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National Constitutions, Foreign Trade Policy and European Community Law
Ernst-Ulrich Petersmann 1
Full text available: PDF format *
`Ignorance, forgetfulness, or contempt of the rights of man are the sole causes of public misfortunes and of the corruption of governments.'
(French Declaration of the Rights of Man and of the Citizen, 1789)
I. Constitutional Law in the Age of Integration: Need for Solving the `Lockean Dilemma'
A. The `Hobbesian Dilemma' and the Function of Constitutional Rules
Thomas Hobbes, in his classic treatise `Leviathan' (1651), described the life of persons in a society without law and without government as `solitary, poor, nasty, brutish and short' because selfish individuals operating in a `state of nature' would steal from each other. His justification of unlimited state powers to implement laws transforming the unconstrained individual pursuit of self-interest (the Hobbesian `war of all against all') into a rule-ordered society was based on the assumption that the governmental `Leviathan' would respect his accountability to God and would act as a `benevolent dictator'. Historical experience with absolute monarchies showed, however, that the assumption of `benevolent, omnipotent and omniscient' governments was too optimistic. For individuals may pursue their short term self-interests not only in the private domain but also in the public domain. And the asymmetries in the organization and political representation of group interests (e.g. producer interests vs. consumer interests), and the dependence of periodically elected governments on political support, may come into conflict with the long term interests of the citizens at large. The American-European tradition of `constitutionalism' proceeds from this historical insight that the current social processes and also government powers risk to be abused unless they are constrained by long term rules with two central constitutional tasks:
- to constitute government powers to protect individual rights (`protective state') and supply public goods (`productive state'), and
- to limit the exercise of all government powers by constitutional restraints and `checks and balances' so as to avoid `government failures' and ensure a `government of the people, by the people, for the people' (Abraham Lincoln).
The constitutional rules determine the fundamental `rules of the game' and the legal standards against which the post-constitutional choices and current policy processes are to be judged. The prospective, general and long term nature of constitutional rules acts as an incentive to concentrate on the long term common interests rather than the short term results and distributional implications of rules. General constitutional rules can thereby induce people to accept long term considerations of equal treatment, equity, due process and fairness. They help to transform conflicts among short term interests (the `Hobbesian social dilemma') into a mutually beneficial `social order' without requiring persons to understand the structure of the overall order and without requiring a higher morality in individual behaviour.
B. The `Lockean Dilemma' and the Need to Constitutionalize Foreign Trade Policy Powers
According to a long tradition of political arguments defended also by many supporters of liberal democracy (e.g. Locke, Montesquieu, Tocqueville), there is an inherent incompatibility between the requirements of foreign policy and the ideals of rule of law and democratic decision-making.2 In the words of Locke:
... what is to be done in reference to foreigners, depending much upon their actions, and the variations of designs and interests, must be left in great part to the prudence of those who have this power committed to them, to be managed by the best of their skill, for the advantage of the Commonwealth.3
The plea for discretionary foreign affairs powers was understandable as long as the `international law of coexistence' did not prohibit the use of force and international negotiations were viewed as adversary relationships in which each state was bound to seek its exclusive national advantage and needed to react speedily to foreign events. Because foreign policy was generally perceived as `high policy', permanently confronted with exceptional situations, and the implications of foreign policy decisions on individuals were often indirect and remote, most constitutions focused on domestic policy issues and granted broad discretionary foreign affairs powers to the Executive subject to less stringent parliamentary and judicial `checks and balances' compared with domestic policy powers.
However, inadequate constitutional restraints on foreign relations powers are increasingly perceived as a constitutional problem in the modern `age of integration' where `international integration law' becomes no less important for ordinary citizens than national legislation. If individual rights are increasingly exercised across national frontiers, it is no longer evident why their regulation by means of international agreements should be left to the Executive or to international treaties concluded `with the Advice and Consent of the Senate'4 without full parliamentary and judicial control. Since freedom of trade within federal states and within the EC is widely seen as a hallmark of constitutional achievements, are there valid constitutional reasons to limit freedom of trade to the choice of domestic trading partners without equal protection of trade transactions across EC frontiers? If nationality has ceased to be the reference point for the `five freedoms' (for goods, services, persons, capital and payments) within the EEC and in the future `European Economic Area', should individual freedom of trade and non-discrimination not also restrain the vast powers of the EEC to tax and restrict transnational trade transactions with third trading partners?
The need for `constitutionalizing' foreign policy powers is particularly evident in the ongoing efforts at `constitution making' and reconstituting governments in Eastern Europe where the absence of liberal constitutional traditions might be compensated to some extent by international legal obligations and their incorporation into domestic laws. Membership in GATT, the IMF and free trade agreements with the EEC are rightly viewed by many of these countries as an effective means of reforming domestic legal, economic and political systems. Adjusting constitutional laws to the requirements of international integration must not involve formal amendments of the written constitutions which almost all countries (save England, Israel and New Zealand) have adopted. European Community law illustrates that far-reaching constitutional reforms of the basic long term legal rules of a society (i.e. its `material constitution') can be brought about without amendments of the written `formal constitution'.5 But the task of `constitutionalizing' transnational regulatory powers requires a rethinking of constitutional traditions and concepts developed for nation states at a time when international relations were still governed by power politics and wars. One of the fundamental constitutional issues discussed in this paper is whether constitutional reforms should rely on a `rights-based approach' or whether objective constitutional restraints (such as separation and limited delegation of government powers) are more effective safeguards of individual rights.
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1 Professor at the University of St. Gallen (Switzerland) and former
legal counsellor in the GATT Secretariat (1981-1990) and in the German Ministry
of Economics (1978-1981).
2 On this `incompatibility hypothesis' and its refutation see E.U.
Petersmann, Constitutional Functions and Constitutional Problems of
International Economic Law (1991) 288-292.
3 J. Locke, Two Treatises of Civil Government (1690) Vol. II,
Chapter 12.
4 US Constitution, Article II, §2.
5 See Petersmann, `Constitutionalism, Constitutional Law and European
Integration', in E.U. Petersmann (ed.), Constitutional Problems of European
Integration, Special Issue 46 Aussenwirtschaft (1991) 247ff.
© 1990-2004 European Journal of International Law
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