New voices: issues in the human side of international law.

Author:Banks, Angela M.
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 9:00 am, Friday, March 27, by its moderator, David Kaye of the UCLA School of Law, who introduced the panelists: Angela M. Banks of William and Mary School of Law; Alex Little of the U.S. Attorney's Office for the District of Columbia; Janina Dill of the University of Oxford; and Haft M. Osofsky of Washington and Lee School of Law. *


As international migration continues to rise, the United States and many European states are facing important challenges regarding the scope of states' immigration power and the role of international law in defining that scope. (1) The regulation of membership within a polity is generally regarded as an essential aspect of state sovereignty. Through the immigration power, states determine who can enter, who can reside, under what conditions individuals can reside, who can be deported, and who can become a citizen. Historically, international law has played a prominent role in defining the scope of states' sovereign powers, yet this body of law has rarely regulated state use of the immigration power. The power to deport is a significant power that states hold, particularly with regard to long-term foreign residents who have been granted permission to reside in a state indefinitely. The manner in which a state exercises its deportation power can unsettle the lives of noncitizens, their families, and their communities, which often include citizens. As Justice Brewer stated in his dissenting opinion in Fong Yue Ting, "[e]very one knows that to be forcibly taken away from home and family and friends and business and property, and sent across the ocean to a distant land, is punishment; and that oftentimes the most severe and cruel." (2) Additionally, the lack of secure residency for long-term foreign residents may also hamper the integration of these individuals within the broader society. (3)

Within the last one hundred years, international legal norms and rules regarding individual rights have changed significantly, which has indirectly limited the scope of states' power to deport resident noncitizens. Yet, the manner in which states ensure that the exercise of the deportation power comports with these limits varies greatly. Within western democratic states, two models for achieving this goal are identifiable: the immigration regulation is political model and the immigration regulation is legal model. These models differ in the manner in which immigration-related rights are allocated and the role of the judiciary and administrative adjudicative bodies in monitoring and evaluating state immigration decisions. The political model allocates immigration-related rights based on citizenship status, while the legal model allocates these rights based on affiliation with the state of residence. While only citizens have the fight to enter and are the only individuals not subject to deportation grounds within the political model, these fights regarding entry and protection from deportation are granted to noncitizens with significant affiliation with the state of residence within the legal model. Within both models, non-immigration related rights are allocated based on an individual's status as a person physically present within the territory of a state. Yet, the ability of noncitizens to use non-immigration related rights to challenge deportation decisions is very different within the two models because of the jurisdiction of the courts and the administrative adjudicative bodies and the standards of review utilized by reviewing courts.

The judiciary and administrative adjudicative bodies play very different roles in monitoring, evaluating, and constraining state use of the power to deport noncitizens. Within the political model, the judiciary is not responsible for monitoring, evaluating, or constraining the political branches in their exercise of the power to deport noncitizens. Both the creation of the plenary power doctrine in the late nineteenth century and separation of powers concerns gave rise to this limited judicial role in reviewing deportation decisions. Judicial bodies play a much more active role in reviewing deportation decisions within the legal model. Supranational judicial bodies like the European Court of Human Rights (ECHR) and domestic administrative adjudicative bodies, like the Raad van State in the Netherlands or the Council of State in France, analyze allegations of deportation-related ECHR fights violations utilizing proportionality review without recourse to the margin of appreciation doctrine. These adjudicative bodies balance the interests of the state in effectuating a deportation order with the rights of the noncitizen subject to deportation. This process provides an opportunity to monitor, evaluate, and, if necessary, constrain the state's use of the power to deport. The legal model provides institutional mechanisms to ensure that state decision-making regarding deportation is not arbitrary and that it adheres to law, both the domestic requirements for deporting a noncitizen and the international legal limits upon the state's power to deport noncitizens.

These international legal limits are relatively new within international law, and they are generally implicit rather than explicit, although regulation by the European Union is creating more explicit limits. (4) At the time that the United States created the plenary power doctrine, international law provided very few limits on a state's sovereign power to exclude and expel noncitizens. Treatment of individuals, citizens and noncitizens alike, within the territory of a state was considered to be within the state's domestic jurisdiction, which was outside of the reach of international law. The idea that states had absolute sovereignty to exclude and expel noncitizens, while debatable in the late nineteenth century, was not viable by the late twentieth century due to the prominence of human rights treaties. Both the political model and the legal model reflect the international legal norms and rules governing at the time of the model's development. The late nineteenth century creation of the political model reflects the idea of absolute sovereignty and individuals as objects within international law. The development of the legal model in the late twentieth century reflects the transformation of individuals into subjects of international law due to the ratification of human rights treaties.

As rights holders, independent of states, individuals have the ability to challenge state deportation decisions to ensure compatibility with domestic immigration legal requirements and international legal norms and rules regarding the scope of states' immigration power. The acknowledgment of individuals as rights holders and the requirement that state parties to human rights treaties provide judicial, administrative, or legislative review of alleged rights violations and effective remedies for rights violations supported the creation of the legal model. This model provides institutional mechanisms for monitoring, evaluating, and constraining, when appropriate, state use of the deportation power. The political model as applied in the United States does not provide such institutional mechanisms. The United States is lacking judicial and administrative mechanisms to ensure that deportation decisions adhere to substantive domestic law and comport with international legal norms and rules regarding the scope of a state's sovereign power to deport. This lack of oversight increases the risk of arbitrary deportation decisions, which ultimately undermines the rule of law in the regulation of immigration.

Interpreting the Immigration and Nationality Act provisions regarding cancellation of removal or issuing an Executive Order requiring executive officials to perform their functions "so as to respect and implement," U.S. international human rights obligations offer two executive-focused approaches that begin to reduce the lack of monitoring, evaluating, and constraining of state use of the deportation power. These approaches do not solve the problem completely, but they do provide examples of the type of executive action that assists in facilitating the rule of law goals articulated in human rights treaties. The United States' international legal obligations have changed substantially since Chae Chan Ping, Ekiu, and Fong Yue Ting were decided. These new legal developments demand a reevaluation of the manner in which immigration judges and the Board of Immigration Appeals adjudicate deportation challenges and requests for cancellation of removal to...

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