Immigration and International Law

The Intersection of International and American Law

Earlier, we noted that immigration law has always been connected to the existence of nation states and national borders, and that, for much of human history, the question of  who could lawfully cross national borders was an existential one: the inability to keep large numbers of foreigners from entering on their own terms, or to assimilate them when they do, has led to the downfall of city states and empires alike.

Although tribal mass migrations of the kind that extinguished the Western Roman Empire are a relic of ancient times, some immigration-related concerns remain as evergreen today as they were in earlier ages. One of these is the matter of large numbers of refugees fleeing from varying forms of oppression, persecution and violence, and what to do with them when they seek sanctuary and better lives.

In this module, we will examine how United States immigration laws intersect with international laws that also touch on questions of how the US treats migrants, refugees and stateless people seeking entry into this country.

Generally, national sovereignty dictates that countries make their own laws governing acts of people within their borders, citizens and non-citizens alike. Thus, a non-immigrant traveler to the United States will be subject to federal, state and local laws  even though the laws of that person’s home country may be different. By the same token, international laws govern interactions between nation states or when the location of the subject activity lies outside of any nation’s borders, such as on the high seas.[1]

In some situations, however, international laws can become part of a country’s domestic law as well. This can happen through the operation of international treaties or through the application of customary international laws.

Treaties and Executive Agreements

The most common way for international laws to become the law of the land in the United States is through the adoption by the federal government of international treaties. These take two forms: formal treaties and executive agreements.

·         Formal treaties: Article II, Section 2, Clause 2 of the Constitution authorizes the President to negotiate and enter into treaties with other countries, subject to the approval of two-thirds of the US Senate. Treaties that the Senate ratifies become federal law, but if they conflict with the Constitution, then the Constitution prevails. Treaties can be self-executing (which means that the treaty does not need supporting federal legislation to take effect) or non-self-executing (which means that enabling legislation is needed).

·         Executive agreements: Executive agreements can be based on authority from ratified treaties, based on explicit support of Congress (such as the North American Free Trade Agreement) or can be made without consultation with Congress at all by virtue of the President’s authority to speak in behalf if the United States in foreign affairs.[2]

Executive agreements made without congressional authority are still binding as federal law but may not contradict any pre-existing federal laws. To the extent one does, it is void. Ratified treaties, on the other hand, have the full force and effect of federal law. If they contradict prior federal laws, they implicitly repeal those laws to the extent that they are inconsistent. Similarly, self-executing treaties (treaties that provide their enforcement mechanisms internally) automatically supersede prior federal law.[3]

For example, assume federal law passed in 2019 establishes 10% tariffs on sports cars imported to the United States. In 2024, the President signs an international agreement that eliminates tariffs on all automobiles imported from Canada. If Congress doesn’t ratify the treaty, it’s merely an executive agreement and cannot override the federally imposed tariff. If the Senate ratifies the 2024 treaty, it can override the tariff. Still, whether further action is necessary depends on the nature of the agreement. If the agreement spelled out that cars may be imported to the US and the Senate ratified it, the 2019 tariff is implicitly revoked. If the treaty merely expressed an intent that each party allow each other’s cars to be imported without tariff, enabling legislation may be necessary. Until Congress passes the legislation, the 2019 tariff may remain in effect.

Customary International Laws

Historically, some international laws that apply to the United States have derived, not from treaties, but through the gradual worldwide acceptance of certain practices. For example, in the 1900 case of Scotia [4], the Supreme Court deferred to a widely-practiced English maritime law governing ship identification lights when deciding whether a vessel’s deviation from accepted practice bore on the issue of liability for a collision at sea. In a later case, The Supreme Court recognized that customary international law can effectively become a form of federal common law. It said:

“International law is part of our law... For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”[5]

Customary international laws that the US recognizes within its domestic jurisdiction fall in the middle of a spectrum of legal authority, somewhat less significant than treaties or federal statutory law, but carrying more weight than state or local laws. For example, the Second Circuit Court of Appeals has found that the right to be free from torture is a fundamental human right under international law, thereby authorizing courts in this country to consider customary international laws in torture-related cases involving foreign nationals under the Alien Tort Statute even though the US was not a signatory to the United Nations Convention Against Torture.[6]

Ordinarily, a country’s immigration laws and policies are its own concern and are not subject to international laws. One exception to this general rule concerns how nations treat people who become prospective immigrants because they have been forced to leave their home countries: refugees. According to the United Nations Refugee Agency, as of 2018, more than 68 million people worldwide have become displaced persons, the largest number since the end of the Second World War. Although most displaced persons remain within their home countries, more than 25 million refugees have been forced to relocate, at least temporarily, to other countries.[7]

Historically, the United States has been a leading destination for many refugees. Since the passage of the Refugee Act of 1980 (“the 1980 Refugee Act”), approximately 3 million refugees have resettled in the US, [8] with about one-third of that total arriving between 2001 to 2017.[9]

The Problem of Refugees

The United Nations is the principal authority behind the creation of international laws concerning the treatment of refugees. The most important of these laws is the 1951 Convention Relating to the Status of Refugees.[10] This convention defines who qualifies for refugee status and establishes the rights and obligations of refugees and the nations that give them refuge.

According to the 1951 Convention, a refugee is someone who:

·         is outside of that person’s country because of a “well-founded fear of being persecuted for reasons of race, religion, nationality, [and] membership of a particular social group or political opinion” and

·         because of that fear cannot or will not return to that individual’s home country. [11]

Refugee status also applies to stateless people who cannot return home due to the same well-founded fears.[12]

Coming into existence only six years after the end of World War II, the 1951 Convention limited its application to people who became refugees before January 1, 1951. Signatory states could also further restrict qualification for refugee status based on text in the convention that limited the events causing well-founded fear to those occurring in Europe.   

