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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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The conference discussions focused on how to limit unilateral measures that risk undermining rather than protecting international public goods and related ‘common concerns’ (e.g. the US intervention in Iraq on the ground that UN inspectors had failed to protect the public good of preventing dictators from having ‘weapons of mass destruction’). Under what conditions were formally illegal interventions (e.g. of NATO forces in Kosovo) justifiable in terms of protecting global public goods and related ‘common concerns’? Even if UN member states agreed on ‘common concerns’, they could invoke their national sovereignty and the ‘safeguard clauses’ in international agreements for protecting ‘national public interests’ and prioritizing ‘common concerns’ in very diverse ways. Arguably, the antagonistic evolution of international protection of many global public goods was an inevitable consequence of the power-oriented, pluralist structures of the global system (e.g. enabling unilateral definition of ‘national public interests’ and invocation of related safeguard clauses), of ‘free riding’, distributive conflicts and illegitimate abuses of power among states. The EU’s decision to extend the EU’s carbon emission trading system to international aviation from and to third countries offered an example which, even though legally contested by many third countries, could be justified by ‘common concerns’ as being consistent with the EU’s worldwide obligations (e.g. under WTO law, the Chicago Convention on Civil Aviation, the UNFCC and its Kyoto Protocol) and bilateral treaties (e.g. the ‘open sky’ agreements with the USA).

Empowering citizens and ‘courts of justice’ as ‘guardians of public goods’?

Petersmann’s contribution on Cosmopolitan ‘Aggregate Public Goods’ Must be Protected by Cosmopolitan Access Rights and Judicial Remedies explains why ‘Westphalian agreements among sovereign states’ can protect international public goods more effectively by providing for cosmopolitan ‘access rights’ and judicial guarantees of transnational rule of law for the benefit of citizens. Just as ever more UN member states have been transformed into constitutional democracies in response to human rights revolutions of their citizens, the international public goods of efficient markets and ‘sustainable development’ must be protected by a ‘four-stage sequence’ (J.Rawls) of constitutional, legislative, administrative and judicial protection of ‘access rights’ to protection of non

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Ernst-Ulrich Petersmann

discriminatory conditions of competition and other public goods against abuses of power. As global public goods affect all (including poor people), human rights and democracy require producing and protecting their benefits in participatory, fair, inclusive and rights-based ways. Modern economics and constitutional theories confirm that public goods (like social welfare, rule of law) depend primarily on legal empowerment and collective responsibility of citizens for institutionalizing reasonable rules. By focusing on ‘state sovereignty’ rather than on ‘responsible popular sovereignty’ and human rights, UN and WTO diplomats and politicians prioritize their self-interests (e.g. in redistributing domestic income by discriminatory trade restrictions, avoiding legal accountability vis-à-vis citizens for violations of international law) over the rights of citizens.

European human rights, economic and environmental law illustrates that multilevel constitutional protection of cosmopolitan ‘access rights’ to supply and consumption of transnational public goods can effectively limit the welfare-reducing ‘discriminatory traditions’ of ‘constitutional nationalism’ with due respect for ‘constitutional pluralism’. As ‘market failures’ (like environmental pollution) and ‘governance failures’ (like arbitrary violations of EU and WTO obligations ratified by national parliaments) are ultimately caused by individual conduct (e.g. of politicians) and organizations pursuing rational short-term self-interests at the expense of ‘reasonable common long-term interests’ of citizens, the intermediate public good of transnational rule of law has to be protected through constitutional, legislative, administrative and judicial safeguards of individual ‘access rights’ and other ‘countervailing restraints’ limiting the abuses of public and private power. Westphalian conceptions of ‘international law among sovereign states’ treating citizens as mere objects of authoritarian ‘rule by law’ rest on authoritarian assumptions (e.g. of benevolent, omnipotent ‘sovereign rulers’) that are inconsistent with the human reality of ubiquitous conflicts of interests requiring governance ‘as closely as possible to the citizens’ (subsidiarity principle). Mutual coherence of legal regimes depends on multilevel constitutional protection of constitutional and cosmopolitan rights of citizens. Just as economic markets can function efficiently only in a framework of common market and competition rules protecting equal rights of citizens (e.g. in their multiple roles as producers, workers, investors, traders and consumers), so can ‘political markets’ and multilevel governance avoid abuses of power and other ‘governance failures’ only in a framework of democratic and ‘countervailing rights’ of citizens and judicial ‘checks and balances’. Paradoxically, the more complex multilevel economic and environmental regimes become, the stronger is the need for decentralized, cosmopolitan rule-of-law systems empowering private stakeholders to defend their rights to transnational rule of law. For instance, rather than transforming trade and investment disputes of private economic actors into international disputes among WTO member states or investment disputes among states in the International Court of Justice, such ‘medieval politicization’ of economic disputes can often be avoided by decentralizing and depoliticizing trade and investment disputes, e.g. by following the model of European economic law empowering citizens to enforce common market, competition, environmental rules and human rights directly in domestic and international courts. As human rights also protect individual and democratic diversity (e.g. diverse preferences for public goods, diverse traditions of majoritarian democracy), jurisdiction gaps, governance gaps, incentive gaps, participation gaps and rule-of-law gaps in multilevel governance of interdependent public goods may be inevitable; the peaceful resolution of the resulting conflicts has to be allocated not only to political, but also to judicial institutions protecting cosmopolitan rights, judicial remedies and respect for legitimate ‘constitutional pluralism’. The diverse conceptions of international economic law (IEL) as (1) ‘international law among sovereign states’, (2) global administrative law, (3) multilevel economic regulation, (4) international ‘conflicts law,’ and (5) multilevel constitutional law, must be integrated by recognizing citizens as ‘democratic principals’ vis-à-vis national and international governance institutions whose legitimacy, as agents with limited powers, derives from protecting constitutional and cosmopolitan rights and rule of law. The European Economic Area Agreement, or the ‘Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice

