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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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Need for Reducing the ‘Rule of Law’ Gap in Multilevel Economic Governance The ‘coherence gap’ discussed in the keynote speech by P. Lamy results from the rule-of-law-gap caused by the legal fragmentation among hundreds of national, international and transnational legal regimes and by parochial disregard for the ‘coherent interpretation requirements’ in national and international legal systems. International law, international institutions and globalization transform national constitutions into ‘partial constitutions’ that can no longer secure the welfare of domestic citizens without international cooperation (e.g. on energy and environmental security). As illustrated by the diverse European legal and judicial regimes, transnational rule of law requires multilevel constitutional restraints on multilevel governance so as to limit abuses of intergovernmental ‘rule by law’. Legal predictability, rule of law and legal protection of legitimately diverse conceptions of justice, human rights and ‘constitutional pluralism’ are essential for the collective supply of global public goods. Transnational rule of law must be promoted by recognizing, 'balancing' and reconciling competing rights and constitutional claims on the basis of common constitutional principles, with due respect for legitimately diverse interpretations in conformity with different national constitutional traditions and democratic preferences. As intergovernmental rules may lack democratic legitimacy and may unduly restrict individual rights, transnational ‘rule of law’ – as a constitutional, jurisdictional and judicial restraint protecting equal individual rights against abuses of ‘rule by law’ - may require and justify departures from the prevailing Westphalian conceptions of ‘rule of international law’, as illustrated by the Kadi-judgments of the ECJ refusing to apply UN Security Council sanctions that violate human rights. 11 In the global division of labour, transnational rule of law and its justification in terms of respect for the human rights obligations of all UN member states and of democratic self-governance become ever

more important for a number of reasons. For instance:

As emphasized by P. Sutherland and J. Bhagwati, ‘a growing gap is emerging between 20th century trade governance and 21st century trade’ characterized by the internationalization of supply chains (Bhagwati and Sutherland, 2011, p.9). This spread of globally integrated production chains coordinated by multinational corporations is likely to prompt also the ‘emerging economies’ (like Brazil, China and India) to engage in more bilateral and regional trade liberalization. The ‘legal fragmentation’ makes reduction of transaction costs and coordination costs through a decentralized, but predictable and enforceable rule-of-law system ever more important.

- The ineffectiveness of multilateral rulemaking inside the WTO has prompted the US, the EU and Japan to negotiate ever more free trade and investment agreements outside the WTO. The EU, for instance, has presented its new free trade agreement with Korea as a new paradigm for a future network of ‘deep economic integration’ agreements with countries all over the world. The resultant risk of mutually inconsistent national, bilateral, regional and worldwide trade and investment rules and related disputesettlement rulings – as illustrated by the national, regional and WTO dispute settlement proceedings in the Mexican soft drinks dispute, the Brazilian tyres dispute, the EU bananas and GMO disputes, their ‘jurisdictional competition’ and sometimes inadequate regard to ‘judicial comity’ and the ‘consistent interpretation principle’ – confirm that many WTO disputes could be avoided if governments would apply domestic rules in conformity with their international legal obligations and recognize legal and judicial remedies of citizens to protect themselves against arbitrary violations of the rule of law. The Kadi case (2008, paragraph 284) ‘It is also clear from the case-law that respect for human rights is a condition of the lawfulness of Community acts (Opinion 2/94, paragraph 34) and that measures incompatible with respect for human rights are not acceptable in the Community (Case C-112/00, Schmidberger [2003] ECR I-5659, paragraph 73 and caselaw cited).’ For an explanation of the importance of ‘human rights coherence’ and respect for legitimate ‘constitutional pluralism’ for the interpretation, legitimacy and effectiveness of modern international economic law, see Petersmann (2012, chapter II to IV).

On the need for avoiding such conflicting dispute settlement findings by ‘judicial comity’ and cooperation among courts see Lavranos (2009) and Petersmann (2008).

