Nazi-Germany) can be no less dangerous for citizens than abuses of political power. Private autonomy in law and in the economy must be protected by basic rights vis-à-vis abuses of both political as well as economic power. Thus, the EC Treaty protects "citizenship of the Union" (Article 17) by civil rights (such as the "right to move and reside freely within the territory of the Member States", Article 18) and political rights (such as the "right to vote and to stand as a candidate at municipal elections in the Member State in which he resides", Article 19) as well as economic rights (such as freedom of trade and competition protected by Articles 28,29,81 and 82) and social rights (such as the right to "equal pay for male and female workers for equal work or work of equal value", Article 141).83 The EU Treaty and the EU Charter of Fundamental Rights likewise protect civil, political, economic and social human rights and fundamental rights. European integration confirms the potential synergies between human rights law and economic integration law: Inside Europe, it has become generally recognized that economic organizations (like the EC and the EEA) can pursue their objectives (e.g. of "an open market economy with free competition", Article 4 EC Treaty) more effectively if they are seen by citizens and national parliaments to support and promote human rights and social justice, and if they empower self-interested citizens to particiapte in democratic rule-making and to invoke and enforce the common market rules and competition rules through courts and other decentralized law-enforcement processes (e.g. through national competiton authorities)..

Articles 302-307 of the EC Treaty explicitly require the EC to cooperate with other international organizations and to respect treaties concluded by EC member states with third countries. Article 6 of the EU Treaty consequently confirms that the "Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law." Agreements concluded by the EC are not only "binding on the institutions of the Community and on Member States" (Article 300:7 EC Treaty). The EC Court has recognized long since that such international agreements, and also general international law rules binding on the EC, constitute "an integral part of the Community legal system" with legal primacy over "secondary EC law" adopted by the EC institutions.84 The EC Court therefore emphasizes that Community law must be construed in conformity with international law, and that all Community competencies must be exercised in compliance with the international legal obligations of the EC.85 Precise and unconditional international guarantees of freedom and non-discrimination (e.g. in free trade area agreements between the EC and third countries) were recognized by the EC Court to constitute individual rights whose violation by EC institutions or by member state governments may entail legal responsibilities of reparation of injury and of financial compensation of the adversely affected individuals.86

The jurisprudence of the European Court of Human Rights confirms the interrelationships between civil, political, economic and social human rights, for instance the importance of freedom of opinion, freedom of the press and property rights for economic competition. The Court's recognition of a larger "margin of appreciation" for governmental limitations of human rights in economic competition than in the political marketplace has remained controversial.87 The Court has also emphasized that the human rights obligations of the more than 40 member states of the ECHR (including all 15 EU member states) apply not only to national measures but also to collective rule-making in international organizations:

"Where States establish international organizations, or mutatis mutandis international agreements, to pursue cooperation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution."88

In Matthews v. UK, the European Court of Human Rights found the United Kingdom in violation of the human right to participate in free elections of the legislature even though the law which denied voting rights in Gibraltar implemented a treaty concluded among EC member states on the election of the European Parliament: "there is no difference between European and domestic legislation, and no reason why the United Kingdom should not be required to `secure' the rights (under the ECHR) in respect of European legislation in the same way as those rights are required to be `secured' in respect of purely domestic legislation".89 In conformity with its consistent interpretation of the ECHR as a "living instrument" and "constitutional charter" that needs to be construed in the light of changing circumstances, the Court also admitted a complaint against all 15 EC member states requiring the Court to find that EC member states are legally responsible for the violation of the due process guarantees of the ECHR resulting from a refusal by the EC Commission to suspend a fine imposed for infringement of EC competition rules.90 Should, in a similar way, contracting parties of the ECHR be held legally liable for human rights violations resulting from e.g. WTO dispute settlement rulings or from their national implementation of WTO rules?

47 Article 24 states: "Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant." By interpreting the law of intergovernmental organizations in conformity with human rights, conflicts and "impairments" can and must be avoided.

48 See e.g. the Report of the Intergovernmental Group of Experts on the Right to Development in UN Doc. E/CN.4/1998/29 of 7 November 1997.

49 See e.g. the special report on human rights in The Economist of 18 August 2001, in which the US ambassador to the UN Human Rights Commission explains the non-ratification of the ICESCR by the USA with the "concern" that this "would mean citizens could sue their governments for enforcement of rights" (p.20).

50 See e.g. A. von Bogdandy, The European Union as a Human Rights Organization? Human Rights and the Core of the European Union, in: Common Market Law Review 37 (2000), 1307-1338 , who argues, inter alia, that "human rights should not be understood as the raison d'ètre of the Union" (p.1338), and that developing human rights from a common market perspective is often not convincing (p. 1336).

