Jun 18 2010

More reports of US violations of citizens’ right of return

“No one shall be arbitrarily deprived of the right to enter his own country.” (International Covenant on Civil and Political Rights, Article 12)

This week the Council on American-Islamic Relations held a news conference in Washington (statements, testimony, and links to adiditonal info) featuring first-hand accounts of US citizens who have been trapped overseas, unable to exercise their right to return to the USA, because the US refuses to give airlines “permission” to transport them to the USA.

We’ve reported previously on some of the same and similar incidents.  The denial of transport, in the absence of judicial orders such as a no-fly injunction, violates airlines’ contractual and regulatory obligations as common carriers, and the extra-judicial government denial of transport and entry to the country fails to satisfy the substantive and procedural standards under the ICCPR for measures that implicate freedom of movement under Article 12, and violate US international obligations as a party to that treaty.

The US signed and ratified the ICCPR with the reservation that in the USA it would not be “self-efeectuating”, and it is not clear to what degree it has been effectuated by other US legislation. Since no-fly orders are given to airlines by the government, and the orders themselves are kept secret from the (would-be) traveler, it’s difficult for travelers to establish standing to challenge them against the government in US courts. Former Secretary of Homeland Security Chertoff’s publicly declared goal was never to allow judicial review of no-fly orders, and the Obama Administration has announced no change in that policy.

But US citizens who are trapped abroad, unable to return to the USA because airlines won’t transport them (presumably because the US government has told them not to, or hasn’t given them affirmative clearance to do so), aren’t limited to recourse through US courts.  By depriving them of their right of return, while they are outside the USA, the US has given them the opportunity to shop the world for the jurisdiction form which to try to return, and to sue the airline (and, perhaps, the US government) for extra-judicial refusal of, and interference with, common-carrier transportation, and violation of Article 12 of the ICCPR. Those lawsuits won’t be heard in the USA, but in jurisdictions that ratified the ICCPR without reservations, and where the USA may not be able to invoke its “state secrets” doctrines to give impunity to airlines that chose to obey, rather than to challenge, illegal orders form the US government.