Cosmopolitan ‘Aggregate Public Goods’ Must be Protected by Cosmopolitan Access Rights and Judicial Remedies ever larger number of free trade agreements among ‘coalitions of the willing’ increases the importance of the WTO legal and institutional system (e.g. for trade consultations, trade monitoring, dispute settlement and rule-enforcement) for those WTO members that risk becoming further marginalized due to their own failure to engage in trade liberalization agreements.

- Similar to Kofi Annan’s criticism of ‘the widespread contempt for human rights and the rule of law’ in UN politics (Annan, 2006), the 2011 report by Bhagwati and Sutherland warns that ‘the steady erosion of the WTO’s centricity could sooner or later bring the world to a tipping point – a point beyond which … nations feel justified in ignoring WTO norms since everyone else does’, and 19th-century-style power politics prevails once again over respect for transnational rule of law for the benefit of citizens. The more the worldwide division of labour and innovation are driven by demand and supply by thousands of corporations and billions of producers, workers, investors, traders, consumers and other citizens, the more civil society will challenge authoritarian treatment of citizens as mere objects of mercantilist economic and environmental regulation and of welfare-reducing disregard for transnational rule of law by diplomats and ruling elites (e.g. in many LDCs) benefitting from trade protectionism. Even though ‘the need for universal adherence to and implementation of the rule of law at both the national and international levels’ is recognized in UN resolutions (the quotation is from UN GA A/60/L.1, 2005, paragraph 134), neither the UN Charter nor other UN treaties protect transnational ‘rule of law’ as a constitutional restraint on ‘the rule of men’ and their ‘rule by law’.





Democratic Legitimacy and Effectiveness of Multilevel Public Goods Require Multilevel Constitutionalism’ Law and democratic governance require justification by principles of justice, democratic constituencies and domestic constitutional systems in order to be supported by citizens as efficient, legitimate and coherent instruments for protecting constitutional rights and other public goods. The less national parliaments control rule-making, administration and adjudication in distant international organizations like the WTO, the more depends the legitimacy of constitutional democracy on supplementing ‘parliamentary democracy’ by rights-based ‘participatory democracy’ and ‘deliberative democracy’ - especially in those areas of international relations which, like international trade and pollution, are driven by citizens and derive their legitimacy from promoting general consumer welfare.

The diverse forms of rights-based economic law in the EU, the EEA and in free trade agreements with third countries, like the international legal protection of individual trading rights, investor rights, intellectual property rights and judicial remedies in the 2001 WTO Protocol on China’s Accession, in Chapters 11 and 19 of the North American Free Trade Agreement (NAFTA) and in ever more investment treaties, illustrate that legal and judicial empowerment of citizens in international economic law is not a cosmopolitan dream – provided diplomats recognize that limiting their trade policy discretion by legal and judicial remedies of citizens and ‘cosmopolitan constituencies’ benefiting from international trade will actually assist governments in protecting international public goods for the benefit of citizens. 13 Also the effectiveness of democratic self-governance in consumer-driven markets and of many other ‘aggregate public goods’ depends on legal incentives for ‘stake-holder participation’ based on individual rights and judicial remedies of citizens to protect themselves against ‘market failures’, ‘discourse failures’ as well as ‘governance failures’, including violations of the ‘rule of law’ (e.g. by the recent thefts of carbon licenses in the European Emissions Trading System). Such ‘countervailing rights’ to challenge welfare-reducing market access barriers, pollution and abuses of power can contribute to limiting ‘governance failures’ in protection of international public goods. The diverse forms of European integration law in the EU, the EEA, or in the ECHR confirm that effective protection of ‘aggregate public goods’ - like open markets, ‘sustainable development’, transnational On Pascal Lamy’s arguments in support for ‘cosmopolitics’ and ‘cosmopolitan constituencies’ supporting multilevel governance of interdependent public goods, see Charnovitz (2004, pp.437–446).

