Title: Human Rights in the United States Courts: The Role of Lawyers
Abstract: The efforts of lawyers who represent clients in courts ofthe United States have transformed the role of the international law of human rights. General statements of policy have become the kind of law dispensed by American judges in American courtrooms. On one level, because the Bill of Rights codifies a very large and progressive view of human rights and because the Bill of Rights is part of the Constitution, which is the highest law of the land, it could be argued that in any case invoking the Bill of Rights, the law of human rights has always been treated as the rule of decision in U.S. courts. This Article does not address that kind of case. Rather, this Article considers cases that, for one reason or another, are not adequately resolved by appeals to the U.S. Constitution: cases in which the international law of human rights is expressly cited as providing the rule of decision. If there were no such cases, then it would be reasonable to ask whether human rights law is anything more than aspirational and hortatory, a statement of hope for an improved future for everyone. But situations in which international human rights law is actually the rule of decision that determines whether the plaintiff wins or the defendant wins place us on the road toward raising international human rights to the level of domestic law, which determines the actual legal rights of actual living people. Until 1979, the question whether the treaties of the United States that have human rights elements are self-executing always framed the direct application of human rights law before U.S. courts. In the 1950s, the Supreme Court of California in Sei Fujii v. State1 found that the human rights provisions of the United Nations Charter are not self-executing: They cannot be relied upon as generating the law of decision of a case without domestic legislative implementation.2 The Sei Fujii court concluded that the legislature never enacted such measures.3 Human rights law will seldom be useful law in U.S. courts if its use is dependent upon the vehicle of a self-executing treaty to import treaty language into the courtroom. It will generally not be law in U.S. courts because the treaties to which the United States is a party that contain human rights elements either expressly or by implication are not self-executing. Moreover, the Congress of the United States has been slow at bringing international human rights norms, beyond those that are already parts of U.S. law by virtue of the Constitution, into American law. In 1979, the case of Filartiga v. Pena-Irala4 presented the following fact pattern: A young Paraguayan woman, whose brother had been tortured to death by the police of Asuncion, saw the man who had allegedly committed the murder on the streets of New York City.5 She went to see a lawyer and asked whether there might be any recourse against him in the U.S. courts for the murder of her brother.6 Because it has never been seriously contested, one can assume that the murder was politically motivated. Specifically, it was an attempt by the police of Asuncion to strike out at the father of the boy who was killed: Joel Filartiga, a physician and artist who was also a leading opposition figure in Paraguay in the days of the Stroessner regime, which did not countenance very much opposition. Dolly Filartiga found the Center for Constitutional Rights in New York City, whose lawyers had long dreamed of the case that would test the contours of a statute enacted in 1789. That statute, passed immediately after the adoption of the Constitution, was Section nine of the First Judiciary Act,7 the very same statute that led to Marbury v. Madison,8 in which the Supreme Court of the United States first asserted its right to find legislative enactments unconstitutional.9 Section nine, now codified as 28 U.S.C. 1350, provides that [t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. …
Publication Year: 1998
Publication Date: 1998-07-01
Language: en
Type: article
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