1. SOURCES OF LAW AND THE CONSTITUTIONAL FUNCTIONS OF (ECONOMIC) COURTS TO INTERPRET AND APPLY THEM IN CONFORMITY WITH PRINCIPLES OF JUSTICE AND HUMAN RIGHTS Prof. Dr. Ernst-U. Petersmann European University Institute, Florence

2. Sources and Interpretation of International Law Article 38 ICJ Statute: int’l treaties, custom, general principles of law – judicial decisions and teaching as subsidiary means for the determination of rules of law Art. 31:1 VCLT: treaty interpretation ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ > ‘principles of interpretation’> leave open whether the text, the ‘real intent’ or ‘object and purpose’ should prevail; use of ‘incomplete’ agreements and of indeterminate legal terms is ‘efficient’ > need for democratic + judicial clarifications Art. 31:3 VCLT: taking into account also subsequent agreements, practices and relevant rules of IL applicable in the relations between the parties > dynamic and ‘systemic interpretation’ Art. 32: supplementary means of interpretation Preamble VCLT: ‘principles of justice’, incl. also ‘human rights and fundamental freedoms for all’ and other UN Charter principles > do universal recognition of human rights and globalization require a ‘constitutional paradigm change’ of PIL?

3. Constitutional Functions of PIL and Courts of Justice? Universal recognition of human rights and ‘access to justice’ as ‘rules of recognition’ and democratic justification of national and int’l law (rather than ‘legality’ and power-oriented legal customs)? ‘Democratic capabilities depend on institutionalizing ‘public reason’ and ‘principles of justice’ through ‘constitutionalism’ Also globalization and its transformation of national into int’l public goods (PGs) require a ‘paradigm change’ > national Constitutions as ‘partial constitutions’ that depend on int’l ‘treaty constitutions’ for protecting human rights + other PGs > 6 stages of ‘constitutionalism’ beyond ‘We the People’ > constitutional functions of courts of justice Multilevel ‘constitutionalism’ as dynamic processes of democratic and judicial transformation of ‘principles of justice’ into legal practices > ‘constitutional pluralism’ and ‘interactional law’ Does domination of UN/WTO institutions by intergovernmental power politics justify judicial rule-clarification of ‘principles of justice’ and ‘incomplete PGs treaties’? ECJ, EFTA Court, ECtHR as ‘guardians’ of fundamental rights of citizens > judicial comity > ‘constitutional justice’ > neglect of human rights in many UN, WTO, investment courts Why remain ‘constitutional interpretations’ rare in UN and WTO jurisprudence and investment arbitration? Non-inclusive ‘public reason’ limits democratic capabilities > courts of justice as ‘exemplar of public reason’ (Rawls) also in int’l relations dominated by power politics?

4. Case-study 1: From Article XXIII GATT to compulsory jurisdiction > clarification of ‘violation complaints’, ‘non- violation complaints’ and ‘situation complaints’ 1.‘If any contracting party should consider that any benefit accruing to it … under this Agreement is being nullified or impaired or that the attainment of any objective of the Agreement is being impeded as a result of a)the failure of another contracting party to carry out its obligations under this Agreement, or b)the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement, c)or the existence of any other situation, the contracting party may … make written representations … to the other contracting party or parties which it considers to be concerned’…. 2.‘… the matter may be referred to the CPs’ > ‘shall make appropriate recommendations … or give a ruling on the matter’….

5. ‘Justice in Robes’? Dworkin’s ‘4 stages of legal theory’ Semantic stage: interpretation of indeterminate concepts in light of practice of all affected persons using this concept Jurisprudential stage: interpretation must realize the legal values (eg political integrity, coherent protection of rights of all citizens – how to protect human rights in GATT/WTO?) Doctrinal stage: interpretation must justify legal practice as ‘best fit’ serving the realization of (non)economic values Adjudicative stage: is judicial enforcement justified as ‘best interpretation of legal practice’ expressing a ‘coherent conception of justice and fairness’? Is Dworkin’s theory of ‘law as integrity’ based on coherent ‘principles of justice’ and fundamental rights required by the customary rules of treaty interpretation (VCLT)? ‘Consistent interpretations’ and ‘judicial comity’ as legal obligations in WTO law (e.g. precedential effects, administration of justice)? Does adjudication require ‘one single right answer’? (cf. case- study 2 on Article 17:6 AD Agreement) Why do national interpretation methods differ from VCLT?

