Federalism and Horizontality in International Human Rights

The advent of the international human rights system is one of the many changes to international law since the time Missouri v. Holland was decided. As other contributions to this symposium note, one of the challenging federalism questions raised by Holland in this new era is the effect of international human rights treaties and emerging customary international human rights law on U.S. states. And just as the creation of the international human rights regime has affected domestic analysis of federalism, the international human rights system has itself adjusted to the processes of federalism. The human rights regime is largely structured as a vertical process. States sign on to international human rights obligations, which are then integrated into domestic law. If a national government fails to implement its obligations internally, international courts and other institutions are designed to serve as supranational enforcement mechanisms. The system has not always worked as planned. For its part, the United States has chosen to remain outside the human rights treaty regimes, or, where it has signed onto a treaty, has applied reservations, understandings and declarations to its commitments, which serve to limit the domestic effect of the treaty obligation. In part as a reaction to the failures of vertical enforcement, and in part as a reaction to U.S. human rights exceptionalism, the international human rights system has developed strong features of horizontality. This has been particularly true of efforts by states, NGOs and other actors to bring about changes to human rights behavior in the United States. Federalism itself, which only a few decades ago was viewed as a constraint to changing human rights behavior in the United States, has increasingly been exploited by advocates to promote international human rights standards and norms. This essay explores the potential pitfalls of this expansion of horizontality and embrace of federalism for the broader project of international human rights