Human rights as transnational constitutional law

Human rights are often taken to epitomize the existence of global constitutional law or, at least, of global constitutionalism. Since 1945, human rights have been protected through both domestic (constitutional) human rights law and international (universal and/or regional) human rights law, and monitored and interpreted by their corresponding domestic and international human rights institutions. This has led to well-known and extensive discussions about the dual constitutionalization of human rights and/or about the duality of constitutional law itself. This chapter takes the debate one step further and complements these dual approaches to human rights law with a more integrated conception or, in short, with a truly transnational one. Starting from what it describes as the transnational practice of human rights law and developing the best interpretation thereof, the chapter discusses what transnational human rights law both does and should amount to, and especially from where it could draw its legitimate authority. The chapter’s argument is three-pronged. The first section differentiates the notion of transnational human rights law from other conceptions of transnationality used in legal scholarship. In the second section, the chapter develops a transnational interpretation of the domestic and international regimes of human rights law that both fits and justifies their dual and complementary practice. The third section accounts for some of the central methods for determining transnational human rights law, and in particular human rights comparison and the transnational consensus it identifies. The chapter concludes with a discussion of some implications for the future practice of domestic and international human rights law.