Executive (Dis)order and Refugees—The Trump Policy’s Blindness to International Law

“Executive (Dis)order and Refugees—The Trump Policy’s Blindness to International Law ” by James C. Hathaway, originally published on JustSecurity.org, on February 1, 2017.

by James C. Hathaway

James C. Hathaway is Director of the Refugee and Asylum Law Program at the University of Michigan. He is also the Distinguished Visiting Professor of International Refugee Law, at the University of Amsterdam.

President Trump says that his recent executive order on immigration is required by national security concerns. More specifically, he has said that its goal is to screen out “radical Islamic terrorists.”

To that end, the President imposed a temporary ban on “immigrant or non-immigrant entry into the United States” of all nationals of seven countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Yet as a study by the Cato Institute’s Alex Nowrasteh (published yesterday in The Atlantic) reports, nationals of the seven targeted countries “have killed zero people in terrorist attacks on U.S. soil between 1975 and 2015.”  While most terrorist murders in America are committed by other Americans, the foreign countries that have produced terrorists responsible for attacks in the US – Saudi Arabia, Pakistan, and Egypt – are notably not on the list.  And even if the President’s unspoken goal is indirectly to avoid infiltration by persons coming from areas in which ISIS or its affiliates are active, it’s worth remembering that the majority of ISIS-related offences in the US have been committed by US citizens – who would not, of course, be caught by the executive order.

I. Breach of the duty of non-discrimination

The bottom line is that there is a gross mismatch between the risk asserted and the persons banned – of precisely the kind that is at odds with the “objective and reasonable” test that a policy must satisfy to avoid characterization under international law as illegal discrimination, for example, under the Civil and Political Rights Covenant.

As horrible – and illegal – as it clearly is for anyone to be tarred with the terrorist brush based simply on his or her nationality, the dilemma is especially acute for refugees, including both those who come to the US to seek asylum and those we affirmatively resettle from abroad. In many cases these involuntary migrants have been victimized by the very terrorist forces the President condemns.  These are not people who simply want to come to the US—they are rather people who have no choice but to find a new home because of the risk of being persecuted at home.

Are refugees a terrorist threat to the United States? Nowrasteh’s research shows that over the last four decades only 3 Americans have been killed in attacks committed by refugees – all by Cuban refugees in the 1970s!  Yet over the last four decades the United States has routinely admitted large numbers of refugees arriving directly to seek asylum, and has operated the world’s largest refugee resettlement program.  Where, then, is the correlation that the President’s order asserts?

Despite the absence of any serious data linking refugees to a terrorist threat, refugees come in for especially harsh treatment under the executive order.

First, the refugee resettlement program is shut down entirely for 120 days, and indefinitely for refugees from Syria. It’s true that the US is under no legal duty to resettle refugees; we’re just one of three countries (the others being Canada and Australia) that makes a serious commitment to resettlement from abroad.  But to the extent we legislate to establish and operate this or any other program, Art. 26 of the Civil and Political Rights Covenant requires that we do so in a manner that ensures equal protection without discrimination on “any ground” – and explicitly not on such grounds as religion or national origin.  With no rational connection between refugees fleeing the seven listed countries and the threat of terrorism (or indeed any other threat), there is little chance that the President’s bar would pass muster before the UN Human Rights Committee (even with that body’s arguably overly generous “margin of appreciation” in such cases).

II. Breach of duties under refugee law

Second, the executive order takes no account of our obligations under international refugee law. Specifically, the executive order appears wilfully blind to our commitment under the Refugee Protocol to ensure that we do not expel or return a refugee “in any manner whatsoever” to a place of risk; indeed, several Syrian refugees were in fact sent away from the US last Sunday.  While there is interim relief in the form of the order issued by District Court Judge Ann Donnelly, the White House was quick to respond that “[a]ll stopped visas will remain stopped. All halted admissions will remain halted. All restricted travel will remain prohibited… The order remains in place.”

