Introduction

In this chapter I interrogate the relationship between the legal and institutional frameworks of economic globalization associated with the concept of ‘new constitutionalism’ (e.g. the liberalization of trade and capital movements) and their impact on ecological principles. There is a constant tension between new constitutionalism of disciplinary neo-liberalism and the ethical, normative principles of environmental law. My analysis implies the necessity for a new global environmental law to protect our common future, to overcome major environmental and human crises. This new legal order must be based on cosmopolitan ethical principles, respect for human rights, justice and equity; it should supervene over the national interests and sovereignty concerns of individual states in order to protect the global commons; and finally it should follow transparent, democratic, participatory institutional frameworks. In this proposed order, previously excluded groups that are victims of adverse effects of climate change and other environmental degradation must be included in decision-making mechanisms. Global environmental law should provide an ethical foundation and permit action on behalf of the whole of humanity rather than powerful, hegemonic states, international organizations and the interests of multinational corporations. International environmental law in the 1970s brought innovative principles, such as the precautionary principle, the concept of common but differentiated responsibility, of intergenerational justice, of limited sovereignty and of sustainable development, and in so doing, extended the horizons of traditional international law. However, by internalizing these principles, states are experiencing competing regulatory options. These options involve the protection of the environment, but they also require the safeguarding of free enterprise principles. Such principles aim to protect the free movement of international capital and investment, to remove protectionism, and, to a greater or lesser extent, to limit social and environmental services that were previously the responsibility of state or local governments. These principles provide easy access to resources for foreign capital and limit governmental powers, shifting regulation to the private sector and promoting pro-market reforms.