The Domestic Standing of International Law: A Non-State Account

Abstract

Despite its central contribution to the construction of the global legal order, the United States has long been perceived to exclude itself from the reach of international law. Its exceptionalist image has been reinforced by statements of political leaders, federal law provisions, and court decisions. This Article argues, however, that in order to appropriately assess international law’s standing in the United States, one must consider not only the position of its formal government but also the interpretation, application, and challenge of international law by non-State actors. Moreover, it stresses the importance of studying not only elite actors’ engagement with international law but also that of individuals, groups, and organizations outside the formal bureaucracy.

The Article surveys interventions by government officials, producers, consumers, and civil society representatives in the context of a U.S. policy-making process initiated pursuant to a World Trade Organization ruling. It shows that, contrary to the United States’ exceptionalist image, U.S. actors of all stripes invoked and relied on international law extensively, thereby carving a space for it as a non-negligible consideration in the decision-making process. Therefore, the Article argues that accounting for non-State stakeholders is imperative in evaluating the domestic standing of international law.

Keywords: Non-State Actors; Effectiveness of International Law; Domestic Application of International Law; World Trade Organization; Exceptionalism