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Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties


Melissa A. Waters


Washington University in Saint Louis - School of Law


Columbia Law Review, April 2007
Washington & Lee Legal Studies Paper No. 2006-12

Abstract:     
This Article offers a narrow lens analysis of a key debate over the role of foreign authority in U.S. courts: the use of international human rights treaties in interpreting domestic law. Professor Waters argues that recent U.S. Supreme Court decisions (including Roper v. Simmons) should be viewed as part of a transnational trend among common law courts—a trend that she calls creeping monism. Common law judges are increasingly abandoning their traditional dualist orientation to treaties and are beginning to utilize human rights treaties despite the absence of implementing legislation giving domestic legal effect to the treaties. By developing a wide variety of so-called interpretive incorporation techniques, judges are entrenching international treaty obligations into domestic law, thus becoming powerful mediators between the domestic and international legal regimes. The Article traces the growing influence of creeping monism and interpretive incorporation, in an attempt to shift the discourse away from the all-or-nothing debate of recent years to a more nuanced understanding of the complexities involved in incorporating international legal sources into the work of domestic courts. Drawing on a six-year study of judicial treatment of the International Covenant on Civil and Political Rights by the U.S. Supreme Court and four other common law jurisdictions, the Article develops a typology of interpretive incorporation techniques that courts are utilizing. It also provides statistical evidence regarding the use of human rights treaties across jurisdictions. Finally, it maps out a possible normative framework for evaluating courts' use of human rights treaties in interpreting domestic law.

Number of Pages in PDF File: 80

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Date posted: October 2, 2006  

Suggested Citation

Waters, Melissa A., Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties. Columbia Law Review, April 2007; Washington & Lee Legal Studies Paper No. 2006-12. Available at SSRN: http://ssrn.com/abstract=934108

Contact Information

Melissa A. Waters (Contact Author)
Washington University in Saint Louis - School of Law ( email )
Campus Box 1120
St. Louis, MO 63130
United States
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