51 On "double standards" in US policies vis-à-vis international human rights treaties see: United States of America. Rights for All, Amnesty International Publication 1998, at 123-135.

52 For a detailed explanation see Petersmann (above note 44) as well as: E.U.Petersmann, National Constitutions and International Economic Law, in: M.Hilf/E.U.Petersmann (eds.), National Constitutions and International Economic Law, 1993, at 3, 47 et seq. The theory of the "constitutional" and "domestic policy functions" of international guarantees of freedom, non-discrimination and rule of law was developed in the 1980s (see E.U.Petersmann, Trade Policy as a Constitutional Problem. On the 'Domestic Policy Functions' of International Trade Rules, in: Swiss Review of International Economic Relations 41 (1986), 405-439; idem, Constitutional Functions of Public International Economic Law, in: Restructuring the International Economic Order. The Role of Law and Lawyers, Colloquium on the occasion of the 350th anniversary of the University of Utrecht, 1987, 49-75). The theory focused on the substantive constitutional values of the GATT 1947 guarantees of freedom, non-discrimination and rule of law, rather than on the formal primacy of "higher" international law over domestic law, or on the procedural advantages of reciprocal pre-commitments ("hands-tying") at the international law level designed to limit mutually harmful "beggar-they-neighbor policies" at domestic policy levels. The theory noted "the increasing recognition of agreed principles of substantive equality and solidarity in international law" (Petersmann, note 44, at 91), Yet, in view of the "separation of policy instruments" underlying the Bretton Woods Agreements and the cold war dissent on human rights, the theory did not challenge the "logic of 1945" and did not address the question examined in this article, i.e. the impact of the more recent universal recognition of human rights on the law and policies of worldwide organizations.

53 The quotations are from the titles of various chapters in: Petersmann (note 44), e.g. chapters VI and VII.5.

54 These dangers are emphasized e.g. in: E.U.Petersmann, The WTO Constitution and Human Rights, Journal of International Economic Law (JIEL) 3 (2000), 19-25; idem, From 'Negative' to 'Positive' Integration in the WTO: Time for Mainstreaming Human Rights into WTO Law, in: Common Market Law Review 37 (2000), 1363-1382.

55 In contrast to GATT/WTO law, European Community law has gone much further in challenging and replacing national by EC social, environmental and human rights rules, cf. M. Poiares Maduro (note 23).

56 For an explanation of this definition of "constitutionalism", and of the countless possibilities of defining and balancing these constitutional core principles in national and international law depending on the particular contexts, see: E.U.Petersmann, Human Rights and International Economic Law in the 21st Century, in: JIEL 4 (2001), 3-39; idem, How to Constitutionalize International Law and Foreign Policy for the Benefit of Civil Society?, in: Michigan Journal of International Law 20 (1999), 1-30; idem, Constitutionalism and International Organizations, in: Northwestern Journal of International Law and Business 17 (1996), 398-469.

57 See e.g. H.Kissinger, Does America Need a Foreign Policy?, 2001, according to whom "in today's world, at least four international systems are existing side by side" (at 25 et seq), such as "democratic peace" in relations between Western Europe and North America; "strategic rivalry" among the great powers of Asia; ideological and religious conflicts in the Middle East; and the poverty, health and civil war problems dominating politics in most of the African countries.

58 See: R.Howse/K.Nicolaidis, Legitimacy through "Higher Law"? Why Constitutionalizing the WTO is a Step Too Far, manuscript (September 2001) to be published in: T.Cottier/P.Mavroidis (eds.), The Role of the Judge: Lessons for the WTO, 2002. The authors define neither their use of the term "constitutionalizing" in a precise manner nor, in their criticism of a "libertarian approach", what they mean by "the fallacy of constitutionalism". While I agree with much of their criticism (e.g. of proposals for "federal global governance"), some of their concepts remain vague (such as "top-down empowerment" in the WTO context), and the addressees of their criticism are often not identified (Howse/Nicolaidis do not refer to any of my publications listed above in footnotes 44 and 56). The authors admit that integration of human rights and environmental law into WTO law, as suggested in my publications, "could ultimately result in creating some conditions for constitutionalism in the long run". Yet, they don't refute my argument (see e.g. above note 54) that the one-sided focus of the GATS- and TRIPS Agreements on producer interests, and the one-sided WTO jurisprudence on environmental and health protection measures, already offer enough evidence for the need to further "constitutionalize" trade policies and WTO law (e.g. through more stringent parliamentary, judicial and civil society review at national and international levels, and more explicit references to human rights).

