State of Hawaii v. Trump

Filing 119

MOTION for Leave to File Brief for Amici Curiae Aaron Fellmeth appearing for Amicus Amici Curiae International Law Scholars and Nongovermental Organizations (Fellmeth, Aaron)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI’I

STATE OF HAWAI’I and ISMAIL
ELSHIKH,
Plaintiffs,
v.

DONALD J. TRUMP, in his official capacity
as President of the United States; U.S.
DEPARTMENT OF HOMELAND
SECURITY; JOHN F. KELLY, in his
official capacity as Secretary of Homeland
Security; REX TILLERSON, in his official
capacity as Secretary of State; and the
UNITED STATES OF AMERICA,

MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF

Civ. No. 1:17-cv-00050-DKW-KSC

Defendants.

Aaron X. Fellmeth (admitted pro hac vice)
Arizona State University
Sandra Day O’Connor College of Law
Mail Code 9520
111 E. Taylor St.
Phoenix, AZ 85004-4467
[phone]
[e-mail]

Counsel for Amici Curiae

Clare Hanusz (No. 007336)
David P. McCauley (No. 006065)
Damon Key Leong Kupchak Hastert
1003 Bishop St. Ste. 1600
Honolulu, HI 96813
[phone]
[e-mail]

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF ON BEHALF OF
INTERNATIONAL LAW SCHOLARS AND NONGOVERNMENTAL
ORGANIZATIONS
Counsel for amici curiae international law scholars and nongovernmental organizations
hereby move this Court for an order allowing it to file the attached amicus curiae brief in support
of Plaintiffs, the State of Hawai’i and Ismail Elshikh. In support of this motion, the movant
states:
1.

The international law scholars specializing in public international law and

international human rights law whose views will be represented in the attached amicus brief are
members of the International Human Rights Committee of the International Law Association,
American Branch and the Human Rights Interest Group of the American Society of International
Law, 1 as well as university professors and practicing lawyers with expertise in these subjects. The
nongovernmental organizations whose views are represented in this brief have expertise in civil
rights law, immigration law, or international human rights law. The individuals and organizations
comprising the amici are annexed to the attached brief.
2.

Movants submit this brief to vindicate the public interest in ensuring a proper

understanding and application of the international human rights law relevant to this case. Many
of the amici are additionally human rights advocates and have a professional interest in ensuring
an informed interpretation of international human rights law in our domestic jurisprudence.
International law is a field of great complexity, in which amici have unique expertise.

1

This brief represents the opinion of the Committee and Interest Group members, but not
necessarily that of the American Society of International Law, the International Law Association
(“ILA”), or the ILA American Branch.

3.

The Executive Order of March 6, 2017, threatens amici’s ability to perform their

functions as international lawyers and international human rights advocates by putting the United
States in violation of its international human rights law obligations.
4.

Plaintiffs have consented to the filing of this brief, and defendants have stated that

they take no position regarding it.
5.

For the foregoing reasons, we respectfully request the Court’s permission to file

the amicus brief attached hereto. In the alternative, we request a pre-motion conference with the
Court for leave to file such a brief.

Respectfully submitted,

________________________________
Aaron X. Fellmeth (admitted pro hac vice)
Arizona State University
Sandra Day O’Connor College of Law
Mail Code 9520
111 E. Taylor St.
Phoenix, AZ 85004-4467
[phone]
[e-mail]

___/s/ Clare Hanusz_________________
Clare Hanusz (No. 007336)
Damon Key Leong Kupchak Hastert
1003 Bishop St. Ste. 1600
Honolulu, HI 96813
[phone]
[e-mail]
Counsel for Amici Curiae

Dated: Mar. 11, 2017

__/s/ David P. McCauley______________
David P. McCauley (No. 006065)
Damon Key Leong Kupchak Hastert
1003 Bishop St. Ste. 1600
Honolulu, HI 96813
[phone]
[e-mail]

No. 1:17-cv-00050-DKW-KSC
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI’I

STATE OF HAWAI’I, et al.,
Plaintiffs,
v.
DONALD TRUMP, President of the United States, et al.,
Defendants.

