Holding the UP Law Faculty in Contempt Would Be a Grave Mistake

by Evan Criddle and Evan Fox-Decent

[Opinio Juris is delighted to post these remarks by Professors Evan Fox-Decent (McGill) and Evan Criddle (Syracuse) on the fallout from the allegations that their article was plagiarized by a member of the Philippines Supreme Court]

We are writing to lend support to the University of Philippine’s College of Law, which now faces a very serious charge of contempt from the Philippine Supreme Court (PSC). If the members of the College are held in contempt, they face the loss of their bar licenses and with that the loss of their ability to teach and practice law.

A few months ago the PSC rendered its decision in Isabelita Vinuya et al. v. Executive Secretary et al. The complainants asked the PSC to order the Philippine government to seek reparations from Japan for the Japanese military’s mistreatment of Philippine women during World War II. During the Japanese occupation of the Philippines, the Japanese military interned scores of Philippine women and placed them in sexual slavery. The Vinuya decision discusses jus cogens or peremptory norms of international law, as these norms enjoy a status that cannot be overridden by treaty. The PSC concluded the no such norm prohibited sexual slavery, and thus that jus cogens was irrelevant to the case.

In its jus cogens discussion, the PSC quoted without attribution numerous selections from an article by Evan Criddle and myself, an article featured here at Opinio Juris. In the aftermath of Vinuya, Professor Criddle noted that the most troubling aspect of the PSC’s jus cogens discussion is that it implies that sexual slavery, crimes against humanity, and other abuses are not covered by jus cogens, whereas we had emphatically argued that they are.

The complainants in Vinuya filed a motion for reconsideration, pointing to more than 30 tracks lifted without attribution from our article. The complainants also alleged that material from Mark Ellis and Christian Tams had been used without proper attribution. The motion is available here. The University of the Philippine’s College of Law issued a statement critical of the apparent plagiarism, available here.

The PSC held a hearing to review the plagiarism charge and delivered a split decision. The majority acknowledged that some of our article’s text was used in Vinuya without appropriate referencing, but chalked this up to clerical errors. The minority doubted that so many selections could be used innocently without attribution, raising the possibility that the lack of attribution stemmed from the Vinuya Court reaching conclusions directly contrary to those expressed by us, Ellis and Tams.

On 18 October 2010 the PSC issued an order giving members of the UP College of Law 10 days to show cause as to why they should not be sanctioned for issuing the statement critical of Vinuya.

Professor Criddle and I believe that it is not the place of a court to sanction individuals or institutions that have been critical of it. This principle is especially important in the case of a law school, where discussion of cases is an integral part of legal pedagogy. The idea that a law school or its members cannot express an opinion on a case is contrary to the best practices of law schools everywhere, and an affront to free expression. That a court would assert jurisdiction to sanction its detractors is, in our opinion, an abuse of judicial power. To the best of our knowledge, no court in a democracy has ever attempted to assert the kind of jurisdiction the PSC is asserting now against the UP College of Law.

We initially declined to comment on the substance of the plagiarism complaint, except as noted above. Readers can draw their own conclusions from the ‘tables of comparison’ (comparing the original text with text in Vinuya) provided by Justice Sereno who wrote with the minority in the plagiarism decision. Given the stakes involved now for members of the UP College of Law, we believe it is important for us to offer our opinion on the merits of the plagiarism charge. The point of our doing so is only to underline that the UP College of Law issued its critical statement in good faith and has clean hands in its dispute with the PSC. While the UP statement contains some harsh and uncompromising language, it emerged in the wake of a controversial decision, and is clearly within the scope of speech protected under any reasonable interpretation of freedom of expression.

A cursory glance at the tables of comparison set out in Justice Serano’s opinion reveals repeated verbatim or near-verbatim uses of text from our article without attribution. If a law student submitted an essay with this much cut-and-paste text, without attribution, he or she would almost certainly be subject to disciplinary action. We say this with all due respect to the PSC, and only to emphasize to others in the legal community that we believe the UP College of Law acted in good faith when it criticized the use of our article in the Vinuya opinion. The College has clean hands in this dispute, and in our view deserves support.

YJIL Symposium – Response to Elena Baylis

by Tara Melish

Please let me thank Elena again for taking the time to respond to my piece, and for her always insightful, probing, and challenging questions. Let me attempt to respond sequentially to each of the five great points she raises.

