Title

The Past as Present, Unlearned Lessons and the (Non-) Utility of International Law

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

Summer 2019

ISSN

0743-1759

Publisher

University of North Carolina, Chapel Hill

Language

en-US

Abstract

The contemporary moment provides an acute illustration of the dangers of historical amnesia—as if the Trump Administration’s policies of exclusion, extremist nationalism, and presidential imperialism were singular to ‘now,’ and entirely reversible in the next election. This Article argues to the contrary; that we have been down this road before, and the current crisis in immigration and refugee policies is the inevitable development of trends of racism, including anti-Arab, anti-Muslim racism and xenophobia, that have only become normalized by the populist resurgence of Trumpism. If this premise is correct—that we are experiencing a culmination of a historical trajectory—what lessons from past legal-activist mobilization around implementing international law can be applied to the present? Focusing on a few select efforts over time that used international law—human rights treaties and other instruments— and international legal interpretation to litigating refugee and asylum claims in the United States, this Article posits that the U.S. constitutional framework is inadequate to address the serious undermining of immigration and refugee rights. Although prior efforts at incorporating human rights norms have thus far been insufficient, more robust and strategic application of international human rights norms is urgently needed to seriously challenge the migration crisis of our time.

As support for this premise, it is useful to examine three prior periods of significance for the rights of refugees and immigrants: the refugee influx from Central America during the civil wars in the 1980s, the anti-Arab, anti-Muslim refugee and immigrant measures during the 1990s, and the post-9/11 Guantanamo litigation. What were some of the key challenges that lawyers and advocates made to the worst of the policies in those periods, and how useful were international law arguments to those strategies?

I draw on these examples from the past to illustrate that we have been down this road before. This is not the only time that racism and xenophobia have been normalized at the very top of government and mainstreamed by Congress and the media. Concurrently, however, there has been a massive response by civil society. Thousands of people spontaneously showed up at airports to protest the ‘Muslim’ ban, and lawyers volunteered all over the country to file habeas petitions to allow non-citizens to enter in defiance of the ban.1 So far, the courts have mostly struck down the various versions of the Muslim ban, though that litigation is now pending at the Supreme Court.2 However, prior efforts to push back against similar extreme measures against immigrants and refugees starkly illustrate the limits of constitutional protections, and that international legal rights are needed more urgently than ever to fill the lacunae in domestic legal protections. In this short introductory Article to the Symposium Issue, I offer no more than an overview of the issues raised during previous moments of legal crisis rather than an in-depth analysis of the merits of the arguments in the cases.

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