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Foreign Affairs And Separation Of Powers

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Chapter Summary

Most international human rights cases in U.S. courts involve abuses committed in foreign countries. This chapter addresses the principal doctrines-political question, act of state, comity, "case-specific" deference to the U.S. executive branch, and the foreign affairs doctrine-through which claims of interference with U.S. foreign policy or with foreign sovereignty may be raised, usually through a motion to dismiss a case as non-justiciable. The political question doctrine directs the court to decline to decide a case otherwise properly before it because the dispute presents issues constitutionally assigned to the political branches of the government. The act of state doctrine, the foreign relations equivalent of the political question doctrine, aims to prevent the judiciary from involving itself in the sovereign affairs of foreign countries. Principles of international comity are implicated when there is a "true" conflict between U.S. and foreign law governing the conduct at issue in a case.

Keywords: act of state doctrine; case-specific deference; foreign affairs doctrine; international comity; international human rights cases



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