The reach of rights: "the foreign" and "the private" in conflict-of-laws, state-action, and fundamental-rights cases with foreign elements

Increasingly often, courts around the world are confronted with fundamental rights cases that are not wholly internal to the legal order they strive to uphold. This paper approaches the problems raised by 'fundamental rights cases with foreign elements'through the elaboration with analogies with the fields of conflict of laws (private law cases with foreign elements) and state-action (fundamental rights cases with private elements). Juxtaposing these three problematic areas of law allows for an investigation into the parallels and differences between 'the foreign'and 'the private'and of the role fundamental rights can play in each of these spheres. Based on these analogies, the paper argues for a more central role in contemporary constitutional theory for questions on how various forms of 'foreignness'should be allowed to affect the extent of the responsibility of States to safeguard the protection of the fundamental rights of individuals