Ernst-Ulrich Petersmann

rule of law and multilevel democratic governance throughout the 30 EEA countries - depends on multilevel legal and judicial constraints (e.g. by the ECJ, EFTA Court, European Court of Human Rights) on foreign policy discretion limiting discrimination on grounds of nationality and protecting rights of citizens across frontiers. In order to remain effective and legitimate, ‘member-driven’ international governance in worldwide institutions like the WTO depends ever more on multilevel support and control by domestic constituencies balancing the often one-sided, ‘rent-seeking’ pressures from protectionist producer interests by democratic and consumer-support for welfare-enhancing trade liberalization and regulation of ‘market failures’.

The WTO’s ‘Rule of International Law System’ is of Systemic Importance for International Public Goods Ever more international pubic goods (like food and health security) depend on individual access to an open world trading system. As emphasized by Pascal Lamy: ‘Open trade is more crucial than ever to the world economy – and a rule-based multilateral trading system has never been more critical to global prosperity and peace’ (2010, p.3). WTO law offers the only worldwide ‘rule of international law’ system based on legal guarantees of freedom, non-discrimination and compulsory, international adjudication. The collective supply of many international public goods outside the WTO – like international protection of environmental resources, prevention of climate change, food and health security, energy security, poverty reduction and transnational rule of law for the benefit of citizens – is

closely interrelated with, and dependent on, the WTO legal system. For instance:

- Similar to past GATT/WTO disputes over national measures for the protection of environmental resources (like endangered species, pollution), the introduction of GHG reduction commitments, carbon taxes and related border tax adjustments, or the consistency of carbon emission trading systems with the GATS obligations of WTO members, risk triggering environment-related WTO dispute settlement proceedings.

- International agreements on energy security may give rise to WTO disputes if the WTO obligations of the respective countries (e.g. regarding non-discrimination, freedom of transit, prohibition of export restrictions, taxation of energy products and services) are neglected.

- International food and health security may require government measures (like import restrictions, export subsidies, risk assessment procedures, compulsory licensing of patents) that risk being challenged in WTO dispute settlement proceedings.

- Poverty reduction and promotion of economic growth require the opening and regulation of markets (e.g. government taxation, subsidies, preferential treatment and trade facilitation) in conformity with the WTO legal and world trading system.

Economists, politicians and lawyers often confuse ‘rule of law’ with formal conceptions of ‘rule by law’ and ‘legal security’ without addressing the constitutional task of promoting the democratic legitimacy of international law and its coherence with national legal systems. Constitutionalism has emphasized since antiquity that rule of law differs from ‘rule by law’ and ‘rule by men’ in terms of constitutional and judicial protection of principles of justice (e.g. legal equality, due process of law) vis-à-vis all citizens and public authorities. Even though the WTO legal and dispute settlement system promotes ‘rule by law’ in intergovernmental relations among WTO members, it fails to protect ‘rule of law’ for the benefit of citizens due to the selfish insistence of governments that domestic courts should Cosmopolitan ‘Aggregate Public Goods’ Must be Protected by Cosmopolitan Access Rights and Judicial Remedies not apply and enforce WTO obligations of governments so as to avoid legal and judicial accountability

vis-à-vis citizens for the frequent, welfare-reducing violations of WTO obligations. 14 For instance:

- The often mutually incoherent adjudication of trade disputes (e.g. over EU import restrictions on bananas and genetically modified organisms, Brazilian import restrictions on retreaded tyres, US antidumping practices) at national, regional and WTO levels illustrates that transnational rule of law in international trade, and the related welfare gains and reduction of transaction costs, depend on coordinating private and public, national, regional and worldwide trade regulation on the basis of mutually ‘consistent interpretations’ of WTO rules and WTO dispute settlement rulings. Both domestic legal systems as well as the customary methods of treaty interpretation require interpreting international treaties in conformity with other legal obligations of states (cf. the Preamble and Article 31 of the 1969 Vienna Convention on the Law of Treaties). Yet, WTO member governments all too often collude with rent-seeking protectionist groups in redistributing consumer income through illegal trade restrictions and in preventing domestic courts from protecting ‘rule of law’ for the benefit of citizens in conformity with WTO legal obligations.

