Global governance, sustainability and the Earth system: critical reflections on the role of global law

This article starts by questioning the capacity of the concept of sustainable development to stabilize social reproduction and foster global justice. Based on interdisciplinary perspectives on global governance, it discusses the way in which global law fails to cope with the resonance of advanced capitalism in the world society and ecological systems. In particular, our analysis focuses on the regulatory and institutional features of three interwoven functional regulatory regimes (global finance, energy and environmental protection) that demonstrate structural governance dysfunction at the expense of ecological integrity and justice in the global realm. The article further examines the capacity of global law to foster a ‘compositive’ and ‘compensatory’ contribution to global justice and the stability of the Earth System through global constitutionalism. In this context, it concludes that Neil Walker’s global law approach provides a fertile analytical framework for describing the patterns of interaction between different species of global law but proves to be particularly ‘slippery’ in its normative propositions regarding the gap between global law and justice. Drawing from the Earth System approach, we argue in favour of a global material constitutionalism recognizant of eco-systemic boundaries and socio-environmental impacts of the global socio-economic metabolism. We consider that the gap between global law and global justice is best addressed by devising more deliberative patterns of transnational governance, as well as eco-system and human rights approaches, in order to accommodate the fair and equitable internalization of material limits across global regulatory regimes that act as functionally differentiated economic constitutions of advanced capitalism.