Integrating International Human Rights Law into Domestic Law - U.S. Experience

4 Houston Journal of International Law 1 (1981)

Univ. of Wisconsin Legal Studies Research Paper No. 1332

13 Pages Posted: 14 Nov 2014

See all articles by Richard Bilder

Richard Bilder

University of Wisconsin Law School

Date Written: 1981

Abstract

This article — based on a presentation to the Canadian Council on International Law — describes U.S. experience, as of the time of its publication, concerning the impact of international human rights law upon U.S. domestic law. The article first describes the situations in which U.S. courts are likely to look at international law in deciding cases coming before them and discusses the existing U.S. case law relevant to their treatment of international human rights law in this respect. This review indicates a reluctance by U.S. courts to expressly find that U.S. domestic law protecting human rights has significant “gaps” which can be filled only by drawing on international sources, or to directly incorporate international standards for the protection of core civil and political rights, already broadly protected under existing U.S. domestic law. Consequently, the author predicts that it is unlikely that in the future we will see much direct incorporation of international human standards into domestic U.S. law by U.S. courts — either through the courts interpreting the provisions of international human rights treaties to which the U.S. is a party as “self-executing” and thus directly incorporated as “the supreme law of the land” under the Supremacy Clause of the U.S. Constitution, or through the direct incorporation of customary international human rights standards into U.S. domestic law.

The author suggests, however, that international human rights standards may significantly influence U.S. domestic law in other important, though less direct ways. First, the U.S. courts — and the U.S. Congress through legislation — have clearly recognized the existence of customary international human rights standards and the courts, under settled doctrines of construction, will seek to interpret domestic statutes consistent with such norms. More broadly, U.S. courts can be expected to be hesitant in reaching decisions — including interpretations of the U.S. Constitution and its Amendments and U.S. Statutes — which may open the U.S. to international criticism or, in particular, suggest that the U.S. and its Constitution are less respectful of human rights than are other countries. Moreover, some decisions suggest that at least some courts may be more willing to look at international human rights experience for help in judging domestic policy and standards and in buttressing more liberal interpretations of domestic law. Finally, international human rights treaties and customary international law standards may directly influence U.S. legislation concerning the protection of human rights, particularly by spurring implementing legislation to bring U.S. domestic law into full conformity with international human rights treaties the U.S. has ratified, or, more generally, by encouraging legislation to promote respect for human rights in other countries.

The author concludes by suggesting that if international human rights law influences domestic law only indirectly, rather than directly, this should be no reason for disappointment. What is important is the final result—that domestic human rights protections at least equal international standards. How the Court and national legislatures achieve that result — whether by express incorporation or through the more subtle influence of international standards on domestic law — appears less important.

Keywords: International Law, Human Rights and U.S. Law, International Human Rights, Integrating International Law into Domestic Law, Incorporation of International Law into Domestic Law, Customary International Law as U.S. Law, Treaties in U.S. Law, International Law before U.S. Courts

JEL Classification: K33, K4

Suggested Citation

Bilder, Richard, Integrating International Human Rights Law into Domestic Law - U.S. Experience (1981). 4 Houston Journal of International Law 1 (1981), Univ. of Wisconsin Legal Studies Research Paper No. 1332, Available at SSRN: https://ssrn.com/abstract=2523504

Richard Bilder (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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