Description
This paper seeks to frame the US' recent limitations upon human rights, especially the prohibition against arbitrary detention, in the context of international law. Irrespective of the legal status of migrants under domestic law, the US government is still exercising its jurisdiction over migrants and subjecting them to arbitrary detention, which includes the lack of notification for the reason of arrest, detainment in undisclosed detention facilities, and prohibiting access to proper channels of justice. This piece will examine the impact that mass detention of migrants has on the degradation of judicial structures and due process. The gravity and widespread nature of these violations must be accounted for in international law; the failure to account for norm regression and backsliding during times of peace has been echoed in the jurisprudence of many post-atrocity accountability mechanisms and serves as the key rationale for the current international human rights infrastructure.
This paper will trace the legality of due process restrictions in detention as a potentially coextensive breach of US constitutional norms and the international prohibition on arbitrary detention. More broadly, examining the degradation of the US judicial structure demonstrates that due process violations in detention may act as a 'gateway' for other human rights offences, even in times of emergency. This can be understood in the context of civil and political rights, such as the right to a fair trial and non-refoulement, but also other socioeconomic rights, such as the right to education, the right to work, and access to healthcare. Such violations have important socio-legal implications in examining who 'deserves' human rights protections in US immigration structures. Finally, this examination accounts for the scope of lawful derogations the US may have imposed on these rights in times of national emergencies, irrespective of whether these are declared or 'de facto.'
