1
CONSTITUTING, LIMITING, REGULATING AND JUSTIFYING
MULTILEVEL GOVERNANCE OF INTERDEPENDENT PUBLIC GOODS:
From Constitutional Nationalism to Multilevel Constitutionalism and ‘Cosmopolitan Constitutionalism’?
Prof. Dr. Ernst-Ulrich Petersmann[*]
1.Due to globalization and the universal recognition of human rights, ‘cosmopolitan constitutionalism’ is becoming the most coherent‘cognitive frame’ for constructing legitimate authority in national and international law with due respect for the ever stronger interdependencies between national and international law. The human rights revolutions and globalization challenge not only the ‘statist paradigm’ of Westphalian ‘international law among sovereign states’, but also the legitimacy of nationalist ‘big C Constitutionalism’ as well as of transnational ‘small c constitutionalism’. As illustrated by EU and EEA law, human rights law (HRL) requirestransnational ‘revolutions in legal thinking’ thatmost constitutional lawyers,international lawyers and diplomats resist even in citizen-driven areas of transnational cooperation like international economic law (IEL).[1]The more UN and WTO institutions fail to protect transnational public goods, the more becomes constituting, limiting, regulating and justifying multilevel governance of transnational ‘aggregate public goods’ the biggest policy challenge in the 21st century in order to protect the human right to an international order enabling fulfillment of the universal human rights obligations of all states (cf. Article 28 UDHR).My publications have argued for more than 20 years that - as long as UN and WTO law offer no effective judicial remedies for enforcing international ‘cosmopolitan law’ - ‘multilevel constitutionalism’ offers a more appropriate framework for ‘transitional justice’ and ‘incremental constitutionalization’ of multilevel governance with due respect for the reality of ‘multilevel constitutional pluralism’.
2.HRL requires not only ‘cosmopolitan interpretations’ of the existing ‘rules of recognition’ of international law. Multilevel judicial protection of such ‘cosmopolitan interpretations’ hasalso rendered regional HRL and IEL (eg international guarantees of equal freedoms, non-discrimination and rule of law) more effective and more legitimate than other areas of international law.[2] Yet, as diplomats and other interest groups often oppose such cosmopolitan re-interpretations of positive law in order to limit their legal, judicial and democratic accountability vis-à-vis citizens, political pragmatism suggests to acknowledge‘constitutional functions’ and ‘multilevel constitutional restraints’ of international legal rules (eg in the ILO and WTO constitutions) even if governments and judges do not (yet) acknowledge the cosmopolitan dimensions of ‘multilevel constitutionalism’ (eg of WTO guarantees of multilevel judicial remedies). For instance, WTO diplomats and lawyers may find it easier to construe the WTO guarantees of judicial remedies at national and international levels (eg in Articles X, XXIII GATT) in mutually coherent ways on the basis of the ‘consistent interpretation’ requirements of national and international legal systems than on grounds of human rights like access to justice (as recognized in Article 47 ERU Charter of Fundamental Rights).
3.Likewise, linking the ‘constitutional functions’ of IEL to domestic constitutional guarantees, and adjusting domestic constitutionalism to the ‘collective action problems’ of multilevel governance of ‘aggregate public goods’ (eg by granting ‘fast-track legislation’ for parliamentary approval of international ‘public goods agreements’), can promote ’public reason’ and limit ‘constitutional failures’ even if most governments and (inter)national courts do not (yet) recognize the cosmopolitan dimensions of UN law, GATT/WTO law and of other areas of ‘multilevel constitutionalism’ (e.g. in the ILO, WHO, UNESCOand FAO ‘constitutions’ committed to protecting fundamental rights).[3]
In the absence of legal hierarchies among functionally limited treaty regimes and the need for balancing human and constitutional rights with other economic and social rights, legal and judicial ‘balancing’ of the respective treaty principles through inclusive procedures must go beyond HRL and other cosmopolitan rights.
