We the undersigned express our serious concern about the legality and dangerous ramifications of US President Donald J. Trump’s Executive Order on immigration of 27 January 2017, and call on the Australian government to condemn the measure unreservedly.
As legal scholars at the ANU College of Law, we note the foundational principles of non-discrimination and cooperation that underpin the international legal order generally, and refugee protection specifically. These principles are enshrined in the UN Charter and the many human rights treaties to which Australia and the United States are parties, including the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms Racial Discrimination, and the Convention Relating to the Status of Refugees.
We recognise that states have sovereign power over their borders. However, no evidence has been presented that the current vetting process is inadequate to the task of identifying those who pose a danger to the security of the USA. The non-discrimination principle requires that this vetting be done on a case-by-case basis rather than through a blanket ban on the ground of nationality. The latter is more likely to inflame hatred than ameliorate potential security threats. The indefinite ban on Syrian refugees is particularly troubling, stigmatising and denying protection to one of the most vulnerable refugee communities at a time when the international community is obliged to cooperate to provide protection.
To the extent that anyone may be removed from US territory without having been given due process to present their claim to protection, this may amount to a breach of the prohibition on refoulement – the forcible return of a person to face persecution. The US government must act to ensure that those within their effective control or jurisdiction are given an opportunity to present a claim to refugee status. Not to respect such a right strikes at the very heart of the international refugee law regime, and undermines the rule of law.
We also express our serious concern that the Executive Order was intended to specifically target Muslim migrants and refugees. The ban comes in the wake of an election campaign where Islam was denigrated, and a prohibition on Muslim migration repeatedly promised. The fact that it can be lifted for those who belong to a ‘religious minority’ only enhances the perception of religious bias. We condemn this unreservedly, and would expect the Australian government to do the same.
In this regard, we remind both states of their shared history of restricting migration on the basis of race and religion, and their keen historical duty to take all measures to ensure that such policies are treated with abhorrence, and condemned.
Finally, we remind both governments of their reaffirmation of the above principles in the unanimously endorsed New York Declaration on 13 September 2016, and their recognition of the dangers posed by the rise of xenophobic and racist responses to refugees and migrants:
We strongly condemn acts and manifestations of racism, racial discrimination, xenophobia and related intolerance against refugees and migrants, and the stereotypes often applied to them, including on the basis of religion or belief. Diversity enriches every society and contributes to social cohesion. Demonizing refugees or migrants offends profoundly against the values of dignity and equality for every human being, to which we have committed ourselves.
The international regime of refugee protection is facing unprecedented challenges, as is global migration more broadly. By fanning the flames of xenophobia, undermining the international resettlement program, and introducing policies which breach fundamental prohibitions on forcible return and non-discrimination, the Executive Order poses a grave threat to this regime, and to those individuals who are dependent on it for protection from the most grave violations of human rights.
Associate Professor Matthew Zagor
Professor Margaret Thornton
Senior Lecturer Dorota Gozdecka
Senior Lecturer Kate Ogg
Senior Lecturer Anne MacDuff
Senior Lecturer Linda Kirk
Lecturer Khanh Hoang
Senior Lecturer Skye Saunders
Associate Professor Amelia Simpson
Professor Thomas Faunce
Associate Professor Molly Townes O'Brien
Senior Lecturer Marianne Dickie
Senior Lecturer Judith Harrison
Professor Simon Rice OAM
Senior Lecturer Dilan Thampapillai
Senior Lecturer Moeen Cheema
Lecturer Kevin Boreham
Associate Professor Kath Hall
Research Fellow Andrew Bartlett
Dr Imogen Saunders
Lecturer Natalie Dawson
Senior Lecturer Anthony Hopkins
Associate Professor Wayne Morgan
Senior Lecturer Anneka Ferguson
Senior Lecturer Margie Rowe
Visiting Fellow Peter Sutherland
Associate Professor Vivien Holmes
Professor Paul Maharg
Lecturer Lauren Honcope
Dr Colin James