CONSTITUTIONAL FUNCTIONS AND CONSTITUTIONAL PROBLEMS OF INTERNATIONAL ECONOMIC LAWPDF电子书下载

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FIRST PART: INTERNATIONAL ECONOMIC TRANSACTIONS, INTERNATIONAL ECONOMIC LAW AND INTERNATIONAL ECONOMIC ORDER 1

Ⅰ. International Economic Transactions and International Economic Law 1

1. International Economic Transactions: Types and Legal Interrelationships 1

2. International Economic Transactions as Welfare-Increasing Exchanges of Goods, Services and Capital 4

3. International Economic Transactions as Agreements on Welfare-Increasing Exchanges of Property Rights 8

4. National and International Liberal Economic Rules as Welfare-Increasing Agreements for the Reduction of International Transaction Costs 10

5."International Economic Law" as a Layered System 16

6. Need for a Comprehensive Analysis of the Law of International Economic Relations 19

A) Need for a Comprehensive Legal Analysis 19

B) Need for an Economic Analysis 24

C) Need for a Political Analysis 26

Ⅱ. Historical Evolution of International Economic Law into a "Stratified Order" 27

1. Basic Functions of International Economic Rules 27

2. Taxonomy of Trade Policy Instruments 30

3. Historical Evolution of International Economic Law: A Brief Survey 31

3. Historical Evolution of International Economic Law: A Brief Survey 31

4. Legal Evolution of International Economic Organizations since World War II: Some Comparative Legal Aspects 35

5. International Economic Law as a "Stratified Order" 39

A) Interdependences between Private and Public National Trade Law: A Historical Retrospective 41

B) Interdependences between Public National and International Trade Law 43

C) Interdependences between Private and Public International Trade Law 45

Ⅲ. International Economic Order and International Economic Law 49

1. Different Kinds of "Order" and of Law 49

2. The Notion of "International Economic Order" 52

3. Basic Elements of an Economic Theory of International Economic Order 54

A) Need for Decentralized Regulatory Mechanisms 54

B) The Economic Theory of Optimal Intervention 57

C) Efficient Allocation of Resources 58

D) Coordination and "Dynamic Stability" 59

E) Equitable Distribution 60

4. Basic Elements of a Legal Theory of International Economic Order 61

A) Need for an "Economic Constitution": The "Constituent" and "Regulative" Principles Proposed by the "Freiburg School" of "Ordo-Liberalism" 63

B)"Constituent" and "Regulative" Principles of the International Economic Order 66

C) Conclusions: A Pluralistic International Economic Order must be Based on Liberal Principles 68

Ⅳ. Need for an Economic Analysis of International Economic Law 73

1. Economic Analysis of Law: Concepts and Problems 73

2. Positive "Result-oriented" Economic Analysis of International Economic Law 77

3. Normative "Rule-oriented" Economic Analysis: The Ranking of Foreign Trade Policy Instruments 81

4."Social Justice" and the "New International Economic Order" 85

5. Separating Economic and Legal Issues 92

SECOND PART: PAST AND PRESENT TRADE MERCANTILISM AS "GOVERNMENT FAILURE" AND "CONSTITUTIONAL FAILURE" 96

V. Need for Constitutional Restraints on Government Powers to Tax and Restrict the Foreign Trade Transactions of Domestic Citizens: Trade Mercantilism as "Government Failure" 96

1. The National Self-Interest in Trade Liberalization 96

2. Characteristic Features of the "New Trade Mercantilism" 100

A) Recourse to Disproportionate, Mutually Harmful Policy Instruments 103

B) Return to "Power-oriented", Bilateral and Sectoral Trade Policies 104

C) Administrative "Grey Area Trade Restrictions" without Effective Parliamentary and Judicial Control 106

D) Lack of Transparent, Democratic Policy-making in the "Public Interest" 108

E) Surreptitious Income Redistribution for the Benefit of Special Interests 110

3. Why Trade Is Not Free and Why Trade Liberalization Meets Resistance 112

A) The National Interest in Trade Liberalization vs. Domestic Group Interests in Trade Protection 112

