(European) Multilevel Constitutionalism to Govern Transnational Public Goods? A Reply to Petersmann

Abstract

In the Article hereby commented, Ernst-Ulrich Petersmann further elaborates on his will-known thesis on the constitutionalisation of UN law and WTO law. Petersmann argues, first, that the EU provides a successful example in the governance of transnational public goods; secondly, that such success story is essentially due to the EU’s basic institutional arrangements, characterised as ‘mulitilevel constitutionalism’. Petersmann thus submits that die EU’s multilevel constitutionalism provides a viable template for the international community at large, and that the UN and die WTO should further proceed down the path of ‘hard’ constitutionalisation following the EU’s example. This Reply takes issue with the second of the Article’s assumptions. It thus argues that the notion of multilevel constitutionalism does not provide a descriptively accurate account of the structure of the European legal space. Rather, it is submitted, the literature on constitutional pluralism captures more adequately the reality of competing claims to final authority in structuring the relationship between national and supranational legal system in the context of the EU. Against this background, Petersmann’s claim the the ‘European model’ ought to be transposed to the globel stage can be nuanced. Rather than aiming at enforcing normative hierarchies through effective dispute resolution mechanisms, the ‘constitional’ value of (quasi-)universal fora such as the UN and the WTO can thus lie in the potential to provide a common ‘grammar’ to discursively structure the dialogue between competing normative views on globel affairs along lines of mutual intelligibility.