United States’ Indefensible Legal Defense of Asylum Ban: Taking a Wrecking ball to International Law
A legal justification has been issued by the US president Donald Trump’s administration on for its decision over halting asylum processing during the time of Corona crisis which seems to be embarrassingly bad. The justification came in the background of president’s decision to suspend immigration of foreign nations to US in the response to Covid- 19 outbreak on March 20, 2020. Thereafter, the senate committees charged the administration for violating its obligations under both domestic and international law. Furthermore, they raised serious questions about the accuracy of the administrations’ claims regarding public health, legality of asylum ban and its respect for the principle of rule of law.
Let us first look at the justification provided by the officials and then the author will discuss in detail as to how it is voilative of the provisions of international laws. “The officials stated that to protect the public health and national security of US, stopping the people from high risk zones is indispensable. In pursuance of the same the administration’s policy are in consonance with the domestic law pertaining to asylum seekers. As for the international law obligations, the administration relied upon its Supreme Court judgments where it noted, that the US nor any State or municipality has any legal obligations to conform is conduct to international treaties that are non- self executing or are otherwise implemented into domestic law by an Act of Congress.”  Now let us analyze as the how this is an utterly inadequate and inaccurate assessment of relevant international law obligations.
B. Critical Analysis
a) The US’s International Law Obligations
While on one hand, international law largely respect the fundamental principle of territorial sovereignty which allows the state to control their cross- borders movement, on other hand, it also recognizes the right of foreigners at the border to be safe from return to countries that would cause them harm. This principle has been enshrined in various international treaties and arguably is a part of international customary law since 1951 Convention Relating to the Status of Refugees which was enacted in the wake of the holocaust, where the death toll increased exponentially by the unwillingness of countries including the US to accept the European refugees facing persecution and death. The Convention was followed by an additional protocol in 1967, to which US is a party to which makes it a party to it and hence bounds it not only to the protocol but also to the key provisions of the 1951 Convention.
Article 33 (1) of the Convention states that no contracting state shall expel or return a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion , nationality, membership of a particular social group or political opinion. However clause (2) denies the benefits of non- refoulment protections to individuals who pose a risk to the security of a country in which they seek protection, but the exclusion is narrow in its application and does not apply to public health threats like COVID- 19. This might be applicable to the terrorists and very dangerous criminals.
Moreover it would require an individualized showing which means it cannot be applied on a blanket basis even when there is no actual threat
Secondly, US is also a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which prohibits the return of a person to a state where there are substantial grounds of believing that he would be in danger of being subjected to torture.
Thirdly, US is also party to the International Covenant on Civil and Political Rights (ICCPR), which also contains the provision of non- refoulment protection under Article 7 which states that no one shall be subjected to torture or to cruel, inhuman and degrading treatment or punishment. This shows that US has been the signatory of various international instruments that prohibit the return people seeking asylum if the result they face will be persecution.
b) Non- Self Executing Treaty obligations Do Create Legal Obligations
The administration ignored all these international provision on the grounds that firstly, no municipal law has been enacted in pursuance to implement international provisions and secondly, because they have not been implemented, they are just a legal nullity.
The first argument ignores the fact that many of international law obligations described above have been already implemented into domestic law. The Refugee Act, 1980 implements the obligations of the US as a party to 1967 protocol to the 1951 Convention. Article 3 of the CAT has been implemented through regulations promulgated under authority of the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), which provides two option to prevent refoulment: withholding of removal and deferral of removal, which is unconditionally available without security exceptions.
However, the author feels that it the second argument that is more baffling. To begin with, the supremacy Clause states, “This Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” This shows that the US Constitution made no distinction between self executing and non- self executing treaties. All that it means that for a treaty provision to be ‘non- self executing’ is that the provision is not directly judicially enforceable in U.S. Courts. However, that does not mean that ‘neither the US nor any State or municipality has any legal obligation to conform its conduct’ to a non- self executing treaty provisions. Hence, even non- self executing treaty provisions create international legal obligations on US, the contravention of which can bring consequences in form of countermeasures and international court judgments. This is why the courts and prior administration have generally brought a much more nuanced approach for addressing the provisions of non- self executing treaty provisions. The Restatement (Fourth) of Foreign Relations Law- a multilayer non- partisan project of the American Law Institute to distill the ‘black letter law’ in the field- acknowledges and reflects these nuances. It notes that, even though there is no direct judicial enforceability of the non- self executing treaty provisions, State and the local courts may facilitate and ensure compliance through their application of state or local law.
Perhaps, a non- self executing treaty provision may still be binding on the executive as the Restatement acknowledges the same. It acknowledges that whether a non- self executing treaty provision, even though not judicially enforceable, is binding upon the president and other officers as they form the part of the executive branch. Moreover, a Take Care Clause enshrined under Article 2 of the US Constitution requires the president to obey and enforce all laws, though the president retains some discretion in interpreting the laws and determining how to enforce the same and therefore, Article 2 (4) of the U.N. Charter which in itself is a non- executing treaty provision) binds the president as a matter of domestic law.
The implications of the position the administration in dealing with this complex issue display mere disdain and staggering. It suggests that the officials considers the international legal obligations that are binding as a matter of international law, but that it deems the non- self executing provisions a complete legal nullity unless implemented by domestic legislation. If this is the position, then it would mean that the unimplemented provisions of the Geneva Conventions that govern the conduct of armed conflict, the UN Charter, Genocide Convention and Torture Convention, Vienna Convention on Diplomatic relation and other treaties which governs various aspects of human rights, commerce, navigation, international relations which thus US have ever concluded are essentially meaningless. These dangerous claims threatens to take a wrecking ball to US international legal relations over the world and it would be a death blow to the US’s capacity to engage in international diplomacy for decades to come.
1. Medellin v. Texas, 552 US 491 (2008)
2. Whitney v. Robertson, 124 US 190 (1888).
3. Article 3, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
4. Refugee Act, 1980
5. US Constitution, Article 2.
6. Foreign Affairs Reform and Restructuring Act 1998.
7. The Restatement (Fourth) of Foreign Relations Law, 2018
8. UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: https://www.refworld.org/docid/3be01b964.html [accessed 14 June 2020]
 Medellin v. Texas, 552 US 491 (2008); Whitney v. Robertson, 124 US 190 (1888).  UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations, Treaty Series, vol. 606, p. 267, available at: https://www.refworld.org/docid/3ae6b3ae4.html [accessed 14 June 2020]  UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, art.33, cl.(1), available at: https://www.refworld.org/docid/3be01b964.html [accessed 14 June 2020]  Id., art. 33, cl. (2)  UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, art. 3, available at: https://www.refworld.org/docid/3ae6b3a94.html [accessed 14 June 2020]  UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, art. 7, available at: https://www.refworld.org/docid/3ae6b3aa0.html [accessed 14 June 2020]  Restatement of The Law Fourth, The Foreign Relations Law of the United States: Jurisdiction, Sovereign Immunity and Treaties , 2015, https://www.ali.org/media/filer_public/64/26/6426e8ba-5e67-4fa0-882d-533b9f6a4bc9/f_rel_immunity_-_cd_2_-_booked.pdf
Author Details: Manu Sharma