i Rights, litigation and inner-legal constitution making

The shift to an auto-constituent inclusionary structure in the political system is reflected in some of the quite simple processes of constitutionalization outlined in Chapter 2 – namely in the fact that, after 1945, interactions between courts began to assume constitution-making force. After this time, the rising interlocution between courts meant that, by the 1950s, courts had begun, tentatively, to construct a separate judicial community, gradually linking judicial bodies located at different junctures in the global political system. As a result, eventually, courts were able to produce authority for legislation on inner-systemic normative grounds without reference to external acts or agreements. The fact that, increasingly, all courts slowly acknowledged an international diction of human rights meant that judicial norms rulings could easily be passed across jurisdictional borders, and norms established by courts often became binding on other courts or on legislatures, beyond national boundaries. Of course, the interaction between national and international courts has not always been without friction, and there are innumerable cases of deep conflict between national and extra-national courts.Footnote ²² Nonetheless, in principle, the overlapping of international and national jurisdictions has meant that many basic laws are produced not by political actors or decisions but by inner-juridical communications, and courts now articulate constitutional norms for other actors at a high degree of inner autonomy. At different levels of global society, therefore, courts have been able to extract from human rights a self-authorizing constitution for themselves, and for other bodies. Although formally repositories of constituted power, courts now routinely produce constitutional norms, within which, with other institutions, they exercise legislative authority. Courts thus often act as constituent and constituted power at the same time.

Such inner-legal construction of constitutional law is visible in many spheres of inter-judicial interaction. Most obviously, international courts often produce norms with national impact, and international courts have repeatedly established rulings to produce, or at least deeply to influence, national constitutional laws.Footnote ²³ Cases of this kind are most prominent in states operating within clearly supra-national jurisdictions, such as in the states party to the ECHR or the ACHR, where supranational rulings have at times triggered immediate processes of constitutional revision. An obvious example of this is Dudgeon v UK (1981), brought before the ECtHR. Following this case, which challenged laws prohibiting homosexual acts in Northern Ireland, the constitutional position of Northern Ireland in the British constitution was revised. A further case is Smith and Grady v UK (1999), brought before the ECtHR. In this case, discrimination against homosexuals in the British military was declared a violation of Art 8 ECHR, and the remedies available for such violations in the UK were deemed to contravene Art 13 ECHR. This led to a revision of the core principles of judicial review in the UK, and it significantly altered the constitutional standing and competences of the judicial branch. Many examples of constitutional reform caused by international court rulings are found in Latin America. One key instance occurred following the 2001 case in the IACtHR, La última tentación de Cristo v Chile, in which the Chilean government changed the national constitution in response to an IACtHR ruling on censorship laws. More broadly, in 2011, the Mexican government introduced a raft of constitutional amendments, giving greater protection to human rights, as a result of judicial recommendations for constitutional revision in cases brought against Mexico in the IACtHR.Footnote ²⁴

At a national level, however, the constituent role of courts is often observed in less immediate fashion, as national courts apply general international principles to reconstruct the basic laws of their polities. As discussed, the Colombian constitution has assumed its distinctive characteristics through the evolution of the doctrine of the block of constitutionality, through which judges and advocates, clearly acting as a secondary constituent power, have used international law and the case law of the IACtHR to elevate core norms in the constitution. In some cases in Colombia, judges have even defined international soft law as part of the constitutional block.Footnote ²⁵ Less formalized cases of such processes are found in Chile, into whose domestic legal order the Pinochet cases in London triggered a deep influx of international norms. In Urrutia Villa v Ruiz Bunger (2009), symbolically, the Chilean Supreme Court declared that there could be no statute of limitations for domestic contraventions of international jus cogens. In Vergara Toledo v Ambler Hinojosa (2010), as mentioned, the Supreme Court overruled the principle of res judicata for some cases heard during Pinochet's dictatorship. Although the Chilean courts generally recognize international treaties as having rank below domestic constitutional law, moreover, the Constitutional Court has ruled that international norms pertain to the highest laws of state and can be used to judge the constitutionality of domestic norms.Footnote ²⁶ In one case, despite the notional primacy of the national legislature, the Constitutional Court assumed the power to adapt the content of legislation, as it accused the parliament of taking too long to align domestic laws to international treaties.Footnote ²⁷ In these cases, the Chilean higher courts invoked international norms to redefine, in clearly fundamental ways, the normative order of society as a whole. Arguably, in fact, the courts re-defined the constituent power, and they began to interpret a constitution based, not in the will factually constituted in the late 1970s, but in the construction of current Chilean society evidenced through subsequent regime changes and elections, and interpreted by judges themselves.

Equally far-reaching examples are found in New Zealand, a polity notionally committed to Westminster-style parliamentarism.Footnote ²⁸ In New Zealand, it was ruled in Tavita v Minister of Immigration (1993) that international human rights treaties should be considered by administrative officials, regardless of the standing of these treaties in domestic law (see Waters Reference Waters2007a: 471, 478). In Hemmes v Young (2004), later, the Court of Appeal used human rights treaties as a basis for the constructive reinterpretation and updating of existing, seemingly antiquated, statutes, so that international law became a source of constituent norms in domestic society (Waters Reference Waters2007b: 663). Even societies that are relatively closed to international human rights law, such as the USA, have seen comparable cases. In Lawrence et al v Texas (2003), the Supreme Court determined, partly through reference to the case law of the ECtHR, that state-level prohibition of consensual homosexual acts in private spaces was not constitutional, thus defining new constitutional principles regarding both rights of sexual freedom and the limits of federalism. In this case, the Supreme Court used reference to principles in the ECHR to overturn a previous judgment, Bowers v Hardwick (1986), so negating stare decisis and effectively declaring primary law.

Similarly, in the UK, legal cases concerning questions of human rights law have provoked deep changes in constitutional principle, and they have contributed, constitutively, to the rise of a distinct body of constitutional rights. Ultimately, of course, a set of appealable, semi-constitutional rights was formalized by parliament in the Human Rights Act (HRA) in 1998. Before this, however, legal cases with implications for human rights had already assumed clear constitution-making significance. In the 1970s, senior judges began to show responsiveness to the diction of formal rights, and, through the 1980s, and then more fully by the 1990s, judges consciously established human rights as elevated constitutional norms in UK public law. They did this, first, by asserting principles of common law as de facto fundamental rights, imposing normative constraints on governmental power.Footnote ²⁹ At the same time, however, in the 1970s and 1980s judges ascribed heightened importance to ECHR norms.Footnote ³⁰ Ultimately, in the years prior to 1998, the courts began to assimilate international human rights norms in domestic law, and to flesh out an autonomous body of human rights law, combining rights-based common law and rights derived from the ECHR. Initially, human rights were mainly cemented in the sphere of administrative litigation, notably in cases concerning use of discretionary powers, and the doctrine was developed that administrative acts affecting fundamental rights must be subject to more exacting standards of judicial control (see Hunt Reference Hunt1997: 220, 290, 292).Footnote ³¹ By 1995, in fact, the courts had assimilated ECHR principles to dictate general norms for the use of public authority, and they had established the principle that all public bodies were subject to particularly strict constitutional constraints where fundamental rights were implicated.Footnote ³²