B)"Protectionist Biases" in Domestic Decision-making about Trade Policy 113

a)Unbalanced Political Representation of the Public Interest in Liberal Trade 115

b)The "Political Market for Protectionism" 116

c) The "Conservative Social Welfare Function" 118

C) How Can the Political Resistance to Trade Liberalization Be Overcome? 120

4. Lessons from the Past: Common Features of Past and Present Trade Mercantilism 122

A) Economic Inefficiency and Waste 122

B) Prevalence of Special Interests over the General Public Interest 123

C) Lack of Effective Protection of Individual Freedoms and Property Rights 124

D)"Unjust" Rules 127

E) Bureaucratic Dirigism, "Pretense of Knowledge" and Non-transparent Policy-making 128

F) Conflict-oriented Foreign Power Policies 131

5. Conclusions: The Need to Tame the Mercantilist Leviathan through Constitutional Rules 131

A) The Need to Protect Individual Rights in the Trade Policy Area 132

B) The Need to Define the National Self-interest in Liberal Trade and Rule of Law 133

C) The Need to Limit the Scope of Trade Policy Powers 135

D) The Need to Regulate the Proportionate Use of Trade Policy Instruments 137

Ⅵ. Insufficient Constitutional Restraints in National Laws and European Community Law on Government Powers to Tax and Restrict Foreign Trade: Trade Mercantilism as "Constitutional Failure" 139

1. The Increase in Government Discretion in the Conduct of Foreign Economic Policy 139

2. Insufficient Constitutional Guarantees in Domestic Laws for a Transparent, Non-Discriminatory and Proportionate Use of Trade Policy Instruments 142

A) The Foreign Trade Law of the United States: Some Constitutional Problems 143

a) Limited Government? 145

b) Separation of Powers? 148

c) Limited Delegation of Powers? 151

d) Effective Judicial Review? 152

e) Federalism 154

B) The Foreign Trade Law of the European Community: Some Constitutional Problems 155

a) Limited Powers? 156

b) Trade Liberalization "in the Common Interest"(Article 110 EEC Treaty)? 159

c) A "System Ensuring that Competition in the Common Market is not Distorted" (Article 3 EEC Treaty)? 162

d) Democratic Decision-making? 164

e) Legal Certainty and Rule of Law? 167

f) Judicial Protection of Individual Freedoms of Trade? 168

3. Insufficient Procedural Guarantees in US Domestic Laws and in European Community Law for the Public Choice of Transparent, Non-Discriminatory and Proportionate Trade Policy Instruments 175

A) Social Decision-making Processes for the Reconciliation of Individual Interests and the "Public Interest" in Pluralistic Democracies 175

B) Protectionist Biases in the Organization and Political Influence of Domestic Interest Groups: Empirical Evidence 178

C) Protectionist Biases in Democratic and Parliamentary Decision-making 183

D) Protectionist Biases in Bureaucratic Decision-making: The Declining Role of the Limited Delegation Doctrine 188

E) Protectionist Biases in Judicial Decision-making: Judicial Abdication vis-a-vis Discretionary Grey Area Trade Restrictions 195

4. Conclusion: Trade Mercantilism as a "Constitutional Failure" of Representative Democracy 205

THIRD PART: CONSTITUTIONAL FUNCTIONS OF LIBERAL INTERNATIONAL ECONOMIC RULES 210

Ⅶ. Constitutional Functions of Liberal International Trade and Monetary Rules 210

1. Notion and Functions of "Constitutional Rules" 210

A) The Reason of Rules 210

B) Need for and Functions of Constitutional Rules 211

C) Means of Constitutional Constraint 214

D) How to Provide International "Public Goods" without International Governments? The Need for Internationally Agreed Restraints on National Policy Instruments with Harmful Effects Abroad 217

E) International and Domestic Constitutional Functions of Liberal International Trade Rules 218

2. Constitutional Functions of Liberal International Trade Rules: Basic Principles of GATT Law 221

A) The GATT Principle of Transparent Policy-making 222

B) The GATT Principle of Rule-oriented Policy-making 224

C) The GATT Principles of Non-discriminatory Market Access 226

D) The GATT Principle of the Use of Uniform and Proportionate Policy Instruments 230

E) The GATT Principle of Fair Competition 232

F) The GATT Principles of "Due Process" and Judicial Protection of Individual Rights 234

