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Legitimacy problems of multilevel governance Regarding Lamy’s distinction between government-based ‘secondary legitimacy’ and citizen-based ‘primary legitimacy’ of ‘Westphalian organizations’ like the UN and the WTO, former EU ambassador R. Abbott asked whether intergovernmental rule-making could be held to be illegitimate if international organizations cannot achieve what governments do not allow them to do and often fail to do themselves. It was said that also ‘private-public partnerships’ and ‘tripartite structures’ - as in the International Labour Organization and in the EU – could be abused for corporatist rather than democratic market regulations. Several speakers argued that, from the ‘consumption perspective’ of citizens and their human rights, the ‘composite nature’ of the international trading system and other 'aggregate public goods' called for protecting rights of citizens (e.g. as main economic actors, beneficiaries and 'democratic principals') rather than only rights of governments and states. The often artificial ‘foreign-domestic policy divide’ entailed that - even though ‘aggregate international public goods’ extended national public goods across frontiers and international law required treaties to be implemented in domestic legal systems in good faith in conformity with the human rights obligations of all UN member states - most international trade, environmental and human rights treaties did not effectively protect international public goods for the benefit of citizens. Intergovernmental rulemaking often failed to meet the requirement of modern theories of justice that protection of constitutional rights of citizens requires a ‘4-stage sequence’ (J.Rawls) of constitutional, legislative, executive and judicial rule-making transforming constitutionally agreed principles of justice into legislation, rules-based administration and judicial protection of ‘rule of law’ for the benefit of citizens. Theories of justice explained why - for instance in European economic law as well as in international investment and human rights law - ‘courts of justice’ (like the EU Court and the EFTA Court) could effectively and legitimately protect cosmopolitan and human rights vis-à-vis welfarereducing violations of international agreements. Arguably, transnational rule of law for the benefit of citizens was an ‘intermediate public good’ of constitutional importance for protecting ‘aggregate public goods’ (like human rights, international common markets); governmental violations of transnational rule of law risked undermining the overall coherence of public goods as well as the legitimacy of multilevel governance vis-à-vis citizens. Modern economics likewise postulated that human welfare depends more on the ‘human capital’ of a people to realize its collective responsibility to institutionalize reasonable rules (e.g. for an efficient division of labour and rule of law promoting investments) than on scarce natural resources. The ‘conditionality’ of IMF and EU financial assistance to member states with balance-of-payments or ‘sovereign debt’ problems offered another example of

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why Westphalian ‘state sovereignty’ had to be re-interpreted as ‘responsible sovereignty’ requiring protection of human rights and other public goods for the benefit of citizens.

II. Collective Action Problems Impeding Supply of Interdependent Public Goods Public goods theory emphasizes that the ‘supply strategies’ for the different types of public goods vary depending on their particular characteristics and the preferences of citizens and governments involved (e.g. for 'internalizing external effects' by means of taxes, subsidies or a change in property rights).

Diverse public goods may require diverse supply strategies The contribution by I. Kaul on Global Public Goods: Explaining their Underprovision begins with

discussing the different categories of private and public goods distinguished by economists such as:

non-rival and non-excludable pure public goods (like moonshine) and impure public goods that are either non-excludable (like common-pool resources) or non-rival (like club goods, patented pharmaceutical knowledge); depending on the respective ‘provision paths’, some public goods can be supplied unilaterally by ‘single best efforts’ (e.g. an invention); the supply of some other public goods depends on the ‘weakest links’ (e.g. dyke-building, global polio eradication, nuclear nonproliferation); ‘aggregate global public goods’ tend to be supplied through a ‘summation process’ of local, national and regional public goods. Global public goods ‘differ from their national counterparts in terms of the complexity – the multi-actor, multi-sector, multi-level nature – of their provision path, as well as in terms of the policy-interdependence they entail’. As ‘publicness and privateness are in most cases not innate properties of a good but social constructs’, the policy choices and preferences of countries vis-à-vis public goods may legitimately differ. In her analysis of why some global public goods are better provided (like global transportation and communication systems) than others, Kaul focuses on economic and political market failures (like free-riding); fairness and efficiency deficits in international negotiations (e.g. due to power politics); organizational constraints (e.g. due to pathdependence); policy stand-offs (e.g. due to contested distributional implications); inconsistency among global public goods (e.g. due to conflicting preferences); and uncertainty caused by the relative recentness of issues. Some of these impediments have prompted policy responses in terms of new principles (like ‘duties to protect’) and new institutions (like the G20, establishment of a Green Climate Fund for mitigation of and adaptation to climate change). Yet, ‘for the most part the reform measures imply incremental change; and many end up in policy stalemates’. According to Kaul, a ‘certain amount of … global decision-making “messiness” could well prove, in the medium and longer-term, to be the more efficient policy path because it might broaden and deepen the political consensus on which change initiatives rest’.

Public goods regimes depend on the related property regimes

F. Kratochwil’s contribution on Problems of Policy Design based on Insufficient Conceptualization:

the Case of ‘Public Goods’ explains why the economic focus on non-rivalry and non-exclusivity of public goods neglects many additional reasons for the undersupply of public goods; for, ‘there are virtually no public goods that satisfy the two criteria supposedly defining them’. For instance, if overuse is the problem of ‘common pool resources’, then ‘by definition we do not have a public goods problem’. Hence, the prevailing economic conceptualization is ‘much too narrow for designing policy responses counteracting the undersupply problem’. Kratochwil proposes instead an alternative ‘political economy approach’ analysing the undersupply problem within the wider framework of property regimes. Using examples of Roman property law and Adam Smith’s analysis of property regulation, Kratochwil demonstrates that most problems of ‘common goods’ can be better analysed by

