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International Human Rights Law in U.S. Courts: Introduction

Scope and Purpose & Research Strategy

Scope and Purpose

This research guide is designed for new practitioners who intend to work in areas of law involving rights-based litigation and advocacy.  Such practice areas might include, but are not necessarily limited to, criminal appeals, civil rights, immigration and asylum, and torts.  New practitioners will be familiar with the fundamental rights and freedoms embodied in the federal and state constitutions and in federal and state legislation – commonly referred to collectively in the U.S. as civil rights.  Moreover, they will be familiar with how federal and state courts have defined those rights and freedoms, how practitioners litigate and advocate in cases involving those rights and freedoms, and how federal and states courts adjudicate such cases both procedurally and substantively.  At the same time, however, new practitioners might not be aware that these civil rights are merely a subset of the rights and freedoms recognized and protected as both fundamental and universal under international human rights law.  Moreover, they might not be aware both of how international human rights law is part of U.S. law and of how human rights law can be used not only as a basis for substantive claims in certain limited circumstances but also as an important source of persuasive authority in rights-based litigation and advocacy.  This research guide outlines a basic research strategy by which new practitioners can become familiar with the role of international human rights law in U.S. courts.

Research Strategy

The Basics of International Human Rights Law.  Practitioners should become familiar with the basic terms of art, concepts, doctrines, and principles both of international law in general and of international human rights law in particular.  Court filings, appellate and amicus briefs, court opinions, secondary sources, etc. might refer to these terms, concepts, doctrines, or principles without further elaborating on them.  The sources listed under this “Introduction” tab are useful for gaining familiarity with the basics of this area of law.[1]

The Sources of International Human Rights Law.  Practitioners should become familiar with the sources of international human rights law.  The United Nations framework is the primary source of international human rights law.  Almost every independent nation is a member of the U.N. (193 out of 195).  In signing onto the U.N. Charter, which is a binding treaty, these nations obligated themselves to cooperate with the U.N. in achieving its primary purposes, one of which is to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."[2]

The Universal Declaration of Human Rights (UDHR)[3] is the document through which U.N. member states articulated the rights and freedoms that are both fundamental and universal and the principles for how to promote respect for and observance of these rights and freedoms.  Though the UDHR is merely aspirational and is not a binding treaty, it is a primary source of persuasive authority in international human rights law.  It provides the foundation for the specific human rights treaties concluded within the U.N. framework.  Together with the two most significant of those treaties – the International Covenant on Civil and Political Rights (CCPR)[4] and the International Covenant on Economic, Social and Cultural Rights (CESCR)[5] – the UDHR forms part of the International Bill of Human Rights.[6]

The U.N. has concluded ten specific human rights treaties (nine of which are currently in force) that form the core of primary international human rights law, and each of these treaties has a treaty body that monitors U.N. member states' compliance with each treaty.[7]  UN treaty bodies create what might be referred to as "secondary authority": 1) “concluding observations” expressing concerns about and providing recommendations regarding individual states parties’ compliance with a treaty, 2) “decisions” on interstate and individual complaints alleging violations of a treaty, and 3) “general comments” providing interpretative guidance on the meaning of treaty provisions.  Although they are non-binding, treaty body documents are significant sources of persuasive authority both on the scope of the fundamental rights and freedoms embodied in a particular treaty and on what constitutes violations of those rights and freedoms.

Besides the core U.N. human rights treaties, there are a variety of other treaties and documents regarding human rights such as those resulting from the Geneva Conventions, for example.[8]  The “Sources of International Human Rights Law” tab of this guide provides links to resources offering free access to many of the relevant sources of international human rights law.

The Status of International Human Rights Law in U.S. Law.  Practitioners should become familiar with the relationship of international human rights laws to U.S. law.  Initially, they should understand why international human rights laws is U.S. law.  First, international human rights law becomes U.S. law through treaties:  The President may make treaties with the advice and consent of the Senate;[9] once ratified, all treaties becoming binding on courts in every state;[10] and, federal judicial power extends “to all Cases . . . arising under . . . Treaties.”[11]  Second, Congress has the power to pass laws defining “Offences against the Law of Nations.”[12]  Finally, where no such treaties or statutes exist, the U.S. Supreme Court has held that courts may refer to the law of nations (also known as customary international law).[13]

Subsequently, new practitioners should seek to understand the extent to which international human rights law actually operates in U.S. law.  Thus far, the U.S. has ratified only three of the core U.N. human rights treaties:  the CCPR; the Convention on the Elimination of All Forms of Racial Discrimination;[14] and, the Convention against Torture (CAT).[15]  However, these treaties are non-self-executing meaning in essence that “these treaties do not give rise directly to individually enforceable rights in U.S. courts.”[16]

The “Sources of International Human Rights Law” tab of this guide provides links to U.S. State Department and U.N. websites offering free access to resources that provide information and documents relating to U.S. ratification of international human rights treaties.  This tab also refers practitioners to the Restatement (Third) of the Foreign Relations Law of the United States, which is relevant for understanding the status of ratified treaties and other sources of international human rights law in U.S. law.

