The presidential Executive Order 13769 of President Trump of 27 January 2017 has domestically been litigated before several federal courts in the United States (US).
Within these proceedings, little or no attention was given to the question whether the Executive Order might infringe principles of international law and what, if any, potential remedies exist under international law. This piece provides a short overview of the international law ramifications of the Executive Order.

International law enhances several instruments which might be relevant to the compatibility of the Order with principles of international law. The International Covenant on Civil and Political Rights (ICCPR) and the 1951 Convention Relating to the Status of Refugees are but two of those instruments.

This exception underlines that President Trump bears the burden of showing “reasonable grounds”.

Article 2 of the ICCPR is meant to secure equality amongst men, while Article 33 of the Refugee Convention protects potential refugees from being sent back to a State where the person might face serious human rights violations on his or her part.

Whether said Article 2 is infringed will depend on the circumstances surrounding an immigration ban, in order words whether Executive Order 13769 can be justified by objective reasons which can legitimize a differentiation between individuals belonging to certain countries. In light of this, an immigration ban such as the one at stake is difficult to coincide with a collective measure against every person of a certain state. In the absence of such objective and factual data, an immigration ban as mentioned here, might contravene Article 2 of the ICCPR.

SeaTac_Airport_protest_against_immigration_ban_09-1-

Since the US did not ratify Protocol I to this Covenant – introducing a right for individuals to seek recourse to the Human Rights Committee once their rights are allegedly violated – and bearing in mind that this treaty does not have a self-executing effect within the US jurisdiction, the remedies under this treaty are restricted.

The same applies to the potential international legal actions based upon the 1951 Refugee Convention. Despite the US not having acceded to this Convention, it did ratify the 1967 Protocol which basically ensures the protection of the same refugees’ rights for the time after 1967. Initially, the Refugee Convention was drafted to protect refugees from conflict areas prior to 1951. The 1967 Protocol is meant to have these rights applied to refugees after 1967.

One of the core principles embodied in this treaty is that of non-refoulement which says, in Article 33, that a refugee should not be returned to a country where he or she might suffer from actions or threats to their life or freedom. Even for States, which did not ratify this treaty, this principle is binding as this notion is now considered to be a rule of contemporary customary international law.

Noticeably, section 2 of Article 33 of the Refugee Convention allows for an exception to the principle of ‘non-refoulement’. The exception to the principle of non-refoulement may be legitimate in cases where there exist “reasonable grounds” that a refugee poses a danger to the security of the State in which he or she currently is, or where the person has been convicted for a serious crime. Section 2 of Article 33 Refugee Convention provides that such a conviction will constitute a danger. In order words: there should be “a clear and present danger” based on objective reasons.
This exception underlines that President Trump bears the burden of showing “reasonable grounds”.

Yet, it is arguable that this principle of non-refoulement only applies to individuals who are already in transit on US soil, therefore within US jurisdiction, and not to persons who are still on the territory of one of the seven States mentioned in Executive Order 13769.

Executive_Order_no-_13769_ban_map-svg-1-

Also here, one observes the absence of an international judicial body to enforce these refugee rights, unless the US accepts, which it did not, the compulsory jurisdiction of the International Court of Justice (ICJ) or concede to giving an ad hoc declaration for the acceptance of the Court’s jurisdiction specifically for the issue of the Immigration ban. The latter is highly unlikely, given that the US has not even acceded to the jurisdiction to the Inter-American Court on Human Rights. Hence, the option for one of the seven states, the inhabitants of which are subject to the Presidential Order, to seek recourse from the ICJ, remains less than a mere theoretical one.

The US administration’s new version of the immigration ban will most likely allow civilians of the seven States to enter the US when they are green card residency permit holders. When it concerns visas, a person traveling to the US will also be allowed in upon arrival. Similar to the first Executive Order 13769, the new immigration ban seems not to underlie an objective basis required to differentiate between individuals from different states. While contemplating the new Executive Order, it is prudent for President Trump to keep the international law principles in mind, as set forth in this piece, in order to prevent new litigation. Yet, legal challenges to the new immigration ban as this essay shows, are unlikely to be pursued on an international level.

The Achilles heel of international law has always been the enforceability of the rights and duties of this discipline.

The case example of the Executive Order 13769 of President Trump exemplifies that international law is portrayed as a system of rights and duties, but in most instances lacks the “teeth of a tiger”.