4.As illustrated by the CJEU’s judicial deference towards even arbitrary EU violations of international law (eg persistent violations of WTO law confirmed byrepeated WTO dispute settlement rulings), the ‘constitutional challenges’ of judicial review of multilevel governance continue to be often discussed without reference to ‘cosmopolitan constitutionalism’. Even if such ‘political realism’ may impede legal and judicial recognition of ‘cosmopolitan constitutionalism’, it admits more limited forms of ‘multilevel constitutional restraints’ and judicial review. The very diverse forms of ‘multilevel judicial governance’ in Europe and beyond (eg in international investment, commercial and criminal law) offer diverse dimensions of ‘multilevel constitutionalism’ that continue to evolve dynamically.[4]
5.As illustrated by the diversity of multilevel human rights, citizen rights, constitutional, cosmopolitan and administrative rights (eg environmentalrights to information and procedural participation in administrative decision-making, rights to reasoned decisions and judicial remedies), governments often find it easier to acknowledge transnational individual rights and remedies on the basis of principles of ‘good governance’ and ‘global administrative law’ than on the basis of ‘cosmopolitan constitutional law’. Hence, ‘multilevel constitutionalism’ emphasizing the need for a coherent ‘multilevel constitutional house’ (President Gorbatev, T.Cottier) may be a politically more acceptable justification of piecemeal ‘constitutional reforms’ than foundational ‘cosmopolitan constitutionalism’. This is particularly true in the current economic and social crises measures for over-indebted financial institutions and foreign governments due to the political disagreement among citizens and national parliaments about whether and to what extent constitutional and governance failures abroad (eg due to corruption in tax and financial regulations in Greece) justifyfinancial redistribution from ‘law-complying’ to non-complying polities and governments on grounds of cosmopolitan rights and ‘financial solidarity’ (even though median households in over- indebted countries like Greece, Cyprus, Italy and Spain are on average more wealthy than households in donor countries like Germany).[5]
6.Cosmopolitan international organizations (like the EU) tend to define their ‘collective action problems’ in supplying international public goods differently from UN and WTO institutions that remain dominated by ‘intergovernmentalism’ in spite of their ‘cosmopolitan functions’ for protecting mutually beneficial cooperation among free and equal citizens.For example, the legal and institutional responses in UN and WTO law to the ‘jurisdictional gap’, ‘governance gap’, ‘incentive gap’, ‘participation gap’ and ‘rule of law gap’ in UN and WTO multilevel governance institutions are fundamentally different from those in EU and EEA law.[6]Even though the WTO guarantees of judicial remedies in trade disputes among states (eg through panel, appellate and arbitration procedures), among individuals and their own governments inside states (eg Article X GATT), and among individuals and foreign governments or foreign regulatory agencies (eg through transnational arbitration pursuant to Article 4 Preshipment Inspection Agreement) are integral parts of a single ‘dispute settlement system of the WTO … providing security and predictability to the multilateral trading system’ (Article 3 DSU), they provide for different standards of judicial review and continue to be interpreted by most governments without regard to the constitutional requirements of ‘consistent interpretation’ for the benefit of citizens. As long as governments and courts (including the CJEU) interpret and apply WTO guarantees of freedom, non-discrimination and rule of law as ‘Westphalian law’ (eg by granting the EU institutions ‘freedom of maneuver’ to restrict freedom of trade in manifest violation of WTO obligations) without protecting cosmopolitan rights of adversely affected citizens (eg their rights of access to justice and rule of law), ‘multilevel constitutionalism’ is a more realistic description of the ongoing ‘struggles for justice’ challenging Westphalian power politics than the normative ideal of ‘cosmopolitan constitutionalism’ rightly invoked by citizens.[7] Similarly, while European HRL has evolved into an effective ‘multilevel cosmopolitan law’, UN HRL is more correctly described in terms of ‘multilevel constitutionalism’ andfails to effectively protect cosmopolitan rights and judicial remedies for the benefit of citizens.
7.Arguably, the legal design and collective supply of some international ‘weakest link public goods’ (like nuclear non-proliferation) will continue to be dominated by ‘intergovernmental approaches’ rather than by ‘cosmopolitan law’. Such policy constraintschallenge neither the cosmopolitan ideal of constitutionally limited self-government among free and equal citizens nor the resultant requirement of establishing constitutionally legitimate authority (eg for more effective regulation of nuclear non-proliferation). Yet, in order to pragmatically promote ‘transitional justice’ in relations with non-democratic nuclear powers, ‘multilevel constitutionalism’ limiting abuses of power continues to be a more realistic ‘foreign policy paradigm’ allowing ‘cosmopolitan interpretations’ by constitutional democracies as well as participation by non-democratic governments interpreting their claims to ‘sovereign equality of states’ in statist terms rather than in terms of universal cosmopolitan rights. As long as UN and WTO law fail to protect international public goods for the benefit of citizens and – like nationalist big- C Constitutionalism - do not effectively protect cosmopolitan rights across national frontiers, ‘multilevel constitutionalism’ (eg as explicitly accepted in the ILO, WHO, UNESCO and FAO ‘constitutions’) often remains a politically more acceptable strategy for incremental, constitutional limitations of harmful externalities’ of nationalist policies than the underlying ideals of ‘cosmopolitan constitutionalism’ and of the UN and international ‘courts of justice’ as trustees of humanity that should remain accountable to citizens and limit abuses of public and private power for the benefit of citizens and their cosmopolitan rights.
