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

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. The universalist theory holds that international law has an independent, exogenous affect on state behavior. Since States obey international law out of legal obligation, universalists tend to encourage the greater integration of CIL into domestic legal regimes and the use of CIL to improve human rights practices around the world. Therefore, the desirability and efficacy of the federal incorporation of CIL and international human rights litigation under the ATS depends on the explanatory power of specific international relations theories and the strength of the universalist theory as the appropriate conception of international law. This Article directly engages the universalist theory of international law and the underlying international relations assumptions upon which proponents of federal incorporation and international human rights litigation under the ATS rely. The Article examines a competing international relations theory and alternative conception of international law that views compliance as a function of state interests rather than of legal obligation. Working from this perspective, the Article provides a framework to evaluate the desirability of the federal incorporation of CIL and international human rights litigation in U.S. courts. The Article concludes that international human rights litigation under the current legal regime would likely complicate the achievement of the United States’ normative and strategic foreign policy goals. Given the executive’s institutional competencies, constitutional prerogatives and resource advantages, it is the branch best-placed to determine whether international human rights litigation will assist or hinder the United States’ foreign policy objectives. Therefore, the Article suggests that a modest shift along the continuum of existing judicial deference to the executive branch — perhaps in the form of judicial review of executive determinations on specific litigation under an arbitrary and capricious abuse of discretion or reasonableness standard — is warranted for international human rights litigation under the ATS.