Human Rights and International Economic Law: Common Constitutional Challenges and Changing Structures

Abstract

This contribution is based on my lecture at the SIDI XVI annual meeting of the Italian Society of International Law in June 2011 at Catania. Section I of this contribution recalls that – due to the ‘dual’ and ‘incomplete nature’ of human rights as positive law and moral rights - the legal protection of ‘inalienable’ human rights risks always remaining contested, especially in international economic law (IEL). In both UN human rights law (HRL) as well as in IEL, the worldwide recognition of ‘duties to protect’ calls for stronger protection of human rights in international economic regulation (II). Human rights, ‘constitutional justice’ and IEL increasingly limit the ‘rules of recognition’ in HRL as well as in IEL (III). The need for ‘institutionalizing public reason’ and the necessary legal ‘balancing’ of civil, political, economic, social and cultural rights call for ‘constitutional’ and ‘cosmopolitan reforms’ of IEL (IV). As in ‘human rights revolutions’, citizens also have to ‘struggle for justice’ in IEL, notably for judicial protection of transnational rule of law with due respect for HRL (V). HRL protects ‘margins of appreciation’ in the domestic implementation of international obligations and requires respect for ‘reasonable disagreement’ on the diverse conceptions of IEL (VI). The increasing recognition of the ‘indivisible’ and ‘inalienable’ nature of human rights, and the worldwide recognition of collective ‘third generation human rights’, reflect the increasing importance of cosmopolitan rights for supplying international public goods more effectively (VII). The ‘collective action problems’ require additional institutional innovation and multilevel constitutional restraints of economic regulation (VIII). Multilevel governance of human rights and of IEL must be coordinated through multilevel ‘constitutional bottom-up pluralism’ and through multilevel judicial protection of transnational rule of law for the benefit of citizens (IX).