UC Irvine Journal of International, Transnational, and Comparative Law

Today’s symposium asks whether international law can thrive in the United States. The question is intriguing but also ambiguous, and it is not immediately clear what it would mean for international law to “thrive” within a state.  One might look to a range of possible indicators, including the extent to which international law is internalized in U.S. domestic law, its participation in treaty regimes, its willingness to submit disputes to international adjudication, or the prominence of international law issues in public discourse and government decision-making on important foreign policy matters.  For purposes of this presentation, however, I focus on one concrete indicator: the extent to which the United States complies with international legal obligations in the especially difficult context of the rules governing the use of force—an area in which the stakes are unusually high and the incentives to depart from legal constraints can be particularly strong for a militarily powerful state like the United States.  

The presentation will examine these issues through the prism of three prominent cases involving use of force by the United States: the quarantine imposed by President Kennedy during the Cuban missile crisis of 1962, the air campaign launched by President Clinton in response to the situation in Kosovo in 1999, and the invasion of Iraq directed by President Bush in 2003. These cases illustrate that whether international law is seen as “thriving” depends not only on the technical strength of the legal arguments advanced by the United States, but also on the extent to which others see decisions to use force as consistent with the values that underlie the relevant legal rules.

The United States is obligated to respect and protect human rights by customary international law and international human rights treaties.  Currently, no governmental agency is responsible for ensuring these obligations are met, and the government has not yet adopted a comprehensive framework to assess the impact of federal policies and programs on human rights. While various U.S. agencies conduct regular impact assessments in areas including social, economic, and environmental contexts, a similar Human Rights Impact Assessment (HRIA) framework could be valuable. If applied systematically, HRIAs would enable the government to evaluate the human rights implications of current and proposed policies. This article provides an introduction to HRIAs and examples of their use at sub-national, national, and international levels, with the hope that these models will support federal, state, and local government officials in fulfilling their human rights obligations.

This research assesses the access and effectiveness of International Human Rights Law (IHRL) use by U.S. civil society, particularly in light of the 2023 Human Rights Committee review. Recognizing the pivotal role of civil society in leveraging IHRL to influence domestic laws and policies, the study shifts focus from the current limitations of IHRL on domestic policy influence in the United States to the actual and potential use of IHRL by the American civil society. 

Through a combination of desk research and semi-structured interviews with 20 representatives from Non-Governmental Organizations (NGO) and law school clinicians who participated in the 2023 Human Rights Committee’s review of the United States, the study identifies key factors influencing access and effectiveness. While the research confirms that overall appreciation of IHRL among interviewees, the findings reveal awareness gaps regarding IHRL’s utility for the U.S. civil society as a whole. Resource constraints hinder sustained participation, even among those who recognize IHRL’s benefits.

The study then proposes actionable strategies for IHRL experts to enhance civil society's access to and effective use of IHRL. Recommendations include fostering awareness through proactive outreach to communities and grassroots organizations, addressing resource disparities, and encouraging strategic integration of IHRL into domestic advocacy. The research concludes with a call for a collaborative effort to reframe perceptions of IHRL as “top-down” or being weakly tied with affected communities and promote its utility, thereby strengthening its impact within the U.S. context through civil society’s use of IHRL. Such efforts are especially crucial in an upcoming period in the United States, under an administration driven by neoliberal and nationalistic policies that prioritize American financial interests over the fundamental values of law, democracy, and equity.