In these acts, though, the courts in the UK, as in other common-law jurisdictions, shaped a system of public law which, although it was underpinned neither by a formal constitution nor by a formal catalogue of rights, acknowledged the existence of constitutional rights, which the legislature had only limited, exceptional, authority to overrule.Footnote ³³ It became common ground in English law that, whatever their constitutional position, legislators were only permitted to act in breach of human rights norms in cases of very pressing need, and only in express terms: the will of parliament was increasingly seen as a will intrinsically proportioned to rights.Footnote ³⁴ This then opened the ground for the courts to declare that the UK polity contains an implicit hierarchy of statutes, in which some laws have constitutional standing and are relatively entrenched against repeal, and even to restrict time-honoured assumptions regarding the sovereignty of parliament.Footnote ³⁵ Indeed, in Simms (1999), one judge went as far as to suggest that the UK courts had acquired powers to assess the constitutionality of statutes not far removed from those exercised in polities with a codified constitution.Footnote ³⁶ After the introduction of the HRA, this transformative logic was reinforced, and human rights cases provided further occasions for judges to solidify the normative order of the state. By this stage, judges were able to assert that the public-legal order of UK was located at an ‘intermediate stage between parliamentary supremacy and constitutional supremacy’, thus imputing some degree of spontaneous constituent authority to human rights norms.Footnote ³⁷ Moreover, the force of human rights was applied not only to check new legislation for conformity with rights but to read new meanings into older legislation, and to align older laws to standards derived from rights.Footnote ³⁸ This reflected the deep constitutional principle that all laws endorsed by the elected legislature should, under normal circumstances, be compatible with international human rights law. In each case, acts of judicial interpretation clearly moved close to acts of constituent power.

Inner-legal construction of constitutional law is also visible in the fact that national courts are now able to direct the constitutional law of other national polities, and the cross-national migration of judicial principles has expansive impact on public law in different societies.Footnote ³⁹ Furthermore, in some, albeit infrequent, cases, national courts have been able to pass rulings that create, or at the very least reinforce, international law, such that national courts become formative of norms with constitutional force at an international level, binding on many states. This can occur in a number of different ways. Sometimes, this simply occurs as national courts clarify interpretation of international norms for other national courts (see Nollkaemper Reference Nollkaemper2012: 10). However, this also occurs in extra-territorial proceedings, in which national courts establish principles of liability, within their own societies, for state institutions, persons and corporations under international law. The ruling of the US circuit court in Filártiga v. Peña-Irala (1980) is one classical example of this. In this case, international human rights law was used to promote, as part of American law, a system for facilitating the indictment of individual persons, and then other organizations, for human rights violations committed outside the USA.Footnote ⁴⁰ To some degree, the ability of courts to make international law is also evident in decisions, such as Kadi (2008) in the ECJ,Footnote ⁴¹ and related decisions in national courts,Footnote ⁴² which have ruled that acts and decisions in the international domain can be subject to national constitutional jurisdiction. Very notable in this regard is the judgment of the UK Supreme Court in Ahmed and others v HM Treasury (2010). In this case, the court overruled, as ultra vires, domestic measures to enforce UN anti-terrorism directives, on the grounds that they were applied without authority under a parent statute and without allowing proper access to courts for affected parties, as stipulated by the ECHR. In this decision, the Supreme Court balanced rival international norms, and it used its own powers to reverse the usual and accepted hierarchy in the relation between the UN and the ECHR, effectively defining international constitutional law.Footnote ⁴³

The most striking examples of national courts creating international law, however, appear in cases regarding immunity of states and immunity of heads of state. This can be seen in some of the rulings handed down by the UK House of Lords (1998–99) regarding Pinochet's claim to immunity as a former head of state. In these cases, the UN Torture Convention, which, unusually, confers jurisdiction on domestic courts, was interpreted as an instrument to limit the immunity of former heads of state for breaches of international law defined as jus cogens.Footnote ⁴⁴ In Ferrini v Germany (2004), rather differently, the Italian Court of Cassation applied Arts 10 and 24 of the Italian Constitution, providing for domestic protection of human rights, to hold that Germany could not claim sovereign immunity for damages relating to crimes perpetrated during World War II.Footnote ⁴⁵ Eventually, in 2012, these rulings of the Italian court were overturned by the ICJ, which claimed that Germany was immune from civil jurisdiction in Italy. However, in 2014, the Italian Constitutional Court struck down legislation in Italy to give effect to the ICJ's rulings on state immunity, seeking to nullify the ICJ judgments as unconstitutional in Italian law and effectively claiming higher authority to define jus cogens.Footnote ⁴⁶.

In these examples, it is observable that legal norms claiming higher-order standing are now often generated inner- or inter-judicially: within the law. In particular, cases relating to human rights law increasingly touch on intersections between national law and international law, and courts hearing these cases can easily produce rulings that initiate changes in the structure of constitutional law, both nationally and transnationally, and that re-define basic principles of government. Notable in such cases, above all, is the fact that the powers traditionally allotted to constituent actors can now be assumed, in certain circumstances, by new constituent subjects. In this respect, courts routinely move close to the exercise of constituent power. However, subjects acting as litigants also assume a similar position. Indeed, it is an increasingly prominent phenomenon that single litigants raise legal claims in a form that circumvents conventional legislative and constitution-making procedures, and rights defined under international law can be activated, through litigation, as a source of de facto constituent power, able, in different settings, to create laws of near-constitutional rank (Ochoa Reference Ochoa2007: 181).

This is not an entirely new legal development. Throughout the history of national constitutional law, there are a number of cases in which purely domestic rights-related litigation has created new laws, often with partly constitutional standing, and litigation over rights has even been able to establish new, de facto constitutional rights. As a classical example of this, in the USA, rights regarding free exercise of sexual preference were originally formalized as extensions to the right of privacy, which itself lacked strict constitutional foundation and was first articulated through judicial expansion of other rights.Footnote ⁴⁷ The right to privacy was first identified as a constitutional right by the Supreme Court in Griswold v Connecticut in 1965, where it was constructed as implicit in, or rather as a precondition for, rights grouped under the First Amendment. The right to privacy then became the basis, in Roe v Wade, for rights regarding reproductive choices (Mann Reference Mann1992: 87, 89). Ultimately, this right was extended in the District Court case, Ben-Shalom v Secretary of the Army (1980), to consolidate employment rights for homosexuals. As an alternative example, the evolution of the right of personality (Persönlichkeitsrecht) in the post-1949 FRG has had similar results. Through this concept, the courts of the FRG interpreted existing rights in the Grundgesetz to create a sequence of new rights, concerning the inviolability of the individual private sphere. This concept was established in a ruling of the highest civil court in 1954.Footnote ⁴⁸ But it was eventually elaborated by the Constitutional Court to prescribe rights of privacy against media intrusion,Footnote ⁴⁹ and ultimately to determine rights concerning access to private information, including information held in electronic media.Footnote ⁵⁰ The theory of personality rights has been extended still further in some Latin American countries, where it produced rights of identity, rights of access to genetic dataFootnote ⁵¹ and even rights to enjoyment of soft narcotics.Footnote ⁵² Rights-related litigation, therefore, has a long-standing tradition of creating new rights, at a high degree of inner-legal autonomy. Despite such precedents, however, the transnational interlocking of judicial norms means that litigation is now a primary source of constitutional norms, and litigation often contains elements of constituent power.

