Thomas Cottier/Maya Hertig RandallThe Prospects of 21st Century Constitutionalism

Thomas Cottier, and Maya Hertig Randall, ‘The Prospects of 21st Century Constitutionalism’ in A. Von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, Vol. 7, (2003), pp. 299-328.


The process of economic globalization and regional integration increasingly blurs traditional boundaries between domestic and international law. Practical problems of interfacing domestic and international law and the need for criteria of allocating regulatory tasks among different layers of government, as well as the position of individual and companies in international law, caused the discourse and debate on constitutionalization of international law. The paper by Thomas Cottier and Maya Hertig Randall summaries this debate and develops the image and idea of a five storey house, developing a framework by which complex problems of interaction and of different layers of government can be properly addressed. Both authors have been involved both in constitutional law, European law and international law, in particular international trade regulation at the Institute of European and International Economic Law and the World Trade Institute of the University of Bern of which Cottier is the director. Hertig subsequently was appointed to the chair of constitutional law at the University of Geneva, developing a strong interest in comparative constitutional law in the field of human rights protection.


The paper reviews the literature on constitutionalization of international law and explores implications for vertical separations and the balance of power between different layers of government. The main aim of this article is not to define whether different levels or layers of governance, national or international, have a ‘constitution’, or amount to one, and what the minimal content of the normative concept of ‘constitution’ should be. Rather, Cottier and Hertig focus on the necessary relations and functions of different and existing layers of governance, whatever their nature and quality, considered as an overall complex. Allocating powers among and between these layers, establishing adequate safeguards on different levels of governance — whether or not termed a Constitution – and defining the relationship and interaction between these layers, for example in the field of human rights protection or market access rights, is one of the main tasks constitutionalism will have to achieve in this century.


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