The conflict of laws and the private production of fundamental rights: towards a theoretical renewal.

Summary In a world characterized by a multiplicity of legal production sites, more and more non-State actors are setting themselves up as true private legislators. Within this normative production, already frequently noted by the supporters of legal pluralism, there is a singular phenomenon, more rarely observed, which is the elaboration of private norms bearing rights and freedoms. This normative activity of private actors has very specific characteristics. It is intended to be autonomous, binding and protective of fundamental rights. As such, it is likely to come into conflict with the law produced by the States. While the disorderly multiplication of sources of fundamental rights could be considered from the point of view of the hierarchy of norms, we have chosen to consider it as a new challenge for private international law. The aim is to examine the role that this discipline could play in identifying and resolving the conflict between State laws and the norms that carry fundamental rights and are produced by non-State actors. Indeed, this type of conflict does not fall within the classical framework of private international law or the traditional modes of intervention of human rights. The hypothesis proposed here is that a renewal of the conflict of laws could take shape from the new questions it raises. In this perspective, it will be a question of borrowing, while adapting them, principles of adjustment developed in the field of human rights, such as primacy, subsidiarity and proportionality. Very close in their inspiration to the mechanisms at work in private international law, they would make it possible to designate the norm that would best ensure the defence of fundamental human rights, on the basis of its material content and not its formal origin.