Document Type

Article

Publication Date

2006

Abstract

This essay asks whether international human rights arguments are likely to be effective in advancing immigrants' rights in the United States. There are certainly reasons to be pessimistic. Despite its history as a nation of immigrants and the ever-increasing diversity of its populace, the United States remains a deeply parochial and nationalist culture. International human rights arguments are often seen as the advocates' last refuge. In the absence of an international forum that can hold the United States accountable, and in the face of Congressional directives that the international human rights treaties it has ratified are not self-executing, international human rights often seem only aspirational. International human rights arguments are rarely advanced in domestic U.S. courts, where they are broached, they are as often as not ignored or dismissed.

Yet there are also reasons to be hopeful about the potential for advancing immigrants' rights through international human rights. Human rights are just that - human rights - and therefore generally do not acknowledge distinctions in fundamental rights between citizens and noncitizens. Human rights offers a common language and standard for global pressure. And international law has always been an integral part of immigration law. Accordingly, human rights discourse offers tremendous normative power and potential for advancing social justice on behalf of foreign nationals in the United States.

Analogizing to the New Deal revolution in the role of the federal government vis-à-vis the economy and rights protection, this essay argues that we may be living in a similar global revolution marked by the simultaneous rise of a global economy and an international human rights regime. I propose a three-pronged strategy: advancing modest claims of statutory construction and constitutional interpretation in the courts; advocating more expansive conceptions of international human rights in the political and popular realms; and pushing for the creation of institutions and processes to bring international human rights considerations into domestic policymaking at the outset, before disputes arise

Publication Citation

37 Colum. Hum. Rts. L. Rev. 627-658 (2006)