Congressional Enforcement of International Human Rights

This essay was prepared for the February 2020 symposium at Fordham Law School about Professor Martin Flaherty’s book, RESTORING THE GLOBAL JUDICIARY (Princeton Univ. Press, 2019). In his book, Professor Flaherty argues that the expansion of executive foreign affairs powers, and the shrinking roles for Congress and the Supreme Court on issues of international law, have diminished the United States in global governance. His remedy to both the expansion of executive power and the U.S. retreat from international governance is a return to a more powerful Supreme Court, one that will take international law, including international human rights law, seriously. While generally agreeing with Professor Flaherty that renewed engagement with international human rights law is in the interest of the United States, this essay argues that Congress, not the Judiciary, is poised for reinvigoration as the most significant branch to counter-balance presidential power in the area of international human rights. Congress, not the President, created and entrenched the normative practice of U.S. human rights diplomacy through its oversight and appropriations powers. Through statutory mandates creating executive branch offices and requiring annual publication of the Country Reports on Human Rights, Congress has directed the means and methods of U.S. human rights diplomacy. This is ironic, since, as Flaherty chronicles in his book, Congress has served as the main obstacle to direct, formal participation in international human rights governance through treaties. Human rights diplomacy, not the courts, has been the central tool through which the United States has engaged in the global governance of international human rights. Drawing on the author’s research on congressional human rights mandates (recently published at Human Rights Reporting as Human Rights Governance, 59 Columbia J. Trans’l Law 364 (2021)), the essay explains the Congress’s role in international human rights governance. It further illustrates how congressional human rights mandates have created a role (albeit limited) for U.S. courts to participate in human rights governance through asylum adjudications. The essay sheds light on Congress’s capacity to improve United States participation in international human rights governance toward in ways that more effectively hold states accountable in the face of gross abuses.