Not Just Doctrine: The True Motivation for Federal Incorporation and International Human Rights Litigation

Authors

Daniel Abebe, Columbia Law SchoolFollow

Document Type

Article

Publication Date

2007

Abstract

The legal status of international human rights litigation under the Alien Tort Statute (ATS) has been the subject of much debate, culminating in the Supreme Court's decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The debate has been almost exclusively doctrinal and has focused on the Judiciary Act of 1789, the historical treatment of the law of nations as general or federal common law, the evolution of the Supreme Court's international law jurisprudence, and the integration of customary international law (CIL) into the domestic legal system.

This Article argues that the focus on doctrine masks underlying international relations theory assumptions that are the true motivations of the federal incorporation of CIL and international human rights litigation under the ATS. One cannot evaluate the desirability of the federal incorporation of CIL and international human rights litigation in U.S. courts without having a theory of the operation of the international system, the motivation for state behavior in international politics, and the efficacy of international law as a coercive instrument. Proponents of the federal incorporation of CIL and international human rights litigation implicitly rely on social constructivism, democratic peace theory, and institutionalism – international relations theories that motivate a universalist theory of international law.

Disciplines

Human Rights Law | International Law | International Relations | Law | Litigation

Recommended Citation

Daniel Abebe, Not Just Doctrine: The True Motivation for Federal Incorporation and International Human Rights Litigation, 29 Mich. J. Int'l L. 1 (2007).
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/4527