1. Elena begins by querying whether the “thicker” interest-based description I offer to explain the recent increase in U.S. human rights engagement in fact signals “anything more than an anthropological point about differing cultures and roles of the U.S. Congress and the Office of the Legal Advisor to the State Department?” That is, isn’t it plausible that increased engagement is simply “the result of Congress having ratified a number of treaties with reporting obligations, and authority for fulfilling those obligations having been turned over to the Legal Advisor’s Office”?

There are two distinct responses to this important question. First, it is useful to underscore that my article does not in fact make any claim about the cultures and roles of the U.S. Congress and the Office of the Legal Advisor. To the contrary, the crux of my argument is that these democratic policymaking institutions—and U.S. human rights policy as a whole, which is not determined exclusively by either body—are best understood as having no culturally fixed or structurally predetermined approach to engagement, either at the stage of human rights treaty ratification or post-ratification treaty body engagement. (This is precisely what distinguishes an interest-management narrative from an exceptionalist one.) Rather, U.S. policy institutions are better understood as mediating bodies that seek to maximally accommodate the competing (and constantly evolving) interests exerted on them both at the foreign-policy level (from realists and institutionalists) and at the domestic-policy level (from insulationists and incorporationists). Such accommodation is constrained, nevertheless, by a core set of sovereignty and subsidiarity-based mediating techniques that legally anchor U.S. human rights policy and determine its outer boundaries. Any “anthropological” point I make about the content of U.S. human rights policy is, then, not directed to these institutions, but rather to the shifting motivations of the U.S. interest groups which seek to influence them (both from within and from without). It is the changing strategies of these interest groups as they respond to new political conditions and shifting alliances, and how those strategies intersect with U.S. mediating techniques, I argue, that are determinative in understanding the evolving, asymmetric contours of U.S. human rights policy.

YJIL Symposium – Response to Professor Melish

by Elena Baylis

Thanks to Opinio Juris and to YJIL for giving me the opportunity to comment on Tara Melish’s article, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies. I have long been a fan of Tara’s work, and so it’s a pleasure to have the chance to respond to her new piece.

In this article, Tara persuasively argues for two fundamental shifts in our understanding of the “U.S. human rights paradox.” She claims:

1. That the US position on international human rights is better explained as the balancing point of the competing demands of interest groups, reached through iterative political interactions, than as the result of static exceptionalism and/or cultural preferences; and,

2. That “incorporationists” (advocates of domestic incorporation of international human rights) have made several fundamental errors in confronting opposition to human rights treaties. They have disengaged too much from the national political process, they have mistaken rhetoric for reality in responding to opponents’ rights-absolutist positions, and they have mistaken the means for the ends by opposing non-self-execution declarations and other RUDs. Because the US human rights position is the result of a dynamic political process, incorporationists could influence that process by altering their strategy to promote domestic democratic deliberation on the national and local levels.

With these arguments, Tara proposes an end run around some intractable sticking points in the debate over the U.S. human rights position.

On the first point, I am entirely sympathetic to Tara’s approach of using a thick description of process as the basis for her theoretical claims, but I have two questions about the factual foundation and its analytic connection to those conclusions.

YJIL Symposium – From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies

by Tara Melish

[Ed. This is a slightly different, updated version than the one posted earlier today.] Let me begin by thanking Opinio Juris and the editors of the Yale Journal of International Law for hosting this online symposium, and especially Professor Elena Baylis for her willingness to provide comments on my recent article, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies.

This article seeks to take a closer, more searching look at what has frequently been called the “U.S. human rights paradox”—the United States’ longstanding practice of resisting direct domestic application of human rights treaty norms, even as it vigorously promotes those norms and their corresponding supervisory machinery for other nations (and understands human rights to stand at the core of its national identity). While most scholarly accounts attribute this “paradox” to deeply-embedded exceptional features of U.S. democratic structure or rights culture (and hence predict it unlikely to change anytime soon), the inability of exceptionalist narrative to credibly account for the significant empirical changes that have occurred in U.S. human rights engagement policy over the last fifteen years, raises serious questions about that narrative’s continuing utility. Such changes in U.S. human rights policy include not only a notable rise in human rights treaty ratifications—ratifications reliably shunned for forty years—but also, and in accelerated fashion since 2003, a qualitatively more robust policy of U.S. engagement with the international human rights treaty bodies charged with supervising U.S. compliance with its treaty-based human rights commitments. Notably, this latter shift has become most sustained precisely when least expected: in the post-Iraq invasion, Bush-era environment, when perceptions of U.S. unilateralism and go-it-alone exceptionalism (both at home and abroad) were at their peak.

