Constitutional pluralism, regulatory competition and transnational governance failures

Abstract

All UN member states use constitutionalism for protecting national public goods. The current human disasters – like wars of aggression, suppression of human and democratic rights, global health pandemics, climate change, ocean pollution and biodiversity losses, disregard for rule-of-law – reflect transnational governance failures and ‘constitutional failures’ (Section 1) to comply with UN and WTO law and the ‘sustainable development goals’ (SDGs). Europe’s multilevel constitutionalism succeeded in progressively limiting such transnational governance failures; but it has no equivalent outside Europe (Section 2). Geopolitical power politics and nationalism prompted China, Russia and the USA to resist ‘constitutional politics’ in UN/WTO governance and ‘environmental constitutionalism’ (Section 3). Constitutionally unbound ‘totalitarian states’ (like China and Russia) and business-driven, neo-liberal interest group politics (notably in the USA) disrupt the rules-based world trading system (Section 4). The less UN member states follow the example of European Union law to constrain foreign policies by constitutional principles like human rights and rule-of-law, 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) in order to ‘de-risk’ global interdependencies, promote regulatory competition, create ‘democratic alliances’ containing executive power politics, and protect the SDGs through private-public partnerships supported by citizens (5).