The balance of power between the Executive, the Legislative and Judiciary is a crucial element of a functioning democracy. However, this balance is no longer certain in the United States in the face of an Executive branch that disrespects Constitutional rights and has proven itself willing to defy Supreme Court orders[i]. Recent political developments in the United States have concerned Americans desperately invoking Constitutional rights and freedoms in acts of resistance. But when domestic law fails to protect human rights, may certain rights and freedoms – guaranteed under international human rights law – be invoked by American citizens and other persons within its jurisdiction? This article will attempt to illuminate this question by examining two interrelated issues – State obligations pertaining to states of emergency and habeus corpus.
Deployment of the National Guard:
Since the Trump administration took Office in January of 2025, the President has exercised the right of the Executive to deploy the National Guard first in L.A., then Washington D.C, followed by Chicago, and then Memphis. Deployment of a National Guard is interrelated, though not synonymous with, invoking a state of emergency; the former is typically used as a supporting mechanism to the latter, generally used in emergency domestic crisis situations such as natural disasters, insurrections or civil unrest. Legal experts fear that normalizing the deployment of the National Guard in U.S. cities is testing the limits of presidential power and the use of military force, thereby also testing the resilience of democracy. Declaring a “crime crisis” in cities like Washington D.C. has allowed the President to instate the National Guard there for up to 30 days. Recognizing the temporal limitation, President Trump stated that “if I have a national emergency, I can keep the troops here as long as I want”[ii]. Declaring a national emergency would unlock a set of 120 exceptional statutory powers to the Executive branch, including the authority for the freezing of assets and restricting of telecommunications.[iii]
States of Emergency:
Because the invocation of a State of Emergency authorizes such exceptional powers and is ideally used only under threat from foreign powers, it is governed under international law to protect human rights. But invoking a state of national emergency or public emergency is frequently also used by authoritarian Heads of State under false pretexts as justification for breaches of human rights, which is why there are strict requirements – where there is a right of the State there are also obligations. According to international law these derogations are permissible only to the extent that they are “strictly required by the exigencies of the situation”. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) provides for such obligations.
ICCPR – Article 4
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
[For reference, in brief: art. 6 – the right to life; art. 7 – the prohibition of torture; art. 8 para. 1 & 2 – the prohibition of slavery and servitude; art. 11 – prohibition of imprisonment on the grounds of inability to fulfil a contractual obligation; art. 15 – non-retroactivity of criminal laws; art. 16 – recognition as a legal person; art. 18 – freedom of thought, conscience, and religion]
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
The principle of proportionality is common to derogations and their limitations during States of Emergency and is contingent on the exigencies of the situation.
The United Nations Human Rights Committee, the UN organ responsible for monitoring the ICCPR issued General Comment No. 29 – States of Emergency (2001)[iv], which interprets and clarifies the scope of Art. 4 in depth. Paragraph 16 states that “In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant”.
Habeus Corpus:
The right to a fair trial, which includes the concept of habeus corpus in the ICCPR (Art. 9 para. 4), is among the most important procedural safeguards in the limitations of derogations as it protects against arbitrary detention.
Article 9 – ICCPR
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
The Common Law of States of Emergency and Habeus Corpus:
Given the increasing acceptance of the usage of common law by judicial bodies in the area of human rights, consider the Advisory Opinion on Habeus Corpus in States of Emergency[v] by the American Court of Human Rights in 1987, in which they opined that “… in serious emergency situations it is lawful to temporarily suspend certain rights and freedoms whose free exercise must, under normal circumstances, be respected and guaranteed by the State. However, since not all these rights and freedoms may be suspended even temporarily, it is imperative that ‘the judicial guarantees essential for (their) protection’ remain in force.” (ACHR OC-8/87) (my emphasis) In other words, to ensure that non-derogable rights are not restricted, the right to an effective judicial remedy, the right to a fair trial, is imperative.
The application of the provisions of the International Covenant on Civil and Political Rights, of jus commune is particularly complex in the context of the United States for various reasons, however no State is completely immune from the jus commune of human rights law.
Ratification of and reservations to the International Covenant on Civil and Political Rights:
The United States of America ratified the International Covenant on Civil and Political Rights in 1992, although acceded to with several reservations and declarations of understandings. It is notable though that the decision on the validity of a reservation is determined by the UN Human Rights Committee (HRC), and not by the State itself. Upon examining the reservations of various States Parties and in response to excessively broad reservations, such as those by the United States, the Human Rights Committee issued General Comment No. 24 (1994)[vi] to clarify the scope of State’s obligations. Paragraph 7 notes that:
In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.