In an effort to better explain the often asymmetrical shape and growth patterns of U.S. human rights engagement policy, I offer a new narrative based in interest group management. That narrative emphasizes a disaggregated analysis that looks at the interest intersections and competing push-pull agendas of four distinct instrumental interest groups, each seeking alternatively greater or lesser substantive and procedural engagement with human rights treaty bodies, in accordance with their group-specific policy interests. These include “realists” and “institutionalists” at the foreign policy level (the latter pushing for greater U.S. engagement, the former pushing away from it) and groups I call “insulationists” and “incorporationists” at the domestic policy level (the former seeking to insulate domestic politics from the methodological influence of human rights law, the latter seeking to incorporate human rights norms and methodologies into U.S. law and practice). The evolving shape of U.S. human rights engagement policy, I argue, is determined at the shifting intersection points of these four interest groups, as they are accommodated within and managed through a core set of doctrinally-anchored mediating techniques that define the parameters of U.S. engagement practice. These mediating techniques, used today to justify U.S. positions in virtually all treaty body fora, are reliably and reliedly drawn from two longstanding and foundational doctrines of international law: the doctrine of sovereignty and, most significantly, the principle of subsidiarity. Although both are today invoked only in their negative dimensions, each provides ample room for policy maneuver if used in their full dimensionality.

My central claim is that a fuller understanding of U.S. engagement policy’s basis in these doctrinally-anchored mediating techniques, and how their flexible contours are strategically manipulated to steer a middle course through the competing interests of U.S. realists, institutionalists, insulationists, and incorporationists, reveals that the “U.S. human rights paradox” may not in fact be so paradoxical. To the contrary, that paradox may be entirely explainable, at least in its modern era, by reference to how these four interest groups articulate their interests in ways that can effectively be accommodated by U.S. sovereignty and subsidiarity-based mediating techniques. As I seek to show through an examination of the specific ways the U.S. engages with the three principal competences exercised by UN, OAS, and ILO supervisory treaty body systems, U.S. human rights engagement policy today maps directly to the policy coordinates at which the interests of three of these groups intersect. These groups include foreign-policy realists, foreign-policy institutionalists, and domestic-policy insulationists.. Notably absent in this calculation are domestic-policy incorporationists.

YJIL Symposium: Response to Mark Wu

by Anupam Chander

I am grateful to Mark Wu for penning a thoughtful response to some of the ideas in “Trade 2.0.” I am fortunate to have such an expert commentator. Wu agrees with my aims, but worries that the political will may be lacking to effect my proposals. He also offers four other hurdles to implementation. I consider each concern below, beginning (in the interest of easy cross-reference) with the one he labels “first,” and concluding with a response to the political will objection.

First, Wu is concerned that GATS Article XIV will prove a major hurdle to liberalization of trade in services conducted electronically. Article XIV allows countries to derogate from their liberalization obligations if necessary to protect public morals or the public order. This escape valve seems a wise measure to prevent the imposition of sanctions in cases where a particular trade liberalization would imperil domestic morals or domestic order. The proponents of GATS recognized, however, that claims of public morals or public order might be used to disguise protectionist regulation, and thus the WTO properly limited the invocation of Article XIV to cases where there is no “reasonably available alternative” to the GATS derogation (U.S. – Gambling). InU.S. – Gambling, the United States successfully invoked Article XIV nonetheless because Antigua failed to show that there was a “reasonably available alternative” to the U.S. regulation. But a future complainant may not be so reticent to press the possibility of a reasonably available alternative. Indeed, the European Union has hinted that it may lodge a complaint against the United States for failing to live up to its gambling commitments. Presumably, unlike Antigua, it would press the possibility of achieving, through means other than a prohibition on online supply, the laudable American objectives of protecting youth, preventing fraud, and minimizing problem gambling. The European Commission has made its opinion plain: it suggests that “[t]he enactment of UIGEA [the Unlawful Internet Gambling Enforcement Act of 2006] showed that alternative measures that are WTO consistent (such as authorization/licensing under sufficiently strict conditions) are reasonably available to the US.”

