Paul Dubinsky on Human Rights Treaty Law in the United States

On November 28, 2017, Paul Dubinsky, Professor of Law at Wayne State University Law School and former Associate Director of the Schell Center, spoke about the evolving role of international human rights treaties in U.S. law.

Dubinsky co-wrote a new book on this subject, Supreme Law of the Land? Debating the Contemporary Effects of Treaties within the United States, and he has long worked on international law issues. At Wayne State, Professor Dubinsky teaches courses on international law, international litigation, national security law, and U.S. treaty law. As an associate at Wilmer Cutler & Pickering (now WilmerHale), he engaged in private practice in international litigation, EU law, and international transactional work. He was also an International Affairs Fellow at the Council on Foreign Relations.

Dubinsky began his talk at the Schell Center with the year 1987, when the Third Restatement of the Foreign Relations Law of the United States was published by the American Law Institute, an organization of lawyers, professors, and judges. Restatements summarize basic legal principles and trends in various areas of law—in this case, both U.S. law with international implications and the international law that affects the U.S. To Dubinsky, the 1987 Restatement shepherded in a “period of universal jurisdiction” and wider acceptance of international law and human rights norms in the U.S., exemplified in events such as the establishment of the International Criminal Court in 1998. Dubinsky argued that under the Clinton administration, there was a political consensus that human rights treaties apply to the behavior of the U.S. and other treaty partners; a growing acceptance in the U.S. of positive rights, such as social, economic, and cultural rights; and more vigorous enforcement of sanctions regimes for human rights purposes, not just national security interests.

However, Dubinsky emphasized, the “rosy view of the future” held by many human rights advocates in the 1990s “has not been realized.” He noted that human rights policy went unmentioned in the 2016 presidential election. And today, he contended, the highest levels of the U.S. government are “spinning out technical legal reasons why international law can’t be enforced” in the U.S. They also oppose applying U.S. law to abuses that took place abroad.

“Much of the news is grim,” he admitted, “but there are small rays of hope.” Dubinsky encouraged audience members to think critically about where they can make the most difference in human rights work and not to give up on international law. “We have precious time and resources, so we have to choose what paths to pursue.”

“If the U.S. system is at the heart of your view of human rights,” Dubinsky said, “then you probably need to turn your attention towards state courts.” State common law actions can incorporate human rights principles, he explained, and it is currently more likely for a human rights case to have success in the courts of some states than in federal court. Dubinsky recommended that more international law scholars lead training workshops for state judges, especially in remote places, because many lack knowledge of international treaties.

Dubinsky also suggested that human rights advocates take advantage of non-traditional sanctions regimes—ones that do not rely on the power of the National Security Council or other parts of the federal government—to punish human rights abuses. He said, “The world of social media has taught us that successful sanctions regimes can be based on private behavior, such as refusing to purchase or associate with the offender.” Dubinsky also suggested that it might be more effective for human rights advocates to focus their energy outside the U.S.—particularly on countries in which the legal system, through the principle of “universal jurisdiction,” allows for the prosecution of individuals who commit human rights abuses anywhere in the world.