Human Rights Require "Cosmopolitan Constitutionalism" and Cosmopolitan Law for Democratic Governance of Public Goods

By Petersmann, Ernst-Ulrich | Contemporary Readings in Law and Social Justice, July 1, 2013 | Go to article overview

Human Rights Require "Cosmopolitan Constitutionalism" and Cosmopolitan Law for Democratic Governance of Public Goods


Petersmann, Ernst-Ulrich, Contemporary Readings in Law and Social Justice


ABSTRACT.

The more "globalization" transforms "national public goods" demanded by citizens into transnational "aggregate public goods," the stronger becomes the need for reviewing "Westphalian governance failures" and related "legal methodologies" (Section 1). Resolving the "constitutional problems" and "collective action problems" of multilevel governance (e.g. in terms of constituting, limiting, regulating and justifying multilevel governance powers, participation and representation of citizens in governance and dispute settlement, rule of law protecting cosmopolitan rights) requires supplementing national Constitutions by "multilevel cosmopolitan constitutionalism" empowering citizens and multilevel governance institutions to realize their collective responsibility for protecting human rights, rule of law and other interdependent public goods across frontiers (Section 2). The prevailing "political realism" and "constitutional nationalism" neglect the customary law requirements of interpreting international treaties and settling disputes "in conformity with the principles of justice and international law," including "human rights and fundamental freedoms for all," in order to limit democratic accountability of governments (Section 3). Human rights and multilevel protection of "principles of justice" require cosmopolitan law based on constitutional, "public choice" - and economic regulatory strategies limiting multilevel "governance failures" as well as "market failures" (Section 4). The human rights obligations of all UN member states limit governmental "margins of appreciation" in dealing with economic crises and related austerity programs (Section 5). Governments and courts of justice must reconcile and "balance" civil, political, economic, social and cultural rights depending on their diverse "contexts of justice" and protect transnational rule of law not only in terms of rights and obligations of governments, but also as cosmopolitan rights of citizens as "agents of justice" and "democratic owners" of all governance institutions (Section 6).

Keywords: constitutional pluralism, cosmopolitan constitutionalism, European Court of Human Rights, European Free Trade Area Court, EU Court of Justice, European law, human rights, international economic law, judicial governance, legal methodologies, multilevel constitutionalism, social rights

1. Governance Failures, Justice and Legal Methodology

Law and governance need justification in order to be accepted and supported by citizens as legitimate. In contrast to Greek, Roman and Renaissance republicanism justifying governance by the collective supply of the common good (res publica) for the benefit of a limited number of free citizens, the human rights revolutions since the 18th century aim at institutionalizing human rights, rule of law and democratic "public reason" for constitutional self-government respecting and protecting the human rights of all human beings. Even though national "big C Constitutionalism" prioritizes selfgovernment of "We the People" and the constitutional rights of national citizens, globalization and the universal recognition of human rights have led to explicit recognition in ever more national Constitutions of the increasing importance of international law and human rights for democratic governance of international public goods, including "a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized" (Article 28 of the 1948 Universal Declaration of Human Rights = UDHR). The continuing "human rights revolutions" at national levels (e.g. in African and Asian countries) and regional levels (e.g. in regional human rights and economic law regimes) challenge state-centred "Westphalian traditions" of power politics justifying treaties and international organizations by mere state consent. The more globalization transforms national into transnational public goods demanded by citizens, the more does legitimate authority at national and international levels of governance depend on "multilevel constitutionalism" protecting human rights and rule of law for the benefit of free and equal citizens across national frontiers. …

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