The Trump Administration may be in for a rude awakening. Even if its proposed immigration policies survive the coming constitutional challenges, the administration will have to overcome another legal impediment: international law. While President Trump might be less troubled by flagrantly violating international law, many key U.S. allies are not. And when the administration attempts to engage in what amounts to unlawful discrimination of immigrants, those key allies may refuse to cooperate with the U.S. government in order to avoid their responsibility for violations of international law (either as a form of complicity or due to their own human rights obligations). Foreign intelligence information that previously could have been shared with U.S. authorities may need to be withheld, given the significant risk that the Trump Administration would use that information to discriminate against Muslim and/or Arab immigrants. This is just one more way that Trump’s purported tough on terror policies undercut, rather than enhance, US national security.
There are at least three reasons why Trump’s plans have a high risk of violating international law, even if American courts find them to be constitutionally permissible. First off, international law more clearly constrains a broader area of immigration policy than constitutional law (which provides exceptional deference to the government in the immigration context). Second, international tribunals and supervisory bodies appear to impose a lower standard of proof for determining that a policy is intentionally discriminatory. And third, unlike U.S. constitutional law, international human rights law (IHRL) regulates government policies that have the effect of discriminating against vulnerable minority groups, even if in the absence of purposeful discrimination by officials.
I. International Law Prohibits Certain Forms of Discrimination in All Aspects of Immigration Policy
As I explained in my post on Wednesday, U.S. courts arguably have a limited ability to constrain the government in certain areas of immigration policy. Some scholars even maintain—though this is highly contested and controversial—that even explicitly discriminatory policies are unlikely to be invalidated by the courts, especially policies dealing with admission to the country (i.e. “entry” decisions, where the government’s power may be at its peak).
On the other hand, several international treaties place clear constraints on States’ immigration policies, including entry decisions.
First, the International Covenant on Civil and Political Rights (ICCPR) places clear constraints on immigration policy, prohibiting discrimination even with regard to entry decisions. As the United Nations body with supervisory power, the UN Human Rights Committee, explained:
It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.
This position is further supported by the UN Human Rights Committee’s General Comment No. 18 on Non-Discrimination, which recognizes that the ICCPR prohibits discrimination in law or in fact in any field regulated and protected by public authorities.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) also places many limits on racial and religious discrimination in the immigration context. Article 1 (3) explicitly contemplates that some forms of discrimination may be prohibited even with regard to immigration policy matters where state sovereignty is arguably at its peak: “Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.”
Moreover, General Recommendation 30 of the Committee on the Elimination of Racial Discrimination (CERD), suggests that States “[e]nsure that legislative guarantees against racial discrimination apply to non-citizens regardless of their immigration status, and that the implementation of legislation does not have a discriminatory effect on non-citizens.” More to the point, it recommends that States “[e]nsure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin,” in order to comply with the principles of the Convention.
CERD’s reports on Australia in 2010, and Canada in 2012 provide further illustrations of how Trump’s immigration policies could run afoul of the Covenant.
For example, the 2010 report suggested that Australia’s discriminatory treatment of Afghan asylum-seekers (including a suspension on processing visa applications from Afghani asylum-seekers) conflicted with the Committee’s General Recommendation 30 on discrimination against non-citizens.
Similarly, the Committee’s 2012 report on Canada expressed concern that an act that proposed to establish a list of “safe countries” for expedited asylum requests may violate the Convention’s prohibition of discrimination.
Note: The United States has ratified all those treaties, and so have most States in the world, U.S. allies included.
II. A Lower Standard of Proof in International Anti-Discrimination Law?
International treaty bodies may also be more willing than U.S. courts to find discriminatory intent behind immigration restrictions. For example, CERD’s report on Australia in 2010 expressed concern “that the collection of biometric data of applicants for Australian visas in 10 countries, as part of national security measures, may constitute racial profiling and may contribute to increased stigmatization of certain groups.” Similarly, in 2008, the Human Rights Committee report on the USA expressed deep concern about the National Security Entry and Exit Registration System (NSEERS) which singled out immigrants from 24 Muslim-majority countries (and North Korea) for special monitoring and deportation enforcement. The Committee urged the U.S. to end the program, recognizing it as a form of discriminatory “profiling against Arabs, Muslims and South Asians.” Meanwhile, not one of the eight federal appellate courts that reviewed the NSEERS program found that it discriminated on the basis of race or religion (though they left the door open for striking down such a program if it involved more explicit forms of discrimination).
III. The Prohibition on Discriminatory Effects in International Human Rights Law
While constitutional law requires proof of intentional discrimination by the government, international law does not. Article 2(c) of the Racial Discrimination Treaty explicitly states that:
Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists
Additionally, a 2004 decision by the UN Human Rights Committee recognized that the ICCPR also prohibits laws with discriminatory effects:
“[A]rticle 26 prohibits both direct and indirect discrimination, the latter notion being related to a rule or measure that may be neutral on its face without any intent to discriminate but which nevertheless results in discrimination because of its exclusive or disproportionate adverse effect on a certain category of persons.”
This lack of an intent requirement is perhaps the most significant reason why Trump’s immigration policies may violate international law, even if they’re found to be constitutional. Although some laws with discriminatory effects are permitted under human rights law – such as when they employ “objective and reasonable criteria” – there is no question that international law prohibits a much wider range of discriminatory policies than the U.S. constitution. As long as U.S. immigration policies have the effect of discriminating against Arabs or Muslims, which they surely will, they may violate these treaties even in the absence of evidence of discriminatory intent.
IV. How International Law Limits Cooperation with the Trump Administration
Although President Trump’s inner circle might not be keen to respect U.S. international obligations, many U.S. allies do care about abiding by their own commitments to international law. And to do so, they may need to refuse to cooperate with the Trump Administration in ways that might facilitate human rights violations or other violations of international law.
To take one example, UK intelligence officials may be precluded from sharing any information with the Trump Administration about individuals seeking asylum in the U.S., if that information could be used by the administration to determine their national origin (and thus disqualify them from entry).
Or, if the administration tries to grant a privileged status to Christian refugees (which can be inferred from this draft order), States may be prohibited from sharing any information to confirm their religious background.
Our foreign partners could also be prevented from assisting with a wide range of long-standing programs that go beyond immigration enforcement. Conceivably, our allies could be forbidden from sharing intelligence of terrorist threats, knowing that the information they share would be applied to Trump’s discriminatory immigration program.
Additionally, States might need to investigate and sanction non-state actors (e.g. corporations) under their jurisdiction who aid and assist the Trump Administration’s unlawful policies. For instance, States may be required to prohibit private security firms domiciled in their territories from assisting with the immigrant “vetting” process. And other types of companies could be implicated as well, perhaps even airlines that refused to fly Syrians to the U.S. would need to be subject to some kind of penalty.
The upshot: international law may create significant unforeseen challenges for the Trump Administration, but it will largely depend on our allies’ commitment to the principles that the Trump team will have abandoned.
[Editor’s note: For more on this topic, check out Ryan Goodman’s, “Foreign Gov’t Assistance to Trump Administration Policies: What Int’l Law Prohibits” and Brian Chang’s “How the European Convention on Human Rights Limits Cooperation with the Trump Administration”]