BRIEF OF INTERNATIONAL LAW SCHOLARS AND
NONGOVERNMENTAL ORGANIZATIONS
AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

AARON X. FELLMETH (pro hac vice)
Arizona State University, Sandra Day
O’Connor College of Law
Mail Code 9520
111 E. Taylor St.
Phoenix, AZ 85004-4467
[phone]
[e-mail]

CLARE M. HANUSZ (No. 007336)
DAVID P. MCCAULEY (No. 006065)
Damon Key Leong Kupchak Hastert
1003 Bishop St. Ste. 1600
Honolulu, HI 96813
[phone]
[e-mail]

Counsel for Amici Curiae

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, amici curiae state the following:
(1)

They have no parent corporations; and

(2)

There are no publicly held corporations that own 10% or more of their stock.

CONSENT OF THE PARTIES
Counsel for the State of Hawai’i and Ismail Elshikh have consented to the filing of this
brief. Counsel for Defendants have stated that they take no position regarding the filing of the
brief.
March 11, 2017

_______________________________
Aaron X. Fellmeth (pro hac vice)
Arizona State University, Sandra Day
O’Connor College of Law
Mail Code 9520
111 E. Taylor St.
Phoenix, AZ 85004-4467
[phone]
[e-mail]

Counsel for Amici Curiae

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iv
I.

INTEREST OF AMICI CURIAE .........................................................................................1

II.

INTRODUCTION ...............................................................................................................1

III.

ARGUMENT .......................................................................................................................2
A. International Law Is Relevant to Assessing the Legality of the Executive Order .............. 2
B. International Law Regarding Discrimination on the Basis of Religion and
National Origin ................................................................................................................... 6
1. The International Covenant on Civil and Political Rights .............................................6
2. The International Convention on the Elimination of All Forms of Racial
Discrimination................................................................................................................9
C. Relevant Provisions of the Executive Order ..................................................................... 11

IV.

CONCLUSION ..................................................................................................................12

APPENDIX ....................................................................................................................................14

-iii-

TABLE OF AUTHORITIES
U.S. Cases

Page

F. Hoffmann-La Roche Ltd. v Empagran S.A., 542 U.S. 155 (2004) ..............................................4
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) ......................................................................4
Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).........................................4
Paquete Habana, 175 U.S. 677 (1900) ............................................................................................5
Sale v. Haitian Centers Council, 509 U.S. 155 (1994) ....................................................................4
Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) .................................................................................4
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801) ....................................................5
Constitution
U.S. Constitution, art. II ...................................................................................................................5
U.S. Constitution, art. VI .................................................................................................................5
Legislative History
Congressional Record, Volume 138:
S4781-01 ..........................................................................................................................................6
Congressional Record, Volume 140:
S7634-02 ..........................................................................................................................................9
Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,
1990, Hearing Before the Comm. on Foreign Relations, U.S. Senate, 101st Cong. (1990), at
8..................................................................................................................................................3
Senate Comm. on Foreign Relations, Report on International Convention on the Elimination of
All Forms of Racial Discrimination, S. Exec. Rep. No. 103-29, at 25 (1994) .........................3
Executive Orders
Executive Order 13780: Protecting the Nation from Foreign Terrorist Entry into the United States
(Mar. 6, 2017), at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-orderprotecting-nation-foreign-terrorist-entry-united-states .................................................... passim
Treaties
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
June 26, 1987, 1465 U.N.T.S. 113 .............................................................................................9
International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965,
G.A. Res. 2106 (XX), Annex, 660 U.N.T.S. 195 .............................................................. 32-37
-iv-

