”My first impression is that the executive order seems to be arbitrarily designed. It isn’t a ban on all Muslims since most Muslims in the world do not live in the prohibited countries. Nor is it based on places where fundamentalist risks exist — for example, Egypt, Indonesia, Turkey are not on the list.”
Hathaway is one of the leading scholars of refugee law and a visiting teacher in several universities around the world. He emphasizes that international law has long prohibited the idea of tarring everyone with the same brush.
“A government cannot simply assert that because you are a Jew or black or a citizen of a given country you are necessarily a threat. International law requires that decisions be based on individuated merit, rather than stereotyping everybody, assuming that all members of the class necessarily pose the same concern.”
According to Professor Hathaway The United States breaches articles 3 and 33 of the Refugee Convention with President Trump’s executive order.
Article 3 says that The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.
According to article 33 No Contracting State shall expel or return (“refouler”) 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.
A person gets refugee status when he or she will be granted asylum by the receiving country or admitted by the United Nation’s Refugee Agency UNHCR.
Professor Hathaway is surprised of comments by Academy Professor Martti Koskenniemi who said on Wednesday before the implementation of the executive order that the rights of refugees do not come before national security as a sovereign country does have the right to decide who enters its territory.
Hathaway thinks professor Koskenniemi is partly correct and partly not correct.
“The Refugee Convention only regulates a state’s conduct once the person who is a refugee comes under the jurisdiction of that country. So, if Finland makes a decision about whether or not to help a refugee still in Syria, that refugee isn’t yet under Finnish control. The Refugee Convention doesn’t speak to that. I think that was what Professor Koskenniemi tried to convey. The Refugee Convention itself, which has a really powerful duty on non-discrimination in article three only applies when the refugee actually comes under the jurisdiction of a country that has signed the treaty.”
However Professor Hathaway stresses the fact that the non-discrimination provision of the Refugee Convention is immediately applicable when a refugee is under the jurisdiction of The Contracting State.
”Today [on Saturday], thanks to The New York Times, we know that there are refugees arriving at JFK airport in New York who are being refused entry on the grounds that they come from one of the listed countries. Therefore it is clear that the United States is in breach of two cornerstones of the Refugee Convention, which are articles 3 and 33.”
According to Hathaway Koskenniemi did not take into account the United Nations International Covenant on Civil and Political Rights. Article 26 of the treaty says that all persons are equal before the law and are entitled without any discrimination to equal protection of the law.
In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
“That article says that anytime a country adopts a law or policy of any kind it must be conceived in a way that provides equal protection for example without regard to religion. It can be a law on any subject matter. It doesn’t have to involve only people who are physically present as the Refugee Convention requires. A law that discriminates on account on religion is in itself a breach of treaty the United States has signed.”
Hathaway emphasizes that entry can be denied where “reasonable grounds” are shown by the state that an individual poses a risk to national security. No group-based exclusions are possible.
”There is an argument that a law passed several decades ago barring discrimination under the US resettlement program would also be breached. The problem is that it is a law that the US congress could amend, if it chose to do so. Sadly, resettlement is a purely voluntary activity — it is not mandated by the Refugee Convention. There is no duty for the United States to have this program, but AS long as United States has this program, it has to administer it in a non-discriminatory way.”
Only about 100 000 refugees are resettled in the whole world every year. The United States, Canada and Australia do 90 per cent of this critical work.
”I have being arguing for many years that a key part of fixing the refugee crisis in the world right now is to move toward a more managed protection system which would include an organized resettlement program for whole world. People should not have to risk their lives on the Mediterranean or by entrusting their fate to human traffickers in order to reach safety.”
When it comes to President Trump’s executive order, Professor Hathaway thinks UNHCR has completely and utterly avoided its responsibility on the matter. Its published response to the Trump plan amounts to saying that the agency is really sorry this is happening and that UNHCR looks forward to working with the US in the future.
“It says nothing about the breach of international law. UNHCR has a duty under its Statute to supervise the application of the Refugee Convention. The world should be at least as upset at the UNHCR’s failure to speak honestly as at President Trump’s horrible policy.”
In principle the United States could face legal responsibilities of breaching international law.
”In theory a state party of the Refugee Convention, like Finland, could take United States to the International Court of Justice in The Hague. But this has never happened, and is tragically unlikely given the politics involved.”
In the United States courts do not usually allow international law to be argued directly in a US court room, if there is not a breach of domestic law.
“In the refugee context the US Supreme Court has already acknowledged that the domestic law is specifically designed to implement the Refugee Convention, so lawyers will undoubtedly argue that any ambiguity must be resolved in favor of respecting refugee law.”