Multilevel governance of interdependent public goods in the 21st century: from national to multilevel and cosmopolitan constitutionalism?
| Autor | Ernst-Ulrich Petersmann |
| Cargo | Emeritus Professor at the Department of Law of the European University Institute |
| Páginas | 74-91 |
P A N Ó P T I C A
In: NUNES, Adriano Peclat; SIQUEIRA, Julio Pinheiro Faro Homem de (ed.). Miscelânea sobre a integração
europeia. Panóptica, vol. 10, n. 1, pp. 74-91, jan./jun. 2015.
74
Multilevel governance of interdependent public goods in the 21st
century: from national to multilevel and cosmopolitan
constitutionalism?
Ernst-Ulrich Petersmann
1
1. From constitutional nationalism to ‘UN multilevel constitutionalism’
In contrast to private goods produced spontaneously in private markets, the ‘non-
excludable’ and ‘non-exhaustive’ characteristics of PGs entail ‘market failures’ requiring
government interventions for the collective supply of ‘weakest link PGs’ (like a dike) and
‘aggregate PGs’ (like democratic peace).
2
Since republican constitutionalism in ancient Greece,
almost all states have learned through ‘trial and error’ the need for adopting national
Constitutions as a necessary legal framework for democratic supply of national PGs (like rule
of law, a common market). Since World War II, all 193 UN member states have also joined
functionally limited treaty constitutions like the Constitutions (sic) of the International Labour
Organization (ILO), the World Health Organization (WHO), the UN Educational, Scientific
and Cultural Organization (UNESCO) and the Food and Agriculture Organization (FAO); the
‘constitutional functions’ of this functionally limited ‘UN multilevel constitutionalism’ include
(1) establishing multilevel governance institutions, (2) limiting their legislative, executive and
dispute settlement powers, (3) regulating their collective supply of functionally limited
‘aggregate PG’ through ‘primary rules of conduct’ and ‘secondary rules of recognition, change
and adjudication’, and (4) justifying the governance systems, for instance in terms of protecting
labour rights and ‘social justice’ through ILO law, fundamental rights to health protection
through WHO law, human rights to education, justice and ‘rule of law’ through UNESCO law,
or ‘ensuring humanity’s freedom from hunger’ through FAO law. The more globalization
transforms national PGs into global ‘aggregate PGs’, the more national (big C) Constitutions
turn out to be ‘partial constitutions’ that can protect international PGs only in cooperation with
1
Emeritus Professor at the Department of Law of the European University Institute.
2
For a discussion of the different kinds of public goods and related ‘production strategies’ see: S.Barret (2007)
and E.U.Petersmann (ed, 2012).
P A N Ó P T I C A
In: NUNES, Adriano Peclat; SIQUEIRA, Julio Pinheiro Faro Homem de (ed.). Miscelânea sobre a integração
europeia. Panóptica, vol. 10, n. 1, pp. 74-91, jan./jun. 2015.
75
other states based on international law and institutions. Yet, due to intergovernmental power
politics focusing on ‘state sovereignty’ rather than ‘popular sovereignty’, ‘individual
sovereignty’ and related ‘sovereign responsibilities’, neither the UN nor UN Specialized
Agencies nor the WTO have succeeded in realizing their human rights objectives and protecting
other international PGs effectively. As first explained by Kantian legal theory, state-centered
‘multilevel constitutionalism’ cannot effectively protect human rights and other international
PGs without additional multilevel constitutional safeguards of cosmopolitan rights and
corresponding constitutional restraints on abuses of power in all human interactions at national,
transnational and international levels.
3
Power-oriented ‘Westphalian conceptions’ of
international law focusing on foreign policy discretion for maximizing ‘national interests’ -
without effective parliamentary control, judicial review and other constitutional restraints of
intergovernmental power politics and of its often welfare-reducing effects on domestic citizens
- become all too often captured by rent-seeking interest groups abusing import protection and
non-transparent financial deals (eg loan agreements, concession agreements) generating
‘protection rents’ for politicians and powerful producer interests at the expense of domestic
consumer welfare.
2. European ‘cosmopolitan constitutionalism’ regulates ‘collective action problems’ and
protects PGs more effectively
European human rights and economic integration law confirms that citizen-oriented
‘cosmopolitan constitutionalism’ protecting cosmopolitan rights, ‘participatory democracy’,
transnational rule of law and multilevel judicial remedies for the benefit of citizens across state
borders – eg in the context of the European Convention on Human Rights (ECHR), European
common market and competition law, international investment and commercial law and
arbitration – have protected PGs in more legitimate and more effective ways than state-centered
regimes prioritizing rights of governments (eg under UN and WTO law) over rights and judicial
remedies of citizens.
4
The ‘multilevel constitutionalism’ initiated by the ILO, FAO, WHO and
UNESCO ‘constitutions’ failed to protect international PGs effectively (like labour rights
protecting ‘social justice’, human rights to education, health protection and adequate food)
3
Cf E.U. Petersmann (2012), chapts II and III.
4
Cf. Petersmann (note 2), at 145 ff.
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