On January 27th, 2017, American President Donald Trump signed ‘Executive Order 13769’ titled Protecting the Nation from Foreign Terrorists Entry into the United States’. The purpose of this order is to place a limit on the number of refugees to be admitted into the United States in 2017. The order suspends the entry of foreign nationals from seven Muslim majority nations namely, Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for a period of 90 days after which an updated list will be put in place. The order also indefinitely suspends nationals from Syria. In Section 5(e), the order further states that exceptions are allowed for individual refugees on a case- by- case basis. The implementation of the Order, which quickly became known as the ‘US Travel Ban’, sparked worldwide controversy and led to generated protests at airports in the US, approximately 50 lawsuits, interpretative questions and application issues. This blog will briefly highlight the international legal implications to President Trumps’ controversial Order.
President Trumps’ Executive Order 13769, states in Section 1 and 2 that in order to protect Americans, the United States must ensure that those admitted to its territory do not bear hostile attitudes toward it and its founding principles. The US cannot and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. (Section 1) In addition, it states that it’s the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States. (Section 2)
President Trump commented on his recent Executive Order and explained that this new immigration policy is required by national security concerns and that the goal of the order is to ‘screen out radical Islamic terrorists’. Noteworthy is that no nationals from the seven countries included in the Executive Order ever carried out a terrorist attack on US territory.
American-Canadian Professor James Hathaway from the University of Michigan, a leading expert on international refugee law, questions the correlation between the persons banned and the risk the President’s Executive Order asserts. Professor Hathaway states that the US has operated the largest refugee resettlement program for the last forty years and has admitted large numbers of refugees seeking asylum. During this period, three Americans lost their lives in attacks by Cuban refugees in the 1970’s. According to Professor Hathaway there is no other serious data linking refugees to terrorist threats.
The lack of a rational connection between refugees from the seven countries listed in the Executive Order and the threat of terrorism is very problematic and is already facing numerous legal challenges in national courts in the US. When challenged by a UN body or an international court, the chances are highly likely that it will also collide with International law.
Article 26 of the International Covenant on Civil and Political Rights (ICCPR) requires that the resettlement of refugees is done in a manner which ensures equal protection without discrimination on any ground and explicitly prohibits grounds such as religion or national origin. Professor Hathaway therefore argues that the US cannot limit resettlement based on nationality or religion.
Also, article 3 of the 1951 Convention Relating to the Status of Refugees forbids discrimination in the application of this Convention on the grounds of race, religion or country of origin. Furthermore, article 33 of this Convention includes a ‘non-refoulement’ clause which makes it illegal to expel or return a refugee to a place of risk of persecution or danger. Neither of these international obligations set forth in this Convention can be subject to a reservation.
Since the Executive Order came into force on January 27, several Syrian refugees where denied entry to US territory. This leads Professor Hathaway to conclude that the Executive Order was conceived with no regards whatsoever for the binding international legal obligations to shelter refugees arriving into the US.
Independent human rights experts working for the UN also criticized the Trump administration and released a statement in which they described the new American immigration policy as a discriminatory action that was stigmatizing for Muslim communities.
The UN High Commissioner for Human Right, Mr. Zeid Ra’ad al-Hussein took an even firmer stance and posted a tweet that President Trumps’ order flouted international law. The New Secretary - General of the UN, Mr. António Guterres, was more restrained in his criticism compared to this UN colleagues. Mr. Guterres, who served for 10 years as the head of the UN Refugee Agency, stated that the new measures indeed violate our basic principles and they will not be very effective if the objective is to really avoid terrorists to enter the US. He also emphasized that Syrians today had the most urgent need for protection.
Interestingly, the German Chancellor Merkel and Canadian Prime Minister have been very outspoken that the way the executive order treats refugees is unacceptable. Dutch Prime Minister Rutte also stated in the Parliament that he rejects this measure as he believes it is formally a discriminatory action.
One way to challenge the US on an international level, is for another State Party to the Refugee Protocol, to take the US to the International Court of Justice (ICJ) under the mandatory dispute settlement clause in Article IV of the Protocol. Professor Hathaway explains that there needs simply to be a dispute which relates to the treaty’s interpretation or application which cannot be settled by other means. Professor Hathaway states that this will take enormous political courage. ‘ No country has ever taken another country to the ICJ in the refugee context so history suggests it will be an unlikely prospect’, says Professor Hathaway.
Meanwhile, the travel ban has been halted by two different national courts on a federal level which means that refugees from the seven Muslim majority nations are allowed entry into the US for the time being. Legal challenges focus on the constitutionality as well as the legality of the travel ban.
Last week, President Trump promised more legal action after federal appeals courts refused to reinstate the travel ban. ‘ The judiciary is not supreme’ , a senior policy advisor of the President stated in the media.The President himself called the rulings ‘ a political decision’ and tweeted that he would see them in Court.
The Trump administration’s disregard for court orders and the judiciary in general is alarming to say the least. The Executive order in addition to the planned Wall President Trump intends on building between the US and Mexico marks a dangerous shift in US foreign policy. The protests in the US and the international outrage that has occurred following these events is very hopeful and heartwarming in these tumultuous times we find ourselves in. We can only hope that international law is able to contribute to creating a strong opposing international force to counterbalance what is yet to come.[number of readers: 2018]