The Nature of a Passport at the Intersection of Customary International Law and American Judicial Practice

In order to fully develop the argument that the DHS’s confiscation and impoundment of passports is a violation of customary international law, we begin by examining the history of a passport and its treatment in the international community. Next, we survey general principles of customary international law and analyze German case law holding that one State’s confiscation or impounding of a valid foreign passport constitutes an encroachment upon the passport jurisdiction of the foreign State issuing the documents which is impermissible under customary international law. Thereafter, we discuss case law where courts avoided addressing the international implications of passport seizures. We then examine the United States government’s view of passports by tracking the shift in its behavior from adhering to international norms to placing domestic prerogatives over customary international law. In doing so, we survey United States law pertaining to confiscation of passports. We conclude that the United States government’s impounding of a foreign passport violates general principles of customary international law because the United States government’s act of impounding a foreign passport is an encroachment upon the personal jurisdiction of the issuing State. However, we acknowledge that the rationale behind the DHS’s continued practice of impounding passports in violation of customary international law suggests that the United States government believes ensuring the return of the foreign national is more important than a State’s personal jurisdiction over its property. Accordingly, we recommend that the United States codify the authority, means, and methods by which such impounding can be carried out in order to avoid international retaliation