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107 Colum. L. Rev. 628 (2007)
Creeping Monism: The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties

handle is hein.journals/clr107 and id is 664 raw text is: CREEPING MONISM: THE JUDICIAL TREND TOWARD INTERPRETIVE INCORPORATION OF HUMAN RIGHTS TREATIES Melissa A. Waters* This Article offers a narrow lens analysis of a key debate over the role of foreign authority in U.S. courts: the use of international human rights trea- ties in interpreting domestic law. Professor Waters argues that recent U S. Supreme Court decisions (including Roper v. Simmons) should be viewed as part of a transnational trend among common law courts-a trend that she calls creeping monism. Common law judges are increasingly aban- doning their traditional dualist orientation to treaties and are beginning to utilize human rights treaties despite the absence of implementing legislation giving domestic legal effect to the treaties. By developing a wide variety of so- called interpretive incorporation techniques, judges are entrenching interna- tional treaty obligations into domestic law, thus becoming powerful mediators between the domestic and international legal regimes. The Article traces the growing influence of creeping monism and inter- pretive incorporation, in an attempt to shift the discourse away from the all- or-nothing debate of recent years to a more nuanced understanding of the complexities involved in incorporating international legal sources into the work of domestic courts. Drawing on a six-year study of judicial treatment of the International Covenant on Civil and Political Rights by the U.S. Supreme Court and four other common law jurisdictions, the Article develops a typology of interpretive incorporation techniques that courts are utilizing. It also provides statistical evidence regarding the use of human rights treaties across jurisdictions. Finally, it maps out a possible normative framework for evaluating courts' use of human rights treaties in interpreting domestic law. INTRODUCTION .................................................. . 630 I. THE JUDICIAL TREND TOWARD CREEPING MONISM .......... 635 A. Historical Common Law Dualism in an Era of Human Rights Internationalism .............................. 636 * Assistant Professor of Law, Washington & Lee University School of Law. The author is grateful for comments and critiques received from participants at the Harvard Law School Foreign Relations Law Colloquium; the Joint American Society of International Law, Australia New Zealand Society of International Law, Canadian Council on International Law, and Japanese Society of International Law Fostering A Scholarly Network Conference; the Vanderbilt International Law Roundtable; the University of Connecticut International Law Conference; and faculty workshops at Arkansas-Fayetteville, Florida, George Washington, Seton Hall, and Washington & Lee. In particular, the author thanks Roger Alford, Jose Alvarez, Paul Schiff Berman, Dorothy Brown, Montre Carodine, Anupam Chander, Steve Charnovitz, Allison Danner, Mark Drumbl, David Fontana, Laurence Helfer, Mark Janis, Rick Kirgis, Janet Levit, Michael Ramsey, Peter Spiro, Ralph Steinhardt, Scott Sundby, Timothy Wu, Ingrid Wuerth, Ernest Young, and David Zaring. I gratefully acknowledge the generous research support of the Frances Lewis Law Center at Washington & Lee University School of Law. 628

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