Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism After Medellin
By Johanna Kalb.
Subnational implementation of human rights law has been the subject of increasing interest among scholars and litigators in recent years, building on the call for independent state constitutionalism and the rise of New Federalism. For state constitutionalists, international human rights law provides a legitimating source for articulating state constitutional principles not captured in federal constitutional law. For human rights advocates, state courts provide an alternative and possibly friendlier forum for some of these kinds of claims. With the prominent success of some of these international and comparative arguments, state court decisions applying international human rights law have become the subject of systematic study and coordinated advocacy efforts.
The space for independent state action to implement international human rights law may have been limited somewhat by the Supreme Court’s 2008 decision in Medellín v. Texas. That opinion contains language suggesting that non-self-executing treaties, including ratified human rights treaties, do not even have the status of domestic law absent implementing legislation. Under this view of the non-self-execution doctrine, states are under no obligation to respect or enforce even ratified treaty law until it is implemented through federal legislation. Despite the outpouring of scholarship suggesting that the Court’s language should not be interpreted this broadly, this view of the non-self-execution doctrine is becoming the law on the ground, at least in state courts.
My purpose here is to determine what effect this reading of Medellín would have on the future of international state constitutionalism. To do so, I study the conditions under which state jurists have engaged with the international human rights treaties the United States has signed or ratified, in order to consider whether and how these interactions will be affected by this new understanding of the status of treaty law. I begin in Part II by briefly reviewing the different paths through which human rights treaty law could be raised in state court cases. I then turn in Part III to surveying the activity on the ground. I examine the state cases that cite these treaties in order to identify when and how state courts engage substantively with these instruments. This in turn provides insight into possible advocacy strategies for increasing state court consideration of treaty norms. Finally, in Part IV, I consider these findings to assess how the Medellín decision will impact the international prospects of state constitutionalism. I conclude that because state courts have been more receptive to arguments based on treaty instruments as non-binding, persuasive authority, even the broadest reading of Medellín will not end this type of human rights advocacy.