Jean Monnet Center at NYU School of Law


Conclusion: Need for Multi-Level Constitutionalism Protecting Human Rights More Effectively

The universal recognition and protection of inalienable human rights at national, regional and worldwide levels requires a new human rights culture and a citizen-oriented national and international constitutional framework different from the previously prevailing state-centered conceptions and functionalism. In Europe, the emergence of "multi-level governance" has led to "multi-level constitutionalism"175 and "divided power systems" that have succeeded in overcoming Europe's history of periodic wars and of "constitutional failures" of nation states to protect human rights and peaceful division of labor across frontiers. Just as within federal states "the federal and state Governments are in fact but different agents and trustees of the people, instituted with different powers, and designated for different purposes"176, international law and international organizations must be understood as parts of the constitutional limitations on abuses of foreign policy powers necessary for protecting human rights more effectively.177 National constitutional law and human rights cannot achieve their objectives unless they are supplemented by international constitutional law and by effective protection of human rights in the economy no less than in the polity.178

Promotion and protection of human rights is not only the task of national and international human rights law and of specialized human rights institutions. Also the law of worldwide and regional organizations (like UN law, WTO law and EU law) serves "constitutional functions" for protecting freedom, non-discrimination, rule of law and social welfare across national frontiers. Historical experience confirms that, without such multilateral rules, national parliaments can neither effectively supervise foreign policies among 200 sovereign states nor ensure that foreign policy decisions respect human rights and rule of law not only at home but also across frontiers. European and global integration law further demonstrate that the different layers of national and international constitutional rules need to be supplemented by corresponding national and international rule-making, executive and judicial processes that must be subject to effective democratic controls and constitutional safeguards of "subsidiarity", "necessity" and "proportionality" of regulatory limitations of human rights (cf. Article 5 EC Treaty).

As described already by Kant more than 200 years ago, human rights and democracy require national as well as international constitutionalism. The democratic legitimacy of the various levels of government derives from respect for human rights and from democratic participation of citizens in the exercise of national and international government powers. Just as national citizenship and European Union citizenship are complementary (cf. Article 12 EC Treaty), citizens must become recognized also as legal subjects of international law and international organizations. Their democratic participation and more effective representation in international organizations requires far-reaching constitutional reforms of the state-centered international legal system so as to enable e.g. "UN citizens" and "WTO citizens" to invoke international guarantees of freedom before domestic courts and participate more actively in parliamentary and civil society institutions at national and international levels.

The German Constitutional Court, for example, has rightly interpreted the creation of the European Central Bank as an act that redefines the guarantee of private property in money protected by the German Constitution (Article 14) as a fundamental right.179 From such a human rights perspective, the state-centered interpretation of the Agreement establishing the IMF as an exclusively monetary agreement on the rights and obligations of governments in the field of monetary policy, without legal relevance for the human rights obligations of governments and of UN agencies, appears too one-sided.180 International guarantees of freedom, non-discrimination and rule of law, such as the UN guarantees of human rights and the WTO guarantees of liberal trade and property rights, should be seen as part of the domestic constitutional systems of WTO members which need be protected by domestic courts so as to safeguard human rights across frontiers. Human rights law requires that the delegation of regulatory powers to national, regional and worldwide institutions must always remain constitutionally limited. Democratic sovereignty remains, as proclaimed in the Preamble to the UN Charter, with "We the Peoples of the United Nations". The protection of human dignity and of "individual sovereignty" through human rights and global integration law remains the biggest constitutional challenge of law and governance in the 21st century at all national and international levels of the exercise of governmental and private power.-

175 Cf. I.Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited? In: Common Market Law Review 36 (1999), 703-750.

176 A.Hamilton, Federalist No.46, in: Hamilton et alii, The Federalist Papers, 1787/88.

177 On these "constitutional functions" of international law and international organizations for the protection of human rights see Petersmann (above notes 44 and 52).

178 See also Petersmann, Constitutionalism, International Law and `We the Citizens of the United Nations', in: Liber Amicorum H. Steinberger, 2001.

179 German Constitutional Court judgment of 31 March 1998, in: Bundesverfassungsgericht 97, 350.

180 The presentation by the IMF legal adviser F.Gianviti, in the above-mentioned "day of general discussion" at the Office of the High Commissioner for Human Rights on 7 May 2001, of the IMF as an exclusively monetary institution - without legal mandate for promoting human rights and without legal obligations under UN human rights treaties - was rightly criticized by human rights organizations for disregarding the IMF obligations under the general human rights law (cf. Skogly, note 111, e.g. at 192 et seq.) as well as the "human rights functions" of IMF law (e.g. for the protection of property rights in money).




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