The Legitimacy of the Treaty in Law and International Trade

Abstract

The study presents the legitimacy of the treaty in law and international trade. The aim of this article is to show how international law, together with its institutions, must explicitly state its ideological assumptions then develop a coherent and consistent institutional framework around this ideology. This article addresses this challenge. It develops a constitutionalist model for assessing the legitimacy of international law that takes seriously the commitments underlying constitutional democracy. At the heart of this model are four distinct concerns, each captured by a distinct principle. These principles are the formal principle of international legality, the jurisdictional principle of subsidiarity, the procedural principle of adequate participation and accountability as well as the substantive principle of achieving outcomes that are not violative of fundamental rights and are reasonable. Such a framework provides a middle ground between national and international constitutionalists. Whereas the former sometimes suggest that any law not sufficiently connected to domestic legal actors is suspect legitimacy-wise, the latter tend to underplay what is lost democracy-wise as decision-making is ratcheted up from the national to the international level.