Introduction and Overview

focusing on the legal construction of private and public goods instead of assuming certain inherent ‘properties’ of the goods in question. Kratochwil concludes that – just as there is no ‘one size fits all’ solution to the problems of ‘common pool resources’ – the sub-optimal supply of many international public goods results from the interaction of many more factors than their non-rival and non-excludable consumption, such as the lack of resources or the ‘capture’ of regulatory institutions by organized interest groups. Depending on the property regime, the alleged ‘tragedy of the commons’ may turn out to be a ‘comedy of the commons’ enabling a ‘happy ending’ by means of limiting membership and over-use. Rather than resolving a prisoners’ dilemma by focusing on the two alternatives of government intervention or privatization, legal differentiation between different types of ownership rights (e.g. rights of access, extraction, management, exclusion, alienation) may enable more effective provision of public goods. But Kratochwil also recalls that insistence on exclusively private rights was ‘once considered as being the world of the idiotes (of the private person in the original meaning of the word) who did not share a common’.

In the conference discussion on the political, legal and institutional incentives to supply global public goods, 2 Kratochwil’s conclusion – i.e. that the economic focus on non-rivalry and nonexclusivity of public goods neglects many additional reasons for the undersupply of public goods (like lack of resources, inadequate regulation of property rights, ‘capture’ of regulatory institutions by organized interest groups), and 'the conventional public goods debate offers less than it promised for the analysis of social and political problems’ – was widely shared. Economic and political analyses of the different ‘supply conditions’, alternative instruments and institutional designs for constructing public goods and transforming them into ‘club goods’ (such as the WTO), differ enormously. In view of the few examples of ‘pure public goods’ as defined by economists, the term ‘public good’ is often used more broadly for goods that benefit and can be consumed by all citizens and are confronted with political problems of collective action and free-riding. 3 The decentralized, private law forms of the global governance of the Internet by the Internet Corporation for Assigned Numbers and Names (ICANN), and the settlement of thousands of international ‘domain name disputes’ by means of arbitration procedures administered by the World Intellectual Property Organization (WIPO) and enforced by ICANN, illustrate the potential importance of decentralized, rights-based regimes transforming global public goods into institutionalized ‘club goods’ so as to limit incentives for ‘freeriding’ and create incentives for supporting club goods.

Rule-making and compliance depend on procedural fairness Some speakers said that the ‘governance failures’ to conclude the Doha and climate change negotiations were related to disagreements on principles of fairness and distribution of costs and benefits (e.g. in less-developed countries refusing WTO disciplines on welfare-reducing practices like non-transparent government procurement). Harmful ‘externalities’ were often a major impediment to collective supply of public goods, as illustrated by the harmful impact of illegal US cotton subsidies on African and Latin-American cotton-exporting countries opposing conclusion of a ‘Doha Development Round’ without US compliance with the WTO dispute settlement rulings on cotton subsidies. The rent-seeking lobbies financing the election campaigns of US congressmen were more This discussion benefitted from an additional conference presentation by Dupont on Why Cooperate? Political, Legal and Institutional Incentives to Supply Global Public Goods.

On expanded definitions of public goods, see also Kaul (2003, 22, 83 ff), explaining, inter alia, why conceptualizing and analyzing global natural commons (such as the atmosphere, the high seas), global humanmade commons (such as global rules, regimes and knowledge) and global policy outcomes (such as global peace, financial stability and environmental stability as global public goods) from the perspective of the ‘triangle of publicness’ (i.e. publicness in consumption: is the good consumed by all? publicness in net benefits : are the net benefits of the good equitably distributed ? publicness in decision-making : who decided to place the good in the public domain?) reveal differences that may be important for regulating public goods and for the optimal ‘aggregation technology’.

Ernst-Ulrich Petersmann

powerful than the economic and legal arguments against these wasteful subsidy practices in blatant violation of US legal obligations under WTO law. Many discussants supported Lamy's statement that multilevel governance in the 21st century required not only utilitarian output legitimacy, but also democratic input legitimacy. ‘Responsible sovereignty’ should aim at transforming global public goods into club goods so as to limit free-riding, facilitate rules-based bargaining and strengthen thirdparty adjudication of international disputes, which could enable judicial rule-clarification in case of political stalemates. Several speakers argued that the different speeds and flexibilities in regional European integration offered lessons for reducing worldwide collective action problems regarding public goods, for instance in terms of promoting ‘plurilateral agreements’ inside the WTO (like the 2011 Government Procurement Agreement), or regional trade agreements, plurilateral competition agreements, bilateral investment and double-taxation agreements among WTO members concluded outside the WTO. It was noted that economic public goods theory offers few criteria as to when global public goods should be regulated issue-by-issue (e.g. pursuant to the economic theory of separation of policy instruments underlying the separate UN Specialized Agencies) or by means of package deals facilitating compromises over the distribution of costs and benefits (as in the 1994 Uruguay Round Agreement establishing the WTO). One discussant referred to P. Lamy’s criticism, in a speech delivered in October 2010, of the ‘leadership vacuum’ in the ‘transition from the old governance of the old trade order to the new governance of a new trade order’; paradoxically, the evolution from the comparatively weak GATT 1947 – in spite of its lack of legal ratification, weak institutions and ‘grandfather exceptions’ exempting inconsistent national legislation – into the worldwide WTO legal and compulsory dispute settlement system had been more successful than the evolution of the Bretton Woods Agreements that had been duly ratified by national parliaments. Yet, the ever larger number of trade agreements concluded outside the WTO, the likely failure of the Doha Round negotiations, and other ‘governance gaps’ confirmed the ‘legitimacy deficits’ and ‘constitutional limits’ of intergovernmental power politics as a legitimate tool for global economic reforms in the 21st century.

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