At one level, the constituent power of litigation is visible in national societies. To some degree, in fact, all acts of litigation which link domestic law to international law have a constituent element, and litigants in such cases commonly act as constituent subjects in this role. In some cases, however, the constituent force of litigation is especially pronounced. For example, the exercise of national constituent power through litigation is striking in collective rights-based legal mobilization, in which international human rights norms are asserted within domestic jurisdictions. In such cases, international human rights norms, themselves weakly enforced, are often given emphasis in national constitutional law by political organizations, which are able to articulate their domestic prerogatives around pre-established principles of international human rights law (Simmons Reference Simmons2009: 199). Examples of this during the longer political transformations in Latin America, Eastern Europe and North Africa have been discussed above.Footnote ⁵³ In such instances, collective associations, for example advocacy networks or social movements, have often been able to use national courts to galvanize specific interests around rights claims, and so to construct publicly effective, even constitutional, norms by attaching ground-level claims to internationally recognized principles.Footnote ⁵⁴ In some cases, in fact, courts and advocacy networks have worked together to revise existing legal structures.Footnote ⁵⁵ As discussed, moreover, in some transitional societies, especially those with fragile state institutions, litigation is specifically encouraged as a semi-constituent practice, which binds different parts of society into a direct constitutionally formative relation to the political system.Footnote ⁵⁶ The recent rise of public-interest litigation in many societies is especially exemplary of this. In many societies, sitting governments consciously simplify and facilitate public interest litigation. As discussed, this is partly due to the fact that such litigation eliminates local counterweights to the central government, and it adds uniformity to the law's reach across society. At the same time, however, public interest litigation enables multiple subjects to participate in shaping primary laws, and, in many cases of public interest litigation, international law is commonly asserted as a means to expand the public-law obligations of national states.Footnote ⁵⁷

However, the constituent role of litigation is most visible not in national states but at the level of transnational norm construction. Rights-oriented litigation assumes a particularly intense constituent force for exchanges extending beyond clearly delineated national jurisdictions. In these settings, litigation has begun to produce a defining constitutional grammar for society, and the regulatory structure of global society in its extra-national dimensions is increasingly formed by subjects acting as litigants.

Important examples of this are found in cases of extra-territorial litigation, relating to international tort cases. In the USA, for instance, recent decades have seen a number of cases brought under the Alien Tort Statute, in which individual litigants have sought remedies under tort law for violations of human rights law committed outside the USA, and federal courts have adapted international law to furnish rights for private litigants. Early cases heard under the Alien Tort Statute were filed against individuals acting for governments; state action or closeness to government authority was originally a precondition for liability in such claims.Footnote ⁵⁸ However, liability under the Alien Tort Statute was also imputed to individuals in cases, such as Kadic v Karadzic (1995), concerning acts of political figures not necessarily acting under colour of law. Increasingly, in fact, it was recognized that the Alien Tort Statute created a legal framework in which extra-territorial liability could also be imputed to private bodies, and it was used for proceedings against a range of organizations, including multi-national corporations. To be sure, the Alien Tort Statute is not the strongest foundation for constituting the obligations of transnational economic actors. Notably, most early cases brought against larger organizations, especially corporations, were settled or dismissed on preliminary motions. In Sosa v Alvarez-Machain (2004), an important basis for subsequent litigation, the Supreme Court stated that the bar to private extra-territorial litigation was to be set high. Moreover, in Kiobel v Royal Dutch Petroleum (2013), the Supreme Court decided that the Alien Tort Statute did not contain a presumption of extra-territoriality, thus overruling lower-court precedents, in which the statute had been used to exercise extra-territorial jurisdiction. Nonetheless, by 2012, about sixty cases against corporate defendants had been brought under the Alien Tort Statute (Stephens Reference Stephens2014: 1518). Examples of such cases are cases brought against Texaco for acts in Ecuador, against Coca-Cola for acts in Colombia, against Unocal for acts – including complicity in promoting use of forced labour – in Burma, and against ExxonMobil for acts in Indonesia. In some of these cases, corporations complicit in governmental violations of international law have been designated as de facto public bodies, or as public bodies by proximity, and corporations have been assigned liability for breaches of international human rights law on that basis. In some cases, notably Unocal (2002), this has meant that corporations operating under governments guilty of gross violations of international law have been subject to proceedings where it could be shown that they had knowledge of these violations or in some way derived benefit from them.Footnote ⁵⁹

Overall, the Alien Tort Statute acquired a complex constituent role in constitutional structure building. On one hand, it was utilized, without very obvious constitutional mandate, to harden constitutional rights within the domestic politics of American society, where it provided an important opening for the introduction of international human rights law into American jurisprudence. Following a series of Alien Tort cases, notably, 1992 saw the passing of the Torture Victim Protection Act, designed to grant individual US citizens and non-nationals the right to sue an individual for torture committed outside the USA, thus establishing a cause of action for extreme human rights violations in cases in which the Alien Tort Statute could not be used (Stephens Reference Stephens2014: 1488–9). On the other hand, the Alien Tort Statute transposed human rights norms from American society, where their authority was limited, into extra-territorial settings, where they were flagrantly denied. Applied to corporations, most notably, this statute subjected private bodies to international law, and it conferred a distinct legal personality, with attendant duties, on economic organizations. Single acts of litigation thus acquired a double constituent standing, and they imposed de facto constitutional norms on a range of different societies, and on a range of different actors, without clear extra-legal mandate. Extra-territorial litigation has also assumed semi-constituent authority in UK courts, notably in Lubbe v Cape (2000). In these cases, litigation has quite broadly assumed powerful transnational constituent force.

As a result of such cases, litigation over human rights is now emerging as the premise for a multi-dimensional transnational normative structure, which reaches into spheres of social interaction previously outside the domain of national constitutional law. At the centre of this is an expansion of legal personality, through which many actors in different locations are bound by laws with higher normative force. In the growth of transnational litigation, notably, legal personality has been increasingly constructed through reference to human rights, and relevance for human rights norms is established as a principle for attributing legal personality to a given organization. In particular, this indicates that firms and corporate bodies are constitutionally bound not to violate the rights of singular actors, especially outside their home jurisdiction, and they can be subject to international or extra-territorial proceedings in cases of such violation. To be sure, this is a highly disputed field, and it is widely and justifiably argued that originally private subjects, such as corporations, whose activities impact extensively on large populations in multiple settings, are still very weakly accountable under law (Stephens Reference Stephens2002: 48; Kanalan Reference Kanalan2015: 214–15). Nonetheless, in different ways, the centring of global order around singular rights has – however tentatively – begun to produce a normative diction, which brings even non-classical subjects under the sway of transnational constitutional obligations. In this respect, rights-based litigation has clearly acquired a constituent role, and rights expressed through litigation project high-ranking norms, able to traverse previously separate jurisdictions. In particular, such litigation has constructed a normative order which, however tentatively, applies like obligations to public bodies (states and agencies) and to private bodies (corporations).

Rights-based litigation has also begun to perform a constituent role in the regulation of modes of social exchange that are intrinsically and irreducibly transnational, which cannot be subject to public-legal order in any one national society. As, diversely, Moritz Renner (Reference Renner2011: 171), Lars Viellechner (Reference Viellechner2013: 263) and Ibrahim Kanalan (Reference Kanalan2015: 277) have explained, one example of this is internet regulation, in which informal codes, applied by dispute settlement bodies, are utilized as the basis for regulating conflicts over internet space. In some examples, international administrative panels have deployed international human rights law to construct law for the internet, thus consolidating basic human rights as transnational norms between private parties.Footnote ⁶⁰ In other examples, litigants have brought cases to national courts regarding interests affected by actions in the internet, perpetrated by actors situated extra-territorially, and national courts have referred to international rights treaties to authorize jurisdiction and judgment. This is exemplified by the Australian High Court ruling in Dow Jones & Co v Gutnick (2002), in which human rights agreements were considered as instruments for providing a common standard for transnational disputes regarding the potentially defamatory content of internet sites. Self-evidently, this is still a tentatively emergent area of legal practice. However, in such examples, private litigation seems likely to generate a normative order for extra-national interactions, which have to date been weakly regulated by particular states. The possibility that single acts of litigation will produce constitutional norms for the internet is high, and, in such spheres, litigation often stands in for more classical patterns of constituent agency as a source of binding norm formation.

