国际经济法基本原则

第二节　国际经济法基本原则

Section 2　Principles of International Economic Law

【The Fundamental】

A. The Basis of International Economic Law

International economic law is based on the traditional principles of international law such as: (a) pacta sunt servanda^[11]; (b) freedom; (c) sovereign equality; (d) reciprocity; and(e) economic sovereignty.

It is also based on modern and evolving principles such as: (a) the duty to cooperate;(b) permanent sovereignty over natural resources; and (c) preferential treatment for developing countries in general and the least-developed countries in particular.

B. Economic Sovereignty

When states began to function as politically independent and sovereign entities, they realized that one of the most important attributes of state sovereignty was economic sovereignty. Without this, political sovereignty was not complete. Asserting economic sovereignty meant having control over the economic activities of both juridical and natural persons conducting business within the country, whether nationals of that country or foreigners.

Owing to a number of historical reasons, many states inherited on independence a situation in which foreign individuals or companies enjoyed certain concessions or privileges or control over the economic activities of the country concerned. In many states the natural resources and mining rights were controlled by foreign companies or individuals under a concession agreement entered into with the previous administration, whether colonial or otherwise.

When the country concerned wished to embark on a policy of economic development,one of the first initiatives it had to take was to consider harnessing its natural resources in accordance with its economic policies. It therefore became necessary for these states to assert sovereignty over the natural resources of the country and require that foreign individuals and companies comply with the new policy adopted by the state.

In many countries it was difficult to assert economic sovereignty without doing away with the rights, concessions and privileges enjoyed by foreign individuals and companies over the country’s natural resources.

However, developed countries whose nationals had gone overseas to invest and do business resisted attempts to impose national law on foreigners. They argued that existing concessions and contracts had to be honored under international law. It was at this juncture that the concept of permanent sovereignty over natural resources was introduced in international law.

C. Permanent Sovereignty over Natural Resources (PSNR)^[12]

When the number of newly independent developing countries grew, these states sought to assert their complete economic sovereignty by proclaiming that they had complete and permanent sovereignty over their natural resources regardless of any arrangements made by their previous colonial administrations.

Consequently, a resolution was introduced in the UN General Assembly to this effect and was passed by an overwhelming majority of states. Paragraphs 1 and 2 of the famous 1962 UN General Assembly Resolution on the Permanent Sovereignty over Natural Resources (PSNR) state:

1. The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the state concerned;

2. The exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities.

Accordingly, the resolution goes on to outline the rights of states with regard also to the expropriation and nationalization of the assets of foreign companies:

4. Nationalization, expropriation or requisitioning shall be based on grounds or reasons ofpublic utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation, in accordance with the rules in force in the state taking such measures in the exercise of its sovereignty and in accordance with international law. In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the state taking such measures shall be exhausted. However, upon agreement by sovereign states and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication.

The concluding paragraph of the resolution seeks to assure investor countries and foreign investors that the provisions of bilateral investment agreements will be respected:

8. Foreign investment agreements freely entered into by or between sovereign states shall be observed in good faith; states and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in accordance with the Charter and the principles set forth in the present resolution.

The provisions of the PSNR Resolution (Resolution 1803 of 1962) have been held widely as representing customary international law because of: the unanimous support it received at the UN and its declaratory nature of the rules of customary international law on the subject matter.

D. Fundamental Principles of International Economic Law

As an attempt to implement the objectives of the NIEO^[13]and to establish the norms of international economic relations, the UN General Assembly adopted as part of its resolutions on the NIEO the Charter of Economic Rights and Duties of States (CERDS)^[14]of 1974.

Chapter 1 of the Charter outlines the fundamentals of international relations in the following words:

Economic as well as political and other relations among states shall be governed, inter alia, by the following principles: (a) sovereignty, territorial integrity and political independence of States; (b) sovereign equality of all States; (c) non-aggression; (d) non-intervention; (e) mutual and equitable benefit; (f) peaceful coexistence; (g) equal rights and self-determination of peoples; (h) peaceful settlement of disputes; (i) remedying of injustices which have been brought about by force and which deprive a nation of the natural means necessary for its normal development; (j) fulfillment in good faith of international obligations; (k) respect forhuman rights and international obligations; (l) no attempt to seek hegemony and spheres of influence; (m) promotion of international social justice; (n) international co-operation for development; and (o) free access to and from the sea by land-locked countries within the framework of the above principles.

