Indiana Journal of Global Legal Studies 11.1 (2004) 31-55
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Problems and Prospects of Allocating Public Authority Beyond the State
Introduction: The Background
Today it is widely accepted that the international system is undergoing rather dramatic changes—changes that have a strong impact on the status and role of the state as the once-sole political entity vested with the power to exercise sovereign public authority ( Hoheitsgewalt ).1 This unique status of the state, characteristic of the so-called classical period of the international system, began to be modified in the era of the international organization of states that gradually overlaid the classical international system in the late nineteenth and twentieth centuries. State independence increasingly gave way to interdependence and institutionalized cooperation.2 Interestingly though, the growth in the number of universal and regional international organizations during the first half of the twentieth century was not seen as beginning a process of federalizing the international system. Under the influence of state sovereignty—the leading paradigm of the classical period—federalism was not a matter of international [End Page 31] concern, either in state practice or among international lawyers.3 We shall have to come back to this later.
Particularly after World War II, the picture began to change. The recognition of international organizations as derivative, limited subjects of international law was established.4 With their increasing expertise in dealing with matters related to the "production of public goods" in practically all fields of political, economic, social, and cultural life, a process of diversification of the entities exercising public authority began—although still on a very limited scale— but with some inkling of federalization.5 At the regional level, however, the founding of supranational organizations introduced a new quality in the diversification of entities exercising public authority. Around the European Communities, and in our days the European Union, an intense debate was and still is under way regarding the nature of supranational organizations.6 However, with the process of globalization, the diversification of entities exercising public authority has reached another dimension: Under the impact of globalization, [End Page 32] understood as a process of denationalization ( Entstaatlichung ),7 not only has the "production of public goods" been shifted to international and supranational non-state actors, but non-governmental organizations (NGOs) have also become heavily involved in meeting various global challenges regarding the protection of human rights, the environment, and international security, i.e. in the provision of "public goods."8 And, last but not least, transnational regulatory [End Page 33] regimes must be mentioned for their role in coping with the many global challenges we face in our time.9
The present paper will therefore concentrate on the question whether the growing diversity of actors involved in the "production of public goods," and the ensuing pluralism of institutions and actors on different levels beyond the state, can be structured and to some extent constitutionalized in a legal framework of a transnational federalism. Part I will address the diversification of actors exercising public authority or participating in its exercise. Part II will first analyze the concept of federalism, specifically whether it can be transferred to the transnational realm, and if so, whether and how the concept needs to be reconceptualized. This Part will then describe and critically review some model approaches, and will attempt to outline a concept of transnational federalism that is not state-centered and is thus more adequate to cope with the emerging pluralism of centers exercising public authority than traditional concepts of federalism.
I. The Diversification of Actors Exercising Public Authority or Participating in its Exercise and the Allocation of Public Authority
As a first step, our analysis has to establish whether and to what extent the various actors mentioned exercise public authority or participate in its exercise. This analysis also requires a short explanation of what is meant by the notion of public authority. Let us begin with the latter.
According to traditional doctrine, public authority ( Hoheitsgewalt ) is solely vested in states. Public authority in this...