Across a range of settings, therefore, litigation is increasingly a potential source of constitutional formation, and even a source of constituent power, providing a basic legal structure for society as a whole. The activation of constituent power through litigation mainly occurs through the transplantation of international norms into domestic settings. But it also occurs through the constructive transformation of international norms to regulate transnational phenomena. In each respect, global society increasingly authorizes legislation on autonomous inclusionary foundations, and it gives validity to legal acts, reaching improbably across functions and territories, on highly constructed, inner-legal foundations. In each respect, laws concerning emergent phenomena are primarily distilled from provisions regarding human rights, and the inclusionary structure to support such laws is spontaneously produced within a stratum of transnational rights. In such cases, human rights make it possible for a society to produce political authority for decisions as it is confronted with new, precarious objects for regulation, where reliance on classical sources of public-legal validity is improbable. Transnational rights thus assume a key constitutional role as sources of inclusionary structure for society's political functions.

ii Proportionality

The emergence of an auto-constituent inclusionary structure in contemporary society can also be identified in the recent global rise of proportionality as a basis for legal ruling, norm setting and public supervision. Evidently, proportionality is a principle of jurisprudence which judges use to resolve legal disputes in which there occurs a conflict between two rights claims or two rival interests, and especially in which there occurs a conflict between the rights claim of a single person and a state act or state interest (Harbo Reference Harbo2010: 158). In such cases, proportionality is used to adjudicate whether an individual state action that encroaches on legally protected rights is substantially justified by some proportionately valuable benefit that arises from this action, and, as they use this standard, it allows courts constitutionally to measure and determine the legitimacy of public acts, typically in the executive branch. As a result, proportionality alters the classical separation of powers in favour of courts, and it permits courts substantively to evaluate the content of laws and administrative decisions, and effectively to project constitutional objectives for other departments of government. In applying proportionality, courts flexibly apply rights as shadow legislators, using rights-based criteria to measure the adequacy of single government acts to their particular purpose, and conferring legitimacy on these acts as they take effect, and as their implications become clear, through society as a whole.

Moreover, proportionality is closely linked to the rise of international human rights law, and to the broadening penetration of international norms more generally. In most cases, proportionality became widespread in domestic law as national states were integrated in a supranational legal order, and it has commonly been used to assess acts of national institutions in relation to international instruments. Accordingly, most major international human rights instruments contain provisions, or at least make allowance, for use of proportionality in application of international norms, and they permit national institutions to limit, or even derogate from, supranational norms where a proportionately valuable benefit is obtained. This is exemplified, in particular, by Arts 8–11 ECHR. In applying proportionality, therefore, national courts usually engage in dialogue, either implicit or express, with other courts, both national and supranational, and they produce norms, partly with legislative or even constitutional effect, as part of a transnational conversation about the interpretation and enforcement of transnational rights obligations (Cohen-Eliya and Porat Reference Cohen2013: 135). In this respect, proportionality promotes a constant alignment of national jurisprudence to transnational judicial norms, and it adjusts the acts of national political bodies to norms underlying the global legal system in its entirety. The use of proportionality means that internationally declared rights are consolidated as constantly co-implied elements of the transnational legislative landscape, and all public acts, at all societal levels, are placed, by courts, in a constitutive relation to transnational rights. This originally became prominent in national societies, whose openness to international law was a point of symbolic legitimational commitment, such as post-1949 West Germany. This became most emphatic in the Canadian case, Slaight communications incv. Davidson (1989), where the Supreme Court implied that use of proportionality should be used to harden the standing of international human rights law in domestic law. However, proportionality also brought an influx of international norms in jurisdictions, such as the UK,Footnote ⁶¹ that were historically closed to international law and hostile to proportionality. This is also the case in societies, such as Russia, in which judicial independence from executive institutions was historically curtailed.Footnote ⁶²

The auto-constituent force of proportionality is most clearly visible within the political systems of national societies. Where a national state absorbs proportionality as a principle for ruling on the legality of public acts, the political system is subject to particularly intense constitutional organization. Where proportionality is applied, each act of government is constitutionally controlled by transnational norms, and judicial actors actively constitute domestic law as part of a transnational constitution. Insofar as they assess the proportionality of laws and administrative acts, moreover, judges acquire a vital sociological function as agents that observe and normatively assess the impact of public acts through society, and they assess the constitutional acceptability of laws, not only as they are passed but as they penetrate different spheres of social life. Leading figures in the judicial system thus impose a deep constitutional grammar on the national political system, and they ensure that transnational norms (human rights) reach deep into national society, shaping legislation at all stages of its societal application. In this respect, judges, interpreting transnational rights norms, form a mobile constituent power in the state, projecting inner-legal norms to cover, recursively, all political functions, at all societal levels.

The constitutional role of proportionality is usually evident in the fact that it elevates the position of already constituted rights in the political system. For instance, in the path-breaking Canadian case, R v Oakes (1982), the Supreme Court placed a strict three-step proportionality test on legislative interference with personal rights, ultimately finding Canadian narcotics legislation unconstitutional on proportionality grounds.Footnote ⁶³ The court interpreted the commitment to a free and democratic society in the Charter of Rights and Freedoms in the Constitution Act (1982) as a basic norm for checking public regulation and for restricting legislative power. In this case, the Canadian judiciary was able to apply proportionality to define foundational norms for the entire polity, tying the legitimacy of law to a simple rights-based test, to which all public acts could be subject.

In parallel to such cases, however, proportionality at times assumes quite genuine constituent force, creating entirely new rights for a particular polity, and it establishes a fundamentally new structure for the political system. In the UK, for example, the increasing use of proportionality, intensifying classical patterns of judicial review, has been instrumental in re-defining the historically accepted system of political constitutionalism. Until the 1990s, it was openly (although not unanimously) declared that proportionality was likely to upset the classical relation among parliament, executive and judiciary in the UK, and it could have no place in English law.Footnote ⁶⁴ Since then, however, proportionality has been integral to the gradual formation of a constitution in the UK, in which certain primary laws (rights) are hardened against the will of parliamentary majorities, and human rights are defined as binding norms to accompany all public acts, from the high executive down to local planning bodies.Footnote ⁶⁵ In the UK, most notably, proportionality became a strong normative foundation for the courts’ powers of judicial review, which had traditionally been exercised, to a large extent, as simple common-law powers. Significant impetus for the recognition of proportionality was provided by the ECtHR, in Smith and Grady v UK (1999), stating that the accepted criterion of reasonableness used for review of public acts in the UK was not an effective remedy under Art 13 ECHR, as it did not allow judges to raise substantial questions about public administration. The ECtHR thus came close to prescribing proportionality as a necessary constitutional norm for the UK.Footnote ⁶⁶ In consequence, in Alconbury (2001), it was argued in the House of Lords that access to review on grounds of proportionality was a distinctive precondition for the legitimacy of public functions.Footnote ⁶⁷ Ultimately, although the authority of proportionality reasoning remained contested, the presumption grew in UK public law that judges had a duty to apply proportionality to public acts with implications for human rights. This meant, in effect, that judges were bound by a ‘requirement of proportionality’ in cases in which important rights were affected.Footnote ⁶⁸ Proportionality thus assumed clearly constituent force within the political system, and it moved the entire political system towards a judicial-constitutional model, in which the right to rights-based judicial control of public acts became a primary pillar of law's authority (see Cane Reference Cane2011: 99). Indeed, UK judges openly ascribed to themselves the duty to make a ‘sociological assessment’ of the impact of administrative acts and to ensure accordance of such acts with higher rights norms.Footnote ⁶⁹

This auto-constituent force of proportionality is visible, second, in national societies more widely. In many respects, proportionality imposes a deep, self-constituent order on society as a whole. Where a legal system is centred on proportionality principles, society as a whole becomes subject to human rights adjudication, and rights provide a pervasive normative diction in which social phenomena are legally constructed and regulated. One reason for this is simply that private acts are subject to deeper constitutional control, and their impact is more fully evaluated, often against standards of public interest.Footnote ⁷⁰ Most importantly, however, where proportionality becomes a powerful legal principle, the volume of interactions in society subject to constitutional law expands, and, often, interactions across all society, including those between private parties and private organizations, are subject to a constitutional grammar. As a result, the regulatory power of the political system reaches more deeply into society, and rights provide a constitutional structure in which phenomena in many parts of society are subject to direct political inclusion.