- The small number of only 3 judgments by the ECJ, since the 1950s, in international trade disputes among the 27 EU member states illustrates that most international trade disputes could be ‘decentralized’, ‘depoliticized’, prevented and settled more efficiently at domestic levels provided citizens and courts are empowered to protect rule of law in transnational trade in conformity with the international legal obligations of the countries concerned. The politicization of trade disputes in the WTO remains medieval, costly and inefficient; by treating citizens as mere objects without effective legal and judicial remedies, it also lacks democratic legitimacy and effective remedies against governments intent on maintaining welfare-reducing violations of their WTO obligations.

- The ever greater influence in international economic law of transnational, private ‘advocacy networks’ and private litigation against multinational companies, human rights violators and host states of foreign direct investors confirms that ‘adversarial legalism’ is becoming an ever more important tool of limiting transnational ‘governance failures’. The social functions and public policy goals of private law and private litigation justify empowering citizens to act as private ‘attorneys general’ who, through the pursuit of their own interests (e.g. in challenging arbitrary government violations of WTO obligations, requesting compensation in litigation related to product liability, environmental harms, restrictive business practices or corporate accountability for human rights violations), serve also social purposes of regulation and rule of law.

- The customary rules of international treaty interpretation, and their requirement of interpreting treaties and settling related disputes ‘in conformity with the principles of international law’ and human rights (cf. Preamble and Article 31 VCLT), reflect constitutional principles of justice requiring coherent conceptions of ‘rule of law’ in the private and public, national and international sub-systems of multilevel ‘network governance’. Respect for ‘reasonable disagreement’ among individuals as well as among countries calls for reconciling diverse conceptions of justice on the basis of common constitutional principles (such as judicial comity, the ‘consistent interpretation principle’, ‘proportionality balancing’ of competing rights and obligations) so as to protect transnational rule of law and rights and obligations not only of governments, but also of citizens as main actors and ‘sources of value’ in the international division of labour.

In all previous GATT Rounds of multilateral trade negotiations, the results were implemented by ‘Tariff Schedules’ and self-standing trade agreements without recourse to the procedures for amending GATT. Conclusion of future Doha Round Agreements as a ‘single undertaking’, as envisaged in the 2001 Doha Round Declaration, will require amending the WTO Agreement and may turn out to be the biggest ‘collective action problem’ in reforming the WTO. WTO members have failed so far to clarify whether the cumbersome, time-consuming WTO amendment procedures are flexible enough for On the explicit exclusion, for instance in the EU and US legislation implementing the Uruguay Round Agreements, of ‘direct applicability’ of WTO rules in domestic courts – except at the request of the EU and US governments in order to enforce WTO rules vis-à-vis state restrictions – see Petersmann (1997, pp.19 ff, 245 ff).

