Interpersonal Human Rights

Our increasingly globalized environment, typified by the significant role of transnational interactions, raises urgent concerns about the commission of grave transnational wrongs. Two main legal strategies— belonging, respectively, to public and private international law— offer important directions for addressing these urgent concerns. One strategy extends state obligations under human rights law to some non-state actors; the other adapts traditional private international law doctrines, notably its public policy exception. Both strategies make important advances, yet both face significant difficulties, which are all fundamentally rooted in what we call “the missing link of privity”— namely, identifying the reason for imposing the burden of plaintiffs’ vertical rights on putative defendants.

In this Article, we argue that the moral underpinnings of private law provide the relational key to this missing link. We claim that private law’s normative DNA is premised on a profound commitment to reciprocal respect to self-determination and substantive equality. Because this commitment is the jus gentium of our private laws, it can and should be understood as a manifestation of our interpersonal human rights, which should function both as a premise for criticizing domestic rules and as the foundation of aggrieved parties’ standing vis-a-vis those who wronged them.