59 On the need for international constitutional law in the trade policy area see e.g. chapters VIII and IX of my 1991 book (note 44), and: Hilf/Petersmann (note 52), at 42 et seq. Specifically on the need for protecting individual rights also in the trade policy area see e.g.: E.U.Petersmann, Limited Government and Unlimited Trade Policy Powers: Why Effective Judicial Review and a Liberal Constitution Depend on Individual Rights, in: Hilf/Petersmann (note 52), 537-561.

60 See e.g. F.A.Hayek, The Constitution of Liberty, 1960; idem, Law, Legislation and Liberty, 1982; W.Fikentscher, Freiheit als Aufgabe, 1997.

61 For instance, equal protection of human rights is impossible without rule of law; individual freedom requires limited government; democratic self-government cannot be maintained over time without "constitutional democracy" committed to long-term principles and human rights; abuses of power can be curtailed most effectively through divided-power-systems; rule of law across frontiers is impossible without international law.

62 For detailed explanations of these arguments see e.g. my publications quoted in note 52.

63 On different definitions of "constitutionalization" see e.g.: E.U.Petersmann, Constitutionalism and International Adjudication, in: Journal of International Law and Politics 1999, 101-135; D.Z.Cass, The `Constitutionalization' of International Trade Law: Judicial Norm-Generation as the Engine of Constitutional Development in International Trade, in: EJIL 12 (2001) 39-75. The methods of "constitutionalization" in EU law (such as legal supremacy with direct effect and direct applicability of EC rules) go far beyond those of worldwide international law.

64 See the comparative study of the common market law in the USA, Switzerland, Germany and the EC in Petersmann (note 44), chapter VIII.

65 On the gradual emancipation of the individual, and the emergence of a human right to democracy in national and international law see e.g. T.M.Franck, The Empowered Self. Law and Society in the Age of Individualism, 1999. On markets and democracy as organized dialogues about economic and political value judgments see e.g. Fikentscher (note 60), at 51.

66 Cf. F.A.Hayek, The Use of Knowledge in Society, in: Hayek, Individualsim and Economic Order, 1948, 77-78; T.Sowell, Knowledge and Decisions, 1980.

67 On the importance of human rights for solving this "knowledge problem" see: Barnett (note 48), at 29 et seq who rightly emphasizes that centralized ordering - e.g. of families, companies, governmental and non-governmental organizations - "needs to take place within a decentralized framework" (at 61).

68 On Immanuel Kant's distinction between truth (analyzed in Kant's Critique of Pure Reason), value judgments (analyzed in Kant's Critique of Practical Reason), and esthetic judgments (analyzed in Kant's Critique of the Human Ability to Judge), and on decentralized methods (i.e. markets and democracy) and centralized methods (e.g. dictatorship) to overcome conflicts about value judgments, see e.g. Fikentscher (note 16), at 50-51.

69 Whether market competition can be said to "ensure the best possible satisfaction of demand given the scarcity of goods" (Fikentscher, note 16, at 75) depends on whether "justice" can be defined in terms of equal liberties, efficiency and avoidance of unnecessary waste of resources (cf. Petersmann, note 44, at 60-61, 86 et seq.), and on how social human rights (e.g. to protection against economic hardship inconsistent with human dignity) can be integrated into a "social market economy" without distortion of price mechanisms, economic efficiency and equal liberties (as required by the economic theory of optimal intervention andalso by the Rawlsian theory of justice according to which "basic liberties can be restricted only for the sake of liberty" but not solely for the sake of improving the condition of those who are economically and socially least well off, cf. Rawls, note 1, at 266, 474 et seq.). Human rights imply, for instance, that consumers may legitimately value goods regardless of the value of work invested by producers during the production of the goods concerned.

70 On the importance of communicating "justice" in a manner making the abstract notion of justice and its concrete requirements accessible to everyone in a society see: Barnett (note 14), at 84 et seq.

71 On the comparative advantages of these law-determining procedures, and their links to "justice", rule of law, as well as to the efficient use of resources, see: Barnett (note 14), at 120 et seq.

72 On the inevitable task of judges to decide new kinds of disputes on the basis of general principles rather than established rules that may not be adequate for dealing with unforeseen new situations, see also: F.A.Hayek , 1960 (note 59), at 115 et seq. For a refreshing criticism of the US constitutional law tradition to focus on literary analysis and arguments over founders' intentions (rather than on the constiutional tasks and real-world consequences of alternative constitutional interpretations) see: R.D.Cooter, The Strategic Constitution, 2000.

