The Enforcement of International Human Rights Law in U.S. Courts  

Abstract Category: Laws
Course / Degree: International Relations and Diplomatic Affairs LM
Institution / University: University of Bologna, Italy
Published in: 2011

Thesis Abstract / Summary:

The United States’ attitude towards international human rights law has been subjected to sharp criticism. Particularly, while U.S. law ensures a wide protection of human rights, the United States has taken specific actions to minimize its own obligations under international law. The aim of the research work contained in this thesis is exactly to comprehend to what extent international human rights law is domestically enforced in US. courts.


The inquiry starts with exploring the self-executing/non-self-executing character of the human rights treaties that are legally binding on the United States. As it emerges from the analysis, the non-self-executing character attributed to the majority of these treaties de facto prevents their domestic implementation. This stands in plain contrast with the Founding Father’s expectations and the very text of the U.S. Constitution according to which all the international treaties duly ratified by the United States represent the “Supreme law of the Land.”  After which, the study tackles the reservations, understandings and declarations, or RUDs, that are attached to the human rights agreements the United States partakes in. Our analysis clearly shows that the main purpose of these RUDs is to circumscribe international human rights law’s scope so that it is not enforceable in U.S. domestic courts.


Given that customary international law also regulates the conduct of states towards their own citizens, the study proceeds addressing the status it occupies in the U.S. legal system. Even though a few scholars argue that, following Erie Railroad v. Tompkins, customary international law cannot be enforced in U.S. courts in the absence of some specific domestic authorization to do so, such as an act of Congress, our analysis suggests that the Founders clearly expected the "law of the nations" to be binding, supreme law and directly applicable in all U.S. courts. Moreover it points out that text and the structure of the Constitution, as well as the pattern of judicial opinions since the birth of the Supreme Court confirms this inference. Unfortunately, however, the status of customary international law in the U.S. legal system still constitutes the object of an ongoing academic debate.


The next chapter focuses on a 1980-landmark ruling, Filartiga vs. Pena-Irala. Plaintiffs, two Paraguayan citizens, sued a former Paraguayan general residing in the U.S. for acts of torture and cruel and inhumane treatment he committed in Paraguay. Relying heavily on both international and national law, the Second Circuit Court of Appeals held that official torture violates an established norm of customary international law. By using the Alien Torts Statute, or ATS, a statute that was originally enacted in 1789 to allow aliens to sue, for a tort only, in U.S. courts for a violation of the law of the nations committed upon them, the Court breathed new life in this little-used provision and paved the way to the so-called ATS-human rights litigation.


Filartiga vs. Pena-Irala  sparked a fierce debate over the original meaning and purpose of the Alien Tort Statute and, as a consequence, of its viability as a tool for the enforcement of human rights. In 2004 the Supreme Court finally decided to address the ATS for the first time. In Sosa vs. Alvarez Machain the Court was asked to establish whether the statute was a mere jurisdictional grant or whether it also provided plaintiffs with cause of action. Leaving the technicalities of its decision aside, the Court held that only norms of international character accepted by the civilized world and defined with a specificity comparable to the features of  violations of safe conduct, offenses against ambassadors and piracy could be directly actionable under the otherwise purely jurisdictional statute. In so doing the Court limited the scope of the ATS-litigation but confirmed the Filartiga’s line of cases.


While the limitations put on the ATS by the Supreme Court slowed the amount of cases that were being brought to the U.S. courts, they did not slow the success of cases against foreign officials. Many human rights violations, such as torture, summary execution, arbitrary detention, and disappearance have been considered actionable in U.S. courts through the ATS. However, our study clearly reveals that when the ATS has been invoked to hold accountable either U.S. officials or leaders of recognized countries that breached various human rights laws abroad, the same courts invoked various doctrines to halt the cases. Among these, political question doctrine, state secrets, and sovereign immunity were raised the most. 

Thesis Keywords/Search Tags:
torture, Alien Tort Statute, Filartiga vs. Pena-Irala, customary law, human rights treeaties, reservations, U.S. Constitution, sovereign immunity, political question doctrine, act of state

This Thesis Abstract may be cited as follows:
Gubbioni, N. 2011   

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Submission Details: Thesis Abstract submitted by Natalia Gubbioni from Italy on 04-May-2011 19:59.
Abstract has been viewed 4680 times (since 7 Mar 2010).

Natalia Gubbioni Contact Details: Email: gubbioni.natalia@gmail.com

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