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The Judicial Expansion of American Exceptionalism
Journal article   Open access   Peer reviewed

The Judicial Expansion of American Exceptionalism

Rachel E Lopez
Duke forum for law & social change, v 6(1)
2014
url
https://scholarship.law.duke.edu/dflsc/vol6/iss1/7View
Published, Version of Record (VoR) Open Open Access (License Unspecified)

Abstract

After World War II, the rise of international human rights law has gradually eroded what remained of national sovereignty, as a defense against the intervention of other states. In the modern era, there is a growing sentiment that when the gravest human rights violations such as genocide, crimes against humanity, ethnic cleansing, and war crimes occur, the international community has a “responsibility to protect” the victims of those crimes if the victims’ own government is unwilling or unable to do so. While much of the scholarship on the responsibility to protect focuses on the international community’s ability to engage in military intervention to carry out its obligations, the doctrine actually provides a menu of options that intervening States can employ to prevent serious abuses of human rights, including diplomatic measures, economic sanctions, and, notably for the purposes of this article, legal accountability in judicial fora. Thus, in the modern era, States have greater latitude than ever before to ;intervene in the sovereign affairs of other States when human rights violations have occurred. Yet, the “when” and “how” of justifying intervention in any form on the basis of human rights remains murky and States across the globe are charting their own course through unsure waters. In this article, I will argue that the United States has inconsistently fulfilled its responsibility to protect, evoking this doctrine as a basis for intervention only when it has a national interest at stake, and that this approach to human rights protection is improperly extending to the judiciary. [1st paragraph]

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