These are principles of a general nature which include both economic and political principles and reflect the trend of the early 1970s.

Articles 1, 2, 4 and 5 outline the economic rights and duties of states in a more concrete manner:

Article 1

Every State has the sovereign and inalienable right to choose its economic system as well as its political, social and cultural systems in accordance with the will of its people, without outside interference, coercion or threat in any form whatsoever.

Article 2

1. Every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities.

2. Each state has the right: (a) To regulate and exercise authority over foreign investment within its national jurisdiction in accordance with its laws and regulations and in conformity with its national objectives and priorities. No State shall be compelled to grant preferential treatment to foreign investment; (b) To regulate and supervise the activities of transnational corporations within its national jurisdiction and take measures to ensure that such activities comply with its laws, rules and regulations and conform with its economic and social policies. Transnational corporations shall not intervene in the internal affairs of a host State. Every State should, with full regard for its sovereign rights, cooperate with other States in the exercise of the right set forth in this subparagraph; (c) To nationalize, expropriate or transfer ownership of foreign property, in which case appropriate compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations and all circumstances that the State considers pertinent. In any case where the question of compensation gives rise to a controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed by all States concerned that other peaceful means be sought on the basis of the sovereign equality of States and in accordance with the principle of free choice of means.

Article 4

Every State has the right to engage in international trade and other forms of economiccooperation irrespective of any differences in political, economic and social systems. No State shall be subjected to discrimination of any kind based solely on such differences. In the pursuit of international trade and other forms of economic cooperation, every State is free to choose the forms of organization of its foreign economic relations and to enter into bilateral and multilateral arrangements consistent with its international obligations and with the needs of international economic cooperation.

Article 5

All States have the right to associate in organizations of primary commodity producers in order to develop their national economies, to achieve stable financing for their development and, in pursuance of their aims, to assist in the promotion of sustained growth of the world economy, in particular accelerating the development of developing countries. Correspondingly, all States have the duty to respect that right by refraining from applying economic and political measures that would limit it.

Although the Charter was not a “hard law” instrument having binding legal effect, many of the principles embodied in it have been regarded as representing the basis for the development of international economic law. Indeed, the Charter reiterates some of the principles that were already widely accepted as representing customary rules of international law, such as the permanent sovereignty of states over their natural resources.

1. The right to economic development.

One of the central elements of the NIEO and CERDS was the economic development of states. This element was reinforced and strengthened through a 1986 resolution of the UN General Assembly on the right to economic development of states. The main operative provisions of this declaration read as follows:

Article 1

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.

The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.

Article 2

The human person is the central subject of development and should be the activeparticipant and beneficiary of the right to development.

All human beings have a responsibility for development, individually and collectively, taking into account the need for full respect for their human rights and fundamental freedoms as well as their duties to the community, which alone can ensure the free and complete fulfillment of the human being, and they should therefore promote and protect an appropriate political, social and economic order for development.

States have the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom.

Although the right to development is a difficult right to define in concrete terms and does not have much legal significance, the articulation of this right in 1986 has enabled the international community to rely on it to support and develop: (a) other principles of international trade and development; (b) special and preferential treatment for developing countries; and (c) the need to address the problem of the international debt.

It can also be argued that the right to development was a contributor to the adoption of the Millennium Development Goals^[15]by the international community in 2000, at the dawn of the new millennium.

2. The law on natural resources.

a. The Stockholm Declaration 1972^[16]

The Stockholm Declaration of the United Nations Conference on the Human Environment of 1972 was perhaps the first major international environmental law instrument that introduced the idea of conserving natural resources onto the agenda of international economic law.

Principles 2, 3 and 5 of the Stockholm Declaration speak of the need to conserve natural resources:

“Principle 2

The natural resources of the earth including, the air, water, land, flora and fauna andespecially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.

Principle 3

The capacity of the earth to produce vital renewable resources must be maintained and, wherever practicable restored or improved.

Principle 5

The non-renewable resources of the earth must be employed in such a way as to guard against the danger of their future exhaustion and to ensure that benefits from such employment are shared by all mankind.”

