International Human Rights Law
International human rights law refers to a set of laws aimed at promoting human rights on a domestic, societal, and regional level. It is based on the Universal Declaration of Human Rights, which was ratified by the United Nations in 1948. It is accepted in this context that human beings are entitled to certain rights and liberties by virtue of their humanity. The body of international human rights law explores the relationship of the state to persons and the preservation of those individuals’ rights. Generally, the body of international human rights law thrives through the voluntary membership to international bodies. In some laws, the individual states opt in or out in deciding if they need to join them. On one hand, if a state decide to ratify a certain treaty, then it has the obligation to respect it and abide by it. In this case, the legislature of the interested country ensures that it sets its national laws in alignment with international laws. On the other hand, if a state decides not to sign up to a certain treaty, then it is not bound by the treaty. For example, the US did not ratify the International Criminal Court (ICC) treaty, and so is Indonesia, China, and India. Among other reasons, the US argues that the ICC laws are not only elastic but also vague and therefore not predictable (Steven 120).
The Instruments of International Human Rights Law
The instruments of international human rights law are customary law, domestic law, treaties, principles, and declarations among others. The legal fraternity has noted the challenges of burden of proof that come with such issues as the expulsion of aliens. Getting the right information to present it to the courts is not easy (Juliane 1).
Who is Protected by the International Human Rights Law?
Various international human rights instruments as well as treaties categorically hold that human beings have certain inherent rights. Such rights are inalienable. In addition to that, in 1948, the international community committed itself to respect the human rights of every individual irrespective of one’s country, gender, age, language, color, or status.
In addition to that, it assumes that all human beings are born free The UDHR, the benchmark of the international human rights law, calls for the protection of the basic political, economic, cultural, social, and civic rights. However, in cases where the state ignores the issue of international human rights, individuals can take their grievances at the international level.
A party that is protected by international human rights law is groups of people rather than individuals. A case in point is the case of Native Americans and the relationship it has had with various governments in the pre-colonial, colonial, and post-colonial times. The red Indians were living in large chucks of land that was favorable to various cultural activities such as hunting. Along came the Europeans who brought slavery, disease, and took their land.
Consequently, various calls and efforts were made in order to protect the international rights of the red Indians. For example, Francisco de Vitoria, a Spanish Dominican cleric, made a spirited effort to question the Spanish’s claim to the native lands. He used the natural laws principles in order to defend his case.
International human rights law in the case of Red Indians is governed by three main principles. To start with, the Red Indians are a minority and an indigenous group of people and therefore vulnerable to some wrong policies of the metropolitan state. In connection to this, they have a right to self-determination. Second, they have a right to physical survival. These include the umbrella right to human life. Lastly, Red Indians are at liberty to make use of their natural resources as they deem fit. The methodology to the utility of natural resources does not necessarily have to be in conformity with the model economic models that are based in rational decision making (Bailey 99). It is therefore a contravention of the international human rights code to forcibly change the economic preferences of indigenous and groups. If such efforts are to be made, they should be made in a voluntary methodology that respects the need to allow groups of people to make their choices.
How is One Classified as an Illegal Alien or Citizen?
According to the US law, the term alien refers to an individual who is not a US national or a US citizen. A critical factor in the US law is that a person who is not a US national is given an opportunity to follow the process of proper documentation where pertinent information about him or her is captured and a verdict made.
However, much as an immigrant would present the documents to an embassy, consulate, or immigration offices inside the US, there is a criteria that is followed in order to allow someone to stay in the country. These includes the skills that one holds among other factors. And therein lies the genesis of the contention. On one hand, the US would like to regulate immigrants in order to protect the rights of the citizens such as access to social facilities and infrastructure. On the other hand, liberalism holds that individuals have a right to stay in any country that they so wish and they just need to present their papers. In some cases, the US government is caught in a tight position concerning immigration. For example, people who are fleeing persecution have a right to be welcomed by the country that they are able to make entry to.
The term illegal immigration is the situation where an individual lives in a certain country without the permission of that particular country. In general conversations in America that involve this topic, the term is almost synonymous with the undocumented immigrants from Mexico. Historically, Mexicans have been allowed to cross the borders to the US in order to assume the work positions that average Americans shy away from, working in the railroads for instance. With American farms losing their entire harvests due to lack of manual labor, the value of Mexican labor cannot be underestimated. However, this tolerance on immigration of Mexicans has been challenged in recent years and still continues to be revised. This is due to the following three main reasons:
-The September 11 attack was a watershed in the approach to terrorism. The US became all the more cautious in allowing immigrants into the country and thus the change in general policy. This applied to Mexico as well as other countries.