6. Article XXIII GATT = progressive clarification of ‘violation complaints’, ‘non-violation complaints’ and ‘situation complaints’ Violation complaints: no need to prove ‘legal interest’ and ‘damage’ > presumption of ‘N+I’; termination of illegal act; third-party adjudication (due process of law; domestic judicial remedies?) > principles of ‘distributive’ and ‘corrective justice’, but no reparation of past injury; int’l sanctions; Non-violation complaints: even against lawful measures; commutative justice principles (reasonable expectations); re- balancing of agreed concessions through compensation or sanctions Situation complaints: equity principles? never applied Dynamic interpretations: cf. Article 26 DSU and WTO Ministerial Decisions clarifying non-violation complaints

7. Case-study 2: Arts 1:2 DSU, 17:6 AD WTO Art. 17:6(ii) as a ‘deal-breaker’ in UR Round: ‘the panel shall interpret the relevant provisions … in accordance with customary rules of interpretation’…. ‘Where the panel finds that a relevant provision … admits of more than one permissible interpretation, the panel shall find the authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations’ > ‘Chevron doctrine’ of judicial deference in US law > transferable to PIL? > ‘zeroing jurisprudence’ AB: use of VCLT > single correct interpretation > so far no judicial deference or more ‘permissible interpretations’ with mutually contradictory results > first sentence trumps the second sentence of Art. 17:6(ii)? > zeroing case-law

8. Case study 3: ‘applicable law’ in WTO disputes Arts 1, 7, 17 DSU: ‘jurisdiction’ for complaints pursuant to DSU and based on ‘covered agreemments’; jura novit curia principle (AB EC Tariff Preferences); WTO agreements are ‘incomplete’ ‘applicable law’ also includes general int’l law (cf. Art. 3 DSU) ‘to the extent that the WTO covered agreements do not “contract out” from it’ (Panel Report Korea GP); eg ‘public order’ and ‘public morals’ in WTO ‘exceptions’ may include ‘human rights and fundamental freedoms’ and other UN law principles (cf. Preamble + Art. 31:3, c VCLT); To what extent does Article 19 DSU limit the applicability of the general int’l law rules on state responsibility? The ‘systemic integration principle’ (Article 31:3,c VCLT) may apply not only to treaties accepted by all WTO members (AB aircraft contra EC Biotech Panel). Only 2 WTO amendments (not in force yet); no ‘authoritative interpretations’ so far (cf. Arts IX, X WTO); precedential effects of AB jurisprudence for panels aimed at protecting ‘security and predictability’ (Article 3 DSU) – also for domestic courts?

9. Judicial balancing of economic with non-economic rights? AB: ‘weighing + balancing’; an ‘exception’ may not justify a narrower interpretation; ‘structural interpretations’ (eg of ‘treatment no less favourable’ in GATT/GATS compared with TBT Agreement which lacks ‘exceptions’) ‘public morals/order’ may include basic rights (eg rights of indigenous peoples, labor rights, animal welfare, rights of children) – seal products, gambling cases ‘development needs’ may be defined in conformity with human rights protection in LDCs - GSP cases; ‘security and predictability’ in ds system (Art.3.2 DSU) may require ‘judicial comity’ (Brazil-tyres vs ECJ justifications of trade restrictions on grounds of human rights: Omega/Schmidberger/Viking cases) > benefits of judicial cooperation Health rights may reflect higher ‘human rights values’ than IP rights – tobacco litigation, access to medicines. ‘DSB power politics’ vs judicial autonomy of AB? (amici curiae, due process of law) > ‘negative consensus’ rule enhances ‘justice’

10. Judicial balancing of rights of governments with ‘constitutional justice’ and rights of citizens? Privacy rights vs governmental ‘content control’ (ECJ vs WTO jurisprudence)? Individual ‘access to justice’ (eg Art. 13 AD) vs lack of impartiality/independence of courts and governmental violations of WTO law? (eg ‘zeroing jurisprudence’) GATS mode 4 commitments vs human rights Differential preferences depending on human rights protection in LDCs (EC-preferences) Justification of differential trade restrictions by democratic diversity (ECJ Omega case), health rights (compulsory licences) or environmental rights Trading + property rights vs WTO-inconsistent restrictions (eg judicial comity in ISDS, FTA courts)?