The Stockholm Declaration sought for the first time to limit the right of states to exploit their natural resources (especially those which are non-renewable).

As stated earlier, until this point international economic law had sought to define and strengthen the rights of sovereign states to exploit their natural resources (whether renewable or non-renewable) through various instruments, such as the concept of permanent sovereignty over natural resources.

However, while endorsing this right of states, Principle 21 of the Stockholm Declaration sought to reconcile it with the need for environmental protection: states have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

b. The Charter of Economic Rights and Duties of States 1974

Article 30 of the Charter of Economic Rights and Duties of States of 1974 included the following provision furthering the spirit of the Stockholm Declaration: the protection, preservation and enhancement of the environment for the present and future generations is the responsibility of all States. All States shall endeavor to establish their own environmental and developmental policies in conformity with such responsibility. The environmental policies of all States should enhance and not adversely affect the present and future development potential of developing countries. All States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. All States should cooperate in evolving international norms and regulations in the field of the environment.

Thus, the momentum was maintained within international environmental law to limit theright to exploit natural resources in favor of the preservation of the environment. Consequently, the need to conserve natural resources and to exploit them in a sustainable manner figured prominently in the 1982 World Charter for Nature^[17].

c. World Charter for Nature 1982

The preamble to this Charter declares that ‘man can alter nature and exhaust natural resources by his action or its consequences and, therefore, must fully recognize the urgency of maintaining the stability and quality of nature and of conserving natural resources’.

The Charter then goes on to state that: the degradation of natural systems owing to excessive consumption and misuse of natural resources, as well as to failure to establish an appropriate economic order among peoples and among states, leads to the breakdown of the economic, social and political framework of civilization.

d. UN Convention on the Law of the Sea 1982^[18]

The need to pay attention to the preservation of the environment while exploiting natural resources was also reflected in the Law of the Sea Convention adopted in the same year.

Article 193 of this Convention provides that: states have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.

Thus, from the 1980s onwards the idea developed that the right of states to freely dispose of their wealth and natural resources was subject to the concepts of: (a) the preservation of the environment; (b) conservation of natural resources; and (c) the sustainable use and development of such resources.

These concepts were also gradually finding their way into the body of international economic law.

These principles of international environmental law had started to influence the international economic law principles relating to the exploitation of natural resources. Other environmental treaties (whether global or regional) relating to specific regions (e.g. Africa or Southeast Asia) or the protection of specific geographical areas (e.g. wetlands) or specific natural resources (e.g. wildlife, flora and fauna) had started lending their support to the ideathat the international economic law-based right of a state to exploit their natural resources was subject to certain principles of international environmental law.

Examples are: (a) the 1968 African Convention on the Conservation of Nature and Natural Resources^[19]; (b) the 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources^[20]; (c) the Ramsar Convention on Wetlands of 1971^[21]; (d) the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora^[22]; (e) the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals^[23]; and(f) the 1991 Protocol on Environmental Protection to the Antarctic Treaty^[24].

e. The Brundtland Commission^[25]

The 1985 report of the World Commission on Environment and Development (WCED)(popularly known as the ‘Brundtland Commission’) popularized the phrase ‘sustainable development’, embodying both states’ right to economic development and their obligation to pay particular attention to any degradation of the environment resulting from development activities.

In other words, it was a phrase coined to express the balance that had to be reached between the right of states to use or exploit their natural resources in accordance with their developmental policies and the duty inherent upon them to preserve the environment in carrying out such developmental activities.

The Commission defined the term “sustainable development” as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.

In the opinion of the Commission, economic development that undermined the environment or led to the excessive exploitation of natural resources to the detriment of futuregenerations was not sustainable development. Hence, it was felt that the need to preserve and make rational use of the natural resources of a country in the interests of the environment and future generations was inherent in the concept of sustainable development.

f. The Rio Conference 1992

Following the groundwork done by the Brundtland Commission on broad concepts such as sustainable development that embraced not only the environment, but also all other economic activities regulated by international economic law, the UN decided to convene a special Conference on Environment and Development in Rio in 1992.

