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IV. Constitutional and Legal Problems of Multilevel Governance of Citizen-driven International Public Goods SECTION IV was devoted to the contribution of legal and constitutional theories to limiting and overcoming the collective action and multilevel governance problems identified in the preceding Sections. If legitimate 'governance' is defined as collective production of public goods by adjusting rules to the changing demands, needs and democratic rights of citizens, it is difficult to explain why public goods theory has so far neglected the constitutional dimensions of multilevel governance of interdependent public goods. Also international law as an intermediate ‘global public good’, the interrelationships between multilateral treaty rules and institutions for global public goods, 5 and the political need for their support by ‘multi-layered issue communities’ (Kaul et al., 2003, p.47) are neglected by many economists, political scientists and diplomats. Due to insufficient empirical and comparative analyses of international ‘public goods regimes’ and to disagreement on the appropriate political, economic and legal ‘methodologies’, the governance arrangements for transnational public

Kaul et alii (2003, p.44 ff) discuss 10 global public goods prioritized in a report by the UN Seceretary-General:

(1) basic human dignity for all people, including universal access to basic education and health care; (2) respect for national sovereignty; (3) global public health, particularly communicable disease control; (4) global security or, put differently, a global public domain free from crime and violence; (5) global peace; (6) communication and transportation systems harmonized across borders; (7) institutional infrastructure harmonized across borders to foster such goals as market efficiency, universal human rights, transparent and accountable governance, and harmonization of technical standards; (8) concerted management of knowledge, including worldwide respect for intellectual property rights; (9) concerted management of the global natural commons to promote their sustainable use; and (10) availability of international arenas for multilateral negotiation between states as well as between state and non-state actors. Kaul et alii acknowledge that many of the multilateral agreements regulating these public goods ‘lack even the first steps toward implementation: signature and ratification by all concerned nation-states’.

Introduction and Overview

goods lack coherent theories. Also legal methodology in IEL research remains neglected and contested, for instance because legal interpretations might arrive at different conclusions depending on the respective ‘legal methodologies’ applied. If the term legal methodology is defined in terms of the respective conceptions of the sources and ‘rules of recognition’ of law, the methods of interpretation, the functions and systemic nature of legal systems, and of their relationships to other areas of law and politics, then the legislative and executive ‘governance modes’ and ‘judicial methodologies’ applied by worldwide, regional and national institutions often differ enormously. Many of the current governance problems in the WTO trading system (as the most developed worldwide legal and compulsory dispute settlement system) are likely to be experienced later in other international public goods regimes.

Legal and constitutional theories of public goods As the provision of common or ‘public goods’ is the main justification of states and of other public organizations, legal and political research on ‘public goods’ is much older than the economic distinction between private and public goods in Adam Smith’s The Wealth of Nations (1776). From such a historical perspective, it is obvious that the different kinds of public organizations (e.g. since the ancient Greek city republics) for supplying public goods raise different kinds of legal and political governance problems. The different evolution of the various UN Specialized Agencies since World War II illustrates that, even within similar rules for multilateral provision of international public goods, the legal and political regimes may evolve in diverse and unpredicted ways. For instance, excludable but non-rival ‘club goods’ (like the GATT/WTO trading system) raise governance problems different from those of rival but non-excludable ‘common pool resources’ (like the High Seas, the ozone layer and other ‘environmental commons’). Also ‘best shot public goods’ (e.g. on promotion of scientific inventions) – even if they can be produced without international legal instruments – may raise transnational coordination problems requiring legal regulation (e.g. of trade implications of genetic ‘production technologies’, greenhouse gas mitigation through stratospheric aerosol injection). Production of ‘weakest link public goods’ may often focus on a few ‘weak states’ (e.g. in the fight against pirates, polio eradication, protection of UNESCO world heritage sites).

Cosmopolitan legal strategies can generate democratic support Overcoming the collective action problems of ‘aggregate public goods’, by contrast, usually requires worldwide rules and multilevel governance institutions coordinating local, national, regional and worldwide public goods. The papers discussed at the Florence conference focused on the following

two policy challenges identified by public goods theory:

- First, multilateral agreements among states on ‘joint intergovernmental production’ of public goods (e.g. in the context of an international organization or ‘networked cooperation’) are often preceded by bilateral ‘outward-oriented cooperation’ (i.e. cooperation with others perceived as necessary to enjoy a public good domestically) and ‘inward-oriented cooperation’ (i.e. global exigencies or regimes requiring national policy adjustments) based on conceptions of ‘common concerns’ and ‘duties to protect’: How can multilateral principles and institutions promote legal criteria justifying unilateral protection of recognized ‘common concerns’ in transnational relations (like the extension of the EU carbon emission trading system to foreign airlines landing in the EU) so as to induce ‘free-riders’ to participate in agreed cooperation for global public goods?

- Second, even though the non-rival nature of the benefits and provision of public goods may impede private initiatives for their production, such ‘market failures’ can be corrected by government For explanations of the quoted terms see: Kaul et alii (note 1), p.10 ff.

