Not Just Doctrine: The True Motivation for Federal Incorporation and International Human Rights Litigation

This Article challenges the universalist theory of international law upon which federal incorporation of CIL and international human rights litigation rely. It unpacks the international relations (IR) theory paradigms that support the universalist theory, and discusses a competing theory that views state compliance with international law as a function of national self-interest. Working from this perspective, it proposes a framework to evaluate the wisdom of federal incorporation of CIL and the wisdom of international human rights litigation. The framework suggests that federal incorporation of CIL generates sovereignty costs for the United States, and that international human rights litigation complicates the achievement of the United States’ normative and strategic foreign policy interests. The Article also shows that the universalist theory of international law is often in tension with actual state behavior in international politics.