Litigating international human rights claims in U.S. federal courts and the separation of powers dilemma / by Kenneth L. Graham
Includes bibliographical references (p. 194-228)
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Electronic version from ProQuest
As a self proclaimed champion for international human rights, the United States, starting in the early 1980s has, increasingly been asked foreign citizens to redress claims of international abuses in the federal courts. Too often, these individuals have found themselves victims of human abuse by the very governments that are traditionally required to protect them. This dissertation analyzes a series of cases dealing with foreign human rights claims asserted under U.S. law to determine the legitimate role of the courts in handling these violations. Some commentators believe our courts should confine themselves to domestic matters, as foreign affairs are “political questions”. They also express concern over finite judicial resources which, they believe, should be allocated to U.S. citizens. Furthermore, these critics believe that when the courts hear these claims, they run the potential risk of disrupting the delicate constitutional system, which apparently delegates foreign relations to the political branches of government. On the other side of the debate are advocates who defend the court's constitutional as well as statutory role in addressing these claims. They strongly encourage the court to play a more active role in protecting the victims of foreign human rights abuse. Those who take this view believe it provides the victims of human rights abuses a forum to seek justice against their abusers. It gives these survivors of abuse a forum that otherwise would not have existed in the victims' country, for fear of reprisal in the form of additional abuse or untimely deaths. In the absence of a viable international criminal forum capable of confronting these tyrants who, too, often go unpunished, U.S. domestic courts may very well offer the most effective legal method for eliminating international human rights abuses. This growing phenomenon of trying human rights abusers in U.S. courts serves to increase or focus attention on persistent patterns of inhumane jus cogens violations which include egregious practices such as torture, genocide, murder, extra-judicial killings, slave trade, prolonged detention without official charges and disappearances, all which has widely been recognized as violations against the laws of nations. This study differs from earlier work in the field in that its purpose is to reconsider the role of the judiciary in foreign affairs through a series of carefully selected cases. The approach is to review key constitutional and statutory interpretations. After examining much of the well written, but fragmented, literature in this evolving field, this analysis offers reevaluation of the role of domestic courts in foreign policy making, focussing particularly on international human rights issues.
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