 International Human Rights Litigation in U.S. Courts.  Practitioners should become familiar with how, within the constraints described above, international human rights litigation occurs in U.S. courts.  Two primary methods by which claims based on international human rights law are brought in U.S. courts are the Alien Tort Statute (ATS)[17] and the Torture Victims Protection Act of 1991 (TVPA).[18]  The ATS is a purely jurisdictional statute that provides federal district courts with subject-matter jurisdiction over claims by non-U.S. citizens alleging torts that are violations of customary international law.[19]  The TVPA, however, is a substantive law enacted by Congress to fulfill U.S. obligations under the CAT by permitting both U.S. and non-U.S. citizens to bring civil claims for damages against individuals who commit torture or extrajudicial killings.[20]  The “Research & Practice Materials” and “Online Services” tabs of this guide refer practitioners to resources useful for understanding ATS and TVPA litigation.

International Human Rights Law as Persuasive Authority in U.S. Courts.  Practitioners should become familiar with how international human rights law is used as a significant source of persuasive authority in federal and state courts.  Advocates cite a wide variety of sources in arguing for courts to interpret U.S. laws in a manner that protects the universal fundamental rights and freedoms embodied international human rights law.[21]  The “Research & Practice Materials” and “Current Awareness Tools” tabs provides links to numerous resources that will assist practitioners in effectively using international human rights law as a tool of advocacy.



[1] Jacques Fomerand, Historical Dictionary of Human Rights (2014); The Oxford Handbook of International Human Rights Law (Dinah Shelton ed., 2013); The Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed., 2012); International Human Rights in a Nutshell (Thomas Buergenthal et al. eds., 4th ed. 2009).

[2] U.N. Charter art. 55, available at http://www.un.org/en/documents/charter/index.shtml (last accessed Apr. 24, 2014).  See also id. Preamble and arts. 1 and 56.

[3] Universal Declaration of Human Rights, G.A. Res. 217 (III) A, at 71, U.N. Doc. A/RES/217(III) (Dec. 10, 1948), available at http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng (last accessed Apr. 24, 2014).

[4] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976), available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx (last accessed Apr. 24, 2014).

[5] International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3, (entered into force Mar. 23, 1976), available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (last accessed Apr. 24, 2014).

[6] See Fact Sheet No. 2 (Rev. 1), The International Bill of Human Rights, available at http://www.ohchr.org/Documents/Publications/FactSheet2Rev.1en.pdf (last accessed Apr. 24, 2014).

[7] See Office of the High Commissioner on Human Rights, The Core International Human Rights Instruments and their monitoring bodies, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx (last accessed Apr. 24, 2014).

[8] See Office of the High Commissioner on Human Rights, UNIVERSAL HUMAN RIGHTS INSTRUMENTS, http://www.ohchr.org/EN/ProfessionalInterest/Pages/UniversalHumanRightsInstruments.aspx (last accessed Apr. 24, 2014) (provides access to a number of other human rights treaties and documents and groups these together with the core human rights treaties into particular subject matter areas).

[9] U.S. Const. art. II, § 2.

[10] Id. art. VI, cl. 2.

[11] Id. art. III, § 2.

[12] Id. art. I, § 8, cl. 10.  See, e.g., Victims of Trafficking and Violence Protection Act of 2000, 22 U.S.C. §§ 7101 to 7112 (2012) (as amended in 2003, 2006, and 2008).

[13] See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004) (“‘[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.”’).

[14] International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force Jan. 4, 1965), available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx (last accessed Apr. 24, 2014).

[15] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987), available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx (last accessed Apr. 24, 2014).

[16] U.S. Dep’t of State, U.S. Human Rights Treaty Reports:  Memorandum for Executive Branch Agencies 1 (2009), available at http://www.state.gov/documents/organization/137293.pdf (last accessed Apr. 24, 2014).  See also Restatement (Third) of Foreign Relations Law § 111 and cmt. h (1987); Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1828) (Marshall, C.J.) (“But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the court.”); Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004) (“And, although the Covenant does bind the United States as a matter of international law, the United States ratified the Covenant on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts.”).

[17] 28 U.S.C. § 1350 (2012) (also known as the Alien Tort Claims Act).

[18] Pub. L. 102–256, Mar. 12, 1992, 106 Stat. 73 (codified as a note to 28 U.S.C. § 1350 (2012)).

[19] See generally Sosa, supra note 14.

[20] See Torture Victims Protection Act, 28 U.S.C. § 1350 note.

[21] See, e.g., Graham v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551 (2005); Lawrence v. Texas, 539 U.S. 558 (2003).

Student Guide Author

This guide was originally created by Melvin Covington in support of Professor Diamond's Advanced Legal Research class for Spring 2014. The contents of this guide should not be taken as legal advice or as the work product of MU Law librarians.

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