An Isolated Nation with Global-Minded Citizens: Bottom-Up Transnational Constitutionalism in Taiwan

Abstract

The emergence of transnational constitutionalism, particularly regarding the convergence of international human rights and domestic constitutions, has taken place in many national or transnational jurisdictions. This paper attempts at examining whether and to what extent this trend has occurred in Taiwan. This paper finds that not much constitutional codification of international human rights laws has been undertaken in the Constitution or subsequent constitutional revisions, and that the judicial reference to international human rights laws was very moderate: 1% in holdings or majority opinions and 3.25% in separate opinions. However, this paper discerns that a stronger trend in statutory incorporation of international human rights laws has taken place in Taiwan. By examining the roles of NGOs in their respective rights advocacies, this paper finds that NGOs and citizens have played pivotal roles in mediating transnational/constitutional norms, defined as a rather distinctive model of “bottom-up transnational constitutionalism.” With their domestic/transnational natures of agency, these global-minded citizens and NGOs have built an intermediating transnational/constitutional regime where both international and domestic human rights laws meet with each other.

Keywords: Transnational Constitutionalism, International Human Rights, Transnational Judicial Dialogues, Transnational Civil Society, NGOs

JEL Classification: K40