When the Sovereign Sleeps: Who Protects Fundamental Rights and Other ‘Public Goods’ in Transatlantic Free Trade Agreements?

32 Pages Posted: 6 Feb 2017

See all articles by Ernst-Ulrich Petersmann

Ernst-Ulrich Petersmann

European University Institute - Department of Law (LAW)

Date Written: January 31, 2017

Abstract

EU law requires the EU to place ‘the individual at the heart of its activities’, to take ‘decisions as openly as possible and as closely as possible to the citizen’, and protect citizens and their fundamental rights also in the external relations of the EU. Free trade agreements (FTAs) protecting rights and remedies of citizens have been uniquely successful in European integration for providing transnational public goods (PGs) like equal rights of citizens, rule of law, open markets promoting general consumer welfare, and empowerment of citizens to use their ‘republican virtues’ for enforcing trade and competition rules in national and European courts. In FTA negotiations with non-European countries, however, the EU disregards its ‘cosmopolitan foreign policy mandate’ and regulatory ‘consistency’ requirements by emulating intergovernmental power politics of non-European trading countries. Rather than protecting fundamental rights and judicial remedies in domestic courts in economic integration among transatlantic democracies, the EU’s transatlantic FTAs risk undermining fundamental rights and judicial remedies. Parliaments in the EU have not challenged the ‘disempowerment’ of citizens and ‘re-feudalization’ of EU trade policies through intergovernmental trade diplomacy. Citizens challenge interest group politics in transatlantic FTAs and the EU’s neglect for participatory and deliberative democracy and ‘subsidiarity’ in EU trade regulations of transnational ‘market failures’ and ‘governance failures’. The EU’s new ‘investment court provisions’ in recent FTAs (e.g. with Canada) risk ‘re-fragmenting’ international investment law; they are no model for reforming international investment law.

Keywords: Constitutionalism, EU, free trade agreements, fundamental rights, investment arbitration, public goods.

Suggested Citation

Petersmann, Ernst-Ulrich, When the Sovereign Sleeps: Who Protects Fundamental Rights and Other ‘Public Goods’ in Transatlantic Free Trade Agreements? (January 31, 2017). European Society of International Law (ESIL) 2016 Annual Conference (Riga). Available at SSRN: https://ssrn.com/abstract=2912009 or http://dx.doi.org/10.2139/ssrn.2912009

Ernst-Ulrich Petersmann (Contact Author)

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
Italy

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