State Sovereignty, Popular Sovereignty and Individual Sovereignty: from Constitutional Nationalism to Multilevel Constitutionalism in International Economic Law?

摘要

This paper discusses the basic constitutional problem of modern international law since the UNCharter: How can the power-oriented international legal system based on “sovereign equality ofstates” be reconciled with the universal recognition of “inalienable” human rights deriving fromrespect for human dignity and popular sovereignty? State representatives, intergovernmentalorganizations, international judges and non-governmental organizations often express differentviews on how far the universal recognition of human rights has changed the subjects, structures,general principles, interpretative methods and “object and purpose” of international law (e.g. by theemergence of erga omnes obligations and jus cogens limiting state sovereignty to renounce humanrights treaties, to refuse diplomatic protection of individuals abroad, or domestic implementation ofinternational obligations for the benefit of domestic citizens). The paper explains why effectiveprotection of human rights at home and abroad requires multilevel constitutional protection ofindividual rights as well as multilevel constitutional restraints of national, regional and worldwidegovernance powers and procedures. While all European states have accepted that the EuropeanConvention on Human Rights and EC law have evolved into international constitutional law, theprevailing paradigm for most states outside Europe remains “constitutional nationalism” rather than“multilevel constitutional pluralism.” Consequently, European proposals for reforms of internationaleconomic law often aim at “constitutional reforms” (e.g. of worldwide governance institutions)rather than only “administrative reforms”, as they are frequently favoured by non-Europeangovernments defending state sovereignty and popular sovereignty within a more power-oriented“international law among states.”