Human rights as transnational constitutional law

Abstract

The dual constitutionality of human rights, when they are protected through both domestic constitutional and international law, is a well-established dimension of the contemporary practice of human rights. Instead of exploring, as others have done before, how domestic constitutional law has been internationalized by international human rights law, on the one hand, or how international law has been constitutionalized through human rights law, on the other, this chapter addresses domestic and international human rights law together in an integrated fashion. This is what it refers to as transnational human rights law. The transnationality of human rights law corresponds to the complementary processes through which domestic and international human rights laws are made and specified, and hence mutually validated and legitimated. After some clarifications of the concept of transnationality in law in general and in human rights law in particular, the chapter justifies the transnationality of human rights law on democratic and epistemic grounds, before drawing implications for its determination methods, that is, human rights comparison and the transnational human rights consensus it thereby identifies.