Famous examples of this are the landmark rulings regarding the third-party effect of human rights in the West German Constitutional Court, in which spheres of exchange classically pertaining to private law were subject to constitutional norms.Footnote ⁷¹ The growth of proportionality was reflected, among other cases, in the public-law case, the Apotheken-Urteil (1958), which dictated that restrictions of professional freedom were bound by principles of proportionality. Footnote ⁷² In the same year, however, the court decided in Lüth that all cases with implications for basic rights were subject to constitutional jurisprudence, and the court could apply proportionality to such cases. In the FRG, ultimately, proportionality was widely extended to cover interactions located formally in the sphere of private law, and it established the norm that all legally regulated relations were defined by an obligation to recognize higher-order basic rights. Proportionality thus imprinted a deeply pervasive constitutional grammar on society as a whole.

Similar, de facto constituent applications of proportionality are evident in other states. One striking example is Chile, where judges have used proportionality, quite creatively, to impose higher norms across all parts of society. In Contra Corbalán Castilla y otros (2013), the Supreme Court ruled that all persons exercising public functions are bound by international human rights treaties, and, for proportionality reasons, civil law is also subject to international law wherever it raises questions with human rights implications.Footnote ⁷³ In 2010, the Constitutional Court ruled that in some matters with implications for public welfare, notably health-care provision, private contracts have a public-legal status, and they are regulated by principles of constitutional law.Footnote ⁷⁴ Accordingly, alterations to contracts between notionally private parties in such areas are subject to principles of proportionality. In essence, arguably, such cases mean that proportionality considerations have been used to transform cases heard under civil law into cases with constitutional dimensions, and proportionality extracts some social exchanges from private law and places them in the domain of public law. Indeed, in Chile, where many service providers were privatized under Pinochet's dictatorship, proportionality has clearly been applied to regulate private bodies, to offset the general primacy of private law and to impose a rights-based constitution on exchanges removed from state control through privatization. Similar cases have become evident in Russia, notably in reference to insurance companies; this also promotes the judicial re-constitutionalization of a recently privatized society.Footnote ⁷⁵ In each example, proportionality spontaneously imposes a deep constitutional structure on society, and it draws society more consistently into a national system of constitutional inclusion, ordered under principles of public law.

As an extension of this, in many cases, proportionality has also gained importance in relation to emergent regulatory fields, and it often projects an inclusionary structure in which legal phenomena can be regulated, which are not easily controlled through existing patterns of public law. Historically, legal systems began to utilize proportionality as a measure of validity for public acts under circumstances in which public authority was undergoing rapid expansion, where government was required to penetrate more intensely and diffusely into a given society and where the inclusionary burdens directed towards administrative agencies increased accordingly. Typically, this occurred where new regulatory functions were accorded to the political system, and where the political system was forced to encounter single social agents in an increasingly broad range of social settings.Footnote ⁷⁶ In such cases, the principle of proportionality enabled the political system to promote simple, flexible criteria to check and control its functions. This meant that, even where it penetrated new societal terrains, the political system could project a normative code to explain and control its societal interactions and to adapt to new demands for regulation (see Sullivan and Frase Reference Sullivan and Frase2008: 3).

In contemporary society, this original function of proportionality is often reproduced, as proportionality is now commonly applied in settings where the political system is expected to generate legislation for complex, contingent phenomena, typically those with a transnational dimension. In such contexts, proportionality constructs authority for legal acts in uncertain regulatory domains, where there is a lack of systemic experience and authority in law making. One obvious example of this is contemporary employment law. In this field, proportionality provides a normative framework in which new social phenomena, such as the use of the internet at work and resultant questions of privacy and intrusion, can be reliably regulated (see Oliver Reference Oliver2002: 351). Similar examples are observable in disputes regarding intellectual property. In both national and supranational courts, proportionality is applied to regulate disputes over the blocking of internet sites by connectivity providers, which violates copyright and intellectual property laws. In such cases, verdicts have been reached through balancing of considerations regarding freedom of information and concerns regarding protection of intellectual property (see Savola Reference Savola2014: 128).Footnote ⁷⁷ Similar cases are also found in disputes regarding data protection. In such cases, rights of privacy and rights of freedom of information have been balanced through proportionality to define a basic constitutional grammar for internet regulation.Footnote ⁷⁸ Indeed, in such examples, proportionality has meant that private internet regulators (access providers) are subject to constitutional norms, and it performs constitutional functions for the internet qua transnational function system. Generally, therefore, proportionality translates new social phenomena into an authoritative constitutional coding. It allows the political system (both national and global) to expand its reach into society, often in normatively insecure transnational domains, without reliance on express political decisions. In each respect, proportionality spontaneously creates an underlying structure for the political system, and it greatly simplifies otherwise precarious acts of legal inclusion.

In these different ways, proportionality can be seen as a mode of norm production, in which human rights serve, at a high level of inner-legal abstraction, to construct an inner-legal inclusionary structure for the political exchanges of society. At first glance, of course, the spread of proportionality might appear to restrict the decision-making autonomy of the political system. Indeed, proportionality is often seen as reinforcing general defensive rights against political encroachment (Rivers Reference Rivers2006: 176; Kumm Reference Kumm2006: 349). To an increasing degree, however, proportionality expands the basic authority and penetration of the political system through society, both nationally and globally. Indeed, proportionality imprints a deep structure of political inclusion on all society. Through proportionality, overall, society's political system obtains an internal perspective through which it can observe itself and construct an internal standard to calibrate its reactions to new regulatory demands, thus projecting an inner form to orient its actions and authorize extensions of its inclusionary functions. In addition, the rise of proportionality imposes a constitutional order on phenomena at different locations across society, both public and private, and the fact that these phenomena are perceived in terms of their intrinsic relevance for rights means that they can be rapidly subject to authoritative regulation. Both in public and in private law, proportionality acts as a medium for society's internal constitutional formation, and it allows society as a whole to presuppose an internal formal rationality, through which it can support complex acts of regulation and legislation, even where the political system is exposed to very unpredictable exchanges. Through proportionality, in effect, principles of public law are imprinted on all social phenomena, and all social phenomena, constructed as having relevance for rights, can be subject to easily extensible legal regulation, on authoritative foundations. As in other cases, this allows the political system (both nationally and globally) recursively to constitutionalize itself, as its reach into society is extended, and it plays a core role in thickening an inclusionary structure for the hyper-complex political reality of contemporary society. The fact that proportionality allows all social objects to be observed as relevant for rights effectively means that society can easily generate and internally project new inclusionary structures for even the most diverse and unpredictable social phenomena.

iii Rights and new legislative actors

The rise of an auto-constituent inclusionary structure is also evident in the fact, as mentioned above, that in contemporary society many agents and organizations are able to assume some degree of legal personality, and certain rights and obligations, under international law. One account of the transformation of legal personality in fact enumerates, alongside states and individuals, inter-governmental organizations, insurgent groups, corporations, and even businesses as potential subjects of transnational constitutional law, bearing both legal rights and resultant legal obligations (Clapham Reference Clapham2006: 30, 270). Either formally or de facto, in consequence, many agents are in a position to influence, or even to participate in, transnational law making, and many different actors exercise powers with constitutional implications, both nationally and internationally.

