Neoliberalism, state-capitalism and European Ordo-liberalism : why power politics and ‘constitutional failures’ undermine economic law and human rights

Abstract

This chapter describes the moral and psychological ‘dilemmas’ of politicians, legal practitioners (like WTO lawyers, investment arbitrators) and businesses, driven all too often by self-interested utility maximization rather than by ‘inclusive, public reason’ accepting moral responsibility for reconciling all public and private interests on the basis of mutually agreed ‘principles of justice’ and human rights. It further illustrates these dilemmas by the US Trump administration’s neo-liberal, business-driven assault on UN and WTO law. It argues that power-politics and interest-group-politics underlying both neo-liberal and state-capitalist regulatory approaches undermine protection of human rights in IEL. It further describes the pragmatic ‘judicial common law approaches’ in WTO jurisprudence and investment adjudication, which focus on governmental rights to protect PGs (like public health, indigenous peoples’ rights, public morality, public order) and on agreed ‘constitutional principles of justice’ rather than on human rights. It concludes that Europe’s multilevel constitutionalism has better succeeded in ‘constitutionalizing’ common market law, the European Union’s (EU) external relations law and economic adjudication by protecting civil, political, economic and social rights within a ‘social market economy’ (article 3 of the Treaty on European Union [TEU]) embedded into ‘multilevel democratic constitutionalism’ and multilevel human rights law and adjudication.