Unlike the Stockholm Conference (which was on the human environment) the Rio Conference was going to consider both the environment and development, displaying the importance attached to the elements embodied in both words. Principle 1 of the resulting Rio Declaration on Environment and Development^[26]declared that human beings were at the centre of concerns for sustainable development.

The Rio Declaration was adopted unanimously by the Rio Conference-the largest conference ever convened in the history of international relations. It seeks to recognize: (a) the right of states under international economic law to exploit their own resources pursuant to their own environmental policies and (b) the duty of states international environmental law to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.

Principle 2 of the Declaration reads: states have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

The language used here draws heavily on the provisions of: (a) Principle 21 of the Stockholm Declaration; (b) Article 30 of the 1974 Charter of Economic Rights and Duties of States; and (c) the 1962 UN Declaration on Permanent Sovereignty of States over their Natural Resources (PSNR).

The tension between the right of states to exploit their natural resources and the need to conserve natural resources has been a tension between international economic law andinternational environmental law. The law of sustainable development has brought these two together, adding a sustainable development dimension to various principles of international economic law such as: (a) equity; (b) the right to economic development; and (c) the right of permanent sovereignty of states over their natural resources.

Although the Rio Declaration widened the scope of the principle of sustainable development to include not only conservation of natural resources, but also a host of other elements, it gave this principle a credible international standing.

What is more, Principle 12 of the Rio Declaration injects the sustainable development dimension into international economic law issues and highlights the importance of international economic law principles for the effective operation of the rules of international environmental law.

“Principle 12

States should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing trans-boundary or global environmental problems should, as far as possible, be based on an international consensus.”

g. The UN Convention on Biological Diversity 1992^[27]

The Rio Declaration was not the only outcome of the Rio Conference. The 1992 UN Convention on Biological Diversity was opened for signature at the Rio Conference and was signed by 157 states and the European Union.

The preambular paragraphs of the Convention reaffirm the sovereign rights of states over their own biological resources.

However, the Convention stresses at the same time that states are responsible for: (a) conserving their biological diversity and (b) using their biological resources in a sustainable manner.

Article 6 of the Convention states: each Contracting Party shall, in accordance with its particular conditions and capabilities: (a) develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existingstrategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and (b) integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.

Thus, although there are still not any specific international treaties regulating the exploitation of certain natural resources (e.g. oil, gas, minerals and land), the discussion in the preceding paragraphs demonstrates that these natural resources must be exploited: (a) in a sustainable manner and (b) with due respect for the environment.

(Abridged from Chapter 3 of the International Economic Law written by S.P. Subedi, University of London, UK and published by the University of London Press in 2006)

[The Reflections]

1. What are the bases of international economic law?

2. Why are economic sovereignty and PSNR of vital importance to a state?

3. What are the fundamental principles of international economic law?

4. How do you understand the tension between international economic law and international environmental law?

5. How have those principles evolved over time?

【The In-depth】

International Economic Law in the 21st Century: Need for Stronger ‘Democratic Ownership’and Cosmopolitan Reforms

A. Respect for the Customary Methods of International Treaty Interpretation Promoting Synergies of HRL and IEL

Article 1 of the UN Charter, the customary methods of treaty interpretation as codified in the VCLT, and the statutes and procedures of ‘courts of justice’ require that-as stated in the Preamble of the VCLT-‘disputes concerning treaties, like other international disputes, should be settled by peaceful means and in conformity with the principles of justice and international law’. The Preamble of the VCLT refers, inter alia, to ‘principles of international law embodiedin the Charter of the United Nations, such as the principles of the equal rights and self-determination of peoples, of the sovereign equality and independence of States, of non-interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedoms for all’.

Arguably, the same principle of constitutional interpretation of international treaties also follows from the customary rule codified in Article 31:3 VCLT, which requires taking into account-in the interpretation of treaties-any relevant rules of international law applicable in the relations between the parties. All UN member states have obligations under the UN Charter, UN human rights conventions and under general international law to respect and protect human rights with due regard to sovereign equality of states; many UN and regional conventions also explicitly require compliance with “principles of justice”. Yet, there are hardly any legal analyses so far of the role of “principles of justice” for dispute prevention and dispute settlement in IEL and in multilevel economic adjudication. As the positive law requirements of constitutional interpretation and dispute settlement in conformity with principles of justice tend to be neglected in many bilateral, regional and worldwide procedures for the settlement of economic disputes, exploring the legal and contextual relevance of HRL for interpreting IEL remains of constitutional importance for protecting human rights and consumer welfare.

