Regulatory competition and plurilateral policy responses in a world without effective global legal restraints

Abstract

Modern international law evolved by responding to wars and related governance failures through multilateral treaties and institutions for governing public goods (PGs). The current human disasters – like illegal wars of aggression, violent suppression of human and democratic rights, global health pandemics, climate change, ocean pollution, overfishing and other biodiversity losses, non-compliance with UN and WTO law and dispute settlement systems – reflect multiple governance failures and ‘constitutional failures’ (section I) to protect human and democratic rights and the UN/WTO ‘sustainable development goals’ (SDGs). Since 1950, Europe’s multilevel constitutionalism succeeded in progressively limiting transnational governance failures; yet, it is not followed outside Europe (section II). Geopolitical power politics and nationalism prompted China, Russia and the USA to resist constitutional reforms of UN/WTO governance and ‘environmental constitutionalism’ (section III). Constitutionally unbound ‘totalitarian states’ (like China and Russia) and Anglo-Saxon neo-liberal interest group politics (notably in the USA) disrupt the rules-based world trading system (section IV). Even though the SDGs are of existential importance for citizens all over the world, most citizens and democratic institutions outside the EU fail to adjust their constitutional contracts to obvious transnational governance failures. The more globalization is perceived as creating vulnerabilities justifying national security restrictions (e.g. against spread of viruses, weaponization of interdependence), the more important become plurilateral second-best responses like trade, investment and environmental agreements conditioning market access on respect for human rights and greenhouse gas reductions (section V). Global health, environmental and rule-of-law reforms depend on private-public partnerships with civil societies, business and epistemic communities supporting public health, climate change mitigation and other SDGs. Such ‘multi-stakeholder strategies’ can become more effective by extending democratic constitutionalism to transnational ‘aggregate PGs’. The diverse Asian, European and North-American approaches to governing transnational ‘aggregate PGs’ - as illustrated by the EU’s environmental constitutionalism and ‘EU climate law’ of June 2021 compared with the protectionist, economic and environmental rules and trade discrimination in the 2022 US Inflation Reduction Act of August 2022, and by the refusal of China and India to phase out coal-generated electricity by 2050 – illustrate regulatory competition endangering the SDGs. Can regional leadership, plurilateral reforms and transnational networks of science-based cooperation serve as substitutes for UN and WTO governance failures to protect the SDGs in a multipolar world without hegemonic protection of global PGs?