Trump’s travel ban violates international treaties: Don’t lose sight of that little-discussed problem with the executive order

In 1951, still shaken by the massive human displacement caused by Nazism, fascism and World War II, the international community came together to ensure basic rights and dignity for refugees. They made these guarantees binding on states by drafting the Refugee Convention.

James L. Cavallaro
Stanford Law Professor James Cavallaro

The United States played a central role in the development and drafting of that treaty. At the time, President Harry Truman remarked: “The grave dislocation of populations in Europe resulting from the war has produced human suffering that the people of the United States cannot and will not ignore. This government should take every possible measure to facilitate … immigration to the United States.”

With an executive order set to go into effect Thursday, the United States turned its back on this and other historic promises. That is, of course, President Trump’s new, “improved” travel ban closing America’s doors to millions, including thousands of refugees from six war-torn, and predominantly Muslim countries.

The executive order seeks to bar citizens from Iran, Syria, Yemen, Somalia, Sudan and Libya from entering the United States for the next 90 days and will suspend the acceptance of refugees for 120 days.

This ban will violate our treaty obligations, undermine our standing in the world, disrupt travel for thousands, callously separate families and cause immense suffering to refugees seeking our protection.

In the coming days, we can expect a host of law and policy-based challenges to this executive order. Already, seven states have joined a lawsuit asserting that the ban is unconstitutional.

As these claims make their way through the courts, it’s important that we not lose sight of the fact that Trump’s executive order also violates international human rights obligations prohibiting discrimination on race, nationality, or religion, as well as the international recognition of the freedom to travel, and eviscerates the United States’ commitments under the Refugee Convention.

The ban is discriminatory, in contravention of international legal prohibitions on discrimination based on race, nationality, or religion. There is ample evidence in the President’s own statements to show that it is driven by a desire to target Muslims. Moreover, there is little to no indication that travelers from these six countries pose particular threats to security and there have been no fatal terror attacks in the United States by immigrants of these six countries.

United Nations human rights experts denounced the earlier January 27 executive order noting that. “[S]uch an order is clearly discriminatory based on one’s nationality and leads to increased stigmatization of Muslim communities.” The March 6 order’s exclusion of Iraq from the list of banned nationalities does not address these core flaws.

If applied, the United States will be in breach of its obligations as a signatory of the Refugee Convention. Specifically, the executive order violates the principles of non-discrimination (restricting refugees based on race, religion, or country of origin), exemption from exceptional measures (applying exceptional measures on a refugee solely on account of nationality) and likely non-refoulement.

Non-refoulement requires that states protect refugees from being returned to a country where they fear persecution. Of the estimated 21.3 million refugees, six million come from Somalia and Syria, two countries listed in the March 6 Order. These refugees, forced out of their home countries are fleeing from torture, murder, systemic persecution, war and other conflict, airstrikes, rape and arson.

The new order is an affront to the United States’ international commitments. In these uncertain times, we must recommit to our core principles and reject efforts to frighten us into rash, unprincipled behavior.

James Cavallaro is a professor of law at Stanford Law School and director of its International Human Rights and Conflict Resolution Clinic and director of the Human Rights Center.  Rebecca Mears is a student at Stanford Law School. This piece ran first in the New York Daily News.