International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171
(1976) ............................................................................................................................... passim
International Declarations
American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX (1948), Basic
Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/I.4 rev.
13, at 13 (2010) ..........................................................................................................................8
Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948) .....8
Other International Materials
Committee on the Elimination of Racial Discrimination
Gen. Recommendation No. 35, U.N. Doc. CERD/C/OC/35 (2013) .......................................10
TBB-Turkish Union in Berlin/Brandeburg v. Germany, Commun. No. 48/2010 (Feb. 26, 2013),
U.N. Doc. CERD/C/82/D/48/2010 ..........................................................................................11
Human Rights Committee
Gen. Comment No. 15 (1986), U.N. Doc. HRI/GEN/1/Rev.1, at 18 (1994).............................8
Gen. Comment No. 18, U.N. Doc. HRI/GEN/1Rev.1 at 26 (1994) ..........................................7
Gen. Comment No. 19, U.N. Doc. HRI/GEN/1/Rev.1 at 28 (1994) .........................................7
State Reports—Convention Against Torture—United States of America, U.N. Doc.
CAT/C/28/Add.5 (Feb. 9, 2000) ................................................................................................4

Other Sources
AARON XAVIER FELLMETH, PARADIGMS OF INTERNATIONAL HUMAN RIGHTS LAW (2016) ............7
Alexander Hamilton, Pacificus No. 1 (June 29, 1793), reprinted in 15 THE PAPERS OF ALEXANDER
HAMILTON 33 (Harold C. Syrett ed. 1969) ................................................................................5
Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and
International Law, 25 GA. J. INT’L & COM. L. 287 (1995/96) ...................................................9
Restatement (Third) of the Foreign Relations Law of the United States .........................................3

-v-

I.

INTEREST OF AMICI CURIAE 2

The individual amici whose views are presented here are international law scholars
specializing in public international law and international human rights law. They include members
of the International Human Rights Committee of the International Law Association, American
Branch, and the Human Rights Interest Group of the American Society of International Law, 3 as
well as university professors and practicing lawyers with expertise in these subjects. Amici also
include nongovernmental organizations with expertise in civil rights law, immigration law, or
international human rights law. Amici submit this brief to vindicate the public interest in ensuring
a proper understanding and application of the international human rights law relevant to this case.
The nongovernmental organizations and individual scholars are listed in the Appendix.
II.

INTRODUCTION

The purpose of this brief is to bring to the Court’s attention U.S. treaty provisions and
customary international law principles that bear on the legality of the Executive Order 13780 of
March 6, 2017 (“EO”), which replaces the now-rescinded EO 13769, dated January 27, 2017.
International law, which includes treaties ratified by the United States as well as customary
international law, is part of U.S. law and must be faithfully executed by the President and enforced

2

No counsel for a party has authored this brief in whole or in part, and no party or counsel for a
party has made a monetary contribution intended to fund the preparation or submission of the brief.
No person other than amici curiae or its counsel has made a monetary contribution to the
preparation or submission of this brief. Fed. R. App. P. 29(a)(4)(E).
3
This brief represents the opinion of the Committee and Interest Group members, not that of the
American Society of International Law, International Law Association, or ILA American Branch.
-1-

by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of
Congress. The United States is a party to and bound by several international human rights treaties
relevant to the subject matter of EO. In assessing the legality of the EO, the Court should be
cognizant of those treaty obligations, and of customary international law, which should influence
constructions of the U.S. Constitution and statutes that prohibit discrimination based on religion
or national origin.
In addition, the Immigration and Nationality Act and other statutes must be read in
harmony with these international legal obligations pursuant to the Supremacy Clause of the
Constitution and long established principles of statutory construction requiring acts of Congress
to be interpreted in a manner consistent with international law, whenever such a construction is
reasonably possible. In this case, the international law obligations described below reinforce
interpretations of those statutes forbidding discrimination of the type threatened by Sections 2 and
11 of the EO.
III.
A.

