The Trump administration has finally made public its legal justification for its decision to halt asylum processing during the COVID-19 pandemic, and it is embarrassingly bad. Its brief back-of-the-hand dismissal of the United States’ international law obligations is particularly wrong and dangerous—and could have ramifications far beyond the Asylum Ban itself.
First a bit of background: On March 20, the Trump administration announced its decision to suspend asylum processing in response to the COVID-19 outbreak. Since then, just two people seeking humanitarian protection at the U.S. southern border have been granted relief. More than a month later, the administration finally answered Congress’ demand for a legal justification for the ban. The justification, which arrived in the form of a page-and-a-half email, sent on the evening of April 24, offered brief answers to the members’ request for a “detailed explanation of how this policy comports with domestic and international legal obligations towards asylum seekers.”
On May 12, Chairman of the House Foreign Affairs Committee Eliot Engel, Chairman of the House Committee on Homeland Security Bennie Thompson, Chairman of the House Committee on the Judiciary Jerrold Nadler, and Senator Robert Menendez, ranking member of the Senate Committee on Foreign Relations, sent a letter in response. They charged that the administration was using the COVID-19 outbreak as a pretext to expel asylum seekers “in clear violation of its obligations under domestic and international law to protect individuals fleeing persecution or torture.” Rather than alleviate concerns, they stated, the April 24 letter “raises serious questions about the accuracy of the Administration’s claims of protecting public health, the legality of the Asylum Ban, and the Administration’s respect for the rule of law.”
The members of Congress are right. Here, I focus on the brief paragraph in which the Trump administration attempted to reconcile the ban with U.S. international law obligations. The administration’s explanation suggests that it is not only ignoring its international law obligations in this case, but it also, apparently, misunderstands international law altogether.
Here’s the entire justification from the administration of the international law basis for the asylum ban:
International Law Obligations: Stopping the introduction of people and articles from COVID-19-risky locations is indispensable to protecting our public health and the national security of the United States. The Administration’s policy comports with our domestic law obligations concerning asylum seekers. As for our international obligations, the Supreme Court has noted that neither the United States nor any State or municipality has any legal obligation to conform its conduct to international treaties that are not self-executing or otherwise implemented into domestic law by an Act of Congress. See Medellín v. Texas, 552 U.S. 491, 504—06 (2008); Whitney v. Robertson, 124 U.S. 190, 194 (1888).
Yes, that’s it. As we will see, that’s an utterly inadequate and inaccurate assessment of the relevant international law obligations.
The United States’ International Law Obligations
First, let’s begin with the United States’ international law obligations, which the administration failed even to bother to address. While international law largely respects the fundamental principle that sovereign states may control who crosses their borders, it also recognizes the right of non-citizens at the border to be safe from return to countries that would cause them harm. This principle of non-refoulement—literally, the right against return—has been enshrined in various international treaties and, arguably, customary international law since the 1951 Convention Relating to the Status of Refugees—a convention enacted in the wake of the Holocaust, whose death toll was amplified by the unwillingness of countries—including the United States—to accept European refugees facing persecution and death. The Convention was followed by an additional Protocol in 1967, to which the United States is a party and is therefore bound not only by the Protocol but also key provisions of the 1951 Convention. Article 33(1) of the 1951 Convention states:
No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever 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.
True, Article 33(2) denies the benefit of Article 33(1)’s non-refoulement protections to individuals who pose a security risk to the country in which they seek protection—but that exclusion is narrow and not applicable to public health threats like COVID-19. Article 33(2) excludes from protection
a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
That might apply to terrorists and very dangerous criminals, but not to people who pose no security risk. Moreover, it would require an individualized showing—it cannot be applied on a blanket basis to everyone seeking asylum regardless of whether they actually pose a threat. Last, even if a disease could be considered a security risk and even if there were an individualized showing, there are lesser alternatives—like quarantine—that could address the risk.
The United States is also party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which prohibits (in Article 3) the return of “a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” And the United States is party to the International Covenant on Civil and Political Rights (ICCPR), which has been interpreted to include a non-refoulement protection. Article 7 states that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The Human Rights Committee’s (HRC) General Comment No. 20 interpreting the ICCPR states that “States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.” Neither the CAT nor ICCPR—both of which bind the United States as a party—contains a security exception to the prohibition against refoulement.
In short, the United States has repeatedly signed on to international instruments that prohibit the return of people seeking asylum if they will face persecution as a result.
Non-Self Executing Treaty Obligations Do Create Legal Obligations
The administration ignores all of these international law obligations, suggesting, first, that none of the international law obligations have been implemented by Congress and, second, because they have not been implemented, they are a legal nullity.