Over the past ten years, the need for promoting synergies between human rights and trade by interpreting IEL in conformity with human rights has been recognized by ever more international economic organizations (e.g. in speeches by WTO Director-General P. Lamy) and courts as well as by ever more non-governmental organizations, including also the International Law Association at its 2008 Conference at Toronto. The ‘judicial balancing’ of human and economic rights in all European courts is now also cited and emulated in regional economic courts outside Europe. And even investor-state arbitral tribunals acknowledge the need for interpreting IEL in conformity with human rights. UN human rights bodies admit ever more the need for strengthening human rights in IEL, as illustrated by the UN Human Rights Council’s endorsement on 16 June 2011 of the ‘Guiding Principles on Business and Human Rights: Implementing the UN “Protect, Respect and Remedy” Framework’ proposed by the UN Special Representative J. Ruggie, or by the ‘Human Rights Impact Assessments for Trade and Investment Agreements’ elaborated by the UN Special Rapporteur for the Right to Food in cooperation with UN bodies and NGOs. UN human rights bodies increasingly recognize thecrucial role of trade and IEL for poverty reduction; they no longer discredit the WTO, as in a report for the UN Commission on Human Rights of 2001, as ‘a veritable nightmare’ for developing countries and women. The acknowledgment-in the practices of ever more UN Specialized Agencies (like the World Bank, the World Health Organization, the Food and Agricultural Organization, the World Intellectual Property Organization) and more recently also of the WTO-of connections between human rights (e.g. of access to food and essential medicines, rights to private property, human rights of access to justice and to rule of law) and development is likely to enhance the legitimacy not only of promoting international public goods through international institutions; also human rights law may benefit from the discourse among economic institutions and, e.g., UN human rights rapporteurs requesting international organizations to ‘respect, protect and fulfill human rights and adjust economic rules (e.g. WTO rules on liberalization of agricultural trade). ‘Westphalian interpretations’ of UN HRL and IEL, i.e. the traditionally one-sided focus on rights and obligations of states without acknowledgment of citizens as ‘primary subjects’ and sources of legitimacy also in international law, are increasingly challenged (e.g. by civil society, human rights courts and economic courts) by invoking human rights and other ‘principles of justice’ as justifications and ‘relevant context’ for ‘cosmopolitan interpretations’ of certain international law rules for the benefit of citizens.

B. Acknowledgment of the ‘Dual’ and ‘Incomplete Nature’ of HRL and of the‘Cosmopolitan Functions’ also of IEL

Many national constitutions, regional human rights conventions and all UN human rights instruments derive human rights from respect for the human dignity of all human beings who-as stated in the Universal Declaration of Human Rights (UDHR)-‘are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’ (Article 1 UDHR). Since 1945, all UN member states have regularly reaffirmed their ‘commitment towards the full realization of all human rights for all, which are universal, indivisible, interrelated, interdependent and mutually reinforcing.’ The statement in the Preamble of the UDHR-‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’-confirms the moral justification of the entitlement of every individual to ‘inalienable’human rights’ and to ‘struggles for rights’, as illustrated by the Arab human rights revolutions in North Africa in 2011 and by increasing civil society calls for better protection of human rights (like access to essential food, medicines and health services) in IEL so as to fulfilleveryone’s rights to ‘a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’ (Article 28 UDHR). Today, the ‘dual nature’ of human rights as moral rights and integral parts of positive national and international law is universally recognized by all 193 UN member states and prompts citizens, some governments and courts to increasingly insist on stronger protection of human rights.

