100 Yale L.J. 2335 (1990-1991)
The Mandate of U.S. Courts to Protect Aliens and Refugees under International Human Rights Law

handle is hein.journals/ylr100 and id is 2349 raw text is: The Mandate of U.S. Courts to Protect Aliens and
Refugees Under International Human Rights Law
Arthur C. Heltont
I. INTRODUCTION
Professor Lea Brilmayer proposes that American courts apply international
law in disputes concerning the rights of individuals to be treated fairly by
governments even if such an application would require the frustration of
domestic policy.' The vertical model that she postulates to facilitate such
judicial intervention, if followed by the courts, could buttress the vindication
of the human rights of aliens and refugees in the United States.
As Professor Brilmayer notes, American courts are wary of looking to
international law to uphold the rights of individuals against violation by govern-
ments, although they do often turn to constitutional (and other domestic law)
principles for guidance.2 In the area of immigration, however, it is sometimes
unclear how much legal protection the Constitution affords aliens and refugees
in the United States. Over a century ago, in Chae Chan Ping v. United States
(The Chinese Exclusion Case), the Supreme Court declared that the power to
exclude aliens, which was not enumerated in the Constitution, is an inherent
attribute of sovereignty that is largely immune from constitutional restraint.'
Shortly thereafter, in Fong Yue Ting v. United States, the Court said that the
power to expel aliens was one to be determined by the political departments
of the government and. that the judicial department cannot properly express
an opinion upon the wisdom, the policy or the justice of the measures enacted
by Congress in the exercise of the powers confided to it by the Constitution
over this subject.4 This early expression of judicial deference to the legislature
partakes of Professor Brilmayer's horizontal model of the traditional applica-
tion of international law in which the proper parties are considered to be states
and not individuals.5
t Director, Refugee Project, Lawyers Committee for Human Rights in New York City; A.B., Columbia
University, 1971; J.D., New York University, 1976.
1. Brilmayer, International Law in American Courts: A Modest Proposal, 100 YALE L.J. 2277 (1991).
2. Id. at 2278-79.
3. 130 U.S. 581 (1889); see also Nishimura Ekiu v. United States, 142 U.S. 651 (1892).
4. 149 U.S. 698, 731 (1893).
5. Brilmayer, supra note 1, at 2292-95 & passim.
2335

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?