Journal Article

Human Rights, Justice, and Courts in IEL: A Critical Examination of Petersmann’s Constitutionalization Theory

Tao Li and Zuoli Jiang

in Journal of International Economic Law

Volume 21, issue 1, pages 193-211
Published in print March 2018 | ISSN: 1369-3034
Published online March 2018 | e-ISSN: 1464-3758 | DOI: https://dx.doi.org/10.1093/jiel/jgy006
Human Rights, Justice, and Courts in IEL: A Critical Examination of Petersmann’s Constitutionalization Theory

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Abstract

Petersmann’s works focus on the normative and fundamental issues of international economic law (IEL) with such nonvarying analytical tools as the concepts of human rights, justice, and judicial review and thus can be examined in general in a comprehensive setting including Chinese thought. Based on the purported universal recognition of human rights, Petersmann insists on a paradigm of bottom-up struggles for IEL constitutionalization, but the Universal Declaration of Human Rights does not require radical individualism and rights absolutism in light of its absorption of Chinese thought. Petersmann’s explication of IEL justice is transcendental without sufficient consideration of the positive role governments can play, whereas the Confucian ideological framework renliyi hints at a nascent approach for addressing global poverty and underdevelopment. Petersmann views the courts as the guardian of human rights and justice. However, the Chinese legal system has an increasingly negative attitude toward the incorporation of human rights law into the judicial process, and Chinese courts favor diversified dispute settlement mechanisms partly because of the preference for negotiated solutions. Due to the divergent ideological presumption concerning root values, Petersmann’s theory is fundamentally different from Chinese thought, a difference that cannot be described in the context of pluralism.

Journal Article.  9758 words. 

Subjects: Financial Law ; Public International Law ; International Economic Law ; Economics

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