G) The GATT Principle of National Economic Sovereignty 236

H) The GATT Principle of Reciprocity 237

I) The GATT Principle of Non-reciprocal and Preferential Treatment of Less-developed Countries 241

3. Constitutional Functions of Liberal International Monetary and Financial Rules: Basic Principles of the Law of the International Monetary Fund and the World Bank 245

A) The Principle of Separation of Policy Instruments 245

B) The Principles of Transparent and Rule-oriented Policy-making 245

C) The Principle of the Use of Non-discriminatory and Proportionate Policy Instruments 252

D) The Principle of Protection of Property Rights 255

E) The Principle of National Economic Sovereignty 257

4. Constitutional Functions of Multilateral Institutions and Procedures: The Example of the "Bretton Woods System" 259

A) The Bretton Woods Agreements as "Living Constitutions"and "Legal Systems" 260

B) The Bretton Woods Agreements as Institutional Framework for Multilateral Supervision, Negotiations and Dispute Settlement 266

5. The "Constitutional Dilemma" of Liberal International Trade Rules 274

A) Liberal International Trade Rules as a Self-imposed "Constitutional Restraint" on the Government Powers to Restrict Individual Freedoms of Trade 274

B) Not All International Rules Serve Constitutional Functions 276

C) Inadequate Constitutional "Checks and Balances" at the International Level: The Risk of Intergovernmental Collusion 277

D) Inadequate "Domestic Law Effects" of International Obligations 279

FOURTH PART: POSSIBILITIES OF "CONSTITUTIONALIZING" FOREIGN TRADE POLICY AND FOREIGN TRADE LAW IN CONSTITUTIONAL DEMOCRACIES 288

Ⅷ. Foreign Affairs and Foreign Trade in the National Constitutions of Liberal Democracies: A Comparative Legal Analysis of the Constitutions of the United States, Switzerland and Germany 288

1. Are Rule of Law and Democracy Incompatible with Foreign Policy? 288

A) Reasons Advanced in Support of the Incompatibility Hypothesis 288

B) Foreign Policy as Domestic Policy: Why Rule of Law and Democracy are Necessary in the Trade Policy Area 290

2. Foreign Affairs and Foreign Trade in a Liberal Eighteenth Century Constitution: The Constitution of the United States 293

A) The Objective of Democratic Constitutionalism: "Sovereignty of the People" and Constitutional Limitation of All Government Powers 293

B) Constitutional Restraints on the Foreign Relations Powers 295

C) Individual Rights and Foreign Affairs 299

D) The Courts in Foreign Affairs 302

E) The Constitution and International Law: The Fragility of GATT Law as Part of US Domestic Law 304

F) Conclusions: The Need to Make the Existing Constitutional Restraints on Trade Policy Powers More Precise and Effective 311

3. Foreign Affairs and Foreign Trade in a Liberal Nineteenth Century Constitution: The Constitution of Switzerland 314

A) Foreign Affairs in the Swiss Constitution 314

B) Explicit Constitutional Protection of Freedom of Trade and Industry 315

a) Freedom of Trade as an Individual Right 316

b) Freedom of Trade as an Objective Constitutional Principle and Institutional Guarantee 318

c) Constitutional Bases for Governmental Limitations of Freedom of Trade 319

C) Other Constitutional Restraints on the Foreign Affairs Powers 325

a) The Policy Goals of Article 2 325

b) Constitutional Rule-of-Law-Requirements 326

c) Protection of Individual Rights in Foreign Affairs 328

d) Respect for International Law 330

D) Lack of Judicial Control over Foreign Policy Decisions and Federal Legislation 332

4. Foreign Affairs and Foreign Trade in a Liberal Twentieth Century Constitution: The Basic Law of the Federal Republic of Germany 334