-The US is wary of the inroads that the Spanish language is taking, with the language being a possible second national language. The US would rather make an aggressive attempt to promote the use of English in America.
-There are some sectors in the economy which American citizens are willing and able to work. In such sectors, there is no need for immigrant labor.
There is a strong criteria that governs the question of US citizenship. The following are the main points that qualify one to be a citizen:
-An individual who is born in the US
-An individual whose one or both parents is a US citizen
-An alien who has gone through the process of naturalization
-Any individual who is born in Guam, Puerto Rico, or the Virgin Islands.
The citizens of the following countries may work, stay, or reside in the US without any form of restriction:
-Republic of Palau
-Federated States of Micronesia
-Republic of Marshall Islands
An illegal alien refers to an individual who has entered a certain country without authorization. In most cases, such an individual crosses the border without following the normal inspection. Most often, courts use the terms illegal alien and illegal immigrant interchangeably. However, some legal scholars are quick to note that the actual term that should be used is illegal alien.
The initiatives that target the illegal immigrants have compounded the problems that the Latinos face in their day to day life. In 2007, Pew Hispanic Center, conducted a study founded that a whopping 64 % of participants reported that a crackdown on immigration had led to a more difficult life among the population. The center further notes that Latinos have faced discrimination and exploitation in one way or another, pay below minimum wage for instance (Anna 88).
There has been various calls among some political leaders that the undocumented immigrants should receive amnesty and proceed to be documented. The argument is based on the observation that undocumented immigrants continue to live in the US anyway. By documenting them, the state will be giving them freedom and confidence to contribute positively to the US economy. In addition to that, it will ease the tensions between the state and certain groups who feel they are targeted and thereby lead to a more peaceful society which will shun some vices such as terrorism. However, these efforts have been nipped in the bud by legislators whose position is in favor of mass deportation.
Deportation of Undocumented Immigrants by Trump: Constitutionality
A controversial issue about the deportation is that it targeted countries that are predominantly Muslim. The US was founded by the tenets of liberty and the promise of respecting the freedom of others. However, the war on terror, branded so by George W. Bush, was largely seen as a war against Islam. In particular, surveillance had a big impact on the life of Muslim Americans who were perceived to be aiding terrorists who were hatching terrorist activities in their home countries (Bayoumi 77).
The First Amendment Establishment Clause prevents any individual or institution in America from favoring any religion after the other. It is true that the US is predominantly Christian, but unlike other countries such as Saudi Arabia, the country allows residents to practice their faith as far as they are not hurting others. It is therefore unconstitutional to have any policy that seems to target a certain religion.
When Trump was campaigning, he made numerous comments that brought uncertainty on whether the future of Muslims in America was protected. Again, when he assumed the presidency, he was not willing to welcome Muslims who are fleeing persecution but instead preferred the Christians. Part of the blame has been directed at Trump’s advisers who show ethno-nationalism and are conservative Christians.
If the rule of law is to be followed, the immigration offers in the US borders and entry points are supposed to identify people who are fleeing persecution or any form of abuse. Consequently, they are supposed to be allowed to stay in the US, albeit briefly, in order to allow an objective consideration of their case. Such people should receive preferential treatment because they are vulnerable.
It is therefore not surprising that a significant number of lawsuits were in favor of the victims at the dismay of President Trump. The judges in the cases order the release of the detainees and free them up to attend their business. It was observed that the victims were deprived of their rightful liberty and due process was not followed.
Conclusion
There are numerous ways through which interested individuals can continue to challenge the Trump’s policy on the deportation of aliens. There are sufficient provisions under international human rights law to do so. Overall, the state, the non-state actors such as the private sector, and the public should be cautious about the international human rights law and make a deliberate effort to respect it.
Works Cited
Bailey, Garrick A. W. C. S. Handbook of North American Indians, Volume 2: Indians in
Contemporary Society. Smithsonian Institution, 2008.
Bayoumi, Moustafa. This Muslim American Life: Dispatches from the War on Terror. New
York, 2015.
Kokott, Juliane. The Burden of Proof in Comparative and International Human Rights Law:
Civil and Common Law Approaches with Special Reference to the American and
German Legal Systems. Kluwer Law International, 1998.
O’Leary, Anna. Undocumented Immigrants in the United States: An Encyclopedia of Their
Experience. Santa Barbara, Calif: Greenwood, 2014.
Roach, Steven. Politicizing the International Criminal Court: The Convergence of Politics,
Ethics, and Law. Rowman & Littlefield Publishers, 2006.
