A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts

Abstract

The emergence of an international law of human rights has substantially complicated the application of international law by U.S. courts. In the past, when international rules were thought only to affect relations between sovereigns, domestic courts could limit their application to situations involving one nation's infringement of another's rights. Such sovereign rights were well-established by practice, conventions, treaties, and scholarly writings. The recognition, following the genocides of this century, of human rights as a subject of international law has made the protection of international law available to numerous non-sovereign parties that did not enjoy it before. At the same time, however, it has complicated the task of discovering and applying international law in domestic settings. The utopian promise of a global law protecting all peoples has been brought within reach, but a cohesive theoretical framework for its application by domestic courts is still lacking. This Comment attempts to provide the outlines of such a framework.