Ernst-Ulrich Petersmann

implementing future Doha Round Agreements as a ‘single undertaking’ without many years of delays, two classes of WTO membership, and ‘free-riding’ by those WTO members which, following the entry into force of WTO amendments upon ratification by two-thirds of WTO members, may prefer benefiting from the WTO non-discrimination commitments without ratifying the Doha Round Agreements (Kennedy, 2011). The flexibility of European economic law – as illustrated by the monetary union among 17 Euro zone member states, the common market among 27 EU member states, the multilaterally agreed extension of the EU’s common market rules to EEA member states subject to separate institutional and judicial rules, and the bilaterally agreed adaptations of the EU common market rules and customs union rules to the political needs of other third countries like Switzerland and Turkey – reflect the need for legal flexibility in multilateral treaty systems so as to respect legitimate ‘constitutional pluralism’ at national and regional levels. As amendments of WTO rules require ratification either by all or two-thirds of the WTO members, the small number of only 31 ratifications (by 2011) of the 2005 WTO Protocol amending Article 31 of the WTO Agreement on Trade-Related Intellectual Property Rights suggests that a single Doha Round Agreement modifying and complementing the WTO Agreement – e.g. by means of new GATT Tariff Schedules, GATS commitments, amendments of WTO agreements, integration of additional agreements into the WTO legal and dispute settlement system (like the new Agreement on Trade Facilitation) and adoption of other WTO legal instruments (like WTO Ministerial Decisions) - will not enter into force for all WTO members simultaneously; such ‘fragmentation’ could pose the biggest test so far for the WTO legal and dispute settlement system.

Conclusion: Cosmopolitan ‘Aggregate Public Goods’ Require Protecting Transnational ‘Rule Of Law’ through ‘Access Rights’ and Judicial Remedies Rawls’ Theory of Justice explains why - in view of the ‘fact of reasonable pluralism’ and ‘the fact that in a democratic regime political power is regarded as the power of free and equal citizens as a collective body’ - the democratic exercise of coercive power over one another is democratically legitimate only when ‘political power … is exercised in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse in the light of their common human reason.’ (2001, p.41) The human rights obligations of all UN member states entail that the constitutional task of ‘institutionalizing public reason’ through constitutional, legislative, administrative and judicial rules and institutions supported by citizens must be accepted also for limiting multilevel governance of interdependent public goods. The necessary multilevel constitutional constraints of multilevel governance must be based on ‘rule of law’ – as a constitutional restraint on ‘rule by law’ for the benefit of citizens and their constitutional rights – no less than inside constitutional democracies. Constitutional and ‘public choice’ theories offer additional reasons why multilevel economic and environmental governance can protect constitutional rights and reasonable self-interests of citizens effectively only in a multilevel framework of constitutional, legal and institutional restraints justifying ‘input legitimacy’ and promoting ‘stakeholder participation’ in, and ‘output legitimacy’ of, multilevel economic and environmental regulation.

Compared with UN law and international monetary, financial and environmental regulation, the world trading system has evolved into the most developed, multilevel governance, legal and dispute settlement system. As the financial crisis since 2008 originated in regulatory failures inside the USA, the 2010 US Dodd-Frank legislation focused on internal financial reforms rather than on regulating international systemic risks (e.g. concerning sovereign debts, IMF surveillance of international exchange rate manipulation and of imbalances of currency reserves, common capital requirements for systemically important international banks and hedge funds, supervision of rating agencies and of excessive bank bonuses). The EU member states, by contrast, responded to the fiscal and financial governance failures inside the Eurozone by adopting international agreements strengthening fiscal, monetary and financial disciplines and institutional safeguards (like the temporary European Financial Cosmopolitan ‘Aggregate Public Goods’ Must be Protected by Cosmopolitan Access Rights and Judicial Remedies Stability Facility, a permanent European Stability Mechanism, the European Systemic Risk Board, three new EU agencies to monitor securities, banks and insurance companies). At the worldwide level, the increasing calls for reforming the G20, the IMF, the WTO and the Kyoto Protocol to the UNFCCC have so far failed to bring about agreed reforms of international monetary, trade, financial and environmental agreements. Reforming the consensus-based models of intergovernmental WTO negotiations and ‘UN rulemaking’ by more flexible, more legitimate and more citizen-oriented models of multilevel trade, environmental and economic governance with less ‘system frictions’ remains the greatest challenge to global economic governance in the 21st century. The current focus on bilateral and regional agreements outside the WTO should be reversed by facilitating recourse to plurilateral agreements inside the WTO (like the 2011 Government Procurement Agreement, the 1996 Information Technology Agreement) and by ‘multilateralizing’ preferential trade agreements among WTO members. The complexity and fragmentation of international economic regulation must be limited by strengthening rule of law for the benefit of citizens. Without stronger cosmopolitan rights and their judicial protection, UN and WTO diplomats are unlikely to rise to this challenge of transforming intergovernmental economic and environmental governance into more effective tools for protecting consumer welfare and the human rights of citizens.

