As part of our efforts to amplify the AILA Law Journal, authors Curtis F.J. Doebbler and Elisa Fornalé shared some insights from their recent article published in the November, 2022 edition of the AILA Law Journal, “International Human Rights Law and the Detention of Asylum Seekers” in which they focused on the U.S. practice of detaining asylum seekers and relevant international human rights obligations.
Immigration necessarily concerns international affairs and international law, yet immigration attorneys often restrict their efforts for their clients to US law—our domestic laws, regulations, and Constitution. These laws provide some important protections and are the first line of consideration for lawyers representing non-citizens as well as the administrative and judicial bodies deciding immigration questions in the United States. They are, however, not the last line of protection for the rights of non-citizens. There is also international law, particularly international human rights law, and in some cases mechanisms that interpret and apply that law.
In the article, we looked at how the United States government’s practice of detaining non-citizens stands up to some the most basic rules of international human rights law. We examined a body of law that the United States government has voluntarily undertaken to respect. A body of law that is often written down on paper in solemn agreements between governments that have been made on behalf of their people. We focused on some the main agreements that the US government has signed including the International Covenant on Civil and Political Rights and the Charter of the Organization of American States. Both contain human rights that should be enjoyed by non-citizens migrating to the United States for reasons ranging from mere survival to trying to strive in an environment that is less harsh than from where they come.
The International Covenant on Civil and Political Rights provides prohibitions against torture, cruel, inhumane and degrading punishment or treatment and provides the right to a fair and impartial hearing for all citizens and non-citizens alike. While these rights might seem to echo those under the Fifth and Eighth Amendments of the US Constitution, international law goes further. For example, not only is torture prohibited by international human rights law, but so too is cruel, inhumane or degrading treatment or punishment. And while the United States Supreme Court in Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, 212 (1953), has held that the due process rights of arriving non-citizens can be restricted as Congress finds fit, international law that has been ratified with the advice and consent of the Senate of this same Congress, holds that due process rights must be of sufficient stature to secure a fair determination of a non-citizen’s immigration claims. These rights have also been established in customary international law—law created by the consent of the overwhelming, or, at least most effected, States in the international community—that like treaties is part of the law of the United States.
In short, the United States has sometimes agreed to international law that goes further than the domestic protections. As such immigration lawyers representing their clients should consider bringing their clients’ cases to international fora when domestic efforts to ensure rights fail. In the United States case these forms might include the international human rights bodies of the United Nations system and the Inter-American Commission on Human Rights as well as potentially cases against United States official who cause significant harm to a large population of non-citizens before the International Criminal Court.
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