Transforming United Nations and World Trade Organisation Legal Systems Through Regulatory Competition and ‘Lawfare’
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Transforming United Nations and World Trade Organisation Legal Systems Through Regulatory Competition and ‘Lawfare’
German Yearbook of International Law, Vol. 67(2024), Iss. 1 : pp. 255–290 | First published online: July 28, 2025
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Prof. Dr. Ernst Petersmann, European University Institute Florence (Italy), Law Department 50139 Florence, Italy
- Dr. Petersmann is emeritus professor for international and European law, European University Institute Florence (Italy), and former professor at the University of Geneva, its Graduate Institute of International Studies, and the University of St. Gallen. The author represented Germany in European and UN institutions and worked as legal counsel in the gatt, legal consultant for the EU, wto and unctad (1978-2025). He served as secretary, member or chairman of gatt and wto dispute settlement panels, and as chairman of the International Trade Law Committee of the International Law Association. As a visiting professor, he taught at numerous universities in the Americas, Africa, Asia, Europe, at the Hague and Xiamen Academies of International Law and the Academy of European Law at Florence.
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Abstract
Abstract: The Trump 2.0 US Presidency heralds the end of the post-1945 US-led multilateral order by prioritising neoliberal deregulation, national protectionism and power politics. Critical legal approaches, comparative international law, and legal systems theories explain why conceptions of United Nations (UN) and World Trade Organization (WTO) law as universal rules neglect the indeterminacy of many legal rules, their diverse interpretations, and practices transforming UN/WTO rules through power politics and ‘lawfare’. Section II. describes how constitutional pluralism and ‘permacrises’ drive ‘international legal policy competition’ among UN member States with conflicting conceptions of human rights, rule-of-law, State responsibility and of UN and WTO rules. Section III. explains why the post-1950 construction of a European legal order governed by multilevel democratic, republican, and cosmopolitan constitutionalism remains without equivalence outside Europe. Section IV. shows how the emerging ‘authoritarian international law’ among non-democratic countries – and business-driven, neoliberal policies undermining WTO rules and dispute settlement procedures – disrupt UN and WTO governance of the sustainable development goals (SDGs). The EU responded to the geopolitical rivalries by promoting internal and external sustainable development reforms in conformity with UN and WTO rules, for instance through free trade agreements, reforms of trade and investment adjudication, multilateral emission trading and carbon border adjustment mechanisms, internet regulation and human rights policies making access to Europe’s common market conditional on compliance with SDGs. But such ‘Brussels effects’ are contested, notably by authoritarian and neoliberal governments disregarding UN/WTO rules. Section V. concludes that regulatory conflicts and ‘lawfare’ prompt increasing invocations of security exceptions, safeguard clauses and veto powers (e. g., blocking reforms of the Bretton Woods- and WTO legal systems). Disagreements on democratic and cosmopolitan constitutionalism have not prevented protection of some SDGs through functionally limited rule-of-law systems (like multi-party interim arbitration in the WTO, judicial remedies in trade and investment agreements). Authoritarian and neoliberal ‘hard-power aggression’ challenge Europe’s ‘soft-power integration models’ (including also ‘Global Britain’). The end of the postwar era of
I. Introduction: Geopolitical and Geoeconomic Re-Ordering of Legal Systems
Table of Contents
| Section Title | Page | Action | Price |
|---|---|---|---|
| Ernst-Ulrich Petersmann\nTransforming United Nations and World Trade Organisation Legal Systems Through Regulatory Competition and ‘Lawfare’ | 255 | ||
| I. Introduction: Geopolitical and Geoeconomic Re-Ordering of Legal Systems | 256 | ||
| II. Re-Ordering International Law: Conflicting Rule-of-Law Conceptions | 262 | ||
| A. Europe’s Ordoliberal Constitutionalism Protects ‘Transnational Rule-of-Law’ | 264 | ||
| B. Constitutional Nationalism Prioritises ‘National Rule-of-Law’ | 266 | ||
| C. Authoritarian Power Monopolies Promote ‘Totalitarian Rule-by-Law’ | 269 | ||
| III. Re-Ordering International Law Through Multilevel Democratic, Republican, and Cosmopolitan Constitutionalism Beyond Europe? | 271 | ||
| IV. Transforming UN and GATT/WTO Law Through Plurilateral ‘ILP Responses’ | 273 | ||
| A. Transforming GATT Into the WTO: Lessons for UN Reforms? | 274 | ||
| B. EU Leadership for UN and WTO Sustainable Development Reforms Remains Contested | 276 | ||
| 1. Sustainable Development Chapters in EU FTAs | 276 | ||
| 2. EU Leadership for Reforming Trade and Investment Adjudication | 277 | ||
| 3. EU Leadership for Carbon Emission Trading Systems and CBAMS | 278 | ||
| 4. EU Promotion of Democratic and Human Rights Reforms | 281 | ||
| C. Constitutional Conflicts Intensify ‘Permacrises’ | 282 | ||
| V. Conclusion: Constitutional Conflicts Render Protecting Public Goods More Difficult | 285 | ||
| A. Functional Republican Constitutionalism Remains Important for Protecting SDGs | 287 | ||
| B. From ‘Lawfare’ to Warfare Caused by ‘Constitutional Failures’ | 288 |