North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

Trump’s Immigration Ban: A Clear Violation of International Refugee Treaties?

By: Taylor Festa

President Donald Trump was elected to power after many identified with his rhetoric, promises to build a wall to keep out illegal immigrants, and promises to “Make America Great Again”.[1] On November 8th, 2016, America elected Donald Trump and a host of contentious policy decisions.

President Trump’s most recent executive order, the “Protection of the Nation from Foreign Terrorist Entry into the United States,” is extremely controversial.[2] The “Muslim Ban,” as it is commonly referred to, prohibits all person from certain “terror-prone” countries from entering the United States for 90 days, suspends all Syrian refugees, and suspends the US Refugee Admissions Program for 120 days until Trump’s Cabinet can properly vet certain countries.[3] This “Muslim Ban” violates the United Nations’ Convention and Protocol Relating to the Status of Refugees which the United States has implicitly adopted.[4]

As of November 1, 1968, the United States became a signee to the Protocol Relating to the Status of Refugees but did not sign onto the Convention, thus only binding the United States to certain aspects of the treaty, specifically the temporal and geographical restrictions on who is classified as a refugee.[5] However, Congress eventually adopted the Refugee Act of 1980 which mirrors the obligations established in the Convention.[6] The statutory language of the Refugee Act closely resembles the international text and “adjudicators regularly refer to international standards” demonstrating a pretty clear intent by Congress to enact domestic legislation in accordance with the rules of the 1951 Convention.[7] If Congressional intent was to parallel the rules of the 1951 Convention through the Refugee Act of 1980, President Trump’s “Muslim Ban” is a clear violation of international law that the United States has adopted.

Most notably, Article 9 of the Convention holds that the contracting states shall apply the provisions of the Convention unless the State finds itself:

“in a time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.”[8]

President Trump and his administration have enacted a blanket ban on all refugees, and in a direct violation of the convention, President Trump has yet to identify a single individual that poses a risk to national security.[9] The ban also clearly violates Article 3 of the Convention which states that the Convention should be applied without discrimination as to the race, religion, or country of origin of the refugee.[10] Not only does this ban discriminate based on the country of origin of the refugee, but it also prioritizes refugees on the basis of religion.[11] President Trump has deemed many countries that adopt the Muslim religion, a threat to national security rather than specific individuals.[12]

This “Muslim Ban” not only deteriorates the fragile status of refugees domestically, but also reduces the force of international treaties, such as the Convention, when countries disregard the promises made in them. The Trump Administration must consider what effect vague declarations of protecting national security has upon the enforceability of long-standing treaties such as the Convention.

[1] Richard Allen Greene, Trump vs. Clinton: Could the polls be wrong?, CNN Politics (November 8, 2016), http://www.cnn.com/2016/11/03/politics/trump-brexit-polls-wrong/. https://perma.cc/85UR-QPG5.

[2] Dan Merica, Trump Signs Executive Order to Keep Out ‘Radical Terrorists’ CNN Politics (January 20, 2017), http://www.cnn.com/2017/01/27/politics/trump-plans-to-sign-executive-action-on-refugees-extreme-vetting/. https://perma.cc/J2GC-LMNM.

[3] Id. at para 6.

[4] See generally Convention Relating to the Status of Refugees, art. 1, opened for signature July 28, 1951, 189 U.N.T.S.

[5] See Protocol Relating to the Status of Refugees, art. 1, October 4, 1967, 606 U.N.T.S.

[6] Joan Fitzpatrick, The International Dimension of U.S. Refugee Law, 15 Berkeley J. Int’l Law 1, 1 (1997).

[7] Id. at 2.

[8] Convention Relating to the Status of Refugees, art. 9, opened for signature July 28, 1951, 189 U.N.T.S.

[9] Julie Hirshfeld Davis, Trump Says Refugees Are Flooding U.S. in Misleading Allusion, The New York Times (February 11, 2017), https://www.nytimes.com/2017/02/11/us/politics/refugees-donald-trump-syria.html?_r=0. https://perma.cc/9EQG-4ZAU.

[10] Convention Relating to the Status of Refugees, art. 9, opened for signature July 28, 1951, 189 U.N.T.S.

[11]Alan Yuhas and Mazin Sidahmed, Is this a Muslim Ban? Trump’s Executive Order Explained, The Guardian, (January 31, 2017) https://www.theguardian.com/us-news/2017/jan/28/trump-immigration-ban-syria-muslims-reaction-lawsuits. https://perma.cc/KY23-TWV8.

[12] Id.

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