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Vol 22 No 1 Jan/Feb 2017

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Cover of Fiduciary Obligations: 40th Anniversary Republication with Additional Essays

Fiduciary Obligations: 40th Anniversary Republication with Additional Essays

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Multilevel Constitutionalism for Multilevel Governance of Public Goods: Methodology Problems in International Law


ISBN13: 9781509909124
Published: January 2017
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £80.00



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This is the first legal monograph analysing multilevel governance of global 'aggregate public goods' (PGs) by using historical, legal, political and economic methods. It explains the need for a 'new philosophy of international law' in order to protect human rights and PGs more effectively and more legitimately. Such a 'constitutional approach' is justified not only by the fact that 'human rights', 'rule of law', 'democracy' and other 'principles of justice' used in national, regional and UN legal systems are indeterminate legal concepts whose linguistic, jurisprudential and doctrinal meaning needs to be reviewed and clarified through democratic, judicial and also academic methods.

The study describes and criticizes the legal methodology problems of 'disconnected' governance in UN, GATT and WTO institutions as well as in certain areas of the external relations of the EU (like transatlantic free trade agreements). Based on more than 35 years of practical experiences of the author in German, European, UN, GATT and WTO governance institutions and 40 years of academic teaching experiences, this study develops five propositions for constituting, limiting, regulating and justifying multilevel governance for the benefit of citizens and their constitutional rights as 'constituent powers', 'democratic principals' and main 'republican actors', who must hold multilevel governance institutions and their limited 'constituted powers' legally, democratically and judicially more accountable.

Subjects:
Constitutional and Administrative Law, Public International Law
Contents:
Introduction: From Democratic and Republican to Cosmopolitan
Constitutionalism in Multilevel Governance of Public Goods
I. Overview
II. Does Multilevel Governance Require Multilevel Constitutionalism?
III. Why 'Globalization' Requires Constitutionalizing Multilevel Governance of Public Goods for theBenefit of Citizens
IV. Constitutional Failures of 'Disconnected' UN, WTO and EU Governance

1. Human Rights, 'Constitutional' Treaty Interpretation and Judicial Protection of Individual Rights in Multilevel Governance of Public Goods
I. Introduction
II. The Customary Law Requirement of Treaty Interpretation and Adjudication in Conformity with'Principles of Justice'
III. Legal Fragmentation and Reintegration as Dialectic Methods for Reconciling 'Principles of Justice'and Developing International Law
IV. Global Democracy? Human Rights Require 'Connecting Constituent and Constituted Powers'through 'Cosmopolitan Constitutionalism'
V. Constitutionalizing UN/WTO Governance through Judicial Protection of Cosmopolitan Rights? Failuresof the EU's 'Cosmopolitan Foreign Policy Constitution'
VI. Conclusion: Multilevel Governance Must Promote the 'Six-Stage Sequence' of Democratic, Republicanand Cosmopolitan Constitutionalism

2. Constituting, Limiting, Regulating and Justifying Multilevel Governance through Multilevel'Republican Constitutionalism'
I. The Gap Between Theory and Practice in Multilevel Governance of Global Public Goods
II. 'Collective Action Problems' and Comparative Institutional Analyses: Examples from Multilevel Economic and Environmental Governance
III. How to Move from the 'Washington Consensus' to the 'Geneva Consensus' in Multilevel Governance ofPublic Goods? The Example of the WHO Framework Convention on Tobacco Control
IV. How to 'Constitutionalize' Multilevel Trade Governance beyond the EU and EEA? Failures of Transatlantic Free Trade Agreements
V. Conclusion: Courts of Justice Must Promote Legal Consistency in Multilevel Dispute Settlement in Conformity with Cosmopolitan Rights

3. Civilizing and Constitutionalizing 'Disconnected' UN, WTO and EU Governance Require 'CosmopolitanConstitutionalism': Legal Methodology Challenges
I. From 'Constitutionalism 1.0' to 'Constitutionalism 4.0'
II. Four 'Constitutional Functions' of Cosmopolitan Rights and the Emergence of 'Cosmopolitan International Law'
III. Need for Integrating the Competing Conceptions of International Economic Law: From Fragmentation toConvergence in International Law
IV. Successful 'Constitutionalization' of 'Disconnected Diplomatic Governance' through Reforms ofInternational Investment Law?
V. Market Citizens, State Citizens and Cosmopolitan Citizens: Looking for 'Hercules' in 'DiscourseJustifications' of Multilevel Governance
VI. Conclusion: Lessons from Democratic, Republican and Cosmopolitan Constitutionalism