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29 Mich. J. Int'l L. 1 (2007-2008)
Not Just Doctrine: The True Motivation for Federal Incorporation and International Human Rights Litigation

handle is hein.journals/mjil29 and id is 5 raw text is: NOT JUST DOCTRINE: THE TRUE MOTIVATION FOR FEDERAL INCORPORATION AND INTERNATIONAL HUMAN RIGHTS LITIGATION Daniel Abebe* 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 ex- clusively doctrinal and has focused on the Judiciary Act of 1789, the historical treatment of the law of nations as general or fed- eral common law, the evolution of the Supreme Court's international law jurisprudence, and the integration of custom- ary 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 mo- tivations 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 inter- national law as a coercive instrument. Proponents of the federal incorporation of CIL and international human rights litigation implicitly rely on social constructivism, democratic peace the- ory, and institutionalism-international relations theories that motivate a universalist theory of international law. The universalist theory holds that international law has an inde- pendent, 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 re- gimes and the use of CIL to improve human rights practices * Bigelow Fellow and Lecturer in Law, University of Chicago Law School. I would like to thank Shyam Balganesh, Douglas Baird, Josh Bowers, Robin Effron, David Fagundes, Tom Ginsburg, Todd Henderson, Irina Manta, Jonathan Masur, Jonathan Mitchell, Nuno Monteiro, Ariel Porat, Eric Posner, Jamelle Sharpe, Paul Stephan, Lior Strahilevitz, and the participants of the University of Chicago Law School Work-in-Progress Workshop for com- ments and suggestions. I would also like to thank the law faculties at Miami, Drexel, Arizona, Illinois, Washington University of St. Louis, Virginia, University of Pennsylvania, and the University of Chicago for the opportunity to present this Article. Finally, I thank Teshome Abebe, Assege Hailemariam, and Rupal Patel for support and encouragement.

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