This is a guest post by Prof. Ernst Ulrich Petersmann, European University Institute (Florence)
Professor Charnovitz is among the few international lawyers who have carefully studied the history - and past governance failures - of international economic law, labor law, environmental and health law in order to elaborate proposals for improving multilevel governance of global public goods. In his contribution to the IEL and Policy Blog of 10 May 2020, he has explained four convincing proposals for strengthening ‘international pandemic law’ (IPaL) beyond the existing law of the WHO. Will his appeals to ‘public reason’ and to multilevel civil society support induce the more than 190 WHO member governments to put his reform proposals into legal practice?
In the 1940s, US leadership for the 1944 Bretton Woods Agreements, the UN Charter and the Universal Declaration of Human Rights (UDHR) enabled revolutionary reforms of ‘international economic law’, ‘human rights law’ and of international institutional law for multilevel governance of public goods. Yet, even though the ‘Constitutions’ (sic) establishing the WHO, FAO, ILO and UNESCO justified their functionally separate governance regimes in terms of human rights (e.g. to health protection, food, decent work, education), the cold war and neo-liberal nationalism prompted US governments to progressively abandon US leadership for global public goods. The hegemonic nationalism of the Trump administration renders US leadership for reforming global health governance based on the ‘Charnovitz principles’ unlikely.
My 2017 book on Multilevel Constitutionalism for Multilevel Governance of Public Goods used the example of multilevel European constitutional law constraining the EU’s multilevel governance of public goods for explaining why the ‘Charnovitz principles’ can also be interpreted as ‘constitutional principles’ that have become progressively recognized in the historical struggles for human rights law, democratic constitutionalism and decolonization since the ‘democratic revolutions’ of the 18th century. Modern public goods research and theories of justice support ‘constitutional justifications’ of the ‘Charnovitz principles’. For instance:
The ‘first Charnovitz principle’ (global emergencies require global responses based on principles of subsidiarity and ‘hard core international law rules’ supplemented by ‘soft law principles’) seems to apply the human rights principle that – in times of emergencies – the ‘inviolable core’ of human rights must be protected even if over other human rights dimensions may need to be mutually ‘balanced’ and restricted in view of the scarcity of resources (e.g. in national health systems). The Covid-19 health pandemic adversely affects most civil, political, economic, social and cultural rights protected in UN human rights law; multilevel health governance must respect the diversity of national ‘balancing decisions’.
Charnovitz’ institutional reform proposals reflect the constitutional insight that the effectiveness of constitutional and human rights depends on their progressive ‘institutionalization’ and protection (e.g. through democratic, administrative, judicial and civil society institutions). Neither the WHO ‘Constitution’ (sic) nor its recognition of human rights (e.g. to health protection), its supra-national adoption of ‘international health regulations’, and its rules-based health governance monitoring national health policies seem to be effectively embedded into the domestic constitutional, health protection, legal and political systems in most WHO member states.
The third ‘Charnovitz proposal’ reflects the fact that the interdependent nature of ‘overlapping public goods’ (like the world trading, public health, food security, political and legal security systems) remains insufficiently protected in the fragmented, international treaty systems. The recent joint Declarations issued by the Heads of the WTO, WHO and the IMF – for instance, on avoiding trade restrictions for medical supplies and food – need to be transformed into ‘hard law’ securing institutionalized ‘emergency supplies’ so as to avoid protectionist, national emergency responses.
The fourth ‘Charnovitz proposal’ reflects the multilevel, ‘constitutional bottom-up approaches’ underlying human rights, labor and environmental law and institutions: Even if ‘aggregate public goods’ like health protection are constructed bottom-up as national public goods prioritizing rights of citizens and ‘democratic balancing’ of competing public goods at national levels of governance, global emergencies require more coherent, complementary responses from international public goods regimes that must protect the universally recognized, interdependent and indivisible nature of the adversely affected civil, political, economic, social and cultural human rights. Citizens remain democratically responsible for the fact that the economic and human rights crises created by Covid-19 governance now threaten many more people than those infected by Covid-19!
Can constitutional and ‘social contract approaches’ to reforms of multilevel governance strengthen political support for the ‘Charnovitz principles’? They have enabled multilevel constitutional restraints of EU governance through multilevel European constitutional law and EU foreign policy initiatives for reforming global governance (e.g. through the EU’s New Green Deal of December 2019, the EU’s leadership for multilateral appellate arbitration based on Article 25 DSU pending the US assault on the WTO Appellate Body); but they remain resisted by the constitutional nationalism prevailing in most UN member states outside Europe.
Yet, the ‘Charnovitz principles’ for reforming ‘IPaL’ offer a broader policy insight: Protection of most global public goods can become effective only if embedded in multilevel ‘emergency response systems’ based on mutually coherent ‘constitutional principles’ constraining multilevel governance. Every UN member state depends on UN/WTO multilevel governance of transnational public goods in order to enhance national welfare and security (e.g. against global health, environmental, political and legal threats). Fortunately, even China participates in the EU’s ‘multilateral interim appellate arbitration’ in order to protect the global public good of WTO third-party adjudication of trade disputes. The less US nationalism (‘America first’) recognizes global public goods (like WHO law, UN human rights law, WTO third party adjudication), the less US responses may be capable of protecting public goods for the benefit of US citizens (as illustrated by the exceptionally high Covid-19 case fatality rates and social inequality inside the USA). Can this obvious need for multilevel constitutional reforms be made an election issue in the 2020 US presidential elections? Do James Bacchus’ proposals for civil society support by the ‘willing word’ of multilevel environmental governance indicate a realistic, democratic ‘reform strategy’?
