“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”
The Constitution is clear. Treaties, the texts of international law, are the supreme law of the land. However, U.S. courts have traditionally been hesitant to hold judgments that rest on principles of international law.
The Supreme Court is not alone in avoiding acknowledgment of international law’s legitimacy. It is a running joke in the legal community that international law isn’t really “law” at all and the United States has been reluctant, particularly in recent years, to sign onto treaties which would expose them to international obligations.
However, the Trump administration opened the door to international inquiry when it implemented the Migrant Protection Protocol, also known as the “MPP” or “Remain in Mexico” policy. Under the Remain in Mexico policy, tens of thousands of migrants looking to claim asylum in the United States are forced to wait in Mexico for their court dates in the United States. Because of the saturated dockets and lack of infrastructure in the immigration courts at the border, this waiting period can take months, if not over a year.
The Department of Homeland Security (“DHS”) has labeled Remain in Mexico as a response to a “urgent humanitarian and security crisis at the Southern Border.” However, it has done far more to create a humanitarian crisis, rather than combat one. The Remain in Mexico policy went into effect in July 2019 along the United States border with Tijuana, Mexico. DHS has since expanded the policy spanning the length of the U.S.-Mexico border, including areas with some of the highest rates of violence and criminal cartels. For example, the policy covers the bordering region of Nuevo Laredo, a city the U.S. State Department finds comparably dangerous to Afghanistan or Syria.
Once sent back to Mexico, asylum seekers are forced into some of the most dangerous situations including an alarming risk of kidnappings, rape, murder, and sexual violence. DHS is not blind to the implications on health and safety this presents. The written guidelines to Remain in Mexico carve out exemptions for vulnerable people — including pregnant women and girls from being forced back to Mexico. However, this has been severely under enforced and asylum seekers are regularly being sent back to Mexico. According to a Human Rights First report, three hundred and forty-three cases have been filed involving rape, kidnapping, and violent assault of asylum seekers in the Remain in Mexico program.
The Trump Administration has not been subtle in advancing their views on the Remain in Mexico policy. According to President Trump, “[w]e cannot allow all of these people to invade our Country. When someone comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came”. The anti-immigration sentiments remain strong, with many people urging migrants to “go back to where they came from,” feeling as though they should not pay for the social benefits of non-citizens.
The Supreme Court has recently announced they will review the Remain in Mexico policy after the 9th Circuit has previously held that the policy violates both federal immigration law and principles of international law. On the question of international law, the Supreme Court will have to decide whether the Remain in Mexico policy violates the internationally accepted principle of non-refoulment.
The principle of non-refoulment, came about as a product of refugee, humanitarian, and international human rights law. The principle holds that a person who has entered a new country seeking refugee or asylum status shall not be returned to a country where they would face “torture, cruel, inhuman, or degrading treatment or punishment and other irreparable harm.” This applies to all migrants, at all times.
The legal norm of non-refoulment was first introduced by the 1951 United States Convention Relating to the Status of Refugees (“the Refugee Convention”), which called for states to protect individuals who qualified as “refugees” under the treaty. The United States signed and ratified the 1967 UN Protocol Relating to the Status of Refugees, which expressly incorporates the Refugee Convention, making the treaty binding as law in the United States, and enforceable in a U.S. court.
The United States again endorsed the provision by signing and ratifying the UN Convention Against Torture and Other Cruel, Inhuman, or Degarding Treatment or Punishment (“CAT”) which includes a non-refoulment provision.
Human rights scholars also generally accept non-refoulment to be a principle of international customary law. This means that it applies to all countries, at all times, regardless of whether a country has signed onto the treaty.
Before the Supreme Court, the government argued that the Remain in Mexico policy does not violate the United States’ non-refoulment obligations. The government argues that the temporary nature of their detainment in Mexico along with the ability for an asylum seeker to “at any time” raise a fear of persecution or torture in Mexico satisfies their obligation.
Respondents on the other hand argue that forcing the migrants to wait in one of the most dangerous areas in the world, for anywhere from months to over a year, violates the non-refoulment obligation.
The respondents are going to have quite the challenge. First, they must convince the court that the United States is bound by the non-refoulment principle. If they succeed here, they will have to demonstrate exactly how the United States has violated it, a task that will be particularly difficult where there are no written procedures in place which specify how to satisfy the non-refoulment obligations.
Respondents also have to grapple with the new make up of the court with the addition of Justice Amy Coney Barrett, a self-proclaimed mentee of the late Justice Antonin Scalia who was known for not finding any merit in international law.
In all likelihood, the Supreme Court will do its best to evade answering the international law question by finding the case turns on a question of domestic federal law. However, if they do reach the non-refoulment question, it could have grave implications for international human rights law enforcement in U.S. courts.
For example, a finding that non-refoulment exists, but is not violated, would ultimately swallow the rule and render it meaningless in the United States. Or, if a widely accepted principle like non-refoulment is found to be inapplicable in the United States, it is likely that other principles such as the prohibition on torture and diplomatic immunities are also not accepted — something that would not go over well in the international community and could hurt our diplomatic relationships.
Even more consequential to the case will be the upcoming election. If Joe Biden is elected on November 3rd, the case will likely become moot. The Supreme Court will not hear a case that no longer effects a person’s legal rights and Joe Biden would be quick to repeal the Remain in Mexico policy.
The Supreme Court is not always quick to address questions of international law and with the new makeup of the court, international human rights lawyers will be on the lookout to see how the Court approaches this case. Its outcome will be consequential both for those seeking asylum at the border and any person seeking relief under an international doctrine in the future.