In the face of contemporary challenges – global warming, ecological degradation, warfare, gross violations of human rights, increasing inequality, poverty and migration – conventional wisdom mostly tends to blame the weaknesses of international law. The legal mind still operates under the distinction of domestic and international law; the legal quality of the later is often questioned in light of the usual absence of effective international policing powers and law enforcement. There is no shortage of international law providing guidance and aspirations, ranging from general principles of law, human rights, sdgs and principles of non-discrimination and transparency. But, so it is said, the well-known weaknesses of international law and institutions explain the frequent absence of effective transnational public goods.
The present volume challenges such conventional wisdom. In fact, many of these transnational problems are rather caused by the tradition of introverted national constitutions and political systems than by international law. National constitutions are shaped to, and operate in, the pursuit of domestic interests in foreign affairs. Thus, they often are unable to contribute and produce global public goods addressing common concerns of humankind. Instead, sovereignty in defence of national interests, of western democracy, or of authoritarian rule, prevails with a purely national and territorial focus. They often do not allow international law to apply. Free-riding and beggar-your-neighbour policies result, to the detriment of others and global welfare.
Editors and authors of this volume identify and analyse dysfunctional governance as a result of introverted constitutional law and the lack of appropriate interaction with international law, civil society and the private sector. The volume offers a broad framework of transnational constitutionalism beyond the nation state, bringing all components together while recognising and struggling with the fact of largely diverse values and political systems. True, the project was inspired, and is informed, by the unique experience of European integration. Yet, it does not purport to simply extrapolate the latter to global governance. While conceptually European, and based on ordo-liberal philosophy represented by the editors, authors from all continents with different backgrounds contribute to produce evidence of a fascinating variety and plurality of different regulatory traditions and approaches. These case studies are at the heart of the volume. Importantly, they are not limited to intergovernmental relations, but include all actors and contribute to the advent of transnational law. They take stock in different fields, not limited to trade and investment, the core areas of international economic law. They show strength
Many of the conclusions drawn, and proposals made, insist on enhanced communication and interaction between different actors and different regulatory fields. They show that domestic and foreign affairs no longer can be separated. They show that domestic constitutions need to respect and enforce international law. They need to develop tools, unilaterally contributing to global public goods, thus overcoming traditional perspectives of national and territorial self-interest. Carrot and sticks are indispensable tools of transnational constitutionalism. The contributions show that transnational markets are not a given, but are constituted in law. Foremost, they imply the necessity of a strong and undivided rule of law, no longer adhering to the Austinian divide of domestic and international law. And such a rule of law must be anchored within domestic constitutional law, irrespective of the great spectrum of different political systems. Only countries making this commitment form part of effective transnational constitutionalism.
The contributions are mainly written with great powers in mind. But they are of equal, and perhaps greater, importance to small and middle-sized countries, dependent upon a rule-based international order and devoid of power politics. Switzerland, perhaps, is a case in point, upon which transnational constitutionalism and vertical checks and balances in the daily life of law can build. The country has a long and proud tradition friendly to international law, a monist doctrine, granting citizens the right to invoke international law. Recognising the respect of international law in the Federal Constitution as a means to protect minorities in direct democracy, constitutional review of Swiss federal legislations is essentially based upon the European Convention for the Protection of Human rights, and not the Federal Constitution itself which limits, from a federalist perspective, constitutional review to the laws of Cantons. The Convention thus is an integral part of the domestic constitutional system. Populist initiatives to reverse this achievement were voted down by the Swiss with strong majorities. Swiss people rely upon transnational constitutionalism. There is no fundamental divide in the rule of law. The model can also inspire the rule of law in international economic relations where courts of law, including in the EU, have been more reluctant, taking recourse to political questions doctrine and to powers of parliaments. Existing weaknesses can be addressed taking recourse to transnational constitutionalism. The volume will assist the implied transition of domestic constitutional law within an overarching framework. It offers a most valuable contribution to the doctrine of multi-level governance.
Berne, August 2023
Thomas Cottier