International Economic Law and ‘Public Reason’: Why Do Governments Fail To Protect International Public Goods More Effectively?

Is the ineffective protection of international public goods (like an efficient world trading and financial system), and thereby also of interrelated national public goods (like a common market undistorted by anti-dumping laws and other border discrimination), the inevitable fate of humanity? The negative answer to this question in Section I argues that the ineffective protection of international public goods is mainly due to lack of adequate theories, rules and institutions for overcoming the ‘collective action problems’ in the multilevel governance of interdependent public goods. Section II reviews the competing conceptions of ‘international economic law’ (IEL) such as public international law approaches, multilevel economic law approaches, ‘global administrative law’ approaches, ‘conflicts law approaches’ and ‘multilevel constitutional approaches’. Section III argues that - similar to the experience of all democracies that ‘national public goods’ can be supplied only in a framework of constitutional, legislative, administrative and judicial rules and procedures supported by domestic citizens - the multilevel governance of ‘international public goods’ requires a multilevel constitutional framework for multilevel rule-making and judicial protection of rule of law and constitutional rights accepted and supported by domestic citizens as ‘primary’ legal subjects of IEL and of a citizen-driven, worldwide division of labour. Section IV concludes that multilevel governance for protecting the national self-interest in international public goods must no longer be designed only as ‘foreign policy’, but rather as an ever more important part of ‘multilevel constitutionalism’ for the protection of essential citizen interests. Rather than relying on hierarchical claims (e.g. regarding national primacy of state sovereignty, international primacy of international law over domestic law), the diverse national and international legal regimes must be coordinated with due respect for ‘constitutional pluralism’, ‘deliberative democracy’, ‘balancing’ of competing rights and values, and international duties of cooperation (e.g. among national and international courts of justice). ‘Westphalian conceptions’ of international law as an instrument for advancing national interests in an anarchic world remain important for protecting ‘national public goods’ (like national security). Yet, as illustrated by the diverse forms of European law (such as EC, EU, EEA law and the ECHR), more effective protection of interdependent (inter)national public goods requires new forms of multilevel governance and of multilevel constitutional restraints limiting the ‘collective action problems’ in transforming national into international public goods (e.g. protection of common markets and the environment)