International Human Rights Law in United States Courts: A Comparative Perspective

This article will catalogue the various contexts in which United States courts have agreed or refused to follow international human rights law, treating separately the larger number of cases concerning customary norms, the relatively small group of cases relating to human rights treaties, and the cases in which international norms are referenced without regard to their status as binding law. In each of these sections we will analyze areas of confusion, disagreement, or under-development in international legal doctrine that impede the productive use of human rights norms by domestic courts. We will also compare the approaches of United States courts with the attitudes taken by courts in other democracies that share a common English legal heritage. The experience of Canada and the United Kingdom indicates that greater acceptance of international human rights standards by the political branches of government, as manifested both by ratification of human rights treaties and by the adjudication of individual complaints by treaty implementation bodies, does not necessarily translate into greater and more principled acceptance of international human rights norms by domestic courts. Finally, we will confront directly the underlying factor debilitating the judicial use of international human rights law – namely, the countermajoritarian issue.