Donald Trump is said to have received a phone call from German Chancellor Angela Merkel following the announcement of his executive order suspending the US Refugee Admission Programme for 120 days. During their discussion it seems Merkel had to explain the Geneva Convention to her newly elected US counterpart.
Trump’s decision to suspend the programme, as well as banning entry to aliens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen for 90 days, is indeed highly questionable in terms of international law. So here’s a brief guide for anyone who finds themselves suddenly and unexpectedly in charge of one of the largest immigration systems in the world.
The international legal position on this matter is clear. The US must permit entry and afford refuge to anyone it has recognised as a refugee or to whom it has granted asylum. Moreover, it cannot return any person to a country where she or he may suffer torture or other persecution. No ifs, no buts, no qualifications on national security.
Merkel will have reminded Trump that the United States is a party to the 1967 Protocol Relating to the Status of Refugees. This prescribed the continuing application of the 1951 Convention relating to the status of refugees which was adopted to address the aftermath of World War II. That original convention was agreed in Geneva so it is sometimes referred to as the Geneva Convention.
As the US voluntarily accepted the 1967 protocol to the refugee convention, it is legally obliged to implement it. Despite Trump’s personal complaints about these “rules”, all other states party to the protocol and convention can legitimately expect the US to comply – hence the expressions of dismay from other heads of state as Trump announced his executive order.
The Office of the United Nations High Commissioner for Refugees (UNHCR) was created in 1950 as part of attempts to help and resettle the millions of people who fled or lost their homes in World War II. It was only meant to operate for three years, but it remains a key UN agency today. Indeed, it was awarded the Nobel Peace Prize in 1954 and again in 1981 and continues to lead on the right to asylum and to seek a safe place of refuge for those fleeing violence, war, persecution or natural disasters.
According to Article 1 of the Geneva Convention and Protocol Relating to the Status of Refugees, a refugee is a person who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
States can recognise that refugee status either when the person presents themselves to the state seeking sanctuary (such as at an embassy, airport or port) or when the person enters a state illegally then seeks sanctuary. The US has a longstanding system of recognising refugees before they travel to the country (such as in refugee camps) through the US Refugee Admission Programme. Once in the country, refugees can be expelled on grounds of national security but they should be allowed to seek refuge elsewhere before being deported.
With regard to refusing entry and sending people back, the law is also clear. Article 33 provides that:
No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
There is an exemption if there are reasonable grounds for believing the person poses a security risk to the country but, under the convention, those reasons need clarification and justification to an appropriate legal standard. The US has lodged no valid reservations about the people barred from entry under this executive order so it is bound to follow the text as it stands.
The convention must also be applied without discrimination as to race, religion or country of origin – a point reiterated by the UNHCR in its response to the executive order. Clearly prohibiting all refugees from Syria, or any other country, falls foul of that provision.
So Trump is very clearly disregarding the Geneva Convention in a number of ways through his executive order. However, there is no formal complaint mechanism under the protocol. Though other contracting states can complain in accordance with international treaty law (in effect, complain about a breach of contract), states inevitably favour “softer” options of diplomatic representations and behind-the-scenes negotiations to bring states into line.
The executive order also potentially has implications for US compliance with other international human rights treaties – particularly the Convention against Torture (on sending back refugees) and the Convention on the Elimination of all forms of Racial Discrimination (if the case for racial bias is made). Independent UN treaty monitoring bodies will no doubt review that in due course.
It is perhaps surprising that the leader of the United States needs to be schooled on this matter, and perhaps even more so that he apparently needs to learn about it only after announcing such a momentous policy. But these are, in so many ways, surprising times.
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published on: 21 September 2017
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