YJIL Symposium – Response to Professor Chander

by Mark Wu

First, thanks to the Yale Journal of International Law (YJIL) for the opportunity to comment on Professor Anupam Chander’s most recent article, Trade 2.0, in the latest issue of YJIL, and to Opinio Juris for hosting this symposium.

Chander highlights an important transformation in global trade. For centuries, the desire of a producer to expand overseas required a substantial commitment of capital and resources. The information revolution of the past decades has shrunk these costs drastically. This is especially true of the growing trade in services. While capital barriers have shrunk dramatically, however, legal and regulatory barriers have not. Some of these barriers are imposed by companies hosting these services; others are imposed by governments in the jurisdiction where the consumers of these services reside. Trade 2.0 raises provocative questions about whether the current international legal infrastructure is positioned to address these barriers. No doubt the World Trade Organization (WTO) has been “behind the curve” in dismantling protectionist barriers to the growing internet-based services trade. While the WTO has set up a work programme, little has been achieved.

Trade 2.0 identifies a series of principles to govern this emerging trade. I am sympathetic to the ideals which Chander seeks to foster — freeing and expanding trade, respecting local differences in norms, promoting harmonization, and preventing a race to the oppressive bottom. The questions that I raise below, therefore, exhibit my pessimism over whether these ideals can be readily balanced through a multilateral framework. The realist in me is doubtful that this important project of creating a global governance architecture for the next phase of international trade will be as successful as its predecessor (i.e., that for conventional trade in goods). The idealist in me hopes to be persuaded otherwise.

Why do I think this project will be so difficult? The obvious answer is the lack of political leadership. Differences persist between the U.S. and E.U., and neither of these two major trading powers has been willing to exert transformative leadership on this issue. (For an account of how U.S. and E.U. internal constraints and differences have prevented leadership from emerging in GATS negotiations on digital services, see Sacha Wunsch-Vincent’s book The WTO, the Internet, and Trade in Digital Prodcuts). Yet, increased political leadership will be required if a principled, coherent framework for cyber-trade is to evolve. The Appellate Body alone cannot craft such a framework through jurisprudential decisions. Beyond the problem of the political leadership void, let me offer four others:

YJIL Symposium – Trade 2.0: “The New Global Traders on Your iPhone”

by Anupam Chander

Today, one of the most important ports of entry for trade can be found on the diminutive screen of the iPhone. Companies from around the world vie to provide a service via that screen — playing a game, offering information, managing finances, or connecting one with friends. With its two billionth download, Apple announced last week: “Today, iPhone and iPod touch customers in 77 countries worldwide can choose from an incredible range of apps in 20 categories, including games, business, news, sports, health, reference and travel.

The process for becoming such a global trader is remarkably easy. One registers as a developer with Apple, agrees not to violate United States laws prohibiting export of certain technology with military uses, declares whether one is U.S. person or a foreign person for purposes of U.S. tax collection, chooses the languages in which the application is to be offered, and indicates a bank account to collect the proceeds.

It has not traditionally been so easy to sell services to the world. The recent development of near-instantaneous communication via global electronic networks makes it possible for people to provide services across the world without boarding a plane or passing a customs checkpoint.

But offering an app through the Apple store is not without possible controversy, especially when the same app is offered across so many jurisdictions. Apple itself polices the proposals, thus far denying applications to sell pornography, for example. Apple retains “the right not to post any material . . . at any time in its sole discretion without notice or liability.” But Apple may permit material that some countries may find objectionable, and it may deny material that some countries may believe cannot be justifiably denied. How will the trade mediated by this device that fits in the palm of one’s hand conform to the laws of all the shores it visits?

Consider the major news in the IT industry from the last two weeks. Dell announced the multi-billion dollar acquisition of Perot Systems, and Xerox followed with its own multi-billion dollar acquisition of Affiliated Computer Services. Perot Systems and Affiliated Computer Services provide outsourcing services to both governments and corporations. With these acquisitions, Dell and Xerox, traditionally in the global hardware business, now plan to move into global services, much as IBM did a few years back. All of these companies rely upon an electronically-enabled global workforce to supply services across the world. Meanwhile, Amazon announced its newest Kindle, now available with aninternational wireless service that allows you to download books and other reading material in more than one hundred countries. Amazon’s Kindle, like the iPhone, now allows authors to reach consumers across the world. People all over the world can now engage in global trade with just a few movements of their fingers.