This phenomenon is most manifest in the increasing presumption that the individual person is a subject of international law. As discussed earlier, in most post-1945 societies individual persons have been able to obtain some recourse, however partial and limited, to international judicial fora. With some reasonable hope of remedy, single persons are normally able to appeal political acts of their own states, or private acts of other citizens, on established grounds of international law. More importantly, the domestic judiciaries of national states are responsible for applying rights-based international norms in national courts, and they often enforce singular human rights norms, against executives, to protect individual claimants. On this basis, the singular person, constructed in generic form as a rights holder, has evolved as an effective source of primary norms. The claims of individual applicants and litigants, whether brought to national or to international courts, are able to produce laws which run against the original intentions of national state organs, to subject these organs to constitutional constraint, and, in some cases, to create primary norms for all members of a national society (see Peters Reference Peters2014: 479).

A similar phenomenon is observable in the case of organizations, especially those that cross the regional boundaries between state jurisdictions, and which operate at uncertain points between the public and the private domain. This applies most obviously to NGOs. NGOs now widely act as important norm providers, at least in matters related to their designated sphere of concern. Although lacking any obvious political mandate, NGOs, normally campaigning on human-rights grounds, widely act as legislative or even constituent actors in given policy areas, and they articulate norms with far-reaching effect for public and private bodies within and across the geographical divisions between national polities.

The emergence of NGOs as bodies with legislative, or even quasi-constituent, force became visible first, after 1945, in the international domain. At this time, NGOs acquired important functions in inter-governmental organizations, especially in the UN General Assembly, in regional human rights bodies and in international courts, most of which were porous to NGO activities.Footnote ⁷⁹ For example, some post-1945 human rights treaties authorized non-state organizations, to petition international courts, and some accorded them a direct role in international norm setting. Notably, Art 71 of the UN Charter first gave recognition to the role of NGOs, and it assigned to them consultative functions with respect to the Economic and Social Council. A Committee on Non-Governmental Organizations was founded as a standing committee of ECOSOC in 1946, and its terms of reference were formally set out in ECOSOC Resolution 288B(X) (1950). In 1968, ECOSOC Resolution 1296 strengthened the consultative functions of some NGOs in the UN. By 1970, ECOSOC Resolution 1503 was adopted, which authorized the Human Rights Commission of the UN to take complaints from non-governmental sources (Tardu Reference Tardu1980: 568; Rodley Reference Rodley, Keller and Ullstein2012: 322). This was more fully formalized in the ECOSOC Statute of 1996 on ‘Arrangements for Consultation with Non-Governmental Organisations’.Footnote ⁸⁰ In the Declaration on Human Rights Defenders (1999), the UN then made more comprehensive provisions regarding the role of NGOs in international human rights protection. In Europe, Art 25 ECHR restrictively allowed NGOs to submit applications to the European Commission of Human Rights. Later, revised Art 34 ECHR also ascribed standing and personality to NGOs close to that of entities with primary personalities under international law (states). Moreover, from the outset, NGOs obtained high standing in the Council of Europe, and they played an important role in drafting legal instruments (see Wassenberg Reference Wassenberg2013). Similarly, under Art 44 of the ACHR, NGOs were entitled to lodge petitions with the Inter-American Commission. Art 45 of ACHPR allows NGOs to file human rights complaints (Hobe Reference Hobe1999: 164; Charnovitz Reference Charnovitz2006: 353). In addition, in some regional systems, involvement of NGOs in international law-making procedures has been intensified through the practice of allowing NGOs to act as friends-to-the-court. By the 1980s, the ECtHR formally allowed NGOs to submit amicus curiae briefs. The ICJ remains closed to NGO involvement, but it has allowed amicus curiae briefs of NGOs to be made public during trial proceedings (Charnovitz Reference Charnovitz2006: 353). Extensive amicus curiae practice exists before IACtHR, which can receive amicus curiae briefs submitted proprio motu (Shelton Reference Shelton2004: 638). The provision of amicus curiae briefs is a particularly generalized judicial or even quasi-legislative function of NGOs, and it allows NGOs to sidestep restrictions on the categories of legal person acting as party to cases (Wellens Reference Wellens2002: 112; Shelton Reference Shelton2004: 612).

The standing of NGOs under international law is, of course, contested (see Martens Reference Martens2003: 19, 23). In some delineated spheres, however, NGOs have attained a position which in some respects mirrors that of primary international organizations and even states, and they routinely participate in a range of legislative acts.Footnote ⁸¹ NGOs widely provide information for and shape the decisions of UN bodies and other international organizations (Gaer Reference Gaer1995: 402; Spiro Reference Spiro1995: 46), and they impact decisively on law making, both in the form of domestic law and in the form of multi-national treaties (Stephan Reference Stephan2011: 1575). Above all, this position of NGOs is determined by human rights: the fact that many NGOs explain their functions as related to rights has provided the foundation for their integration in the broader political system of global society, and they have been able to use rights as a vocabulary to explain, authorize and even constitutionalize their functions within this system.

Vitally, first, the fact that NGOs often concentrate their functions around human rights questions means that they can be constructed as having legal personality, and they can interact formally with courts situated at different levels in global society – i.e. with national and international courts. This rights-based accountability of NGOs means that they can assume a fluidly integrated, yet legally ordered position in law-making procedures at different junctures in the global political system (Benvenisti and Downs Reference Benvenisti and Downs2009: 69; Scott and Sturm Reference Scott and Sturm2006: 576). Moreover, second, the fact that they refer to rights means that they can translate the questions which they address into a constitutional vocabulary, which can be presented to and acquire legislative force through international organizations. This can occur as NGOs supply information to international institutions. However, it can also occur through the activities of NGOs in grass-roots mobilization against public bodies in different states, especially in oppressive regimes, in which domestic organizations interlock with international groups to create (at least) hard normative pressures on government organs (see Sikkink Reference Sikkink1993: 423–5). In such cases, NGOs extract from human rights law the authority to set normative standards, which, under some circumstances, can assume near-obligatory status for public actors, both nationally and internationally.Footnote ⁸² In this respect, human rights underpin a process in which NGOs, originally private associations, are literally transformed into publicly constituted and even effectively constituent actors. In fact, in some national societies, NGOs are often able to obtain a distinctively public structure-building role. In some contexts, NGOs have been invited to participate directly in constitution-making processes, and they have subsequently exerted powerful influence in constitutional practice.Footnote ⁸³ In other contexts, especially where formal governance is weak, NGOs act as bodies able to provide legislative and regulatory functions where governments, for whatever reason, are not structurally equipped to do so. The fact that NGOs assume accountability for human rights protection means that they can easily assume quasi-public functions of governance and legislation, and they legitimize such functions inwardly, in national societies, and outwardly, towards international actors.Footnote ⁸⁴