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in Environmental Matters’, offer practical examples for ‘constitutionalizing’ international public goods for the benefit of citizens among states with diverse constitutional traditions.

Respect for ‘constitutional pluralism’ and its limits Petersmann’s presentation gave rise to a discussion of whether his premise of ‘constitutional pluralism’ was consistent with his normative claim that cosmopolitan access rights to transnational public goods are a requirement of democratic self-government and justice (e.g. in the sense of rulesbased, equal treatment of citizens). There seemed to be agreement that ‘sovereign equality of states’ and the reality of ‘constitutional pluralism’ will continue to be the legal foundation of international law in the 21st century. ‘Sovereign equality of states’ is not only a ‘Westphalian principle’ (focusing on voluntary consent of governments) but, if interpreted as ‘responsible sovereignty’, also a requirement of democratic responsibility to institutionalize ‘reasonable rules’ empowering people to protect human rights and public goods. The discussants agreed that the three major ‘constitutional paradigms’ practiced by UN member states – i.e. (1) rights-based constitutional democracies (e.g. in the 30 EEA countries), (2) ‘communitarian democracies’ focusing on ‘parliamentary sovereignty’ or ‘majority regulation’ of the economy (e.g. in many Anglo-Saxon democracies), and (3) ‘authoritarian decent states’ (e.g. as described in J.Rawls' Theory of Justice) with non-liberal constitutions – would continue to be part of the reality of 'constitutional pluralism' in the 21st century. Each of these diverse constitutional paradigms was related to competing conceptions of human rights and competing ‘foreign policy paradigms’ (e.g. rights-based common market regulation across Europe, intergovernmental regulation of free trade areas outside Europe). The disagreement focused on the question of whether – if ‘reasonable disagreements’ on 'constitutional pluralism' at national levels have to be respected - cosmopolitan conceptions of international economic law were still justifiable.

Economists, political scientists, lawyers and diplomats often disagree with cosmopolitan conceptions

of IEL:

- Economists prefer parsimonious models facilitating mathematical predictions, and rarely apply ‘constitutional economics’ to international relations. Even if the economic goal of maximizing consumer welfare could be promoted by recognizing individual 'market freedoms' (as proposed by ordo-liberalism and 'constitutional economics'), economic freedom as a utilitarian or constitutional value has to be reconciled with other constitutional values as decided by national parliaments (e.g. in order to protect a 'conservative welfare function' avoiding 'serious injury' to import-competing producers; for the claim that nations cannot simultaneously pursue majoritarian democracy, self-determination and economic globalization, see, e.g. Rodrik, 2001; Barfield, 2001). 9

- Political scientists acknowledge that – in the multilevel supply of ever more public goods - the ‘disaggregated state’ (Slaugther) cooperating through ever more international organizations and intergovernmental networks tends to protect consumer welfare and other public goods more effectively than traditional ‘Westphalian conceptions’ of discretionary foreign policy. Yet, as explained by 'public choice theory', governments pursue self-interests in insisting on discretionary policy powers and in resisting legal and judicial accountability vis-à-vis citizens in international economic relations. This reality of 'member-driven governance' in international organizations prompts ‘realist political scientists’ to perceive 'cosmopolitan reforms' of UN and WTO law as utopian and 'academic'.

- International lawyers and legal advisors of governments justify state-centred conceptions of international law by the 'democratic gate-keeper' function of national parliaments to decide on domestic implementation of intergovernmental commitments requiring states to comply with certain agreed results without limiting national sovereignty to choose the most appropriate instruments for domestic implementation of international obligations. Arguably, the ‘constitutional problems’ of democratic As illustrated by the Doha Round, without reciprocity of intergovernmental 'market access commitments', trade liberalization risks lacking political support by domestic constituencies.

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constitution, justification, limited delegation, separation and restriction of multilevel governance can be resolved in the context of national constitutionalism (e.g. by constitutional restraints on delegation of powers to international organizations) without requiring, as argued by Petersmann, an integrated theory of multilevel constitutionalism on protection of public goods and cosmopolitan rights across national frontiers.



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