My article Trade 2.0 in the latest issue of the Yale Journal of International Law begins to think through how we should think of trade conducted via electronic networks. The abstract for the paper reads:

YJIL Symposium – Reply to Alexander Orakhelashvili

by Evan Criddle and Evan Fox-Decent

One of the great benefits of Opinio Juris is that it permits authors to clarify their views in light of thoughtful criticism, and Alexander Orakhelashvili’s comment on our article is certainly all of that. As the author of the leading monograph on jus cogens, namely Peremptory Norms in International Law (OUP 2006), Professor Orakhelashvili is uniquely qualified to address our article’s contribution to the theory and practice of peremptory norms. We are grateful for his remarks and will respond briefly to three objections he presses against our fiduciary theory of jus cogens.

The first objection is that although the fiduciary theory is well placed to explain peremptory norms governing fundamental human rights and principles of international humanitarian law, it cannot explain the peremptory status of the prohibition on the use of force against states (i.e., the prohibition on military aggression). In our paper we suggest that military aggression is tantamount to a crime against humanity (p. 370), and go on to justify the anticolonial right to external self-determination as an analogue of the prohibition on the use of force (p. 373). In both cases, the relevant norms enjoy peremptory status because, under the fiduciary model, a state cannot use force to subject another state or people to its control without implicitly failing to treat foreign nationals as equal moral agents. The fiduciary theory calls for self-rule as the best means of ensuring the secure and equal freedom of individuals within states, and from this commitment follows the prohibition on the use of force.

YJIL Symposium – Observations on a Fiduciary Theory of Jus Cogens

by Alexander Orakhelashvili

Peremptory norms (jus cogens) form part of the core of the international legal system, and combine both public policy (public order, ordre public) and constitutional elements in the sense that they ban the legal effect of conflicting acts and transactions and prevail over conflicting norms and instruments. Both these qualities follow from the attribute of non-derogability, which the international community has unambiguously recognised in Article 53 of the 1969 Vienna Convention on the Law of Treaties (VCLT). Given the fundamental relevance of jus cogens, the doctrinal opposition to it over the past several decades, although sometimes voiced in a popular and attractive language, has always proved moot and of little influence on how the actual concept of international public policy has developed. Instead, what has happened is an increase in the recognition of the essence and effects of jus cogens in practice and its increasing treatment in doctrine. In this respect the formulation of a fiduciary theory of jus cogens by Professors Criddle and Fox-Decent is yet another welcome development that can facilitate scholars’ understanding of the jurisprudential underpinnings of this rather complex normative phenomenon.

Criddle and Fox-Decent derive the doctrinal basis of jus cogens from Kant’s innate right of children to their parents’ care. This leads to the seeing of States as fiduciaries of the people subject to their power, which goes hand in hand with jus cogens safeguarding higher moral values of the international community. The fiduciary theory is further useful in corresponding to the way international jus cogens is identified: peremptory norms must be “public, clear, feasible, consistent with other like norms, relatively stable over time, and prospective rather than retroactive;” and “[m]ost if not all human rights conform to the[se requirements].” The conclusion that “[p]eremptory norms such as the prohibitions against slavery and torture are not exceptions to state sovereignty, but rather constitutive constraints flowing from the state-subject fiduciary relationship itself” is conceptually feasible, and can serve as one of the rational explanations of the jurisprudential essence of international jus cogens.

While this conceptually captures the reason that some peremptory norms – such as fundamental human rights and fundamental principles of international humanitarian law or the principle of self-determination of peoples – bind States, namely because they protect non-State actors against the arbitrary exercise of State authority or the failure of States to protect vulnerable individuals from private violence,[1] it should also be accepted that fiduciary theory does not cover the entire field of jus cogens. Namely, this theory does not explain why the prohibition of the use of force against States – unambiguously recognised as peremptory both at international and national levels – has such superior normative status. The International Court of Justice affirmed the peremptory status of the prohibition of the use of force in Nicaragua v. United States.[2] Although there have been repeated doctrinal attempts to deny this, most notably by Professor Shelton,[3] the careful reading of Nicaragua conveys the opposite message. The Court pointed to the International Law Commission’s (ILC) qualification of the relevant norm as peremptory and then used this factor as an evidence of the relevant norm’s customary character. Once the Court drew consequences from the peremptory status of the norm, it effectively subscribed to the view that the prohibition of the use of force is part of peremptory law. The credibility of Shelton’s approach is thus rather upset by the contextual reading of the Nicaragua judgment, which not only acknowledges the ILC’s view but further relies on it to identify the customary law status of the prohibition of the use of force.