Not only is it patently illegal under the non-refoulement clause (Art. 33 of the Refugee Convention) for the United States to send back a person who claims to be a refugee until and unless there is a final determination that he or she does not so qualify, Art. 3 of the same treaty expressly forbids discrimination in the application of the Convention on the grounds of “race, religion or country of origin.”  Neither of these foundational duties can be subject to a reservation.  Honoring these obligations does not, as has been suggested, expose the United States to risk to its safety or security.  Not only are terrorists and other serious criminals excluded from refugee status, but refoulement of even someone at risk of persecution is explicitly allowed where clear national security risk or danger to the community is shown.  But refugee law requires real attention to due process, and most certainly prohibits any sweeping group-based denial of access to protection, such as this Executive Order.

The bottom line is that the executive order was apparently conceived with no regard whatever for the binding legal obligation to shelter refugees arriving in the US.

III. Next Steps

So, what’s to be done?

One might expect that the United Nations High Commissioner for Refugees (UNHCR) – formally charged with supervising the application of the Refugee Protocol and Convention (sadly this treaty system still lacks a collegial enforcement mechanism of the kind provided for in most other human rights treaties) – would make itself heard in aid of a strategy of shaming the US to come into compliance with its duties.

To date, however, the UNHCR reaction can most charitably be described as timid. In an initial communication issued jointly with the International Organization for Migration, UNHCR on January 28th simply praised the US resettlement program and committed itself to “engage actively and constructively with the US Government.”  As the pressure mounted for the agency to be more forthcoming, the High Commissioner wrote on January 30th that he was “deeply worried by the uncertainty facing thousands of refugees around the world who are in the process of being resettled to the United States,” and “underline[d]… UNHCR’s position that refugees should receive equal treatment for protection and assistance, and opportunities for resettlement…” But not one word about legal duties.  And most certainly no reference to the executive order’s potential to lead to the refoulement of refugees seeking protection in the United States.  The fact that the US provides about 40% of the refugee agency’s funding may, of course, explain the agency’s reticence.

Alternatively, another state party to the Refugee Protocol could take the US to the International Court of Justice under the mandatory dispute settlement clause in Art. IV of the Protocol. There needs simply to be a “dispute… which relates to [the treaty’s] interpretation or application which cannot be settled by other means.”  German Chancellor Merkel and Canadian Prime Minister Trudeau have been especially clear that the way the executive order treats refugees is unacceptable.  But will either of them or some other leader have the political courage to make such a move?  Given the possibly volatile combination of massive publicity of the US action and the irresistible urge to bring a superpower down a notch or two (especially a superpower that often exercises its might to enforce human rights in other countries), it’s of course not a possibility that can be ruled out.  But since no country has ever taken another state to the The Hague in the refugee context, history suggests it’s an unlikely prospect.

Third, international refugee law will likely be raised as a supporting interpretive source in the context of domestic litigation to enforce the 1965 law barring nationality-based discrimination in the resettlement program, or arguing a denial of due process or equal protection. Helpfully, the Supreme Court has explicitly affirmed that Congress’ Refugee Act of 1980 was explicitly designed to implement American obligations under international refugee law – so the logic of interpreting any ambiguity in domestic law to align with our treaty obligations has an especially solid legal foundation.  There is of course a strain of judicial deference to executive authority over immigration and national security that might temper any optimism that litigation will succeed. There are, however, also good arguments, as demonstrated by Adam Cox and Steve Vladeck in recent Just Security essays, why modern times might be different.

Sadly, I believe that the most likely scenario is that UNHCR will continue to speak in mealy mouthed ways, that no country will take the United States to the ICJ, and that American judges may at best tinker with some details of the executive order. While this appears to be yet another demonstration of the inability of international law truly to make a difference, I am modestly more sanguine.  Given the truly extraordinary outpouring of anger by massive numbers of Americans in airports and in the streets in response to this executive order, international refugee and human rights law can play at least an important supporting role in giving people the confidence to speak up.  In the classic phrase, international law may not be enforceable in the hard sense, but it can help to create a site of struggle.  And struggle seems to be the order of the day.

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