Time for a United Nations `Global Compact' for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration 9. Conclusion: The Need for Multi-Level Constitutionalism Protecting Human Rights More Effectively Since the Greek republics in the fifth 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. Today, virtually all states have adopted written or unwritten national constitutions. Even though national constitutionalism differs from country to country, constitutional democracies tend to recognize six interrelated core principles: (1) the rule of law; (2) the 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 the collective supply of international `public goods' (such as collective security) and for reciprocal international legal restraints on abuses of foreign policy powers.76 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.77 Yet, are there convincing arguments that `constitutionalism' is a `fallacy', and `constitutionalizing the WTO a step too far'?78 The universal recognition and legal 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 power-oriented, state-centred conceptions of traditional international law. In Europe, the emergence of `multi-level governance' has led to `multi-level constitutionalism'79 and `divided power systems' that have succeeded in overcoming Europe's history of periodic wars and of the `constitutional failures' of nation-states to protect human rights and the peaceful division of labour 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',80 so international organizations must be understood as a `fourth branch of government' which is indispensable for protecting human rights and democratic peace across frontiers. In view of their `constitutional functions', international guarantees of freedom, non-discrimination, the rule of law and human rights should be seen - as within the EC - as integral parts of the constitutional limitations on abuses of foreign policy powers.81 National constitutional law and human rights cannot achieve their objectives of promoting personal self-development and democratic self-governance unless they are supplemented by international constitutional law protecting human rights across frontiers in the economy no less than in the polity.82 The promotion and protection of human rights is the task of national and international human rights law and of specialized human rights institutions. The law of regional and worldwide organizations (such as EU law, UN law and WTO law) also serves `constitutional functions' for protecting freedom, non-discrimination, the 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 the rule of law at home and across frontiers. European and global integration law further demonstrates that the different layers of national and international rule-making, and executive and judicial processes, must be subject to effective democratic controls and to the constitutional safeguards of `subsidiarity', `necessity' and `proportionality' of regulatory limitations of human rights (cf. Article 5 of the EC Treaty). The democratic legitimacy of national as well as international constitutionalism, and the various levels of governance, derive from respect for human rights and from the democratic participation of citizens in the exercise of national and international government powers. Just as national citizenship and EC citizenship are complementary (cf. Article 12 of the EC Treaty), citizens must also be recognized as legal subjects of international law and international organizations. Their democratic participation and more effective representation in international organizations require far-reaching constitutional reforms of the state-centred international legal system so as to enable, for example, `UN citizens' and `WTO citizens' to invoke international guarantees of freedom before domestic courts and to 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.83 From such a human rights perspective, the state-centred 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.84 International guarantees of freedom, non-discrimination and the 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 to 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 human rights across frontiers through global integration law based on mutually coherent legal guarantees of `state sovereignty', `popular sovereignty' and `individual sovereignty'85 remains the biggest constitutional challenge of law and governance in the twenty-first century. 76 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 Petersmann, `Human Rights and International Economic Law in the 21st Century', 4 Journal of International Economic Law (2001) 3-39. The functional interrelationships between the six core principles are illustrated by the fact that, for instance, equal protection of human rights is impossible without the 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; the rule of law across frontiers is impossible without international law. 77 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 African countries. 78 Howse and Nicolaidis, `Legitimacy Through "Higher Law"? Why Constitutionalizing the WTO is a Step Too Far', in T. Cottier and P. Mavroidis (eds), The Role of the Judge: Lessons for the WTO (2002, forthcoming), criticize `the fallacy of constitutionalism' without defining their use of the term `constitutionalizing' in a precise manner. 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 do not refute my arguments (see e.g. Petersmann, supra note 74) that the one-sided focus of the GATS and the TRIPS Agreement on producer interests, and the inadequate constitutional restraints on rule-making and adjudication in the WTO, 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 the national and international levels, and more explicit references to human rights). 79 Cf. Pernice, `Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited?', 36 Common Market Law Review (1999) 703-750. 80 Hamilton, `Federalist No. 46', in A. Hamilton et al. (eds), The Federalist Papers (1787-1788). 81 On these `constitutional functions' of international law and international organizations for the protection of human rights, see Petersmann, `Constitutionalism and International Organizations', 17 Northwestern Journal of International Law and Business (1996) 398-469. 82 See also Petersmann, `Constitutionalism, International Law and "We the Citizens of the United Nations"', in Liber Amicorum H. Steinberger (2001). 83 German Constitutional Court judgment of 31 March 1998, in Bundesverfassungsgericht 97, 350. 84 The presentation by the IMF legal adviser, F. Gianviti, in the above-mentioned `Day of General Discussion' (supra note 19) at the Office of the UN 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's obligations under general human rights law (cf. Skogly, The Human Rights Obligations of the World Bank and the IMF (2001), 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). 85 Cf. Petersmann, `International Activities of the European Union and Sovereignty of Member States', in E. Cannizzaro (ed.), The European Union as an Actor in International Relations (2002).
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