What are the formal requirements to cite the Universal Declaration of Human Rights in U.S. courts?

I understand that there has been no attempt to broaden protections subject to civil rights in the U.S. on the grounds of human rights so there is likely no example for such a reference, but U.S. courts probably see UDHR references in immigration cases, and I would be curious to see how that looks. My understanding is that the UDHR is a multilateral agreement which may or may not be binding on the U.S. absent necessary authority to enter into it in a binding fashion. I also understand that similar international treaties and other pacts will be cited in the U.S. in, for example, the following format:

“Treaty title, Parties (if applicable), date of signature, treaty source designation, optional treaty source | pinpoint reference (date of entry into force and optional information).“ — https://guides.library.ubc.ca/legalcitation/intlaw

Convention on Great Lakes Fisheries, United States and Canada, 10 September 1954, Can TS 1955 No 19, 6 UST 2836 (entered into force 11 October 1955).

How would the international treaty of, say, Article 3 of the Universal Declaration of Human Rights look like in a U.S. complaint or elsewhere wherever it may be deemed binding law? Are there any case laws that specifically outrule that U.S. courts be bound by the legal cornerstones of the UDHR? Any for the opposite?

2 Answers 2

The Universal Declaration of Human Rights is not self-executing and may not be applied in U.S. courts as binding law. See, e.g., Barbara Macgrady, Note, Resort to International Human Rights Law in Challenging Conditions in U.S. Immigration Detention Centers, 23 BROOK. J. INT'L L. 271, 300 (1997) ("Since Congress has made its intent clear [by adopting NSE declarations], it is certain that the courts will not enforce these treaties in a domestic action."). See also this 1999 Yale Law Review Article.

Sometimes these treaties and declarations are cited by parties in litigation, but these are always losing arguments. These arguments are made to encourage diplomatic pressure and generate PR, not to convince U.S. judges to rule in their favor.

Also keep in mind that the U.S. takes the minority position that an ordinary domestic statute that conflicts with an earlier adopted Senate ratified treaty overrides the earlier adopted Senate ratified treaty. Almost no other country in the world takes this extreme position. See generally here (general background on treaties as U.S. law).

The citation form for Article 3 this document under the prevailing "Bluebook" standard is

Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948), Art. 3.

The link also provides citation forms for other common international human rights treaties in Bluebook form.

But this would generally be used in law review articles and the like rather than in legal briefing in the courts.

@kisspuska You would be wrong. Most treaties are not self-executing. For example, a 1999 law review treatment of the subject can be found at digitalcommons.law.yale.edu/cgi/…

Perfectly good question. The answer is entirely non-obvious, even though it is simple and clear, and there is no way you could possible know it without familiarity with the case law and treaty law (I was a senior editor on the Michigan Journal of International Law charged with developing international citation rules when I was in law school).

The idea that a domestic law overrides treaty would seem to override the plain text of the US Constitution, which states that treaties are the supreme law of the land. As such, I would presume there must be a Court ruling establishing this idea. Can you provide a citation for that?

@trlkly The Constitution also says laws enacted by Congress are the supreme law of the land. The full text is "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land[.]"

@TylerDurden NSE = "Not self-executing." In other words, Congress expressly decided that it would have no legal effect when they endorsed it. See also the answer from cpast which notes that it isn't a treaty.

While ohwilleke gave a good answer on the limits of citing treaties in US courts, there's a more fundamental issue: the UDHR is not a treaty. It's a resolution of the UN General Assembly, and like virtually all General Assembly resolutions it has no binding effect under international law (the only General Assembly resolutions that are binding are about internal UN matters, budgeting, dues, and so on). This is reflected in the title: the term "declaration" is often specifically chosen to show that a statement is not binding.

That's not to say the UDHR is irrelevant. First, there are two actual treaties designed to implement UDHR-like protections (the International Convention on Civil and Political Rights and the International Convention on Economic, Social, and Cultural Rights). These treaties were signed in 1966 and came into effect in 1976, well after the UDHR, but unlike the UDHR they do actually impose obligations under international law. Also, international law does not only come from treaties. A lot of international law is customary: legal obligations exist because countries in fact consider themselves bound by them. It's a mainstream position that the UDHR has become customary international law.

Neither of these necessarily helps in a US court, though. While the US is party to the ICCPR, its ratification came with a lot of declarations, reservations, and understandings. The overall effect was that the US took the position that its constitution and laws protected the rights found in the ICCPR. Furthermore, the ratification was explicitly under the condition that the ICCPR was not self-executing, so the federal courts cannot enforce it directly. The US never ratified the ICESCR and is not bound by it. While the US does recognize customary international law, it's not necessarily useful in these cases. See Sosa v. Alvarez-Machain for an example of its limits.