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«EUI Working Papers RSCAS 2012/23 ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES Global Governance Programme-18 MULTILEVEL GOVERNANCE OF INTERDEPENDENT ...»

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from the General Agreement on Tariffs and Trade (GATT) to the World Trade Organization (WTO) and the Bretton Woods Institutions of the World Bank and the International Monetary Fund. More advanced structures transferred powers to supra-national organizations. The advent of the European Union is the most important example of transcending the nation state in a post-nation state era. Certain Thomas Cottier tasks were assigned to the Union, fully or partly, with a view to producing regional public goods and enhancing welfare throughout Europe. The establishment of a single market is by far the most important achievement and public good in that respect. In other areas, the goals remain to be achieved.

Today, the financial and debt crisis shows that the public good of financial and monetary stability has yet to be achieved through the design of new and reformed institutions. The euro is subject to an insufficient architecture which needs to be further developed as a consequence of the crisis. Regional public goods often develop in a process of crisis and response. They take time to build. The same holds true for the global level of governance.

The idea of allocating appropriate powers to different layers of government is of equal, if not greater, importance on the global level. An integrated world economy characterized by extensive division of labour and mutual independence of states and companies alike, calls for appropriate layers of governance and institutions able to produce the public goods securing and stabilizing such interdependence. These institutions partly exist, but to a large extent they are still non-existent within the framework of international organizations. The United Nations Security Council assumes important functions in times of crisis and threat to international peace. As to other fields of policy making, the UN is heavily involved in preparatory work but has largely left leadership to informal groupings, in particular the G-20. The multilateral trading system of the WTO today amounts to the most advanced institution offering legal security and high levels of compliance with rules agreed to. International trade, for obvious reasons, depends upon legal security and the interest in producing and protecting this public good is widely shared. The WTO, despite inadequate decision-making and increasing preferentialism, has remained attractive, mainly for its institutions and system of legal dispute resolution and implementation. Again, the financial crisis of 2007 to 2010, and the current public debt crisis shows that appropriate and sufficient global institutions are missing not only on the regional, but also on the global level, producing the public good of financial stability. The taming of global financial markets and of speculation calls for appropriate instruments of governance. They need to go beyond soft law commitments under the Basel III accords of the Bank for International Settlements.

The IMF is not sufficiently equipped to deal with conflicts relating to exchange rates and implied support of export industries by means of devaluation. There is no global authority managing competition of different currencies within the global monetary system. Serious deficiencies are equally evident in the fields of human rights and environmental protection. The international human rights system is unable to protect civilians from massive and arbitrary persecution even in constellations of failed states and revolution. The institutions set up to deal with global warming depend upon voluntary commitment and compliance. The United Nations Framework Convention on Climate Change (UNFCCC) is not equipped to stabilize the rising temperatures which are likely to be detrimental to vulnerable regions, in particular mountains and coastal areas. It invites free-riding and lacks incentives to join the effort.

The need to strengthen global governance in order to secure global public goods is obvious.

Appropriate instruments to deal with finance, monetary affairs, human rights and environmental issues need to be created. This may be done by international organizations, supranational organizations, informal networks or de facto governance exercised by a number of states, such as the G-20 working in cooperation with existing organizations. The doctrine of multilevel or multilayered governance assists in bringing about appropriate solutions, transcending the fundamental and traditional divide between domestic and international law. Much as public goods are produced on the local, regional and national level, it is a matter of producing global public goods on the global level of governance. There is no inherent and fundamental difference between all these layers of government and governance which precludes venturing into limited and well defined areas of powers delegated to global governance structures. Harmonization of law may be brought about locally just as much as globally. It is an incremental and arduous process.

The Emerging Principle of Common Concern: A Brief Outline

The challenge is less one of finding appropriate instruments, than of overcoming deep-seated perceptions of the exclusive domestic and territorial jurisdiction of States described above. The transfer of power to shared institutions is resisted as a matter of principle and considered contrary to what people call realpolitik – despite the fact that this type of realpolitik is unable to deal effectively with very real threats to human life and existence and the impossibility for states to deal with these problems appropriately on their own. The process of building appropriate institutions will depend upon appropriate incentives and trade-offs in relinquishing traditional domains and perceptions of sovereignty.





Common Concern Revisited The concept of Common Concern was introduced to foster international cooperation and shared responsibility in combating global warming and addressing the challenges of climate change. The UNFCCC expresses its tasks in terms of Common Concern of Mankind. Because climate is inherently a global public good vital for humankind, international efforts at cooperation are considered essential under the auspices of the doctrine of Common Concern. The framework invited States to participate, to share the global effort. It resulted in the Kyoto Protocol with its principles of shared but differentiated responsibility, the absence of the United States and commitments for emerging and developing economies. It resulted in extensive free-riding as key States continue to abstain from international commitments after negotiations to date have largely failed to find agreement on benchmarks, goals and instruments. The concept of Common Concern, as originally understood, failed to overcome the legacy of territoriality and sovereignty, reflecting the deficiency of the present international framework.

