Domesticating Human Rights Norms in the United States: Considering the Role and Obligations of the Federal Government as Litigant

Abstract

There is a large and ever-growing body of scholarship that considers how and whether the United States does or should incorporate international law and standards into domestic law and practice. A significant strain of the commentary and debate focuses on the domestic consequences of U.S international human rights treaty obligations. Remarkably, there has been little distinct consideration of the role of the United States as a litigant in this literature. This Article fills that gap, considering the domestic implications of U.S. international law obligations under both the International Covenant on Civil and Political Rights and the Convention to Eliminate All Forms of Racial Discrimination in the context of federal government enforcement of individual constitutional and civil rights protections. This Article argues both that the United States has distinct obligations and interests in domesticating human rights treaty law — even law that is not formally binding on courts — when it engages in litigation. This Article concludes by recommending a set of actions that could be taken by the executive and legislative branches of the U.S. federal government to clarify and enhance the role of the federal government in advancing compliance with international human rights law when defending U.S. interests in domestic courts.