73 Cf. Barnett (note 14), at 169 et seq, 197 et seq.

74 Vienna Declaration of the UN World Conference on Human Rights (1993), section I.5, cf.: The United Nations and Human Rights 1945-1995, UN 1995, at 450.

75 See the text published in the Official Journal of the EC, C 364/1-22 of 18 December 2000, and the commentary by: K.Lenaerts/E.E.De Smijter, A `Bill of Rights' for the European Union, in: Common Market Law Review 38 (2001), 273-3000.

76 These fundamental rights were recognized by the EC Court on the basis of the common constitutional traditons in EC member states and are now explicitly regulated in Articles 15 and 16 of the EU Charter of Fundamental Rights (note 75) in a manner protecting legitimate expectations in rule of law (cf. Article 16: "The freedom to conduct a business in accordance with Community law and national laws and practices is recognized").

77 See above note 20.

78 Cf. e.g.C.A.Jones, Private Enforcement of Antitrust Law in the EC, UK and the USA, 1999.

79 See e.g. R.H.Bork, The Antitrust Paradox, 1993.

80 Cf. P.Eeckhout, Trade and Human Rights in EU Law, in: F.Abbott/T.Cottier (eds.), International Trade and Human Rights, 2002. On the objectives of EC competition policies see: C.D.Ehlermann/L.L.Laudati (eds.), European Competition Law Annual 1997: Objectives of Competition Policy, 1998. There is, however, today broad consensus also in the EC that competition policy should focus on economic efficiency and consumer welfare, and that other policy objectives (like industrial policy, protection of small and medium-sized enterprises, employment, fight against inflation, improvement of the environment) should not be pursued by competition policy, but by means of other, more effective instruments.

81 For criticism of the US "double standard" which (since the 1930s) accords a higher degree of judicial protection to civil and political freedoms than to economic liberties see e.g.: B.H.Siegan, Economic Liberties and the Constitution, 1980; J.A.Dorn/H.G.Manne (eds.), Economic Liberties and the Judiciary, 1987. J.Rawls, notwithstanding his definition of the state's first goal as protecting maximum equal liberty, likewise limits his interpretation of basic liberties to those that "are essential for the adequate development and full exercise of ... moral personality over a complete life" (J.Rawls, Political Liberalism, 1996, at 293). This focus on essential civil and political liberty appears influenced by the particular context of US constitutional law where, due to the effective protection of the common market and freedom of competition through US constitutional and antitrust law, constitutional protection of economic liberty rights may have been less necessary than e.g. in the EC.

82 For comparative studies of national constitutional guarantees of freedom of trade see Petersmann (note 44), chapter VIII.

83 On the interrelationships between European citizenship, nationality and the various categories of human righs, citizen rights, fundamental rights (e.g. to equal pay for male and female workers for equal work as defined in Article 141 of the EC Treaty) and other individual rights (e.g. rights dependent on residence rather than citizenship) cf. N.Reich, Union Citizenship - Metaphor or Source of Rights?, in: European Law Journal 7 (March 2001), 4-23; M. La Torre (ed.), European Citizenship: An Institutional Challenge, 1998.

84 On this jurisprudence by the ECJ see e.g.: D.McGoldrick, International Relations Law of the EU, 1997; A.Dashwood/C.Hillion (eds.), The General Law of the EC External Relations, 2000.

85 See notably Case C-162/96, Racke, ECR 1998, I -3655.

86 See e.g. Case 104/81, Kupferberg, ECR 1982, 3641; Cases C-46 and 48/93, Brasserie du pêcheur and Factortame, ECR 1996 I 1029.

87 See e.g. the Markt Intern GMBH judgment of 20 November 1989 (Series A, no.165) and the Jacubowski judgment of 23 June 1994 (Series A no.291) of the European Court of Human Rights (reported also in: D.Gomien/D.Harris/L.Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter, 1996, at 288-290) in which the Court balanced the rights to freedom of expression and freedom of competition and recognized a larger margin of appreciation in economic matters even if the prohibited expressions of opinion had been factually correct. For a criticism of this jurisprudence see e.g. J.A.Frowein/W.Peukert, EMRK Kommentar, 2nd edition 1997, at 401.

88 European Court of Human Rights, Third Section Decision as to the Admissibility of Application No.43844/98 by T.I. against the United Kingdom, 7 March 2000, at page 16 (nyr).

89 European Court of Human Rights, judgment of 18 February 1999 on complaint No. 24833/94, see: Europäische Grundrechtszeitschrift (EUGRZ) 1999, 200.

90 See: Complaint No. 56672/00 (Senator Lines v. 15 EC-States), reported in EUGRZ 2000, 334.




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