A Study On Petersmann's International Economic Law Consititutionalism

Professor Petersmann is one of the three eminent scholars who have laid the foundation of international economic law(IEL)scholarship focusing on WTO rules.Over the decades,he has developed an IEL constitutionalization theory based on a "citizen-driven" constitutional thought for the better protection of human rights,with multilevel judicial governance as the core thesis.Petersmann has thereby rendered an ultimate normative theoretical premise for IEL,which as a legal branch has long been predominated by legal positivism and utilitarian economics.He has thus led the academic discourse in IEL onto a more sophisticated philosophical level.As China rises onto the world stage with a proposition of 'building a human community with shared destiny",China is required to participate more positively into the innovative development of global economic governance.In this context,it is of high significance to engage a research on Petersmann's IEL constitutionalization theory,which represents the Western model of thought but also focuses on citizen welfare improvement.With the contribution by a number of philosophers and theorists,Western constitutionalism has been epitomized into a liberal theoretical system which is historically consistent but still develops continuously.As a Western scholar,Petersmann cannot be out of the influence of Western thought;this can be discerned from the fact that he targets the reconciliation between individuals and public power under the background of globalization as the core thesis of his theory.This dissertation has six Chapters,concerning,respectively,an overview of Petersmann's theory,its historical evolution,its theoretical sources,its major keywords,peer criticism,and its connection to practice.Chapter 1 is a brief introduction of Petersmann' s IEL constitutionalization theory.Proceeding from an economic premise of individual market freedom,Petersmann's theory incorporates various liberal thoughts from earlier theorists and redesigns the IEL system on a solid human rights base.It focuses on the normative and fundamental issues of IEL.It is illuminating for people to better recognize the "rule of game" in the international division of labor,rather than merely to use and interpret rules.Chapter 2 reviews the evolution of Petersmann's theory in connection with relevant historical backgrounds.The first stage rans from the 1980s to middle 1990s,when he focused on a narrow thesis of the constitutional function of international economic rules.The second stage ranges roughly from the middle 1990s to early 2000s,during which Petersmann extended his theoretical premise from economic freedom to universal human rights and argued for integrating human rights into the WTO and other international organizations.In the third stage,commencing from the early 2000s onward,Petersmann comes directly to a cosmopolitan conception of IEL based on"universalizable" principles of justice,human rights,deliberative democracy,transnational rule of law and other common constitutional principles such as 'judicial comity,but he also admits that the diversity of 'constitutional pluralism' should be respected.Chapter 3 explores the ideological sources of Petersmann's theory.Petersmann follows an inter-disciplinary research approach,in terms of his absorption of liberal economic theory,ordo-liberalism,public choice theory,and public products theory.Many of his theoretical premise comes from economic theory.In addition,Kantian and Rawlsian theories are of particular importance in Petersmann's theoretical framework.Chapter 4 analyzes the three most important keywords in Petersmann 's theory,namely "human rights","justice" and "judicial review".Human rights provide an overriding cause for a paradigm change in IEL in the interest of better protecting the constitutional rights of citizens.Justice,as "a central objective of national and international law",can guide people in reaching an "overlapping consensus" among the diverse conceptions of a justifiable order of the international division of labor.Courts of justice are considered "the most independent guardians" for human rights and justice in IEL.Chapter 5 concerns the connection between Petersmann's theory and IEL practical issues.The judicial progressive clarification of human rights protection in European economic law and the European judicial proportionality review are main points of arguments in Petersmann's theory.In respect of constitutional conceptions in trade law,in the earlier time Petersmann takes an over-optimistic approach of finding the synergies between free trade rules and human rights law;whereas in recent time he focuses on the constitutional implications of "judicial governance" compared to political governance.His elaboration on issues of international law fragmentation is extremely abstractive as well.Chapter 6 revisits the debate between Petersmann and United States(US)scholars Alston and Howse.Petersmann's works were criticized by US scholars as full of groundless statements,while Petersmann calls for a discussion beyond detailed issues with an integrated interpretive approach.Alston and Howse ignored a critique of individualism as the normative premise in Petersmann's theory.Chapter 7 discusses the universalizability of Petersmann's theory by clarifying the conception of "human rights","justice" and "judicial review" in the context of China.The situation in China is fundamentally divergent from Petersmann's theoretical design,because a top-down paradigm remains vigorous in China and evident in China's integration into the world.The divergence between Petersmann's theory and Chinese thought is rooted in basic values and cannot be camouflaged in the words of pluralism.