Send a Tweet
Most Popular Choices
Share on Facebook 1 Share on Twitter 1 Share on LinkedIn Share on Reddit Tell A Friend Printer Friendly Page Save As Favorite View Favorites
OpEdNews Op Eds

In Upholding Muslim Ban, the Supreme Court Ignored International Law

By       Message Marjorie Cohn       (Page 1 of 3 pages)     Permalink    (# of views)   6 comments

Related Topic(s): ; ; ; ; ; , Add Tags
Add to My Group(s)

Must Read 2   Valuable 2  
View Ratings | Rate It

opednews.com Headlined to H2 7/3/18

Author 7148
Become a Fan
  (10 fans)

From Smirking Chimp

From flickr.com: Muslim Ban Resistance {MID-301375}
Muslim Ban Resistance
(Image by sashapatkin)
  Permission   Details   DMCA
- Advertisement -

The Supreme Court's opinion in Trump v. Hawaii, affirming Donald Trump's Muslim ban, allows the United States to act in flagrant violation of international law.

Under the guise of deferring to the president on matters of national security, the 5-4 majority disregarded a litany of Trump's anti-Muslim statements and held that the ban does not violate the First Amendment's Establishment Clause, which forbids the government from preferring one religion over another. Neither the majority nor the dissenting opinions even mentions the US's legal obligations under international human rights law.

The travel ban violates two treaties to which the United States is a party: the International Covenant on Civil and Political Rights, as well as the International Convention on the Elimination of All Forms of Racial Discrimination. It also runs afoul of customary international law.

- Advertisement -

Both of these treaties and customary international law prohibit the government from discriminating on the basis of religion or national origin. Trump's Muslim ban does both.

Trump v. Hawaii "signals strongly that international law in general, and international human rights law in particular, no longer binds the United States in federal courts," Aaron Fellmeth, professor at Sandra Day O'Connor College of Law, wrote in an email. "Fortunately, it does not squarely hold that, but the effect may prove to be the same. For now, the Supreme Court appears determined to be complicit in U.S. human rights violations and cannot be relied upon as a check on the Executive Branch."

The case that the Supreme Court ruled on this week involved the legality of Trump's third travel ban. Issued by Trump in a "Proclamation" on September 24, 2017, the third iteration of the ban restricts travel by most citizens of Libya, Syria, Iran, Yemen, Chad, Somalia and North Korea. The ban forbids everyone from Syria and North Korea from obtaining visas. Nationals from the other six countries have to undergo additional security checks. Iranian students are exempted from the ban. The ban also forbids Venezuelan government officials and their families from traveling to the US.

- Advertisement -

More than 150 million people, roughly 95 percent of them Muslim, are affected by the ban.

Two prior iterations of the ban restricted travel of citizens from only Muslim-majority countries. After federal courts struck them down, Trump cosmetically added Venezuela and North Korea to avoid charges of religious discrimination.

As Justice Sonya Sotomayor, joined by Ruth Bader Ginsburg, wrote in her dissent, "it is of no moment" that Trump included "minor restrictions" on North Korea and Venezuela -- two non-Muslim-majority countries. Travel by North Korean nationals was already restricted and the ban only bars travel by Venezuelan officials and their families.

Court Did Not Address International Law Claims

All of the justices on the Supreme Court ignored significant international law arguments in their majority and dissenting opinions in spite of an amicus brief signed by 81 international law scholars, including this writer, and a dozen non-governmental organizations. The amicus brief drew attention to the travel ban's violation of the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, both of which the United States has ratified.

Ratification of a treaty not only makes the United States a party to that treaty, its provisions also become part of US domestic law under the Supremacy Clause of the Constitution, which says treaties "shall be the supreme law of the land."

- Advertisement -

Customary international law arises from the general and consistent practice of states. It is part of federal common law and must be enforced in US courts, whether or not its provisions are enshrined in a ratified treaty. Courts have a duty to rein in federal executive action which conflicts with a ratified treaty.

In Trump v. Hawaii, the high court concluded that the ban did not violate the Immigration and Nationality Act. We argued in our amicus brief:

Next Page  1  |  2  |  3

 

- Advertisement -

Must Read 2   Valuable 2  
View Ratings | Rate It

opednews.com

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. An updated edition of her book, "Drones and (more...)
 

Share on Google Plus Submit to Twitter Add this Page to Facebook! Share on LinkedIn Pin It! Add this Page to Fark! Submit to Reddit Submit to Stumble Upon Share Author on Social Media   Go To Commenting

The views expressed herein are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.

Writers Guidelines

Contact AuthorContact Author Contact EditorContact Editor Author PageView Authors' Articles

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

Stanford Antiwar Alums Call for War Crimes Investigation of Condoleezza Rice

Robert Mueller Is Moving Toward Donald Trump

"Big Brother is Watching You" -- Beyond Orwell's Worst Nightmare

Bradley Manning Treatment Reveals Continued Government Complicity in Torture

Obama's Af-Pak War is Illegal

Obama Spells New Hope for Human Rights