American Judicial Rejectionism and the Domestic Court’s Undermining of International Human Rights Law and Policy After Human Right Violations Have Occurred in the State

Authors

Jessika L. Gonzalez

Abstract

Ahmaud Arbery, Breonna Taylor, and George Floyd’s executions ignited protests across the world. These protests raised debate over the United States Supreme Court’s creation of qualified immunity for police misconduct. This in turn creates an appropriate opportunity to stop and take stock of United States law surrounding protections and immunities afforded to law enforcement officials, relative to international law and policy on law enforcement accountability and oversight. In doing so, this article uncovers how the American judiciary carries out a new form of American rejectionism powered by its use of qualified immunity doctrine, which in practice, results in a lack of accountability for law enforcement officials. This effectively undermines international human rights law ratified by the State such as the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), and the International Convention on the Elimination of All Form of Racial Discrimination (ICERD). The State judiciary’s exercise of qualified immunity doctrine also dismisses international policy developed by international organizations like the United Nations Office on Drugs and Crime (UNODC). The issue is unsettling for two reasons: (1) it effectively nullifies the treaty making process and (2) perpetuates a system where domestic courts are not accountable to international law ratified and enforced by the nation’s other two branches of government. This article proposes a new approach to this area of the law: reforming Reservations, Understandings, and Declarations (RUDs) so as to not limit treaties’ domestic effect within the State’s judicialsystem and instilling within it greater and more principled acceptance of international legal norms.

Recommended Citation

Jessika L. Gonzalez, Comment, American Judicial Rejectionism and the Domestic Court’s Undermining of International Human Rights Law and Policy After Human Right Violations Have Occurred in the State, 30 Wash. Int’l L.J. (2021).
Available at: https://digitalcommons.law.uw.edu/wilj/vol30/iss2/12