Should International Human Rights Law Trump US Domestic Law?

The human rights community has fiercely criticized the United States' failure to make international human rights treaties a source of law in the domestic realm. In this essay, I defend US practice against these criticisms. To focus the analysis, I simplify in two ways. First, I consider only the ICCPR, the most ambitious of the international human rights treaties.

Second, I assume that the US practice of not incorporating the ICCPR into the domestic realm is legally valid under both international law and domestic constitutional law. I thus concentrate only on the policy question whether the US should apply the ICCPR in the domestic realm. The analysis proceeds as follows. I begin with some background points about the ICCPR.

I then consider whether, from a purely domestic perspective, the United States should apply the ICCPR on the domestic plane. I conclude that from this perspective, incorporation of the ICCPR would bring significant costs and very few benefits. I next consider whether these purely domestic costs are outweighed by benefits-to the United States and to other countries-at the international level. I conclude that they are not.