U.N. Human Rights Standards & U.S. Law: The Current Illegitimacy of International Human Rights Litigation

In a previous article, the authors argued that the "modern position"- that customary international law has the domestic legal status of federal common law- is inconsistent with American representative democracy and federalism. This Article expands on this previous work: "Part I briefly summarizes our thesis and explains why the legitimacy of human rights litigation is what is really at stake in debates over the modern position. Part II responds to criticisms of certain of our historical and constitutional claims. Part III considers whether the judicial treatment of international human rights law as federal law can plausibly be justified, independent of the modern position, by the Alien Tort Statute and the Torture Victim Protection Act. We conclude that it cannot. The federal political branches can authorize international human right litigation if they wish. But with narrow exceptions, they have not done so thus far. Until they do, international human rights litigation rests on a tenuous legal foundation." [this article does not address litigation of women's human rights specifically.]