Conceptualizing the Relationship between International Human Rights Law and Private International Law

Abstract

In the domestic context, constitutional and private law regimes sit together in an uneasy posture. To reconcile them, domestic regimes tend to articulate some theoretical mechanism of interaction. For example, in the United States, the state action doctrine attempts to mediate the relationship, while in Canada and Germany, the theory of indirect horizontal effect plays an analogous role. This Note explores the possibility of a corresponding tension at the international level. At least in conceit, private international law and international human rights law regimes exist side-by-side. But they lack a clear framework governing their interaction. Drawing from work analyzing the impact of the European Convention on Human Rights (“ECHR”) on private international law, this essay identifies and evaluates two potential candidates for a mediating mechanism that could operate beyond the European context: the public policy exception and the concept of horizontal effect. Given the widely-perceived issue of rights underenforcement, a clearer specification of the relationship between international human rights law and private international law might offer broader avenues for rights realization.