ARGUMENT

International Law Is Relevant to Assessing the Legality of the Executive Order
International law is relevant to this case because the U.S. Constitution makes treaties part

of U.S. law. Customary international law is also part of U.S. law and is enforceable by U.S. courts.
Under the Supremacy Clause of the Constitution, “treaties made ... under the authority of the
United States, shall be the supreme law of the land, and judges of every state shall be bound

-2-

thereby.” 4 Although the Constitution does not require legislation prior to treaties taking legal
effect, the Supreme Court distinguishes between self-executing and non-self-executing treaties. 5
The Senate or the President have declared that the relevant human rights treaties to which the
United States is a party are non-self-executing. 6 Nevertheless, by ratifying those treaties, the
United States bound itself to provide judicial or other remedies for violations of treaty obligations. 7
Thus, even if the treaty provisions themselves were not directly enforceable in U.S. courts, the
rights they grant should be protected by courts through their interpretation of constitutional
provisions and statutes addressing the same or similar subject matter.
This is consistent with the positions taken by both the Executive Branch and Congress in
those cases in which Congress has not passed implementing legislation. 8 When submitting human
rights treaties to the Senate for its advice and consent, both Presidents George H.W. Bush and
William Clinton assured the Senate that the United States could and would fulfill its treaty
commitments by applying existing federal constitutional and statutory law. 9 Courts generally

4

U.S. Const. art. VI, cl. 2.
See Restatement (Third) of Foreign Relations Law § 111(3)-(4) (1987).
6
See, e.g., 138 Cong. Rec. S4781-01 (daily ed. Apr. 2, 1992) (International Covenant on Civil and
Political Rights); Sen. Exec. Rpt. 101-30, Resolution of Advice and Consent to Ratification (1990),
at II(2) (Convention Against Torture).
7
See, e.g., International Covenant on Civil and Political Rights art. 2(2), Dec. 19, 1966, 999
U.N.T.S. 171 (1976) [hereinafter “CCPR”].
8
See, e.g., U.N. Doc. CAT/C/28/Add.5, paras. 58-60 (“Where domestic law already makes
adequate provision for the requirements of the treaty and is sufficient to enable the United States
to meet its international obligations, the United States does not generally believe it necessary to
adopt implementing legislation.”).
9
During Senate hearings on the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (“CAT”), June 26, 1987, 1465 U.N.T.S. 113, the State
Department Legal Advisor told the Senate: “Any public official in the United States, at any level
of government, who inflicts torture . . . would be subject to an effective system of control and
5

-3-

construe federal constitutional and statutory law to be consistent with human rights treaties in part
because the Senate has relied on such assurances as a basis for its consent to ratification. 10 The
United States acknowledged this principle in its comments to the U.N. Committee Against Torture:
“Even where a treaty is ‘non-self-executing,’ courts may nonetheless take notice of the obligations
of the United States thereunder in an appropriate case and may refer to the principles and objectives
thereof, as well as to the stated policy reasons for ratification.” 11 “Taking notice” of treaty
obligations comports with a core principle of statutory construction announced by the Supreme
Court in Murray v. The Charming Betsy: “an act of Congress ought never to be construed to violate
the law of nations if any other possible construction remains.” 12

That doctrine has been

consistently and recently reaffirmed by the Supreme Court. 13
Moreover, in Filartiga v. Pena-Irala, the U.S. Court of Appeals for the Second Circuit
observed that a treaty that is not self-executing may provide evidence of customary international
law. 14 Customary international law must be enforced in U.S. courts even in the absence of

punishment in the U.S. legal system.” Hearing Before the Comm. on Foreign Relations, U.S.
Senate, 101st Cong. (1990), at 8.
Similarly, with respect to the International Convention on the Elimination of All Forms of
Racial Discrimination (“CERD”), Dec. 21, 1965, G.A. Res. 2106 (XX), Annex, 660 U.N.T.S. 195,
the Clinton Administration told the Senate: “As was the case with the prior treaties, existing U.S.
law provides extensive protections and remedies sufficient to satisfy the requirements of the
present Convention.” Senate Comm. on Foreign Relations, Report on International Convention on
the Elimination of All Forms of Racial Discrimination, S. Exec. Rep. No. 103-29, at 25-26 (1994).
10
See, e.g., Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407, 426 (1984).
11
State Reports—Convention Against Torture—U.S.A., U.N. Doc. CAT/C/28/Add.5, para. 57
(Feb. 9, 2000), citing Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1994).
12
6 U.S. (2 Cranch) 64, 118 (1804); accord Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801).
13
See, e.g., F. Hoffmann-La Roche Ltd. v Empagran S.A., 542 U.S. 155, 164 (2004).
14
630 F.2d 876, 882 n.9 (2d Cir. 1980).
-4-

