International law, which is part of the supreme law of the United States, provides significant affirmation of the legal propriety of race-based affirmative action. At least two human rights treaties ratified by the United States are particularly useful in identifying the acceptability of certain measures of affirmative action as well as the duty to take special and concrete measures of affirmative action in certain circumstances. Such a duty is not merely based in supreme federal law, relevant to decision-making at federal and state levels, but is also contained in federal policy relevant to the constitutional precept of federal preemption. Treaty-based legal acceptability does not guarantee that particular measures of affirmative action will survive challenges under other constitutional provisions, such as the Fifth and Fourteenth Amendments, but it is pertinent to a continuing or emerging meaning of constitutional rights and competencies. Indeed, treaty-based permissibility of affirmative action coupled with relevant duties provide a compelling state interest for both federal and state initiatives.
Jordan J. Paust,
Race-Based Affirmative Action and International Law,
Mich. J. Int'l L.
Available at: http://repository.law.umich.edu/mjil/vol18/iss4/3