Justice Across Borders: The Struggle for Human Rights in U.S. Courts

by Jeffrey Davis

• ISBN13: 9780521702409
• ISBN10: 0521702402
• Edition: 1st
• Format: Paperback
• Copyright: 2008-06-02
• Publisher: Cambridge University Press

Summary

This book studies the struggle to enforce international human rights law in federal courts. In 1980, a federal appeals court ruled that a Paraguayan family could sue a Paraguayan official under the Alien Tort Statute - a dormant provision of the 1789 Judiciary Act - for torture committed in Paraguay. Since then, courts have been wrestling with this step toward a universal approach to human rights law. Davis examines attempts by human rights groups to use the law to enforce human rights norms. He explains the separation of powers issues arising when victims sue the United States or when the United States intervenes to urge dismissal of a claim and analyses the controversies arising from attempts to hold foreign nations, foreign officials, and corporations liable under international human rights law. While Daviss analysis is driven by social science methods, its foundation is the dramatic human story from which these cases arise.

Table of Contents

Acknowledgments	p. xi
The Seeds of Legal Accountability	p. 1
The Reach of Justice	p. 1
Origins of Human Rights Law	p. 4
Nuremberg - The Roots of Judicial Enforcement	p. 7
Embracing Legal Accountability	p. 8
Nuremberg and National Sovereignty	p. 9
Head of State Immunity	p. 10
International Law and Human Rights	p. 12
Indirect and Private Liability	p. 13
Accountability	p. 14
The First ATS Human Rights Cas	p. 17
Competing Forces in the Struggle for Accountability: An Overview of the Issues Entangling ATS Litigation	p. 23
The Supreme Court Speaks	p. 24
History of the ATS	p. 26
Facilitating a Cause of Action	p. 27
The Law of Nations and Federal Common Law	p. 29
Allowing Causes of Action under the ATS	p. 33
Separation of Powers	p. 35
Extraterritorial Jurisdiction	p. 37
State Sovereignty	p. 40
Private Liability	p. 41
Theoretical Framework	p. 42
Human Rights Entrepreneurs: NGOs and the ATS Revolution	p. 44
The Role of NGOs in Human Rights Litigation in U.S. Courts	p. 50
Starting the ATS Revolution	p. 52
Legal Innovation	p. 55
Private Defendants	p. 56
Command Responsibility	p. 58
Extending the Reach of the ATS to More Violations	p. 61
Pushing the Broader Human Rights Agenda through ATS Cases	p. 64
Universal Jurisdiction	p. 64
Addressing U.S. Foreign Policy	p. 66
Facilitating Impact in the Community and at Home	p. 68
Success of NGOs in ATS Litigation	p. 71
Relationships with Clients	p. 76
Human Rights Network	p. 79
Expertise	p. 84
Selectivity	p. 85
Work with Private Firms	p. 87
Conclusion	p. 87
Separation of Powers and Human Rights Cases	p. 89
Cases against the United States	p. 89
Sovereign Immunity in Cases against the U.S. Government	p. 91
The Political Question Doctrine	p. 99
State Secrets Defense	p. 102
Challenging the Doctrine of Deference	p. 103
The Military Commissions Act of 2006	p. 106
U.S. Involvement in Human Rights Cases against Other Defendants	p. 107
An Example of Executive Branch Intervention	p. 107
Before the Federal Court for the Central District of California	p. 109
Standard for Reviewing Executive Branch Submission	p. 109
Before the Ninth Circuit Court of Appeals	p. 110
Analyzing Executive Branch Involvement	p. 113
The Carter Administration	p. 118
The Reagan Administration	p. 120
The George H. W. Bush Administration	p. 122
The Clinton Administration	p. 122
The George W. Bush Administration	p. 124
A New Administration and a New Approach - The Uncoal Case	p. 125
Motivations for the Bush Administration Approach	p. 127
Foreign Policy and the Political Question Doctrine	p. 129
Ideology	p. 134
Political Opposition to ATS Claims	p. 134
Ideological View on the Relative Power of the Executive and Judiciary	p. 135
Avoiding Reprisal Litigation	p. 140
Responding to Political Pressure	p. 142
Judicial Handling of Executive Intervention	p. 144
Weight	p. 144
Immunity Cases	p. 153
Foreign Policy and Political Question Cases	p. 156
Conclusion	p. 160
No Safe Haven: Human Rights Cases Challenging Foreign Countries and Nationals	p. 164
Extraterritorial Jurisdiction	p. 169
Forum Non Conveniens	p. 176
Exhaustion of Local Remedies	p. 181
Sovereignty	p. 183
Official Immunity	p. 187
Act of State Doctrine	p. 193
International Comity	p. 196
Statute of Limitations	p. 198
Conclusion	p. 201
Holding Corporations Accountable for Human Rights Violations	p. 204
Liability of Private Corporations	p. 212
Stating a Claim under the Law of Nations	p. 224
Suing Corporations for Violent Human Rights Violations	p. 224
Environmental and Other Nonviolent International Law Violations	p. 227
Conclusion	p. 233
Sorting through the Ashes: Testing Findings and Predictions through Quantitative Analysis	p. 239
Modeling the Competing Forces in Post-Sosa ATCA Cases	p. 240
Human Rights NGOs	p. 240
Separation of Powers	p. 241
Violations of International Law	p. 246
State Sovereignty	p. 248
Territorial Jurisdiction	p. 249
Precedent	p. 250
Ideology	p. 253
Corporate Defendants	p. 257
District Court Results	p. 258
Court of Appeals Results	p. 261
Implications	p. 264
Impacts and Conclusion	p. 266
Human Rights NGOs and the Struggle for Human Rights	p. 274
Separation of Powers	p. 276
Cases Involving Foreign Nations and Officials	p. 279
Cases against Corporate Defendants	p. 280
Impacts	p. 282
On Individual Clients	p. 282
On the Broader Community	p. 287
On Corporations	p. 292
Creating a Historical Record	p. 294
Punishing Those Responsible	p. 296
Conclusion	p. 297
Index	p. 299
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