implementing legislation, regardless of whether customary rules appear in a treaty. 15 In The
Paquete Habana, the Supreme Court held that customary international law “is part of our law”
and directly enforceable in courts when no conflicting treaty, legislative act, or judicial decision
controls. 16 As discussed below, several human rights treaty rules applicable in this case are also
customary international law.
The President is also obligated to respect international law pursuant to his constitutional
duty faithfully to execute the law. 17 Because Article VI of the Constitution makes treaties the
supreme law of the land, the President is constitutionally required to comply with U.S. treaty
obligations as well as with customary international law. This was the intent of the Framers. 18
Courts therefore have a duty to restrain federal executive action that conflicts with a duly ratified
treaty. As the Supreme Court wrote in ordering the President to restore a French merchant ship to
its owner pursuant to a treaty obligation: “The constitution of the United States declares a treaty
to be the supreme law of the land. Of consequence its obligation on the courts of the United States
must be admitted.” 19
Even if the President were not directly bound by international law, however, he is still
obligated to comply with the Constitution itself and all applicable legislation enacted by Congress

15

Restatement (Third) of the Foreign Relations Law of the United States § 111(3).
175 U.S. 677, 700 (1900); see also Filartiga, 603 F.2d at 886 (“Appellees . . . advance the
proposition that the law of nations forms a part of the laws of the United States only to the extent
that Congress has acted to define it. This extravagant claim is amply refuted by the numerous
decisions applying rules of international law uncodified by any act of Congress.”).
17
U.S. CONST. art. II, sec. 3.
18
Alexander Hamilton, Pacificus No. 1 (June 29, 1793), reprinted in 15 THE PAPERS OF
ALEXANDER HAMILTON 33, 33-43 (Harold C. Syrett ed. 1969).
19
United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 109 (1801).
16

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within its authority, which (as noted) must be interpreted in a manner consistent with international
law whenever possible.
The following sections identify the treaties and customary international law relevant to the
legality of the EO.
B.

International Law Regarding Discrimination on the Basis of Religion and National
Origin
1.

The International Covenant on Civil and Political Rights

Discrimination based on religion or national origin is prohibited by the International
Covenant on Civil and Political Rights (“CCPR”). The United States ratified the CCPR in 1992.20
Article 2 of the CCPR states in relevant part:
1. Each State Party to the present Covenant undertakes to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as
race, ... religion, ... national or social origin, ... or other status.
***
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or
by any other competent authority provided for by the legal system of the State,
and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.
The United Nations Human Rights Committee (“HRC”) is charged by the CCPR to monitor
implementation by state parties and to issue guidance on its proper interpretation. The HRC

20

138 Cong. Rec. S4781-01 (daily ed., Apr. 2, 1992).
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interprets article 2 to prohibit “any distinction, exclusion, restriction or preference” based on a
prohibited ground, and which has “the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise by all persons, on an equal footing.” 21 To justify a derogation from the
nondiscrimination (or any other human rights) duty, a measure must pursue a legitimate aim and
be proportionate to that aim. 22 A “proportionate” measure is one effective at achieving the aim
and narrowly tailored (or “necessary”) to it. 23
The substantive rights guaranteed by the CCPR, which must be protected without
discrimination based on religion or national origin under article 2, include the protection of the
family. Article 23 provides in relevant part: “The family is the natural and fundamental group of
society and is entitled to protection by society and the State.” 24 The HRC has interpreted this right
to include living together, which in turn obligates the state adopt appropriate measures “to ensure
the unity or reunification of families, particularly when their members are separated for political,
economic or similar reasons.” 25
Restrictions on travel and entry caused by the EO that impose disparate and unreasonable
burdens on the exercise of this right violate CCPR article 2. The HRC has explained that, although
the CCPR does not generally

