Klaus Dieter Wolf

The non-existence of private self-regulation in the transnational sphere and its implications for the responsibility to procure legitimacy: The case of the lex sportiva

This article is a critical examination of the claim that the emergence of private self-regulatory regimes in the transnational sphere signals a new trend of self-constitutionalization outside the limits of nation-state based or intergovernmental control. It deals with the question to what extent the diffusion of public authority in the sphere beyond the state affects the responsibility of the state(s) to procure the legitimacy of such private self-regulation. First, a conceptual argument is developed which identifies private self-regulatory regimes as rule systems nested in a specific constitutional order of the international society, here described as ‘neo-Westphalian’ (Section I). Second, implications for the responsibility to procure the legitimacy of collectively binding regulatory functions performed by private actors in the sphere beyond the state are considered (Section II). Often cited as a model example of autonomous societal self-regulation, the lex sportiva renders particularly strong plausibility for the claimed non-existence of purely private self-regulation. The regulation of performance-enhancing substances can serve to demonstrate the complex interactions between multiple public and private sites of constitutional authority (Section III). In conclusion (Section IV), I argue that, although the ultimate responsibility for providing legitimacy continues to lie with the state/world of states, the political order of the international society as construed in neo-Westphalian terms provides a dispersed and fragmented constitutional-style legal framework with few reliable guarantees that states are capable or willing to enact their background role. Therefore, a substantial part of the burden of – initial – legitimation must be carried by those directly involved in private self-regulation by constituting and exercising public authority.

Health Before Patents: Challenging the Primacy of Intellectual Property Rights

This chapter examines the conflict between international patent protection and the right to health. A successful campaign was waged by emerging nations and their civil society allies against the rules governing the protection of intellectual property as defined by the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Following this confrontation, a change of the TRIPS regime was agreed at the World Trade Organization’s 2001 Ministerial Conference in Doha. Since then, world trade rules have accorded the right to health precedence over the right to intellectual property. The human immunodeficiency virus crisis, the mobilising potential of non-governmental organisations, and rising powers such as India and Brazil as well as a new normative discourse, not least in the West, contributed to this change in global health politics.