The 1966 UN Covenant on Economic, Social and Cultural Rights (ICESCR) focuses on‘the right to work’ (Article 6), the ‘right of everyone to the enjoyment of just and favorable conditions of work’ (Article 7), ‘labor rights and trade union rights’ (Article 8), the ‘right of everybody to social security’ (Article 9), ‘protection of the family, mothers and children’(Article 10), the ‘right of everyone to an adequate standard of living’ (Article 11), and ‘the human rights to health’ (Article 12) and ‘to education’ (Article 13). Yet, apart from a brief reference to ‘safeguarding fundamental political and economic freedoms to the individual’(Article 6.2), the ICESCR does not refer to the economic freedoms of profession, trade and private property which are recognized as fundamental rights in many European constitutions, the 2009 Lisbon Treaty and in its EU Charter of Fundamental Rights in conformity with the constitutional traditions in EU member states. The disagreement on economic liberties reflects, inter alia, the tradition in many common law countries of protecting freedom of contract, freedom of profession and other economic freedoms as common law guarantees rather than as constitutional and human rights, and of conceiving democracy in terms of ‘parliamentary freedom’ rather than equal constitutional rights of citizens. The related disagreement on HRL and on its multilevel implementation in IEL may justify claims for ‘additional human rights’-like ‘freedoms of the internet’ and the ‘right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights’, as recognized in UN General Assembly Resolution A/64/L.63 of 28 July 2010 as well as in Resolution A/HRC/Res/15/9 of 30 September 2010 of the UN Human Rights Council(deriving this right from ‘the right to an adequate standard of living’).

Protection of human rights by UN bodies and ‘courts of justice’ delegitimizes authoritarian claims that governments (as ‘agents’ with limited powers) have not conceded such rights to their citizens (as the ‘democratic principals’ of national and international law in the 21st century). Human rights advocates increasingly claim that, from a human rights perspective, IEL should be conceived as an instrument for protecting, respecting and fulfilling human rights. Comparative legal and institutional research suggests that-just as the effectiveness of democratic self-government and of regional human rights conventionsdepends on constitutional and judicial protection of human rights-constitutional and judicial protection of ‘cosmopolitan conceptions’ of IEL (e.g. in transnational commercial and investment law, European economic integration law) empowering citizens to challenge and influence ‘public reason’ has proven to be more effective and more legitimate than state-centered ‘Westphalian conceptions’ of IEL treating citizens as mere objects of intergovernmental regulation.

C. Increasing Insistence on the ‘Indivisibility’ of Human Rights

The indivisibility of human dignity and human liberty is recognized in numerous human rights instruments like the 1993 Vienna Declaration adopted by the UN World Conference on Human Rights: ‘All human rights are universal, indivisible and interdependent and interrelated’. Even though some UN human rights conventions separate civil and political human rights (as protected in the International Covenant on Civil and Political Rights) from economic and social human rights (as protected in the separate ICESCR), the holistic conception of the ‘indivisibility’ of human rights continues to be acknowledged in numerous human rights instruments since its first affirmation in the UDHR of 1948. The European Court of Justice (ECJ) has acknowledged that respect for human rights-including a ‘human right to respect of human dignity’-is a condition of the lawfulness of acts of the EU institutions, even if EU acts implement UN Security Council decisions that assert legal primacy (Article 103 UN Charter). The European Court of Human Rights (ECHR) has likewise recognized in a series of judgments that the human rights guarantees of the ECHR also apply whenever states implement intergovernmental rules adopted in international organizations. Such court judgments confirm the increasing recognition that national and international human rights also limit foreign policy powers even if they are being exercised collectively in intergovernmental organizations.