It is here that we need to revisit the original idea of Common Concern and ask to what extent it entails normative elements yet to be discovered and developed. We need to ask to what extent Common Concern can serve the undisputed need to produce global public goods in an integrated world economy other than by merely calling for appropriate international cooperation and institutions.

We need to ask to what extent Common Concern can serve as an incentive to bring about such goods and institutions at the end of the day. We need to link Common Concern with traditional precepts of territoriality, State responsibility and explore its potential as principle and tool of unilateral policy of States in building global structures of multilayered governance. It is submitted that Common Concern, if properly developed, would assume an important role in fermenting new global structures.

The need to create urgently needed public goods and to manage them properly despite the general absence of common institutions begs the question of the responsibility of states and international actors. The cleavage between evident needs and current global instruments requires revisiting traditional territorial foundations of international law laid in, and for a, very different world more than 200 years ago. Global challenges, in particular, famine, genocide, other gross human rights violations and global warming cannot wait the advent of new international institutions. In the absence of appropriate international structures they need, in the first place, to be dealt with by States. Turning one's back in the face of such challenges not only impairs the fate of others, but will eventually fall back on all. Common Concerns of this type therefore are basic and fundamental concerns which affect the very livelihood and existence of humankind, the nature and balance of this globe, and the values to which we pledge in our legal orders. They do not allow shedding responsibility behind traditional concepts of state sovereignty and territoriality. They also trigger some kind of responsibility outside territorial jurisdiction since they are matters of Common Concern. And by doing so, they provide in return incentives to work towards enhanced structures of global governance.

In developing a doctrine of Common Concern, we need to distinguish Common Concerns and the principle of Common Concern, the latter providing the basis for defining appropriate rights and obligations.

Thomas Cottier

The Realm of Common Concerns Common Concerns are matters which affect the international system as a whole in terms of the stability and viability of the entire globe. They are not isolated and remote, but affect all in one way or the other, materially or morally, directly or indirectly, sooner or later. It is not possible to define Common Concerns for once and for all and in advance. Many of them are known, and others may arise tomorrow. New problems and challenges may yet arise in the course of globalization and technological advance. They may be recognized in treaty law, such as global warming. They may eventually be recognized as a matter of customary international law in the process of claims and response. A subject of international law may call for a concern to be common, and it may be accepted, or refuted, as such based upon expression and conduct by governments. Today, Common Concerns are mainly recognized in environmental law. They include global warming, the depletion of biodiversity and of fish stocks in the High Seas in response to the tragedy of the global commons. Common Concerns, however, are not limited to the environment and ecological balance. The stability of the international financial, monetary and trading system and the protection of basic human rights are Common Concerns of equal importance and should be recognized as such. While it started with climate change and environmental law, the concept of Common Concern is much broader in scope and affects all vital interests to humankind throughout the body of international law.

The Principle of Common Concern Next to identifying proper areas of Common Concern we shall need to explore the normative content of the concept. It is submitted that international law should recognize and develop the principle of Common Concern of Mankind as a responsibility of States. Responsibility entails the authority and duty to address and respond to challenges in the realm of Common Concerns. As a principle, if offers broad guidance while leaving details to further specifications which may vary from field to field. It complements the principles of self-determination and of permanent sovereignty over natural resources.

It does not replace them as the principle of common heritage of mankind intended to. The principle of Common Concern does not displace the fundamental precepts of sovereignty and territoriality of the nation state. It adds an additional layer defining additional and new responsibilities beyond the proper territorial realm of states.

Responsibilities at home Common Concern primarily entails responsibilities to act within a given jurisdiction. States are entitled, but also obliged to primarily address Common Concerns, as defined by the international community, within their own boundaries. National efforts at abating global warming therefore emanate from this principle independently of treaty obligations, as much as efforts to stop depletion of fisheries within their own territorial waters and the exclusive economic zone. Other than the principle of permanent sovereignty, the principle of Common Concern not only authorizes, but obliges governments to take action in addressing the Common Concern within their own jurisdictions and territories.

Responsibilities abroad The principle, however, also authorizes action in relation to facts relating to the Common Concern produced outside the proper jurisdiction of a State. Extraterritorial jurisdiction of States, under the traditional international law as expounded in the 1927 Lotus rule and mainly expounded in competition law and policy, requires sufficient attachment to the territory of the State. Rights and obligations relating to Common Concerns go beyond the traditional precepts of territoriality. While today action can be defended if the nexus to the own territory is sufficient, Common Concern does not

The Emerging Principle of Common Concern: A Brief Outline

require such linkages but depends upon an examination of whether the measure and action are able to support the attainment of a Common Concern. The constellation is comparable to violations of jus cogens which trigger responsibility erga omnes and where action does not depend upon specific harm incurred. Territorial affiliation will often be a matter of practical expediency, as states are largely dependent upon attachment to their territory one way or the other in implementing laws and measures.

The crucial point is not whether a foreign measure negatively affects persons and resources within a given jurisdiction, but whether it affects the attainment of the Common Concern. Common Concern thus goes beyond traditional precepts of international law and attachment to a particular jurisdiction.



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