A flagrant violation of US obligations

Reading President Donald Trump’s Executive Order Protecting the Nation from Foreign Terrorist Entry into the US as an international lawyer, one cannot but think its drafters are either ignorant of the 1951 Convention and 1967 Protocol relating to the Status of Refugees, which has bound the US since 1968, or even worse, they consciously decided to ignore and misrepresent it.

Signed on Holocaust Memorial Day (27 January), the Order ranges from an outright violation of Refugee Convention principles to a lack of understanding or misrepresentation of how refugee protection works under international law, and ergo, must work in domestic law.

By far the most problematic aspect is its ‘pick and choose approach’ as to who may be admitted to the US as a refugee. It suspends the US Refugee Admissions Programme for 120 days with respect to all refugees across the world and all refugee arrivals from Syria indefinitely.  It suspends all new arrivals from designated countries (Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen). It further instructs a prioritisation of refugees fleeing due to religious persecution, so long as any applicant comes from a minority population in their home state. Both of these instructions are discriminatory – the former on grounds of nationality and the latter on grounds of religion. As such, they are in flagrant violation of Article 3 of the 1951 Convention, which requires state parties to apply the provisions of the Convention “without discrimination as to race, religion or country of origin”. Article 3 is one of the cornerstones of the international protection of refugees. It recognises the unpredictable nature of persecution in different times and different places and seeks to protect anyone who falls through the net of protection in their home country. A state cannot honour its legal obligations under the Refugee Convention by introducing policies of discrimination. 

The principle of non-refoulement contained in Article 33 of the Convention, which requires that a person cannot be returned to the frontiers of any territory where their life or freedom would be threatened, or where they may face a real risk of torture is the flipside of non-discrimination principle. Trump’s Order, which would turn people away if they came from the  ‘wrong country’ or because they were not facing the ‘right type of persecution’, would also be a flagrant violation of Article 33 of the Convention.

Aside from flagrant violations, there is also misrepresentation of the Refugee Convention in the Executive Order.

The Order refers to the events of 11 September 2001 in its rationale; despite the fact that no refugees or nationals of the countries listed were involved in the heinous acts of terrorism that led to 2,996 deaths. What is more, the Refugee Convention has a specific clause -- Article 1F -- that excludes anyone who could seriously be considered to have committed a war crime, a crime against peace, a crime against humanity or a serious non-political crime from protection. Terrorists do not benefit from refugee protections. 

The Executive Order asks refugees to respect US laws and values (although the wording seems to suggest that this is also expected from any ‘alien’). This is all fine and good. But it’s also an unnecessary repetition of the 1951 Convention.  Here, Article 2 states that: “Every refugee has duties to the country in which he (sic) finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”

Misrepresentation of obligations under international law by politicians for domestic political ends is nothing new. Neither is a lack of compliance with international law, which ultimately rests on self-enforcement in the absence of a world Leviathan. The Executive Order of 27 January 2017, however, is an extreme case of non-compliance with some of the most established norms in international law. It also has far-reaching consequences for far too many vulnerable children, men and women, stranded in airports all over the world and in dangerous war zones. It goes against the most central prohibitions of the Refugee Convention and it must be unequivocally named for what it is, not only abhorrent and anti-constitutional, but also a flagrant violation of long standing US obligations under international law. Ensuring respect for the Refugee Convention in the US will not only require domestic activism and lawfare (as the ACLU has successfully done) in the US, but also sustained and unwavering international pressure on the US, notably from its closets allies, to bring its policies in line with the non-negotiable principles of international refugee law.