8.As IEL is largely based on international treaty law and private contract law rather than on general international law, it remains contested to what extent the general constitutional guarantees of distributive and corrective justice (eg as recognized in HRL and EU law) can be limited in IEL by principles of ‘commutative justice’ and equity (eg in ‘non-violation’ and ‘situation complaints’ pursuant to Articles XXIII GATT and GATS, in ‘judicial deference’ by the CJEU vis-à-vis EU violations of rule of law to the detriment of EU citizens). As long as the procedures for negotiating IEL remain dominated by power politics without protecting cosmopolitan rights and ‘justice as fairness’, courts of justice should take more seriously their constitutional duties of protecting cosmopolitan rights of citizens against intergovernmental power politics.[8]The bailout agreementsfor Greece and Cyprus illustrate the limits of ‘cosmopolitan justice’ vis-à-vis governments and citizens failing their ‘cosmopolitan duties’ to prevent ‘governance failures’ at home (like persistent violations of EU fiscal, debt and financial disciplines) with harmful externalities on citizens and governments in other EU member states.Arguably, the rule-of-law requirements and bailout prohibitions in EU laware constitutive of ‘commutative justice’ in transnational legal communities like the EU to the extent they remain consistent with human rights and fundamental rights of EU citizens.The contested delimitation of ‘constitutional justice’, ‘cosmopolitan justice’, ‘commutative justice’ and ‘equity’ in the current EU crises measures illustrates – like the WTO guarantees of ‘violation complaints’ ‘non-violation complaints’ and ‘situation complaints’ (cf. Articles XXIII GATT and GATS) –the constitutional tasks of citizens, parliaments and courts of justice to further clarify competing ‘principles of justice’ and to take more seriously the customary law requirements of interpreting treaties, and settling related disputes, ‘in conformity with principles of justice’ and human rights and fundamental freedoms for all.[9]As illustrated by the financial crises since 2008, also questions of private ordering raise constitutional issues requiring legal limitations of both ‘market failures’ as well as of ‘governance failures’ in conformity with ‘cosmopolitan constitutionalism’ and more limited international agreements on ‘multilevel constitutionalism’. As limitations of the ‘dogmatic slumber of self-congratulatory hybris’ (Kumm) of constitutional nationalists and ‘international realists’ require citizens, parliaments and courts of justice to engage in ‘struggles for justice’ and for ‘cosmopolitan public reason’, pragmatic incremental constitutional reforms justified by ‘multilevel constitutional pluralism’ are no less important than ‘purist insistence’ on ‘cosmopolitan constitutionalism’ vis-à-vis the ubiquity of abuses of public and private power in IEL.-
[*]Emeritus Professor of International and European law and former head of the EUI Law Department, Florence. Former professor at the University of Geneva and its Graduate Institute of International Studies. Former legal adviser in the Germany Ministry of Economic Affairs, GATT and the WTO, and former secretary, member or chairman of numerous GATT/WTO dispute settlement panels.
[1]Cf. the comparative constitutional, legal and ‘public choice’ studies in: M.Hilf/E.U.Petersmann (eds), National Constitutions and International Economic Law (1993).
[2] Cf. E.U.Petersmann, International Economic Law in the 21st Centruy. Constitutional Pluralism and Multilevel Governance of Interdependent Public Goods (2012), eg 132ff, 145ff, 242ff, 391ff.
[3] Cf. E.U.Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law (1991).
[4] Cf. E.U.Petersmann, Multilevel Judicial Governance in European and International Economic Law, EUI Law Working Paper 2013.
[5]On the contested extraterritorial scope of economic, social and cultural rights in international law see: Langford/Vandenhole/Scheinin/van Genugten (eds), Global Justice, State Duties (2012); E.U.Petersmann, Human Rights Require ‘Cosmopolitan Constitutionalism’ and Cosmopolitan Law for Demcoratic Governance of Public Goods, EUI Law Working Paper 2013.
[6] Cf. Petersmann (note 2), at 58 ff, 93 ff.
[7] Cf. Petersmann, Can the EU’s Disregard for ‘Strict Observance of International Law’ (Article 3 TEU) Be Constitutionally Justified? in: M.Bronckers/V.Hauspiel/ R.Quick (eds), Liber Amicorum for J. Bourgeois (2011), 214-225.
[8]See the numerous case-studies in Petersmann (note 2), chapter VIII.
[9] Cf. Petersmann (note 4).