Can International Law Trump Trump’s Immigration Agenda? Protecting Individual Rights Through Procedural Jus Cogens
forthcoming 2018 U. ILL. L. REV. ONLINE __.
17 Pages Posted: 23 Oct 2018
Date Written: October 23, 2018
Recent days have seen a number of actual and proposed changes in U.S. immigration courts, including the call by Donald Trump to deny immigrants all access to courts or judges. This Essay considers the propriety of this and similar proposals in light of certain peremptory (non-derogable) norms of international law known as jus cogens (ius cogens). Jus cogens norms provide important protections against gross violations of core substantive and procedural rights and are often considered the highest within a hierarchy of international legal norms. Some of the most widely accepted jus cogens norms involve prohibitions on genocide, slavery, torture and prolonged arbitrary detention, and the question for this Essay is whether and to what extent certain actions taken or proposed by the Trump Administration violate existing or developing jus cogens norms. After defining traditional and evolving elements of jus cogens, the Essay undertakes a detailed analysis of the content of what might be called “procedural jus cogens” and considers how these principles might operate with respect to the Trump Administration’s proposals to eliminate immigration hearings. The discussion addresses both judicial and non-judicial responses that individuals and members of the international community might adopt should the proposals become reality. Although the current Essay focuses on one particular proposal, the recommendations outlined herein may apply equally to other violations of procedural law, both in the immigration context and beyond. Indeed, the further development of the concept of procedural jus cogens may provide significant protections for numerous individuals not only in the United States but in other countries around the world.
Keywords: immigration, Trump, courts, peremptory, non-derogable, international, jus cogens,
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