The constituent power of NGOs is clearly visible in their ability to promote norms for national states and public authorities in national states. However, this power is especially pronounced in the interactions between NGOs and other actors, such as transnational corporations, whose authority is not easily regulated by national states, and not easily captured under formal international instruments (Joseph Reference Joseph2004: 6). In such interactions, NGOs are able to construct a regulatory order in domains that are beyond the reach of most official norm providers, and they distil constitutional norms for the transnational dimensions of society. For examples, NGOs have played a prominent role in the monitoring of powerful transnational private actors, especially large-scale international firms, and for imposing legal, rights-based constraints on such bodies across national boundaries (Ratner Reference Ratner2001: 533). This has been partly accomplished by the use of pressure tactics – for example, through public shaming. But it has also been partly effected through extra-territorial litigation against companies with transnational operations.Footnote ⁸⁵ An illuminating example is Khulumani v. Barclay National Bank Ltd (decided 2007), in which a South African NGO (albeit ultimately without success) sued transnational corporations under the Alien Tort Statute before a Circuit Court in New York for complicity in human rights abuses under the apartheid regime. A still more illuminating example is the case brought before the African Commission, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria (2001), in which two NGOs successfully filed suit against the Nigerian Government and Shell Corporation.

Alongside NGOs, in fact, similar patterns of auto-constituent legal agency are now commonly assumed by other associational groups. For example, it is widely observed that advocacy networks have particular success in producing solid norms, both for public actors and for private bodies, located both in the national and in the transnational arena.Footnote ⁸⁶ Social movements can also claim a position with a certain analogy to that of a constituent power in the transnational arena, and they widely use international human rights norms to articulate legally formative influence around single national issues.Footnote ⁸⁷ To some degree, moreover, corporations and private companies themselves can assume the role of transnational constituent subjects. Corporations with cross-national functions clearly possess a distinct, albeit sui-generis international legal personality. In some cases, manifestly, corporations have material resources substantially exceeding those of many states. As a result, they are capable, and widely guilty, of violating the primary laws of the societies in which they operate, and even of suspending national laws or enforcing external legal norms, especially regarding trade regulation, in the national societies in which their activities are conducted. Moreover, as formally non-public bodies, corporations can easily evade criminal liability, and they are often beneficiaries of governmental acquiescence in malfeasance, especially in national societies with high levels of public corruption or external dependency.Footnote ⁸⁸ In many cases, therefore, transnational corporations act in negation of international and constitutional law. At the same time, however, corporations are capable, potentially, of solidifying a normative structure to regulate their operations, and they are able to promote potent norms to control the actions both of their own representatives and of other actors within and across the boundaries between national societies – at least in designated functional spheres. There is of course no formal or constitutional system of self-regulation for corporations. UN bodies first began to promote binding standards for transnational corporations in the 1970s, and a UN sub-commission promulgated draft norms in 2003.Footnote ⁸⁹ These norms were not accepted by the UN Human Rights Commission and a softer set of framework principles was later approved in 2011.Footnote ⁹⁰ However, multinational corporations have shown some signs of willingness to signal compliance with, and even to consolidate, international legal standards (see Nowrot Reference Nowrot2006: 500, 596). This is perhaps mainly attributable to the fact that such normative compliance brings symbolic capital to the corporations in question. In some cases, however, corporations have agreed regulatory frameworks to shape the decisions of large-scale economic organizations, and even to impose normative pressure on national public actors, including states. One example of this is the decision of the Norwegian Government Pension Fund and Danske Bank, the biggest Danish Bank, which decided in January 2014 to divest from Israeli banks for their involvement in building activities in illegal Israeli settlements.Footnote ⁹¹ This can be seen as an act of corporate constitutional foundation, reaching well beyond the corporate sphere, placing potential constraints both on state agencies and other corporations.

In each of these dimensions, contemporary society is evolving a political system marked by intensified multi-centricity, in which many actors perform functions of legislation and inclusion, and which, in its different dimensions, is capable of constructing norms and promoting regulatory actions in highly contingent fashion. At the same time, however, the political system of contemporary society is able to resist conclusive fragmentation in its acts of normative inclusion, and it is able to rely on symbolically extracted human rights norms to organize, and preserve uniformity within, its legislative functions. Transnational human rights form a basic inclusionary structure for the political system of contemporary society, especially in those dimensions focused on transnational phenomena. This structure enables many actors to create primary legal norms, and it ensures that authoritative acts of legislation can be established in highly variable, spontaneous fashion. Yet, the fact that this structure is based in generally identifiable rights also means that acts of normative inclusion retain some consistency, and legal norms can be reproduced, with some predictability, across very different settings. Rights, thus, underpin modern law making as an increasingly hyper-contingent auto-constituent process, and they project a basic constitution from within which society can flexibly meet its increasingly decentred demands for legislation.

iv Rights, private parties and the multiplication of constituent power

The increasing standing of the single person as the normative focus of international law has meant that persons are perceived as holders of strict rights not only in relation to their national states but also with regard to one another. As a result, national states have assumed obligations regarding protection of rights, not only in relations between public authorities and single persons, but in horizontal interactions between persons in society. In numerous cases, international courts have expressed the principle that national states have responsibility to ensure that the rights of persons subject to their jurisdiction do not experience violation of inner-legal by other persons, thus implying that states have a positive duty to ensure that all persons are secure in their rights, and that states are bound to recognize and preserve interpersonal, horizontal rights.Footnote ⁹² In this respect, too, the organization of law around rights has changed the constitutional structure of society, and it has established quite new sources of constituent power.

Important early examples of this can be found in rulings of the ECtHR. The ECHR was not first intended to apply directly to private interactions between persons. However, the Strasbourg court gradually developed a body of opinion to the effect that contracting states had clear positive obligations in the private domain. This principle was applied in Airey v Ireland (1979) to determine that states are accountable for private violations of rights, and for ensuring that rights between private parties are adequately protected. In Marckx v Belgium (1979), the ECtHR ruled that the responsibilities of states for protecting private life implied positive obligations: i.e. to legislate in order to protect rights in the private sphere (Cherednychenko (Reference Cherednychenko2006: 197–8). In X and Y v the Netherlands (1985), the ECtHR again ruled that states have a reasonable obligation to adopt ‘measures designed to secure respect for private life even in the sphere of relations of individuals between themselves’.Footnote ⁹³ In this case, the ECtHR held that the Netherlands had failed to respect the private life of a mentally handicapped teenager who had been forced to have sexual intercourse with the son-in-law of the governor of the home in which she was a resident. Non-observance by a state of its duty to protect lateral rights of citizens was again taken to imply that the state had failed in its responsibility in Costello-Roberts v UK (1993) (Fredman Reference Fredman2008: 59). Analogous tendencies also appear in rulings given by the Human Rights Committee of the UN. In Delgado Páez v Colombia (1990), the Committee found Colombia in violation of the right to personal security (guaranteed in Art 9 ICCPR) because the respondent had not adequately protected the applicant against assault. One of the most notable cases in this category is Velásquez Rodríguez (1988), a case treating forced disappearances of political regime opponents in Honduras, which entailed the first exercise of contentious jurisdiction by the IACtHR. As well as emphatically extending the scope of individual rights against the state, the verdict in this case declared that state liability for breaches of human rights could be found for omission on the part of states to guarantee rights of individuals and for failure to take necessary steps, including ensuring appropriate domestic remedies, to reinstate persons in their rights.Footnote ⁹⁴ The implications of this case had an abiding impact on the actions of the IACtHR. By 2006, in Damião Ximenes Lopes, the IACtHR, in its first ruling against Brazil, held that a state is in breach of convention rights if it does not provide adequate protection for persons suffering ill treatment, in private institutions, because of mental-health problems. Subsequently, the court monitored compliance with its rulings by seeking to extract data regarding standards of training for mental health professionals.

