Sunday, September 24, 2017

The Travel Ban Cases and Human Rights

The consolidated cases challenging the Trump Administration's Executive Order imposing a "travel ban" -- Trump v. Hawaii, and Trump v. International Refugee Committee -- were set for oral argument  in the Supreme Court on October 10.  [Eds Note: The argument has now been taken off of the calendar for further briefing on whether the case is moot in light of the revised travel ban.]

Many of the many amicus briefs cite international human rights law in passing, since the Executive Order restricts entry of refugees along with other immigrants and US refugee law incorporates the standards of the UN Refugee Convention.  However, two of the briefs go into greater detail regarding applicable human rights norms and international agreements and expectations.

First, the brief of Human Rights First, et al., hones in on the refugee issue, identifying the practical, negative, impacts of the travel ban on the international expectations regarding refugee reception.  According to the brief, the travel ban is "needless" because of the extensive vetting and screening already applied to these groups.  And "the ban jeopardizes the stability of U.S. allies, erodes essential good will by reneging on promises made to certain refugee groups, makes it more difficult for the United States to recruit heart-and-minds support abroad, otherwise undermines the ability of the United States to pursue military operations, and endangers U.S. military personnel."  Further, to the extent the ban is viewed abroad as a "Muslim ban," it "feeds into the propaganda narrative of terrorists seeking to harm U.S. interests."  

Second, the brief on behalf of International Law Scholars and Non-Governmental Organizations invokes the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination to argue that the ban's religious and national origin discrimination violate international obligations.  According to the brief, "[s]uch distinctions violate international human rights law binding on the United States whenever they have either the purpose or effect of disadvantaging a group on the prohibited grounds."  Arguing that the relevant treaties have domestic effect even if they are non-self-executing, the amici cite the Charming Betsy doctrine to assert that the Supreme Court "should continue to construe the relevant provisions of the U.S. Constitution and applicable statutes in a manner that does not put the United States in violation of obligations under international human rights law and, as such, consider U.S. obligations under international law, which forms part
of U.S. law, in evaluating the legality of the EO."

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