21

Human Rights Committee, General Comment No. 18, para. 6, U.N. Doc. HRI/GEN/1Rev.1 at
26 (1994).
22
Committee on the Elimination of Racial Discrimination, General Recommendation No. 30, para.
4, 64th Sess., U.N. Doc. CERD/C/64/Misc.11/rev.3 (2004).
23
See AARON XAVIER FELLMETH, PARADIGMS OF INTERNATIONAL HUMAN RIGHTS LAW 119-21
(2016).
24
CCPR, supra note 7, art. 22(1).
25
Human Rights Committee, General Comment No. 19, para. 5 (1990), U.N. Doc.
HRI/GEN/1/Rev.1 at 28 (1994).
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recognize a right of aliens to enter or reside in the territory of a State party ... , in
certain circumstances an alien may enjoy the protection of the Covenant even in
relation to entry or residence, for example, when considerations of nondiscrimination, prohibition of inhuman treatment and respect for family life arise.26
Thus, the right of entry is not beyond the scope of the CCPR. On the contrary, the CCPR’s
nondiscrimination principles and protections for family life should be considered by courts in
interpreting government measures affecting family unification. This treaty-based protection for
family life is consistent with Supreme Court jurisprudence respecting the role of due process of
law in governmental decisions affecting family unity. 27
More generally, article 26 of the CCPR prohibits discrimination in any government
measure, regardless of whether the measure violates a Covenant right:
All persons are equal before the law and are entitled without any discrimination to
the 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.

As interpreted by the HRC and consistent with its wording, this provision “prohibits discrimination
in law or fact in any field regulated” by the government. 28 Notably, unlike CCPR article 2, the
equal protection provisions of CCPR article 26 lack article 2’s limitation to “all individuals within
[the state party’s] territory and subject to its jurisdiction.”

26

Human Rights Committee, General Comment No. 15, para. 5 (1986), U.N. Doc.
HRI/GEN/1/Rev.1 at 18 (1994).
27
See Landon v. Plasencia, 459 U.S. 21, 34, 37 (1982); Kerry v. Din, __ U.S. __, 135 S. Ct. 2128,
2140-41 (2015) (Kennedy, J., concurring).
28
Human Rights Committee, General Comment No. 18, supra note 21, para. 12 (emphasis added).
-8-

The nondiscrimination provisions of the CCPR are also customary international law
binding on the United States, forming part of U.S. law unless contrary to the Constitution or a
statute. The Universal Declaration of Human Rights, which the United States approved in 1948,
mandates nondiscrimination in religion and national origin, equal protection of the law, and
protection from arbitrary interference in family life. 29 The American Declaration of the Rights
and Duties of Man, which the United States approved when it signed and ratified the Charter of
the Organization of American States the same year, has similar provisions in articles 6 and 17.30
These nondiscrimination principles and the right to family unity have become sufficiently
widespread and accepted by the international community that they have entered into customary
international law in the present day. 31
2.

The International Convention on the Elimination of All Forms of Racial
Discrimination

The International Convention on the Elimination of All Forms of Racial Discrimination
(“CERD”) also bars discrimination based on national origin. The United States has been a party
to the CERD since 1994. 32 Under article 2, paragraph (1)(a), each state party commits to refraining
from and prohibiting all forms of racial discrimination, and each further undertakes “to engage in
no act or practice of racial discrimination . . . and to ensure that all public authorities and public
institutions, national or local, shall act in conformity with this obligation.” CERD defines “racial