In these cases, the construction of individual rights as sources of legal authority has clearly positioned states within a vertical external constitution, so that they are obligated to international norms both in their actions and in their omissions. Yet, this construction has also established an internal normative grammar, gaining effect inside national societies, which has extended constitutional law, both in origin and in application, into the private domain. As a result, the sphere of private exchange, traditionally defined by horizontal legal relations, is increasingly seen as having constitutional relevance, as giving rise to public-legal causes, and as acting as a source of new constitutional norms. In many societies, in fact, where their acts touch on human rights, private bodies are translated into repositories of publicly constituted authority, and relations between private agents become parts of society's constitutional order. In essence, where courts treat violations of human rights norms, courts themselves, acting as public bodies, have an obligation to apply constitutional norms to the subjects before them, and, in consequence, courts increasingly draw these interactions, and implicated bodies, into the constitutional domain. Through the implementation of human rights, therefore, courts have redrawn the boundaries between public and private activities, and they now construct a thickened constitutional structure for society, able to incorporate, and dictate higher-order legislation for, exchanges in all spheres of society.

Some of the most striking national cases of this auto-constituent extension of public power through human rights have occurred in the UK. The constituent role of human rights in the private domain has had particular importance in the UK both because of the UK's historical resistance to international human rights norms, and because the British courts had traditionally rejected clear distinctions between private law and public law.Footnote ⁹⁵ The rising importance of rights as determinants of public law has fashioned new conceptions of public law and established distinctive principles for ascribing public-legal responsibility. In particular, however, the constituent role of rights has assumed significance in the UK because, in classical British public law, courts could only supervise public bodies on ultra-vires grounds, which meant that only institutions founded in statutory powers could be subject to judicial review: the construction of a body as public depended on its exercise of a power originally granted by parliament. The opening of the UK's legal order to formal human rights law, however, meant that courts were prepared to see traditionally private acts as impinging on rights protected under public law. In some cases, this led to a broadening of the grounds of judicial review, and it meant that a growing range of bodies, not only those exercising authority strictly conferred by parliament, were defined as public and were subject to constitutional constraint by courts.

The role of rights in reformulating the limits of UK constitutional law had already begun before the ECHR became domestically applicable (2000). As early as the mid-1980s, the definition of public-law authorities had widened, and some private agencies, at least insofar as they formed part of a broad governmental framework, were deemed amenable to judicial review, effectively as hybrid private/public bodies (Cane Reference Cane2011: 16; 103).Footnote ⁹⁶ The presumption was articulated at this time that public powers could be defined as such by virtue of their functions, and that any body or any organ could be subject to judicial review, and so classified as public, if it performed functions with a partially public dimension.Footnote ⁹⁷ This extension of the concept of public authority was furthered through the reception of EU law, which, reflecting the emanation of the state of doctrine applied by the ECJ, created the presumption that rights could be claimed against any person or any organization acting as a provider of public services or discharging obligations of a public nature.Footnote ⁹⁸ Ultimately, under the HRA, the range of actors in the UK that were imputed a public quality increased significantly, and the (never categorically pronounced) distinction between public and private bodies was reconfigured. In some cases, notably, acts with a traditionally private character, such as the termination of tenancies, were deemed to possess a public character insofar as they impacted on formal rights of affected parties.Footnote ⁹⁹ In other cases, courts, under obligation to enact the ECHR, were prepared to observe unusual subjects, for example newspapers, as agencies subject to obligations under human rights law, performing functions with some public qualities and infringing rights which required protection under public law.Footnote ¹⁰⁰ As a result of this, the concept of ‘public’ authority – as a category of legal imputation – was modified and extended.Footnote ¹⁰¹ In many respects, courts became primary arbiters in this question, and the construction of a body as distinctively public fell to courts: courts decided which private functions could be transformed into functions with constitutional significance, bound by rights-based constitutional norms (see Bamforth Reference Bamforth1999: 160).Footnote ¹⁰² Overall, the volume of social exchanges subject to binding constitutional inclusion was greatly expanded, and human rights dictated increasingly consistent structures of public law to regulate different social spheres.

Other polities, however, are witnessing a far more fundamental transformation of the public/private distinction through the constitutionalization of the private sphere, dictated by human rights law. Particularly notable recent cases of this can be seen in Chile. Perhaps most importantly, since 2005, Chilean courts have adopted the unusual practice of applying international rights norms to cases falling under private law or tort; through this practice, cases with implications for basic rights have been subject directly to constitutional law, and proportionality has often been used to constitutionalize private relations.Footnote ¹⁰³ In Russia, the Constitutional Court has used international human rights law to extend the range of actors subject to laws of public accountability, declaring that all legal persons, including private organizations, can be imputed public functions insofar as their actions have implications for the rights of parties affected by them.Footnote ¹⁰⁴ In Colombia, courts have also extended the realm of public law deep into the realm of private law, and the generally decisive role of courts in national state building has been mirrored in constitutional rights guaranteed in the private sphere.Footnote ¹⁰⁵ In Kenya, courts have reacted to public-interest cases by expanding concepts of public accountability: that is, by widening constructions of state authority,Footnote ¹⁰⁶ and even, where indigenous rights are concerned, by introducing private claims such as claims over land rights into the category of public law.Footnote ¹⁰⁷ In Bolivia, indigenous communities have been broadly constructed as constitutional subjects, bound to recognize principles of international law, because of their capacity to dispense justice affecting human rights.Footnote ¹⁰⁸ In each of these cases, internationally defined rights have greatly intensified the societal reach of national political systems. Mediated through national courts, human rights have, in many polities, constituted a deep structure of public law across all society, and the quantity of actors assuming strict accountability under public law has greatly increased.

In these different examples, a general tendency in the constitutional impact of transnational rights norms is becoming visible. To an increasing degree, the domestic absorption of international human rights law means that the public or constitutional quality of political power is defined, not through any specific inner feature or source of authority, but by the contagious effect of transnational rights. To this degree, the political order of contemporary society is internally constituted by rights, dictated and transmitted by courts, and more and more acts in society are bound by constitutional law produced in this way. Both nationally and outside nation states, society's political system is increasingly defined, or even constituted, as that mass of exchanges in society which have relevance for rights. As a result, transnational human rights law imposes a deepening inclusionary structure on society, through which many categorically diverse actors operate, and are held to account, as bodies exercising public, constitutionally defined authority for society as a whole, and the actions and decisions of an increasing quantity of subjects in society are determined and authorized by a strict inclusionary order (rights). This results in a contingent, deeply internalistic auto-constitutionalization of society, through which society's structure of public inclusion is extended to regulate an increasing number of social interactions, across its increasingly hybrid interfaces, beyond classical categories of private and public law. Through the fusion of national law and international human rights law, human rights acquire the power to roll out a system of public law into new spheres of society, whether national or international, and they extend the inclusionary reach of public law, horizontally, from within the law itself.Footnote ¹⁰⁹ All society thus becomes subject to a process of self-constitutionalization. On one hand, this process limits the power of subjects bound by public law, and it imposes a strict order of human rights obligations on a growing number of actors. On the other hand, this process dramatically increases society's capacity for producing and authorizing law. It constructs a political order which can produce authoritative law for new phenomena at a high degree, simultaneously, of spontaneity and inner consistency.