Transnational Constitutionalism Research Articles

Transnational constitutionalism – conflicts‐law constitutionalism – economic constitutionalism: the exemplary case of the European Union

AbstractTransnational constitutionalism is both a sociological given and a legal challenge. We observe the emergence of ever more legally framed transnational arrangements with ever more power and impact. Do such arrangements deserve to be called legitimate rule in Habermasian terms? Is it at all conceivable that the proprium of law can be defended against the rise of its informal competitors? This article opts for a third way that listens to neither the siren songs on law beyond the state nor to the defences of nation‐state constitutionalism as the monopolist of legitimate rule. The proposed alternative suggests that transnational legal ordering of the European Union should build on its reconceptualization as a ‘three‐dimensional conflicts law’ with a democracy‐enhancing potential. This reconceptualization operationalizes the ‘united in diversity’ motto of the Draft Constitutional Treaty of 2004, preserves the essential accomplishments of Europe's constitutional democracies, provides for co‐operative problem solving of transnational regulatory tasks, and retains supervisory powers over national and transnational arrangements of private governance.

Смертная казнь в зеркале транснационального конституционализма

Constitutionalism has become the foundation of a globalizing world. Human rights have been recognized as a democratic value of any State. However, due to a number of reasons, the issue of the appointment and execution of the death penalty has not found an unambiguous solution in the legislation of various countries. In the Russian Federation, when the country officially withdrew from the Council of Europe, whose membership was accompanied by a demand for the non-application of this criminal punishment, disputes about the resumption of the imposition of death sentences for a number of crimes resumed. The authors of the article, based on the analysis of the provisions of international legislation, Russia's voluntarily assumed international obligations in the field of human rights, constitutional norms, legal positions and decisions of the Constitutional Court of the Russian Federation, scientific papers on the studied issues, formulate their own vision regarding the legal possibilities of resuming the use of the death penalty in the country through the prism of the values of transnational constitutionalism, international obligations of the state.

How Deteriorating Conditions in Myanmar Affect Migrant Domestic Workers in Singapore: A Transnational Analysis of Migrant Labour Regulation

The COVID-19 pandemic and 2021 military coup in Myanmar have greatly exacerbated the existing economic distress of ordinary people across the country. Yet, what has been the impact of the pandemic and the coup on Myanmar migrant workers abroad? To address this question, we investigate the situation of Myanmar migrant domestic workers (MDWs) in Singapore. We find that pandemic-related economic contraction in Myanmar and heightened insecurity following the country's 2021 military coup have increased outmigration and intensified pressures on Myanmar domestic workers in Singapore to increase remittances and set aside aspirations of shortly returning home. These origin-country conditions, mediated through a transnational system of labour brokerage, have increased Myanmar MDWs’ vulnerability to exploitation and abuse relative to MDWs of other nationalities. This article thus contributes to analysis of the transnational constitution of migrant labour regimes.

Constitutional justice as an element of the law protection function of the EU States

Traditionally, the main function of the body of constitutional jurisdiction is the function of constitutional control, but the human rights function, although not a classic one, is equally important.
 The human rights protection function of the body of constitutional jurisdiction in practice is expressed in ensuring the possibility of turning to such a body of a natural or legal person whose rights have been violated, as is usually the case in the case of using all possible means of protection.
 In this article, the experience of applying the human rights function by the bodies of constitutional jurisdiction is considered on the example of the activities of the constitutional courts of the countries of Central Europe and at the same time of the countries of the European Union - Poland, Hungary, Slovakia and the Czech Republic. This experience is valuable for Ukraine, since the constitutional crisis recently affected the Constitutional Court of Ukraine, as well as in view of the active European integration processes in Ukraine and the need for its post-war reconstruction, which is not possible without the coordinated functioning of all state authorities.
 The article examines the experience of reforming the body of constitutional jurisdiction, the legislator's view on the powers of such a body, and vivid examples from human rights practice. A conclusion was made about the formation of transnational constitutionalism by such states, similar to the principles of the European Union, the application of unified, developed principles of proportionality when assessing the balance in the conflict of two or more fundamental human rights.

