The inauguration of Donald Trump has sparked ongoing protests around the world, from American flag-burning in Manila to calls of “bring them [refugees] here” in Melbourne. Suffice to say the many facets of President Trump provoke strong feelings on both sides.
Perhaps the most controversial decision to come from the White House in Trump’s two-week residency is his executive orders issued last week, to address an alleged crisis of national security. Dubbed by many as the “Muslim ban”, his order called a halt to admission of all refugees for 120 days, indefinitely suspended the Syrian refugee program, and banned entry to the USA from seven Muslim-majority countries considered to be the primary terrorist threats. This latter ban includes all dual-nationals with a passport from any of these countries if they arrive in the USA from the country of threat. The reasoning behind this order is to avoid compromising national security while new, stricter vetting measures are developed for the country’s borders.
While this decision has been met with considerable opposition on humanitarian grounds, it has equally been refuted from a legal standpoint in relation to national and international laws. So much so, that attorney general Sally Yates instructed her department lawyers not to defend the executive orders from court challenges. President Trump subsequently fired Yates for this decision, instating Dana Boente as temporary attorney general until Trump’s chosen senator, Jefferson Sessions, has completed the formal proceedings required to take up this position. Boente has since overturned Yates’s decision.
There are a number of reasons why Yates might have felt these orders were legally questionable. The most prominent opposition in current US law comes from the Immigration and Nationality Act, signed by Lyndon B. Johnson in 1965. This act states that no person can be “discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth or place of residence”. The act followed the 1952 law repeatedly cited by the Trump administration allowing the president to “suspend the entry” of “any class of alien” deemed to threaten the country’s interests. However, the Immigration and Nationality Act sought to limit the power of the previous act, thus bringing the legality of Trump’s executive orders into question. It is apparent that the blanket ban on Syrian refugees entering the country is at odds with this particular law.
As a member of the United Nations, the USA is also obliged to obey a number of international laws regarding immigration. At the core of the UN Refugee Convention is an obligation to provide protection to those facing persecution overseas, which appears under threat by these new orders. Furthermore, Article 3 of this convention emphasises that nations must “apply the provisions… to refugees without discrimination as to race, religion or country of origin.” Not only is “country of origin” being used as a discriminant to those entering the USA under the new orders, but Trump has also stated that in future Christian refugees will be given priority over those of other religions in entering the USA, due to “religious persecution”.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) also appears to be challenged by the executive orders. This requires the USA to “guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law”. In addition to the discrimination evident in the executive orders for those entering the country, there are also concerns that discriminatory vetting, questioning and profiling will be enforced on the country’s borders following the overhaul.
Simultaneous contravention of the International Covenant on Civil and Political Rights (ICCPR) has also been argued. Article 4 of this treaty appears particularly relevant to the actions of the Trump administration; this states that in a “time of public emergency which threatens the life of the nation”, the country should not respond with measures involving discrimination “solely on the ground of race, colour, sex, language, religion or social origin”. This appears to match the actions and justifications of President Trump rather closely, further asking the question of how he can justify his actions before the UN.
The executive orders of President Trump appear to challenge a number of national and international laws, and we await the response of fellow UN member states to reveal their interpretation of these actions. It cannot yet be said whether the order will be met with condemnation or acceptance, but regardless of the response, tensions show no sign of lowering.
by Theo Cooper, Advocacy and Outreach Group
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