New publication: Ziegler Andreas R., Zhao Xinyan, Global Constitutionalism as a Method in International Economic Law (2021) pp. 417-436 in: Deplano Rossana, Tsagourias Nicholas (eds.), Research Methods in International Law: A Handbook, Edward Elgar Publishing. [URN][serval:BIB_E58C824FF3EC]
This chapter emphasizes two points with respect to constitutionalism as a method
in IEL: First of all, constitutionalism is an important method in IEL given it has
significantly contributed to the regulation of international trade and investment in the
last 75 years. Its contribution to the institutionalization of IEL and the compliance
with its rules remain necessary for promoting the prosperity of international trade
and investment and thereby contributing to increased welfare of humanity as a whole
when the basic principles of sustainable development are respected.
Secondly, despite the current problems as to the implementation of constitutional
ideas in IEL, constitutionalism as a method for developing IEL remains attractive.
On the one hand, the current debates per se can be seen as the result of a huge development of IEL inspired by constitutionalism (judicialization, transparency, precise
foreseeable rules, dispute settlement, etc.). On the other hand, constitutionalism will
be an indispensable method for reforming IEL in a manner that supports the UN’s
good global governance in the long term. From a functional approach, the methods
and objectives of constitutionalism allow for undertaking a series of missions aiming
at good global governance. Those missions include the realization of the UN’s sustainable development goals (2015), such as the fight against climate change. Given
those missions lie at the heart of the good global governance, and that international
economic governmental organizations are important actors of those missions, constitutionalism will still be needed as a method – also in IEL.
Therefore, constitutionalism as a method in IEL is neither omnipotent nor
useless. It may be that as of today for many governments the terms ‘constitutionalism’ or ‘constitutionalization’ remain taboo when it comes to global politics and
decision-making while they are willing to accept (at least) certain of its elements
without calling them constitutional in nature. After all, political tensions (and academic controversies) always lead to new situations which results in both challenges
and opportunities. Once the current backdrop against multilateralism in general and
the WTO in particular becomes less strong, the role of constitutionalism as a method
for developing IEL may be more important and fruitful.