In other terms, reservations that are incompatible with the object and purpose of the Covenant will be considered invalid. Additionally, certain rights and freedoms are non-derogable. In the situation of states of emergency, paragraph 10 states that “…some provisions are non-derogable exactly because without them there would be no rule of law. A reservation to the provisions of article 4 itself, which precisely stipulates the balance to be struck between the interests of the State and the rights of the individual in times of emergency, would fall in this category.” And of course, derogations which violate peremptory norms, such as the prohibitions of torture, or arbitrary deprivations of life, would be incompatible with the Convention as well. (Further contributions were made by the International Law Commission’s Guide to Practice on Reservations to Treaties[vii] in 2011)
Self-executing provisions of the ICCPR:
Although the U.S. has ratified the ICCPR it has not ratified its Optional Protocol, some of its provisions are self-executing. Article 2 of the ICCPR requires that States give effect to its provisions; failure to do so can invoke the responsibility of the State, specifically provided for in paragraph 2:
Article 2 – ICCPR
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. (“International Covenant on Civil and Political Rights | OHCHR”)
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
The Dualist State:
It is also notable that the United States is a dualist State, in which international law isn’t directly implemented into a State’s legal system, but instead requires explicit legislation for the adoption and incorporation into the domestic legal order. In contrast, a monist State views domestic and international law as two parts of a unified legal system, allowing for direct applicability of international legal instruments in force for that State. However, failure to implement a legally binding obligation can invoke the responsibility of the State, if successfully challenged.
Fear of judicial overreach and loss of sovereignty are the two main arguments for maintaining a dualist approach. However, judicial over-reach hardly seems an issue when the balance of power between the executive, the government and the judiciary is undermined as the executive refuses to comply with court orders, and the impartiality of the judiciary is questioned. As for the argument of loss of sovereignty, if ever there was a time to cede a modicum of control to the international legal order, with the benefits potentially far outweighing the risks – this is it.
Conclusion:
To answer the question of whether American citizens can invoke international law in response to potential breaches – the obligations and scope of law are typically clarified only when disputes arise and interpreted by a judicial body, such as the United Nations Human Rights Committee or the International Court of Justice (ICJ). However, international law does provide for other non-judicial mechanisms, and they ought to be explored.
Autocrats rely on lack of knowledge by its citizens on the rules of international law in order to abuse their power. Therefore, familiarity with the laws of international human rights is imperative to the protection of the rights of both citizens and others within the jurisdiction of the State. Regardless of one’s individual opinions on immigration, homelessness or crime, if an administration can ‘legalize’ the right to deprive other people of their right to liberty, then they can deprive you of yours also. And given the statements made by the current United States Executive regarding “invalid” border treaties and “invisible lines” separating Canada and the United States, we should all take this abuse of power very seriously.
(originally posted August 26, 2025)
[i] March 15 2025 deportation of alleged Venezuelan gang members despite a temporary restraining order by Chief Judge James E. Boasberg blocking AEA deportations and for any planes already left to return; https://www.aclu.org/trumps-deportation-flights-under-the-alien-enemies-act [accessed August 26, 2025]; Kilmar Abrego Garcia deported on March 15 from the U.S. in breach of a protected legal status; on April 10th the Supreme Court confirmed an earlier order from a Maryland federal court judge and signed an order that “properly requires the Government to ‘facilitate’ Garcia’s release from custody in El Salvador”. https://abcnews.go.com/US/judge-hearing-arguments-deportation-maryland-man-el-salvador/story?id=120491918 [accessed August 26, 2025]
[ii] At 1:05; NBC News; August 22, 2025 news conference; https://youtu.be/yubwAW8xnuo?si=M-mHKprQWxXHYqqW .
Sanchez, Ray; As Trump administration unleashes federal show of force in DC, other US cities on president’s radar push back; August 23, 2025; CNN News; https://edition.cnn.com/2025/08/23/us/us-cities-trump-dc-police
Trump floats circumventing Congress to maintain control of DC police; Giselle Ruhiyyih Ewing; 08/13/2025 https://www.politico.com/news/2025/08/13/trump-dc-police-congress-00507359
[iii] https://www.law.cornell.edu/wex/emergency_powers Accessed Sept. 18, 2025
[iv] General comment no. 29, States of emergency (article 4): International Covenant on Civil and Political Rights; UN Human Rights Committee; CCPR/C/21/Rev.1/Add.11; Geneva: UN, 31 Aug. 2001; https://digitallibrary.un.org/record/451555?ln=en&v=pdf
[v] Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), OC-8/87, Inter-American Court of Human Rights (IACrtHR), 30 January 1987, https://www.refworld.org/jurisprudence/caselaw/iacrthr/1987/en/19320https://www.refworld.org/jurisprudence/caselaw/iacrthr/1987/en/19320 [accessed 21 August 2025]
[vi] UN Human Rights Committee (HRC), CCPR General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6, 4 November 1994, https://www.refworld.org/legal/general/hrc/1994/en/10945 [accessed 21 August 2025]
[vii]Guide to Practice on Reservations to Treaties; Yearbook of the International Law Commission, 2011, vol. II, Part Two; https://legal.un.org/ilc/texts/instruments/english/draft_articles/1_8_2011.pdf [accessed Aug. 20, 2025]