29

Universal Declaration of Human Rights, arts. 2, 7, 12, G.A. Res. 217A(III), U.N. Doc. A/810 at
71 (1948).
30
O.A.S. Res. XXX (1948), Basic Documents Pertaining to Human Rights in the Inter-American
System, OEA/Ser.L/V/I.4 rev. 13, at 13 (2010).
31
See Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and
International Law, 25 GA. J. INT’L & COMP. L. 287, 329 (1995/96).
32
See 140 Cong. Rec. S7634-02 (daily ed., June 24, 1994).
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discrimination” to include distinctions and restrictions based on national origin. Id. art. 1(1). With
regard to immigration practices, CERD makes clear that states are free to adopt only such
“nationality, citizenship or naturalization” policies that “do not discriminate against any particular
nationality.” Id. art. 1(3). Like the nondiscrimination provisions of CCPR article 26, CERD article
2 does not limit its application to citizens or resident noncitizens. While CERD does not speak
specifically to restrictions on entry of nonresident aliens, the general language of CERD expresses
a clear intention to eliminate discrimination based on race or national originfrom all areas of
government activity: “States Parties undertake to prohibit and to eliminate racial discrimination in
all its forms ... without distinction as to race, colour, or national or ethnic origin ....” Id. art. 5.
Article 4 of CERD further provides that state parties “[s]hall not permit public authorities
or public institutions, national or local, to promote or incite racial discrimination,” which (as noted)
includes discrimination based on national origin. The Committee on the Elimination of Racial
Discrimination, the body of independent experts appointed to monitor CERD’s implementation,
interprets article 4 to require states to combat speech stigmatizing or stereotyping non-citizens
generally, immigrants, refugees, and asylum seekers, 33 with statements by high-ranking officials
causing “particular concern.” 34 In TBB-Turkish Union in Berlin/Brandenburg v. Germany, for
example, the Committee specifically determined that Germany violated the Convention when it
failed to discipline or punish a minor government official who had inter alia drawn attention to
low employment rates of Turkish and Arab populations in Germany, suggested their unwillingness

33

Committee on the Elimination of Racial Discrimination, General Recommendation No. 35:
Combating Racist Hate Speech, para. 6, U.N. Doc. CERD/C/OC/35 (2013).
34
Id. para. 22.
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to integrate into German society, and proposed that their immigration should be discouraged. 35
These statements, the Committee determined, implied “generalized negative characteristics of the
Turkish population” and incited racial discrimination. 36
The legality of the EO in this case, and the proper interpretation of the statutes and
constitutional provisions cited by the parties, should be assessed with those proscriptions in mind.
By virtue of the Charming Betsy canon, those international law principles require U.S. courts to
interpret applicable immigration statutes as rejecting discrimination based on religion or national
origin, except to the extent explicitly authorized by Congress or proportionate to a legitimate
government interest.
C.

Relevant Provisions of the Executive Order
Section 2 categorically suspends immigration from six specified countries—Iran, Libya,

Somalia, Sudan, Syria, and Yemen, and imposes special requirements on immigrants from Iraq.
Section 2(a), moreover, authorizes the Secretary of Homeland Security to demand “certain
information” from “particular countries even if it is not needed from every country.” Section 6
suspends the admission of refugees from the six countries subject to case-by-case examination.
The EO thus makes an explicit distinctions based on national origin that, unless necessary
and narrowly tailored to achieve a legitimate government aim, would violate U.S. obligations
under international law. In effect, the EO also makes a distinction based on religion, as plaintiffs
have argued.

Notably, every one of the designated countries has a population that is

35

Comm. on the Elimination of Racial Discrim., Commun. No. 48/2010 (Feb. 26, 2013), U.N.
Doc. CERD/C/82/D/48/2010.
36
Id. para. 12.6.
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overwhelmingly Muslim, 37 and the EO does not suspend immigration from any state with a nonMuslim majority, including some countries identified by the United States as state sponsors of
terrorism.
International law is also relevant to Section 11 of the EO, which requires the Secretary of
Homeland Security to “collect and make publicly available” certain information relating inter alia
to convictions of terrorism-related offenses, government charges of terrorism, and “gender-based
violence against women” by foreign nationals. The EO requires no publication of similar
information relating to U.S. nationals.

