Beyond development: facing governance gaps in international economic law through constitutionalism?

This paper starts from a two-fold assumption: 1) It takes it as given that the paradigm of sustainable development and financial stability has neither been able to shape an effective method, nor an equitable answer, to balance economic, social and environmental concerns in the global playing field. 2) Therefore, echoing a growing debate in academia and civil society, it also presumes that any serious attempt to meet the aforementioned challenge requires a profound review of global governance making concessions to central tenets of cosmopolitanism and communitarianism. On this basis, it explores new interdisciplinary perspectives about international governance, taking into account traditional debates about the role that international law plays in order to cope with new necessities arising from the impact of advanced capitalism in the personal status of people around the world and the global environment. Despite the scepticism that predominates in present legal scholarship, we argue for the promotion of a global, trans-civilizational consensus on the understanding of “development” (defined in terms of ‘human development’, ‘good living’ etc.) as a global political objective, and its reconciliation with the protection of the ecological integrity as a common value and concern of humankind.
The social and technological development of the past decades has outgrown the traditional schemes of international governance, based on the Westphalian model. Even though nation-states maintain their formal status in the global political arena, social movements, markets and technologies increasingly are developing beyond. For this reason, governance gaps are multiplying. Global financial markets and climate change are two paradigmatic areas where these gaps are most visible. The sheer inability of traditional institutions to cope with new social and technological realities, and thus, the lack of transparency and accountability of the key actors in the aforementioned areas disrupt any meaningful policy that pursues the (global) common good. Taking financial markets and environmental policies as outstanding examples, this paper explores the suitability of cosmopolitan, communitarian and trans-civilizational approaches to international law as a way to tackle the aforementioned governance gaps. In this context, global constitutionalism is gaining momentum as a hermeneutic matrix to reconceptualize international law. Since the liberal revolutions of 18th century, constitutionalism has to do with two main concerns: limitation of power, and citizenship —basically built around the core idea of constitutional rights—. Globalization poses the problem anew, with significant shadowed areas where power is not clearly limited, there is no real accountability and social inequities tend to consolidate. In this setting, global constitutionalism advocates for a new order in which more open, representative and participative law-making and law-enforcing processes and institutions shape an international economic system that fosters more equitable patterns of exchange and is also more sensitive for values such as ecological integrity and human dignity. Its deliberative facet actually seems to allow the integration of counter-hegemonic claims into the collective discernment of competing notions of the common good. Yet, from a TWAIL perspective, some aspects of global constitutionalism are probably still very close to hegemonic or imperialistic narratives of international law. For this reason it is important to have an open perspective, which integrates pluralism in the constitutional framework. Defining processes of control of power and a global but plural community is the starting point for a constitutional integrative framework for global governance, addressing gaps as important as those of financial markets and ecological exchange.
From a methodological perspective, our paper elucidates interdisciplinary methods from sociology and ecological economics through notions such as global social metabolism, material flow analysis and ecologically unequal exchange as interesting tools for the reassessment the role of equity, or other more specific criteria (entitlements, capacities, needs, historical responsibilities, valuation, incommensurability, etc.), for the conceptualisation and interpretation of core principles of international law and, hence, the obligations that states assume in the conduct of international economic relations and the design of institutional models suitable to bring in other actors, such as NGO’s or indigenous peoples. At the same time, a pivotal significance is ascribed to less normative approaches (e.g. law in context) that acknowledge the legal pluralism of the global society.