–  –  –

interventions assigning private actors, market mechanisms and ‘public-private partnerships’ major roles in the collective supply of public goods (like reduction of GHG emissions, protection of biodiversity, promotion of public knowledge and freedom of information through the Internet). The role of private and public, national and international law for constituting, justifying, regulating and limiting the building blocks for public goods, designing legal incentives, constraining abuses of power, and allocating liabilities for harmful ‘externalities’ needs to be further clarified with due regard to the human rights obligations of all UN member states. National governments are likely to remain the primary ‘duty bearers’ for providing international public goods. Yet, effective supply of globally integrated public goods (like the international trading and environmental systems) requires multilevel governance reforms supported not only by states and intergovernmental organizations, but also by public-private partnerships and ‘global citizens’ who need to be empowered by protection of cosmopolitan rights and judicial remedies enabling them to act as self-interested guardians of transnational rule of law. Can legal and judicial protection of cosmopolitan ‘access rights’ promote production and consumption of public goods?

The differences between national, regional and worldwide environmental regimes confirm that legal regulation of public goods may vary enormously depending upon the regulatory problems, the preferences of states, the distribution of related costs and benefits, and the legal traditions and strategies pursued by states. From the consumption perspective of citizens and people affected by global public goods (or ‘public bads’), human rights call for participatory and democratic decisionmaking on the production of public goods and for their governance on the basis of rule-of-law. The ‘production process’ of ‘aggregating’ and transforming national into international public goods (like the world trading system) calls for extending market regulations and constitutional safeguards (like market access rights) across frontiers. Comparative legal analyses confirm that rulemaking, ruleimplementation and ‘public reason’ necessary for adjusting national and international legal regimes evolve differently in state-centred ‘Westphalian regimes’ focusing on the rights and interests of the rulers (e.g. in limiting judicial accountability vis-à-vis citizens) compared with cosmopolitan regimes (e.g. in Europe) protecting rights and interests of citizens (e.g. in holding governments accountable for their frequent violations of transnational rule of law). For instance, just as the UN Security Council has revised its ‘smart sanctions’ against alleged terrorists and enhanced ‘due process of law’ in response to judicial challenges (e.g. by the EU Court of Justice), the multilevel judicial protection of cosmopolitan rights (e.g. by the EU and EFTA Courts of Justice) has enhanced transnational rule of law throughout the common market of the 30 EEA countries. The increasing ‘judicialization’ of international economic and human rights law, and the customary law requirement of interpreting treaties and settling related disputes ‘in conformity with principles of justice’ and human rights (as codified in the 1969 Vienna Convention on the Law of Treaties), confirm that mere state consent may no longer offer an adequate justification of government interferences (e.g. into economic and human rights) and of government refusal to protect international public goods (like transnational rule of law for the benefit of citizens). Political governance failures in protecting international public goods can often be limited by rights-based judicial procedures and principle-based, judicial rule-clarification for the benefit of citizens.

From ‘common concerns’ to ‘legal duties to protect’?

The contributions by F. Francioni on Responsible Sovereignty 8 and T. Cottier on The Emerging Principle of Common Concern discuss the relationships of territoriality, public goods, multilevel governance and the emerging doctrines of ‘responsible sovereignty’ and ‘common concern’ in On market efficiency and knowledge as global public goods see: I.Kaul et alii (note 2), p.126 ff ; on the necessity and

diverse ways of involving non-state actors, see Edwards and Zadek, Governing the Provision of Global Public Goods:

The Role and Legitimacy of Nonstate Actors, in Kaul et alii (note 1), p.200 ff.

The contribution could not included in this publication.

Introduction and Overview

international law. Francioni focused on the clarification of ‘duties to protect’ human rights at home and abroad in UN practices, including duties to protect ‘sustainable development’ as an explicit objective of WTO law and environmental law. Cottier starts from the premise that ‘international law based upon territorial allocation of jurisdiction increasingly fails to properly address global challenges’ like protection of global public goods. He argues that the principle of common concern, as applied so far mainly in international environmental agreements (like the UNFCCC and the CBD) for promoting duties of cooperation, has the potential of redefining responsibilities of states vis-à-vis the production and administration of transnational public goods by creating legal and institutional incentives for international cooperation and justifying unilateral action protecting public goods vital to humankind.

According to Cottier, the ‘deep-seated perceptions of the exclusive domestic and territorial jurisdiction of States’ and of their ineffective ‘realpolitik’ are the main obstacle to more effective, multilevel governance of international public goods. In the absence of appropriate international institutional structures, global challenges – ‘in particular famine, genocide, other gross human rights violations and global warming’, but also other ‘vital interests to humankind’ – require states to assume extraterritorial responsibilities in order to protect ‘common concerns’ within and beyond their territorial jurisdictions.

Cottier considers the ‘responsibility to protect’ doctrine applied by the UN Security Council ‘to be part of the emerging principle of common concern’; but he admits that ‘the scope of Common Concern is still largely undefined’ and depends upon interpreting positive law in conformity with common concerns (e.g. in WTO legal and dispute settlement practices regarding the labelling of products taking into account common health concerns). It is the combination of unilateral ‘bottom up’ and multilateral ‘top down’ approaches that is likely to promote progress in developing international law protecting common concerns of mankind and limiting unilateral, national measures with harmful externalities.

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