Макиавеллистический момент Европы: перспективы интеграционного проекта ЕС в условиях утраты глобального политического равновесия

The European integration project, after 70 years of the successful implementation, is now facing a significant number of difficulties caused by the process of globalization. The list of these difficulties includes: (1) the incompleteness of the process of formation of the European identity; (2) the deepening contradiction between two fundamental legal principles — transnational and national constitutionalism; (3) the growing asymmetry between the European regions; (4) dramatic disputes over migration issues; (5) the ideological confrontation between liberal and illiberal democracies. This situation, exacerbated by the challenges of globalization and officially defined today as the “existential crisis” of the EU, revealed certain significant flaws in the current integration model hung between confederalism and federalism. The shortcomings, such as weakened democratic legitimacy, ineffective decision-making and the absence of clear and stable European leadership, have resulted in the growing spread of Euroscepticism and rightwing populism, as well as the erosion of Europe’s mission in the world. The increasingly obvious threat of a loss of political balance in Europe makes it important to comprehend the potential directions and scope of changes in the EU integration project, to assess the hypothetically possible legal and institutional forms of the new integration model and their political implications. The author describes the current situation as a Machiavellian moment in Europe: under the conditions when the preservation of the status quo only reinforces the contradictions within the integration project, the European elites are faced with the necessity to make a clear choice between a confederal and a federal system in order to find a new legitimizing formula for this fading project, and it should be done as soon as possible.

Industrial Infrastructure: Translocal Planning for Global Production in Ethiopia and Argentina

Current development and re-development of industrial areas cannot be adequately understood without taking into account the organisational structures and logistics of commodity production on a planetary scale. Global production networks contribute not only to the reconfiguration of urban spatial and economic structures in many places, but they also give rise to novel transnational actor constellations, thus reconfiguring planning processes. This article explores such constellations and their urban outcomes by investigating two current cases of industrial development linked with multilateral transport-infrastructure provisioning in Ethiopia and Argentina. In both cases, international partners are involved, in particular with stakeholders based in China playing significant roles. In Mekelle, Ethiopia, we focus on the establishment of a commodity hub through the implementation of new industry parks for global garment production and road and rail connections to international seaports. In the Rosario metropolitan area in Argentina, major cargo rail and port facilities are under development to expand the country’s most important ports for soybean export. By mapping the physical architectures of the industrial and infrastructure complexes and their urban contexts and tracing the translocal actor constellations involved in infrastructure provisioning and operation, we analyse the spatial impacts of the projects as well as the related implications for planning governance. The article contributes to emergent scholarship and theorisations of urban infrastructure and global production networks, as well as policy mobility and the transnational constitution of planning knowledge and practices.

Transnational Constitutional Law

This is an advanced draft of the entry on 'transnational constitutional law', forthcoming in the Max Planck Encyclopedia of Comparative Constitutional Law (OUP). Global constitutionalism derives from the fluid nature of common constitutional traditions and from the mutual interactions of global and national courts. More than ‘global constitutionalism’, we are experiencing ‘trans-constitutionalism’, which lies in the pendular movement of global constitutional institutions and national legal orders influencing one another. It is a fact that the state no longer has exclusive authority within its territory. Such public power fragmentation will diminish the impact of each national constitution. If some worry that transnational legal orders threat constitutionalism per se, others point out that the transnational constitutional process should have accompanied international law development, and therefore should have started earlier. How can we identify transnational constitutional norms within international law itself? Formal criteria are not the ones to be used, as there is no stricto sensu international constitution. Instead, a material or substantial constitution can be found dispersed in numerous international law treaties, customary law, and ius cogens norms. How to identify the constitutional density of these norms remains a challenge. Notwithstanding this, one should keep in mind that transnational regime constitutions will not reach the density of a national constitution.

Toward a European citizenship based on transnational constitutionalism and solidarity

In this text the author argues that the European Union should undertake a twofold strategy to assure its own survival against the deadly threat of ethno-nationalism. In particular, it should (1) propel a participatory procedure to constitutionalize and to transform how it views itself and (2) enhance social-welfare rights for the benefit of the immense majority of its citizens. These initiatives would inevitably have to take place over an extended period of time and against all odds. Notwithstanding, they appear to offer the Continent its only chance of overcoming its longstanding crisis and resisting its ethnic nationalist temptations.

