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This article analyzes the domestic application of international human rights law from the standpoint of John Hart Ely's political process theory. The article contends that an Elysian theory favors direct application of international human rights treaties, rather than indirect application of international law as an aid to constitutional interpretation, because direct application keeps the channels of political participation open. Moreover, there are certain areas of substantive law, such as capital punishment, where the Supreme Court functions as the primary lawmaker in the United States. From an Elysian viewpoint, in areas of law like capital punishment, where Congress takes a back seat to judicial lawmaking, direct application of human rights treaties would be democracy enhancing, compared to the current system of constitutional lawmaking by the Supreme Court, because direct application of human rights treaties would increase opportunities for congressional participation in the lawmaking process.

This article proposes legislation to channel capital punishment litigation away from constitutional adjudication, and to encourage direct application of the International Covenant on Civil and Political Rights (ICCPR) by U.S. courts as a substitute for constitutional decision-making. The proposed legislation would authorize state and federal courts to apply article 6 of the ICCPR directly in cases where capital defendants actually do raise, or potentially could raise, treaty-based defenses to capital punishment. Additionally, the legislation would require courts to address the treaty-based defense first, and to avoid constitutional decisions in cases where defendants could obtain relief on the basis of the treaty.

The proposed legislation would not transfer power from the states to the federal government because the federal courts already function as the primary lawmakers with respect to capital punishment. Thus, as a practical matter, the proposed legislation would transfer lawmaking power from the courts to Congress, thereby increasing opportunities for congressional participation in decisions about the domestic legal protection to be accorded to individual human rights. Although the proposed legislation focuses exclusively on capital punishment, the basic approach could be extended to other areas of substantive law as well. A similar approach could be used to enhance the democratic nature of the lawmaking process in any area of substantive law within the scope of the ICCPR where two criteria are satisfied: international law is more rights-protective than current domestic law; and the courts, rather than Congress, currently function as the primary lawmaking institution in the United States.



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