Disagreements over the ‘indivisibility’ of human rights often reflect diverse conceptions of human and constitutional rights to liberty. For instance, Anglo-Saxon jurisdictions tend to interpret the human right to liberty (Article 3 UDHR) narrowly in terms of freedom of bodily movement. European constitutional democracies often protect equal freedoms as ‘first principle of justice’ not only through specific liberty rights, but also through a general constitutional right to liberty in order to offer additional constitutional and judicial protection to the legal autonomy of citizens against arbitrary, public and private interference into their liberties. This includes also protection against restriction of individual freedom of action resulting from multilevel governance, for instance if intergovernmental restrictions adopted indistant international organizations lack a constitutional foundation or sufficient justification in the national legal system. The multilevel constitutional guarantees of ‘free movement of persons, services, goods and capital, and freedom of establishment’ as ‘fundamental freedoms’across the 30 member countries of the European Economic Area (EEA) are explicitly based on‘the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’. There is also increasing recognition that constitutional commitment to respect for human dignity and ‘market freedoms’ (e.g. free movement of workers and their families) may require legal protection of ‘positive liberties’ by means of social rights (e.g. to education, health protection, etc) in order to effectively empower individuals to develop their‘human capacities’ autonomously. The diversity of provisions and institutional safeguards for social rights in national and regional laws, UN and International Labor Organization (ILO) conventions reflects not only diverse legal conceptions for designing social rights as‘indivisible parts’ of human rights. Constitutional agreement on how to reconcile and‘institutionalize’ civil, political, economic and social rights is also inevitably influenced by democratic preferences and the scarcity of resources for effective protection of social rights. Legal and judicial remedies for enforcing civil, political, economic and social rights continue to differ enormously among countries and jurisdictions. Constitutional and judicial protection of a general right to liberty and of ‘common market freedoms’ can strengthen the reasonableness of IEL, for instance by offering judicial review of the ‘necessity’ (rationality) and ‘proportionality’ (reasonableness) of governmental restrictions on the basis of equal constitutional rights and judicial ‘administration of justice.’

In common law countries, by contrast, the common law tends to protect specific liberties without constitutional protection of a general right to liberty. As a major function of constitutional guarantees of maximum equal freedoms is to protect rights to justification and to judicial remedies vis-à-vis governmental restrictions, judicial review of economic regulation tends to be less comprehensive in common law countries than in European economic law. For instance, since the judicial abandonment of ‘substantive due process’ review of economic legislation in the 1930s, US constitutional law protects individual economic freedom and a common market mainly by democratic legislation based on constitutional requirements of a‘rational basis’ for governmental restrictions of economic liberty. Since US courts do not protect economic and social freedoms (e.g. of workers and trade unions) as constitutionally protected under US federal law and acknowledge deference vis-à-vis economic legislation by the US Congress, most lawyers see no need for US courts to engage in the kind of ‘strictjudicial scrutiny’ of governmental restrictions of economic freedom as it is practiced by German courts, European courts, WTO dispute settlement bodies and investor-state arbitral tribunals. Even though national constitutional traditions legitimately differ from country to country, there are additional arguments for basing legal and judicial remedies in multilevel, transnational economic governance against abuses of powers on the cosmopolitan principle that multilevel governance restrictions of individual freedom require constitutional justification and judicial remedies.

(Abridged from the International Economic Law in the 21st Century: Need for Stronger ‘Democratic

Ownership’ and Cosmopolitan Reforms written by Petersmann. Ernst-Ulrich, EUI Working Papers LAW no 2012/17.)

[The Terms]

1. Vienna Convention on the Law of Treaties: 《维也纳条约法公约》

2. UN Human Rights Council: 联合国人权理事会

3. Food and Agricultural Organization: 联合国粮食及农业组织（粮农组织）

4. World Intellectual Property Organization: 世界知识产权组织

5. Universal Declaration of Human Rights: 《世界人权宣言》

6. International Covenant on Economic, Social and Cultural Rights: 《经济、社会和文化权利国际公约》

7. Lisbon Treaty: 《里斯本条约》

8. UN General Assembly Resolution: 联合国大会决议

9. Vienna Declaration: 《维也纳宣言》

10. International Covenant on Civil and Political Rights: 《公民权利和政治权利国际公约》

11. UN Security Council: 联合国安理会

12. European Court of Human Rights: 欧洲人权法院

13. European Economic Area: 欧洲经济区

14. International Labor Organization: 国际劳工组织

[The Discussions]

1. The necessity of interpreting and developing IEL in conformity with principles of justice and human rights.

2. The need to justify IEL in terms of normative individualism and reasonable interests ofall citizens.

3. The areas of increasing synergies between IEL and human rights law.

【The Further Sources】

Petersmann, Ernst-Ulrich, State Sovereignty, Popular Sovereignty and Individual Sovereignty: From Constitutional Nationalism to Multilevel Constitutionalism in International Economic Law? (December 2006).

De Meester, Bart, International Legal Aspects of Sovereign Wealth Funds: Reconciling International Economic Law and the Law of State Immunities with a New Role of the State (November 3, 2008).

Janis, Mark Weston, Sovereignty and International Law: Hobbes and Grotius (March 31,2008).