Judicial Activism – The Last Refuge? How the European Court of Human Rights Have Addressed Challenges of Democracy and the Lack of the Separation of Powers

Central European states are posing a considerable challenge to transnational constitutionalism as they are gradually evolving into rival autocracies. What is peculiar about these states is that they are transforming the institutions of representative democracy and jurisdiction in order to serve the interests of the raw power of the majority. Furthermore, it might prove to be extremely complicated to articulate the lack of legitimation by means of public institutions since these states have undermined the principle of the separation of powers. These competitive autocracies (Hungary and Poland) are related to European and international institutions in a particular way therefore the raw power of the majority is counterbalanced by these European and international institutions. However, neither their legitimation is strong enough, nor do these institutions have the necessary legal means to safeguard the basic rights of suppressed minorities in these nation states and to act as a counterbalance to the majority. Consequently, it might be an appropriate response to this major challenge if international institutions begin to redefine their scope of action. In my talk I would like to discuss selected decisions made by the European Court of Human Rights in cases such as Baka v. Hungary and Karacsony and Others v. Hungary. In this context I will argue that in cases related to judicial independency or the rights and grievances of the Hungarian opposition MPs the Court of Human Rights tried to respond to serious violations of the separation of powers by speaking out for a wide concept of the freedom of expression. What are the arguments for and against such judicial practices? Can judicial activism be a response to the democratic challenges of nation states?

Back into the political? Rethinking judicial, legal, and transnational constitutionalism

Abstract This article provides a critical reflection on constitutional developments around the world since 1989, and finds that the world of global constitutionalism has primarily embodied judicial, legal and transnational constitutionalism with court-centric, legal-texted, and elite-focused features. An overemphasis of constitutions as legal texts and courts as exclusive constitutional guardians has led to the domination of legal and judicial elites in constitutional and political spheres, and such an unequal playing field between legal and political actors has inevitably triggered the recent rise and resurgence of populism and neo-authoritarianism. This article argues that rather than purely legal or political, the nature of constitutions and constitutionalism presents an intricate set of intersecting law and politics, and that it is time now for constitutional law scholars to pay attention to political foundations of constitutionalism with further democratic revivals and better civic engagements.

Are we looking up or are we looking out? The transnational constitutionalism of the Inter-American Court of Human Rights: conventionality control and the fight against impunity

ABSTRACTContemporary processes of regionalisation of fundamental human rights protection beg the question: are we looking up? Or are we looking out? This paper argues, via the case study of the revolutionary jurisprudence of the Inter-American Court of Human Rights, that we are looking beyond the traditional elements of constitutional analysis, which are inseparable from the idea of sovereign State. The development of a sort of ‘constitutional spirit’ of the Inter-American Court is fundamentally due to the extremely difficult socio-political Latin-American context. This article aims to analyse two main examples of the ‘constitutional spirit’ of the Court of San José: its decisions regarding member states’ amnesty laws, through which the Court enters into the delicate debate on democratic transition in Latin America and transitional justice, and its control of conventionality, which highlights the ‘either-way’ process of constitutional law internationalisation and international law constitutionalisation.

On misunderstanding states: The transnational constitution in the national constitution

This article outlines a theory of statehood which rejects the commonplace notion, strongly influenced by Carl Schmitt, that sovereign statehood is in a process of decline, owing largely to the growing power of international norm setters. It argues that this view results from a simplified construction of statehood, which misinterprets both the historical and the functional formation of state institutions. As an alternative, it explains how modern society is marked by a dramatic growth in the power of states, and that most contemporary states possess greater effective sovereignty than their historical predecessors. It argues that, paradoxically, the rising sovereignty of states is attributable to factors that are usually seen as restricting the power of states; in particular, national states factually presuppose international norms for their effective exercise of sovereign power.

Referencing International Human Rights Law In Indonesian Constitutional Adjudication

The power of the Indonesian Constitutional Court to review laws is a constitutional adjudication process. It is a forum to resolve constitutional issues where a citizen can challenge Law that has injured his rights. The Court's reasoning provides audiences with the debates for its deliberation. Audiences may find reference to the international human rights law. It is an interesting practice. However, there is no studies yet about the information on the statistic of the Court made reference to international human rights law. As such, this study aims to identify reference to international human rights law in the Court's decision on judicial review cases from 2003 to 2016. Additionally, this study also aims to answer the question of what underlies the Court to made reference to international human rights law. As many studies show, the objective of Constitutional Court's references to the international human rights law is to strengthen constitutional rights protection. Nonetheless, the Court did not pay any interests to the global agenda of transnational constitutionalism or a convergence of rights and legal pluralism. The article is divided into 5 (five) sections, commencing with the introduction. The second part discusses the status of international human rights law in Indonesia. As the third presents information on Court's decision which cited international human rights law. Then, the fourth presents typical function of the decision that made reference to international human rights law. It concluded that the practice of referring to international law demonstrates the open attitude of Indonesian constitutional justices to the universal nature of fundamental rights.

The Transnational Constitution of Europe's Social Market Economies: A Question of Constitutional Imbalances?

