Checking Rights at the Border: Migrant Detention in International and Comparative Law

69 Pages Posted: 25 Jun 2018 Last revised: 26 Feb 2020

See all articles by Jill I. Goldenziel

Jill I. Goldenziel

Marine Corps University-Command and Staff College; University of Pennsylvania; Harvard University

Date Written: June 19, 2018

Abstract

Human rights laws, both international and domestic, present a challenge to the sovereign rights of states. The right to determine who may enter a state is one of the fundamental attributes of sovereignty. Under international law, however, states cannot return a migrant with a potentially valid asylum claim to a place where his life will be in danger, and cannot return any migrant to a place where he might be tortured. States often detain migrants while processing their asylum claims, and pending deportation if those claims should fail. Yet international law, and many states’ domestic laws, prohibit prolonged detention and restrict detention conditions. As migration flows and detention rates have swelled globally, high courts have increasingly decided cases involving the rights of detained migrants. On February 27, 2018, the U.S. Supreme Court handed down a critical decision on this issue in Jennings v. Rodriguez, allowing thousands of immigrants and asylum seekers to be detained indefinitely, without bail hearings, while remanding the case for consideration of their constitutional claims. This article compares court cases involving detention of migrants in the United States, Australia, and Europe to determine how states can comply with human rights law while preserving their right to protect their borders. Based on these cases, the article proposes best practices for state compliance with international law on detention. This comparison illuminates how courts strike a delicate balance between human rights and state sovereignty where national security interests are at stake.

Keywords: migrant, immigrant, refugee, human rights, constitution, international law, international refugee law

JEL Classification: J6, J40, J42, K14, K37

Suggested Citation

Goldenziel, Jill I., Checking Rights at the Border: Migrant Detention in International and Comparative Law (June 19, 2018). 60 Virginia Journal of International Law 156 (2019), Available at SSRN: https://ssrn.com/abstract=3199547

Jill I. Goldenziel (Contact Author)

Marine Corps University-Command and Staff College ( email )

2076 South Street
Breckinridge Hall
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United States

HOME PAGE: http://scholar.harvard.edu/jill

University of Pennsylvania ( email )

Philadelphia, PA 19104
United States

Harvard University ( email )

1737 Cambridge St.
Cambridge, MA 02138
United States

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