MJIEL Vol 13 Issue 2 2016 - Article 1 by Ernst-Ulrich Petersmann
20 Years WTO Law and Governance:
Some Legal Methodology Problems
Ernst-Ulrich Petersmann
ABSTRACT: This contribution begins with discussing ‘legal methodologies’, the competing conceptions of international economic law (IEL), the controversies over their underlying ‘principles of justice’, and the competing methods for promoting legal coherence in IEL (section 1). It then describes ‘fragmentation’ and ‘re-integration’ as inevitable, dialectic methods for progressively developing international law, including the GATT/WTO legal and trading system since 1948 (section 2). WTO law continues to be dominated by intergovernmental power politics in spite of some ‘constitutional dimensions’ of the WTO dispute settlement system (section 3). Trade policy discretion is increasingly limited by WTO law and adjudication; but national sovereignty over non-discriminatory regulations of non-economic rights and public goods remains legally protected (section 4). As the customary rules of treaty interpretation offer no precise theory for the ‘semantic’, ‘jurisprudential’, ‘doctrinal’ and ‘judicial clarification’ of indeterminate treaty provisions and of their underlying ‘principles of justice’, the ‘member-driven legislative rule-clarifications’ often follow different jurisprudential and doctrinal reasoning than ‘judicial rule-clarifications’; due to the universal recognition of ‘inalienable’ human rights of citizens as ‘constituent powers’ and ‘democratic principals’ of all governance agents, the ‘constitutional function’ of judges as guardians of constitutionalism, human rights and of democratic diversity needs to be recognized and protected in multilevel governance of transnational public goods, including the mutually beneficial, multilevel WTO legal and trading system (section 5).


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