Volume 34
Issue 2
Winter '20

The ICCPR, Non-Self-Execution, and DACA Recipients' Right to Remain in the United States

Written By: Timothy E. Lynch

Abstract

The United States is a party to the International Covenant on Civil and Political Rights (ICCPR).  Article 12.4 states, “No one shall be arbitrarily deprived of the right to enter his own country.” Citizens clearly enjoy the rights of Article 12.4, but this Article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR’s preparatory works and the jurisprudence of the Human Rights Committee, I demonstrate that Article 12.4 also forbids states from deporting long-term resident non-citizens – both documented and undocumented – except under the rarest circumstances.  As a result, Article 12.4 prohibits the United States from deporting many Deferred Action for Childhood Arrivals (DACA) recipients and so-called Dreamers and also many other long-term immigrants for whom the United States is their “own country.” I refer to these aliens who have an Article 12.4 right to remain in the country as “non-citizen Americans.”

The ICCPR, however, is understood to be “non-self-executing” in the United States and thus deemed by many to have no domestic legal force. But this conclusion is imprecise. The ICCPR is not wholly impotent. The United States has an international legal obligation to adhere to the human rights articulated in the ICCPR. Its non-self-executing status does not change that. As a ratified, in-force treaty, the ICCPR is also among the supreme laws of the land pursuant to the Supremacy Clause. Its non-self-executing status does not change that.  Using recent scholarship on treaty self-execution and close examination of the intent of the U.S. treaty makers, I argue that the ICCPR is non-self-executing only to the extent it restricts the judicial branch from directly enforcing it. The ICCPR is, therefore, law for the executive branch, law the President must take care to faithfully execute pursuant to the Take Care Clause. Therefore, the Attorney General and the Department of Homeland Security are prohibited from deporting many DACA recipients, Dreamers, and other non-citizen Americans. Furthermore, I suggest that, despite the ICCPR‘s non-self-executing status, the judicial branch might be able to employ the Charming Betsy canon to interpret provisions of the Immigration and Nationality Act to comport with the United States’ international law obligations to protect non-citizen Americans from deportation. I also suggest that the Due Process Clause of the Fifth Amendment may demand that courts directly apply Article 12.4 to protect non-citizen Americans from deportation.

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