On Saturday night, US courts commenced the work of ensuring that President Trump’s extraordinary exercise of executive power is kept in check. Given the developments during the first week of the Trump administration, US courts and fellow heads of state will no doubt have a very heavy workload in years to come.
On 28 January 2017, a small group of those affected by President Trump’s executive order barring the entry of persons from a list of countries with majority Muslim populations—namely Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—filed an Emergency Motion of Stay of Removal on behalf of themselves and others similarly situated.
In an immensely significant verdict, Judge Ann Donnelly ruled in favour of the petitioners.
The ruling is of a temporary nature and only applies to the removal of affected individuals who are present on US soil. It is nevertheless significant as it preserves the rule of law by putting a check on the unfettered exercise of executive power. While this ruling is to be welcomed, it is undeniable that many vulnerable individuals will not benefit from the verdict.
One category of such individuals are dual citizens, with the US Department of State determining that the entry ban does apply to these people.
For these individuals, it is paramount that countries in the position of the UK continue to take robust steps to protect the rights of their citizens. Every representation must be made at the highest level of government to ensure that their citizens are treated fairly and consistently with the standards of behaviour expected in a civilised community of nations.
The American Civil Liberties Union (ACLU) has already produced compelling arguments as to the rights of individuals affected by the entry ban. Contending that a “’Muslim ban’ would violate the Establishment Clause of the First Amendment.”
No doubt future litigation will clarify whether the ACLU’s position is upheld. Nevertheless, countries must act swiftly to protect their citizens from facing discrimination in foreign states, thereby protecting the rights of their nationals abroad. It is worth noting that the principle of non-discrimination is a central facet of the international human rights regime, as enshrined in Articles 2 and 26 of the International Covenant on Civil and Political Rights.
Clearly, countries whose nationals may be affected, such as the UK and Australia, should always take steps to ensure that their citizens are not subjected to unlawful discrimination in foreign countries, including the United States.
Insofar as the entry ban is concerned—regarding individuals not on US soil—the state of nationality is best placed to pursue their citizens’ rights through diplomatic protection, especially states like the UK and Australia. If states wish to be treated with respect and in a system where international rules are followed, then they must go on to exercise protection in favour of injured nationals.
Such protection is first exercised by lodging diplomatic protests at the highest levels of government, with international litigation a possibility should such representations fail to bear fruit. Already, upon the insistence of the Canadian Government, there will be an exemption for dual citizens of Canada and of any of the seven countries subject to the entry ban.
On the other hand, Prime Minister Theresa May initially refused to condemn the ban and, after being repeatedly pressed, May only said that “The United States is responsible for the United States’ policy on refugees.”
However, in light of growing political pressure, Prime Minister May’s office has said that she “does not agree with Donald Trump’s ban on refugees…and would ‘make representations’ if British citizens were affected.” Most recently, the UK Foreign Office had stated that affected UK dual citizens will not be subjected to the Entry Ban, except for those travelling directly from one of the 7 countries.
In Australia’s case, despite potentially thousands being affected, Prime Minister Turnbull insists it is “not his job” to comment on US President Donald Trump’s decision to curb immigration”.
Interestingly, reports of a 25 minute phone conversation between President Trump and Prime Minister Turnbull of Australia indicated that:
Donald Trump has committed to honour the deal with Australia to take refugees from Manus Island and Nauru—even as his ban against refugees, migrants and visitors from some Muslim-majority countries is enforced.
Both Prime Minister May and Prime Minister Turnbull face political challenges that may impact their responses to the entry ban of their citizens to the United States. In the case of the former, it is the fact that the UK needs the support of the United States after turning its back on Europe through Brexit. Prime Minister Turnbull, amongst other things, needs the refugee deal that was negotiated between the Obama administration to go ahead without further issue.
However, states have no greater responsibility than to protect the rights of their citizens internationally. No leader should allow any political considerations to prevent them from pursuing justice for their nationals.
The United States rightly insists that it must be treated with respect. Similarly, other states deserve the same treatment. In the case of the UK, prima facie barring dual citizens from entry to the United States most certainly breaches the UK’s dignity.
Further, in a development that was unthinkable even a few months ago, a travel advisory issued by the Australian Department of Foreign Affairs and Trade has stated that:
No exceptions will be made for government officials or ADF members who are dual citizens of Iran, Iraq, Syria or Sudan.
This situation is truly extraordinary. In theory, given the very difficult process inherent to the divesting of Iranian citizenship, an Australian and Iranian dual citizen—who may be in the employment of the Australian Defence Force (ADF) and may have never set foot in Iran—is now denied entry to the United States. Clearly, such treatment demonstrates contempt and disrespect by the United States towards Australians and Australia.
It is now incumbent upon all international leaders to act to protect the rights of their citizens. We live in truly testing times. There has perhaps never been a more pressing time for states to take responsibility and ensure the promotion and the protection of the rule of law internationally.
Rishi Gulati is an Australian barrister and Dickson Poon scholar of law at King’s College London.
This article is published under a Creative Commons Licence and may be republished with attribution.