YJIL Symposium – A Fiduciary Theory of Jus Cogens

by Evan Criddle and Evan Fox-Decent

We would like to begin by thanking Opinio Juris and the Yale Journal of International Law for hosting this symposium, and Alexander Orakhelashvili for generously agreeing to act as our interlocutor.

In international law, the term “jus cogens” refers to norms that are considered peremptory in the sense that they are mandatory and do not admit derogation. In our article, we argue that peremptory norms are inextricably linked to the sovereign powers assumed by all states. The key to understanding international jus cogens lies in Immanuel Kant’s discussion of the innate right of children to their parents’ care in The Metaphysics of Morals (pp. 98-99). Drawing on Kant’s account, our theory of jus cogens posits that states exercise sovereign authority as fiduciaries of the people subject to their power. An immanent feature of this state-subject fiduciary relationship is that states must comply with jus cogens. Just as important as the theory’s justification of peremptory norms, however, is its capacity to clarify the content of jus cogens by generating discrete criteria for identifying peremptory norms.

Yale Journal of International Law, Vol. 34, No. 2: Online Symposium

by Editors of the Yale Journal of International Law

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The Yale Journal of International Law (YJIL) is pleased to continue its partnership with Opinio Juris in our fourth online symposium (previous symposia can be found here). This Monday, Tuesday, and Wednesday we will feature three Articles published by YJIL in Vol. 34, No. 2, which are available for download here. Our sincere thanks to Julian Ku and the rest of the Opinio Juris team for hosting this exciting discussion.

On Monday, Evan J. Criddle (Syracuse University College of Law) and Evan Fox-Decent (McGill University Faculty of Law) will discuss their Article, A Fiduciary Theory of Jus Cogens. Drawing from Immanuel Kant’s account of familial fiduciary relations in The Doctrine of Right, Criddle and Fox-Decent posit that states exercise sovereign authority as fiduciaries of those subject to their power and that compliance with jus cogens norms emerges as a condition of this state-subject fiduciary relationship. The authors then use this framework to develop both formal and substantive criteria for identifying peremptory norms, which they argue will enable national and international courts to better employ peremptory norms in appropriate cases and fill in many of the gaps left by existing accounts of jus cogens. Alexander Orakhelashvili (University of Birmingham) will respond to this piece.

On Tuesday, Anupam Chander (University of California at Davis School of Law) will introduce his Article Trade 2.0. In this piece, Chander uses several recent developments to analyze the new challenges raised by what he calls net-work: the transnational trade in information services made possible by the development of a truly global electronic communications systems. Noting that several unique aspects of net-work trade are not adequately addressed by the established conventions that have arisen around past forms of transnational trade, Chander argues that a similar system of rules and principles will be necessary to effectively balance the national regulation of services with the removal of inefficient barriers to the transnational trade in services. Towards this end, Chander identifies two principles related to the liberalization of net-work trade — technological neutrality and dematerialized architecture — and three principles regarding states’ rights to regulate the transnational trade in services — globalization, harmonization, and “do no evil” — that he maintains will help strike this balance. Mark Wu (Academic Fellow, Columbia Law School) will discuss this piece.

Finally, on Wednesday, Tara Melish (University at Buffalo Law School, State University of New York) will present her Article From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies. Melish draws from theories of interest group management to offer a new narrative of the United States’ engagement with international human rights bodies, one that questions traditional descriptions U.S. human rights policies as paradoxically split between outward prodigiousness and inward conservatism. Instead, Melish argues that the United States’ engagement with human rights treaty bodies reflects policymakers’ efforts to mediate between a complex variety of political pressures in a manner that is consistent with the principle of subsidiarity underlying much of international human rights law. Drawing from this perspective, Melish goes on to provide several strategic insights as to how human rights advocacy groups can better embrace this principle of subsidiarity and thus lobby more effectively for the domestic incorporation of human rights principles. Elena Baylis (University of Pittsburgh School of Law) will provide a response to this piece.

We hope that you enjoy what is sure to be a thought-provoking exchange, and encourage you to make your own contributions to the debate in the comments sections!