The 1951 Convention creates affirmative obligations and restrictions on countries that have adopted it. Included among these is the responsibility not to force refugees to return to the countries from which they have fled (known as “refoulment”), to avoid expelling them to other countries, not to discriminate against them, to provide them with access to education and to make administrative and public assistance available to them. The availability of some of these obligations and the applicability of some restrictions depends on how the host country treats its own nationals and non-citizens. For example, signatory countries must provide elementary education to refugees in the same way they do their own citizens, but higher education opportunities need only be the same as those afforded to non-citizen residents of the country.

The 1951 Convention obligates signatory states to make available to refugees the possibility to assimilate and naturalize in the country in which they have sought refuge.

An extension of the 1951 Convention was agreed to in the 1967 Protocol Relating to the Status of Refugees.[13] The main effects of the 1967 Protocol are to remove the geographic and date-based restrictions of the 1951 Convention. States can be signatories to the 1951 Convention, the 1967 Protocol, or both, but the effect of signing the 1967 Protocol for a country that did not sign the 1951 Convention is to adopt that convention. The United States is one country that did not sign the 1951 Convention but did sign the 1967 Protocol.

United States Refugee Laws  

The 1967 Protocol was not self-executing law in the United States.[14] The 1980 Refugee Act modifies earlier US immigration laws to adopt the 1951 Convention, including its definitions of who is a refugee. The 1980 Refugee Act further refines the refugee definition to require such persons to be outside of the United States, not to be presently settled in another country and to be otherwise admissible into the US.  

The 1980 Refugee Act[15] identifies as asylees people who enter the US lawfully or even those who enter unlawfully (and who, thus, do not qualify for refugee status) but who seek to remain here because they fear persecution or torture as defined by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[16] – to which the United States is a signatory. The Refugee Act establishes a “credible fear” test for those who seek asylum when they apply based on a defensive asylum application, and a “reasonable fear” test for people who have been removed from the US but who are subsequently apprehended again in this country.[17]

There is also the Agreement between the Government of Canada and the Government of the United States of America for the Sharing of Visa and Immigration Information,[18] which is a bilateral agreement that enables Canada and the US to share biographical and biometric information concerning the identities of visa applicants to either country. This enhances law enforcement and anti-terrorism efforts in both countries.  The information sharing is meant to screen people who were denied entry into one country or who were removed and subsequently attempt entry into the other country. The information sharing under this agreement does not apply to citizens of either country or to US lawful permanent residents.

The Convention on the Rights of the Child,[19] though not confined to refugees, has been used in some countries to extend legal protections of the 1951 Convention to refugee children who might not otherwise qualify, particularly the prohibition against returning refugees to their home countries. Although the United States was instrumental in drafting this convention and President Bill Clinton signed it in 1995, the US Senate has not ratified it.

Trends in Global Migration Law and the Position of the United States

Although the United States is a party to international conventions governing immigration and refugee law, some tension has always existed between American national sovereignty and participation in global frameworks that can affect US immigration law. Sovereignty concerns were among the reasons why the US did not sign the 1951 Convention, and they are at the root of why the US sometimes refuses to sign other global compacts. The weight given to national sovereignty concerns can vary based on American domestic policy considerations and are applied to different degrees by different presidential administrations. 

The Global Compact for Safe, Orderly and Regular Migration[20] is a United Nations General Assembly Resolution that began development in 2016 and was passed in 2018 by a majority of UN member states. Under the Obama Administration, the United States initially participated in the negotiation of the terms of the Global Compact. However, in 2017 the Trump administration withdrew its participation, citing concerns for US sovereignty.[21] The US is the only country of 193 UN member states that actively opposed the draft text of the Global Compact,[22] and was one of five member states to vote against its formal adoption.[23]

One criticism of the Global Compact is that, despite its proponents’ claim that it is not legally binding on member states, the possibility exists that, over time, it could become the foundation on which new customary international laws would develop. These could eventually create a back-door way of becoming US law. For example, Objective 13 of the Global Compact calls for the detention of migrants to be used only as a “last resort,” and calls for non-custodial, community-based arrangements instead. Objective 15 calls for providing access to basic services for all migrants, “regardless of their immigration status.”[24] Taken together, these objectives raise concerns among some that judges could use the Global Compact as customary international law to rule that illegal immigrants in the US must be free to roam in American communities while being entitled to taxpayer-funded entitlements, including health benefits and educational services.[25]

Another worry is that the word “compact” in the title of the Global Compact implies binding intent regardless of assurances to the contrary.

An additional sovereignty-related concern is that the establishment of a United Nations High Commissioner for Refugees is, in some ways an attempt to overrule America’s interpretation of its own immigration laws and to re-interpret the 1967 Protocol without member consent, such as by claiming that the requirement of the 1980 Refugee Act for asylum seekers to present themselves to US officials at border ports of entry is too restrictive.[26] This could be potentially significant in light of the 2018 and 2019 “migrant caravans” from Central America, each numbering thousands of people, traversing Mexico in order to seek mass asylum by crossing the southern US border.[27] The response of the Trump Administration to send US military forces to the southern border to interdict these caravans in a certain sense brings the question of immigration full circle, back to its ancient roots as a matter of national defense.[28]

Conclusion

Thank for you for participating in the LawShelf video-course on the basics of immigration law. While control over immigration has long been the province of domestic US federal law, international legal considerations have played an increasing role in shaping US immigration policy. How much international law will continue to shape US immigration policies and the extent to which immigration laws will be changed to reflect evolving attitudes and beliefs of the American people is certainly something to keep an eye on. We hope that this course has given you a solid understanding of the framework of immigration law and that it will be useful to your knowledge base and practice. Please let us know if you have any questions or feedback.