A) Human Rights as Foundations of All Government Powers 334

a) The Constitutional Guarantee of a "Free Democratic Basic Order" 335

b) The Fundamental Rights as Constitutive Elements of the "Public Interest" 336

B) The "Constitutionalization" of the Foreign Relations Power 340

a) Constitutional Protection of Individual Rights in Foreign Affairs: Freedom of Foreign Trade as a Constitutional Guarantee 341

b) Separation and only Limited Delegation of Foreign Relations Powers 345

c) Judicial Control of the Foreign Relations Powers 350

C) The Constitutional Decision in Favour of International Integration 354

a) Validity, Rank and Direct Applicability of International Law in the Federal Republic of Germany 356

b) The Supranational Option of the Basic Law 360

5. Conclusions: The Need for an "International Constitutional Law" 363

A) Liberal International Trade Rules and Democratic Constitutionalism Rest on the Same Liberal Principles 363

B) Liberal International Trade Rules are Equivalent to "Substantive International Constitutional Rules" 367

C) The Need to Integrate Liberal International Trade Rules into the Domestic Constitutional Systems 369

Ⅸ. Summary and Conclusions: Constitutionalizing Foreign Trade Policy through Liberal International Rules and their Incorporation into the Domestic Constitutional Systems. 375

1. International Economic and Legal Integration Do Not Require Uniformization 375

A) Market Integration through Private Law 375

B) Divergent National Choice of Law Rules, Jurisdiction Rules, Recognition and Enforcement Rules as Barriers to Trade and Investment 380

C) Harmonization of International Private Law through International Treaties 382

D) Sovereignty and the Limits of International Private Law as a Technique for Legal Integration and "Policy Integration" 383

2. The Need to Constitutionalize Discretionary Trade Policy Powers and Why This Cannot Be Fully Achieved Unilaterally at the National Level 387

A) Discretionary Trade Policy Powers to Tax and Restrict the Trade Transactions of Domestic Citizens Require Constitutional Restraints 387

B) Impediments to Constitutionalizing Trade Policy Unilaterally at the National Level 393

a) The Political Insistence on "External Sovereignty" and on Foreign Policy Discretion 393

b) The Persistence of Mercantilist Doctrine 397

c) The Asymmetries in Domestic Decisionmaking Processes about Trade Policv 398

d) The "Public Good"-Character of a Liberal International Trade Order 400

3. Constitutional Functions of Liberal International Economic Rules 400

A) Liberal International Agreements Can Serve Constitutional Functions: In Constitutional Democracies Liberal International Trade Rules Must Be Constitutionallv Presumed to Protect Individual Rights 400

B) Why It Can Be Easier to Agree on and Specify Liberal Principles for Foreign Trade in Reciprocal International Agreements Rather than in National Laws 403

C) The Overlooked Paradox: Liberal International Trade Rules Enlarge Individual Rights and the Principles of Constitutional Democracies 406

D) An Illustration: Comparing the "General Principles" of the Administrative Law of the EEC with the Foreign Trade Law of GATT 408

a) Transparent Policymaking and Rule of Law 411

b) Non-Discriminatory Treatment 414

c) Proportionality of Restrictions 415

d) Judicial Protection of Individual Rights 418

4. The Need to Incorporate Liberal International Trade Rules into Domestic Constitutional Systems 421

A) The Need for More Detailed International Rules Regulating the "Domestic Law Effects" of Liberal International Trade Obligations 422

B) The Progressive Constitutionalization of German Foreign Trade Law through Liberal International Trade Rules 427

a) Freedom of Internal Trade through Customs Union Law and "Cooperative Federalism" 427

b) National Constitutional Protection of Freedom of Foreign Trade 429

c) The "Communitarization" of German Foreign Trade Law through the Customs Union Law of the EEC 432

d)"Constitutional Failure" of the EEC Treaty Provisions on the Common Commercial Policy? 434

e) The "Communitarization" of the International GATT Rights and Obligations of the EEC States: A Third Line of "Constitutional Entrenchment"? 436

C) GATT Law as an Agent for the Harmonization and "Judicialization" of Foreign Trade Law: The Case of Antidumping Law 441

D) The Need to Involve Domestic Legislatures: The "Fast Track Procedure" in the US Trade Act of 1974 448

E) The Need to Involve Domestic Courts: The "Constitutionalization" of the Customs Union Law of the EEC by the EC Court of Justice as a Precedent? 452

F) The Need to Involve Individual Citizens: A "Self-Enforcing Constitution" Depends upon Protection of Individual Rights 459

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