Playing the Trump Card: International Law Ramifications of the US Executive Order

When Trump said in his election campaign that he’d build a wall between the USA and Mexico, the world laughed. When he said he’d ban all Muslims from entering America, the world didn’t even think he’d be elected, let alone implement such a contentious policy.

I think it’s fairly safe to say that most people thought that when Donald Trump was elected he was going to be all talk and no action, particularly on his seemingly ridiculous immigration policies. Unfortunately, it appears Trump is doing what few politicians have done before him:  actually sticking by his election campaign promises…

The first sign of a legal issue with Trump’s immigration policy occurred within a matter of days of the inauguration. We can refer to the document as The Executive Order, and have everyone know which one you’re talking about. The Order banned entry into the USA for all citizens of seven countries for a period of ninety days. It affected almost all citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, with very few exceptions (more on those later). A primary issue was that current Green Card holders initially from those countries, who had temporarily left the US (whether for work, vacation, etc.) were effectively stranded and without a way back in until the ban was lifted.

The main exemption to the executive order is the “religious minorities” clause. This clause effectively allows all of those who do not follow the predominant religion within any of those seven countries to potentially be exempt from the ninety day ban. However, scholar Liam Thornton argues that this exception to the executive order is just a thinly veiled attempt at allowing those who do not follow Islam to enter the country, and those who do to remain banned. What is interesting is that while there is this provision for “religious minorities”, there is no provision for those seeking asylum in (as opposed to immigrating to) the United States.

Displaced or persecuted people seeking asylum is where the real International Law breach kicks in. Donald Trump’s promise to send back citizens of those seven countries breaks so many laws, both domestic and international, that it’s hard to count. Let us take a look at just the biggest ones. Firstly, under the 1951 Refugee Convention, the US has a legal obligation to assess the claim of anyone who stands on American soil and claims asylum. Furthermore, it is completely in violation of the UN’s Convention Against Torture to return any person to a state where they may face torture or other serious harms. Both of these conventions have been signed and ratified into US domestic law.

Finally, the US has signed and ratified a large number of treaties which forbid discrimination of any kind within their legal system, including discrimination due to religion and ethnicity. When it has been previously stated that this executive order is targeted at preventing the entry of Muslims into the US, it is questionable as to whether this obligation is being upheld.

What can the international community do about this? Honestly, not all that much. The enforcement tactics used to ensure that countries uphold international refugee and human rights law relies strongly on condemnation and diplomatic pressure. However, for the world’s hegemon, these tactics have very little effect. All the international community really can do is hope that Trump comes to his senses and shifts his policy. The only alternative course of action is other countries increasing their refugee intake in response, taking over the US proportion, in the hope that it ensures the safety of those seeking asylum.

In all honesty, should we expect to see a sudden turn-around in Trump’s immigration policies any time soon? No, probably not. In fact, almost definitely not. However, if Trump continues following through on his immigration policies, he runs the risk of losing the support of both American citizens and the international community. Furthermore, in the continually globalising modern world, trans-national migration is only going to continue to increase. The USA should recognise that it is the way of the future, and put procedures in place to manage it, rather than effectively ignoring the problem and hoping that it’ll go away.

Ellen Storey is in her fourth year at UWA where she is completing her honours in Political Science and International Relations. In her spare time, she enjoys photography, pretending her thesis doesn’t exist, and hiding her dislike of Donald Trump from her Republican grandparents.

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