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State Sovereignty, Popular Sovereignty and Individual Sovereignty: from Constitutional Nationalism to Multilevel Constitutionalism in International Economic Law?
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1725-6739
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EUI LAW; 2006/45
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PETERSMANN, Ernst-Ulrich, State Sovereignty, Popular Sovereignty and Individual Sovereignty: from Constitutional Nationalism to Multilevel Constitutionalism in International Economic Law?, EUI LAW, 2006/45 - https://hdl.handle.net/1814/6446
Abstract
This paper discusses the basic constitutional problem of modern international law since the UN
Charter: How can the power-oriented international legal system based on “sovereign equality of
states” be reconciled with the universal recognition of “inalienable” human rights deriving from
respect for human dignity and popular sovereignty? State representatives, intergovernmental
organizations, international judges and non-governmental organizations often express different
views 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 the
emergence of erga omnes obligations and jus cogens limiting state sovereignty to renounce human
rights treaties, to refuse diplomatic protection of individuals abroad, or domestic implementation of
international obligations for the benefit of domestic citizens). The paper explains why effective
protection of human rights at home and abroad requires multilevel constitutional protection of
individual rights as well as multilevel constitutional restraints of national, regional and worldwide
governance powers and procedures. While all European states have accepted that the European
Convention on Human Rights and EC law have evolved into international constitutional law, the
prevailing paradigm for most states outside Europe remains “constitutional nationalism” rather than
“multilevel constitutional pluralism.” Consequently, European proposals for reforms of international
economic law often aim at “constitutional reforms” (e.g. of worldwide governance institutions)
rather than only “administrative reforms”, as they are frequently favoured by non-European
governments defending state sovereignty and popular sovereignty within a more power-oriented
“international law among states.”