The first argument ignores that many of the international law obligations described above have been implemented into domestic law. The Refugee Act of 1980 implements the obligations of the United States as a party to the 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 options to prevent refoulement: withholding of removal and deferral of removal, which is unconditionally available without security exceptions.
But it’s the second argument that is truly galling, at least for international lawyers in the United States. The April 24 email claims that
the Supreme Court has noted that neither the United States nor any State or municipality has any legal obligation to conform its conduct to international treaties that are not self-executing or otherwise implemented into domestic law by an Act of Congress.
To begin with, this attempts to rewrite the Constitution. 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 . . .” There is no distinction made in the Constitution between self-executing and non-self-executing treaties.
All that it means for a treaty provision to be “non-self-executing” is that the provision is not directly judicially enforceable in U.S. courts. Put differently, a non-self-executing treaty provision cannot be the source of legal claim in court unless Congress passes legislation “implementing” it. But that does not mean that “neither the United States nor any State or municipality has any legal obligation to conform its conduct” to a non-self-executing treaty provision. As I explained in an earlier article, even non-self-executing treaty provisions create international legal obligations—meaning that the United States is still bound as a matter of international law to observe them. Breaking such international law obligations, even ones that cannot be enforced in U.S. domestic courts, can bring consequences—countermeasures and international court judgments, for example. It also holds the potential to destroy trust with allies and treaty partners across the globe.
This is why the courts and prior administrations have generally brought a much more nuanced approach to addressing non-self-executing treaty provisions. The Restatement (Fourth) of Foreign Relations Law—a multiyear non-partisan project of the American Law Institute to distill the “black letter law” in the field—acknowledges and reflects these nuances. The Treaty section of the revised Restatement, published in 2018, was overseen by Reporters Curtis Bradley, Sarah Cleveland, and Edward Swaine—all three of whom served as counselors to the Legal Adviser at the Department of State, two under President George W. Bush and one under President Barack Obama. The current Assistant Legal Adviser for Treaty Affairs at the Legal Adviser’s Office at the Department of State, Michael Mattler, provided substantial input during the drafting. (Full disclosure: I was an adviser to the project, but not significantly involved in drafting.)
The Restatement stands in stark contrast to the claims in the April 24 email. First, it notes that in construing statutes, “Courts presume that Congress does not ordinarily intend to violate U.S. treaty commitments.” (Section 309, Reporters’ Note 1). This is true regardless of whether the treaty is self-executing or not. As the Restatement explains, “After all, the distinction between self-executing and non-self-executing treaties concerns only domestic application and does not typically affect the international obligations of the United States under a treaty.”
The Restatement also notes that
Although non-self-executing treaty provisions are not themselves directly judicially enforceable, State and local courts may be able to facilitate or ensure compliance with a non-self-executing treaty obligation through their application of State or local law. (Section 308, Reporters’ Note 3.)
Most important, perhaps, a treaty provision that is not self-executing may still bind the executive branch. The Restatement acknowledges this, noting that an unsettled issue is “whether a non-self-executing treaty provision, even though not judicially enforceable, binds the President and the rest of the executive branch as a matter of federal law.” The Restatement is explicit in concluding that the Supreme Court’s decision in Medellin, which the April 24 email cites, “did not resolve that question.” (Section 310, Reporters Note 13.) An excellent article by Edward Swaine argues that the Take Care Clause grants the president significant authority to implement treaties on his own. A more recent article by Brian Finucane, argues that the Take Care Clause offers both authority and obligation and that, therefore, Article 2(4) of the U.N. Charter (a non-self-executing treaty provision) binds the president as a matter of domestic law. Needless to say, the April 24 email ignores all of this.
The implications of the position the administration has taken here—and the disdain displayed in dismissing these complex issues in a mere three sentences—are staggering. It suggests that the administration considers international legal obligations that are binding as a matter of international law, but that it deems non-self-executing, to be a complete legal nullity unless implemented by domestic legislation. That would mean unimplemented provisions of the Geneva Conventions governing the conduct of armed conflict; the United Nations Charter, every human rights treaty to which the U.S. is party (including the Genocide Convention and Torture Convention); the Vienna Convention on Diplomatic Relations; nearly every Friendship, Commerce, and Navigation treaty the U.S. has ever concluded; and much, much more are essentially meaningless. That dangerous claim threatens to take a wrecking ball to U.S. international legal relationships the world over and it would deal a death blow to the United States’ capacity to engage in international diplomacy for decades to come.