AbstractThroughout its history the European integration process has not undermined but rather strengthened the autonomy of member states vis‐à‐vis wider societal interests in relation to political economy, labour markets and social provisions. Both the ‘golden age nation state’ of the 1960s as well as the considerable transformations of member state political economies over the past decades, and especially after the euro‐crisis, was to a considerable degree orchestrated through transnational, most notably European, arrangements. In both cases the primary objective has been to strengthen state capacities of public power and law against the encroachment of private interests into the state. In spite of this continuity, considerable changes can be observed in the substantial economic policies advanced due to the switch from a Keynesian to a monetarist economic paradigm. It is suggested that the debate on constitutional imbalances between the EU's economic and social constitutions should be seen in this light.

Global Law Before the State? On Canon Law as a Transnational Regime

According to Harold Berman, modern Western law is based on the establishment of canon law in the eleventh and twelfth centuries. By this account, the original role‐model for our modern concept of law is already transnational, and the idea of law being a characteristic instrument of nation‐states is only a subsequent event. The article discusses this thesis and scrutinizes its relevance for current attempts to develop a concept of transnational law and transnational constitutionalism. In doing so, it also raises a critical question: if our modern concepts of law are based on canon law, is it possible that some main characteristics still reflect this origin? Could it be that a certain ‘motif of the unity of the constitution’ – a motif which, according to Gunther Teubner, underlies all kinds of societal constitutionalism, even those insisting on social pluralism – is a hidden legacy of canon law? And if so, what might be the alternative?

The Olympic Charter: A Transnational Constitution Without a State?

This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Chris Thornhill, A Sociology of Transnational Constitutions: Social Foundations of the Post‐National Legal Structure. Cambridge: Cambridge University Press, 2017, 520 pp, hb £69.99.

Chris Thornhill, A Sociology of Transnational Constitutions: Social Foundations of the Post‐National Legal Structure. Cambridge: Cambridge University Press, 2017, 520 pp, hb £69.99.

Transnational Networked Constitutionalism

The emergence and increasing importance of private transnational legal structures in global governance presents a puzzle for legal theory. These new forms of transnational law (TL) can be found in diverse areas, ranging from trade‐related issues, to corporate responsibility, human and labour rights, and environmental protection. Transnational constitutionalists have argued that this phenomenon has a constitutional quality. The challenge of transnational constitutionalism lies in developing an institutional model that explains how constitutionally embedded legal authority can arise independently of the institutional structures of state‐based public law. We propose a new theoretical framework for thinking about non‐statist legal authority, which we term ‘networked constitutionalism'. We conceptualize transnational legal authority as an emergent, network‐based phenomenon and elaborate the institutional conditions that undergird its emergence. We illustrate our thesis through a network analysis of a large sample of corporate social responsibility codes.

Transnational Networked Constitutionalism

The emergence and increasing importance of private transnational legal structures in global governance presents a puzzle for legal theory. These new forms of transnational law (TL) can be found in diverse areas, ranging from trade-related issues, to corporate responsibility, human and labor rights, and environmental protection. Transnational constitutionalists, have argued that this phenomenon has a constitutional quality. The challenge of transnational constitutionalism lies in developing an institutional model that explains how constitutionally embedded legal authority can arise independently of the institutional structures of state-based public law. In this paper we propose a new theoretical framework for thinking about non-statist legal authority, which we term “networked constitutionalism”. We conceptualize transnational legal authority as an emergent, network-based phenomenon and elaborate the institutional conditions that undergird its emergence. We illustrate our thesis through a network analysis of a large sample of corporate social responsibility codes.

Quod Omnes Tangit: Transnational Constitutions Without Democracy?

Critics of global constitutionalism rightly point to a democratic deficit of transnational regimes. They base their critique on a time‐honoured principle of democracy: the identity of authors and affected people is the universal core of democracy. However, in its long winding history, the democratic principle had always been recontextualized. Such a recontextualization of democracy which requires generalization as well as respecification is needed again today under the conditions of transnationalization. As for generalization, the article's main thesis is: political representation, the traditional concept of democracy for the nation state, is replaced by self‐contestation, which needs to be firmly institutionalized in transnational regimes. As for respecification, the main thesis is: self‐contestation cannot be established in a one‐size‐fits‐all approach, but in multiple variations that reflect the extreme epistemic diversity among issue‐specific transnational regimes. The constitutional principle of ‘epistemic subsidiarity’ may open new perspectives for developing different procedures of self‐contestation for different regimes.