As the rhetoric at the G20 summit meetings in 2008, 2009 and 2010 in favour of concluding the Doha Round negotiations has not been followed-up by concrete actions in the WTO negotiations and in national capitals of the leading trading nations, many observers conclude that ‘we are now living in a G-Zero world, one in which no single country or bloc of countries has the political and economic leverage – or the will – to drive a truly international agenda’ (Bremmer and Roubini, 2011). As illustrated by the opposition of US automobile producers against the US-Korea free trade agreement, the limited scope of new market access commitments offered so far in the Doha Round negotiations by emerging economies like Brazil and India has weakened business support in many developed countries for concluding the Doha Round. The lack of leadership by the BRICS has prompted the USA, the EU and Japan to increasingly resort to bilateral and regional free trade agreements focusing on ‘club goods’ rather than on the global public good of an open, well-regulated world trading system.

The history of GATT 1947 confirms that overcoming the collective action problems undermining the world trading system is politically possible.15 The Doha Round negotiations demonstrate that – even if governments have succeeded in narrowing the ‘jurisdiction gap’ for the collective supply of global public goods – they risk failing to resolve the ‘governance gaps’, ‘incentive gaps’, ‘participation gaps’ and ‘rule-of-law gaps’ in collectively supplying the global public good of an efficient world trading system; for instance, part of the Doha Round negotiating mandate (e.g. for trade-related competition and investment rules) was abandoned in 2003, and concluding the Doha Round by a ‘single undertaking’ has been postponed without any collective strategy for overcoming the numerous ‘decision traps’ confronted during 10 years of Doha Round negotiations. The future of the WTO trading and legal system will depend on ‘multilevel governance reforms’ – either by more G20 leadership for concluding the Doha Round negotiations or through multilevel trade liberalization and regulation outside the WTO legal system. The dialectic evolution, since the 19th century, of international monetary, trade, investment, labour and environmental law through unilateral legislation When I joined the GATT Secretariat in 1981 as first ‘legal officer’ ever employed by the GATT, ‘GATT 1947’ lacked a coherent legal and dispute settlement system, did not even have a ‘Legal Office’ and was politically ‘captured’ by powerful protectionist lobbying interests insisting on welfare-reducing discrimination in favor of cotton, textiles, agricultural and other organized business interests. The most important lessons from my participation as legal advisor in the Uruguay Round Negotiating Groups leading to the adoption of the WTO Dispute Settlement Understanding and to a completely new legal and institutional framework of the WTO trading system was that ‘multilevel governance’ (e.g. in the context of the complex structures governing the Uruguay Round negotiations 1986 to 1994) – if appropriately ‘engineered’ - could indeed enable the transformation – within less than 10 years – of the power-oriented ‘GATT à la carte’-system into a worldwide treaty system with compulsory jurisdiction and ever-more jurisprudence for the peaceful settlement of international and domestic trade disputes.

Ernst-Ulrich Petersmann

and bilateral, regional and worldwide agreements suggests that overcoming the collective action problems of international public goods can succeed through ‘trial and error’ if there is leadership based on ‘responsible sovereignty’ and progressive recognition of ‘common concerns’ and ‘duties to protect’ cosmopolitan rights of citizens to more effective legal and judicial protection of transnational public goods.Cosmopolitan ‘Aggregate Public Goods’ Must be Protected by Cosmopolitan Access Rights and Judicial Remedies References Annan, K. (2006) Speech of Kofi Annan UN doc. A/61/PV.10.

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