By mandating that the Secretary publish pejorative

information about noncitizens without publishing comparable information about U.S. citizens,
section 11 makes a suspect distinction based on national origin. While section 11 has not been
challenged specifically by the plaintiffs, it may bear on the intent to discriminate, because the
decision to publish derogatory information about noncitizens alone is stigmatizing, and appears to
be motivated by a desire to characterize noncitizens as more prone to terrorism or gender-based
violence than U.S. citizens. Apart from what it may indicate with respect to intent, a measure
designed to stigmatize noncitizens cannot be proportionate and thus violates article 26 of the CCPR
and articles 2 and 4 of the CERD.
IV.

CONCLUSION

For the foregoing reasons, amici request that the Court consider U.S. obligations under
international law, which forms part of U.S. law, in evaluating the legality of the EO.

37

See Central Intelligence Agency, World Factbook, at https://www.cia.gov/library/publications/
the-world-factbook/geos/xx.html.
-12-

Respectfully submitted this 11th day of March, 2017.

____________________________________
Aaron Fellmeth*38(admitted pro hac vice)
Arizona State University, Sandra Day O’Connor
College of Law
Mail Code 9520
111 E. Taylor St.
Phoenix, AZ 85004-4467
[phone]
[e-mail]
Clare Hanusz (No. 007336)
David P. McCauley (No. 006065)
Damon Key Leong Kupchak Hastert
1003 Bishop St. Ste. 1600
Honolulu, HI 96813
[phone]
[e-mail]
Attorneys for Amici Curiae

*38Address is for correspondence and identification only. This brief does not purport to state the
views, if any, of Arizona State University or the Sandra Day O’Connor College of Law.
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APPENDIX
The amici are nongovernmental organizations and legal scholars specializing in public
international law and international human rights law. They have substantial expertise in issues
directly affecting the outcome of this case. These amici are identified below.

Organizations

Human Rights Advocates

Legal Aid Society (New York)

Human Rights & Gender Justice Clinic,
City University of New York School
of Law

MADRE
National Law Center on Homelessness &
Poverty

International Association of Democratic
Lawyers

National Lawyers Guild

International Center for Advocates Against
Discrimination

Secular Communities of Arizona
T’ruah: The Rabbinic Call for Human Rights

International Justice Project
International Justice Resource Center

Individuals
Institutional affiliations are listed for identification purposes only; opinions in this brief do
not reflect those of any affiliated organization.
1. William Aceves, Dean Steven R. Smith Professor of Law, California Western School of
Law
2. Dr. Johannes van Aggelen, former senior human rights official, United Nations, Office of
the High Commissioner for Human Rights
3. Wanda M. Akin, Esq., Co-Founder, International Justice Project
4. Shifa Alkhatib, Esq., Phoenix, AZ

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5. Don Anton, Professor of International Law & Director, Law Future Centre, Griffith
University Law School, Australia
6. Paige Berges, Esq., London, United Kingdom
7. Wendi Warren H. Binford, Associate Professor of Law; Director, Clinical Law Program,
Willamette University
8. Carolyn Patty Blum, Interim Director, Benjamin B. Ferencz Human Rights and Atrocity
Prevention Clinic, Benjamin N. Cardozo Law School
9. Anthony P.X. Bothwell, Esq., Law Offices of Anthony P.X. Bothwell, San Francisco, CA
10. Bill Bowring, Professor & Director of the LLM/MA in Human Rights, University of
London, Birkbeck College School of Law, U.K.
11. Raymond M. Brown, Co-Founder, International Justice Project
12. Gráinne de Búrca, Florence Ellinwood Allen Professor of Law, New York University Law
School
13. Elizabeth Burleson, Esq., Greenwich, CT
14. Roderick P. Bushnell, Esq., Law Offices of Roderick P. Bushnell, San Francisco, CA
15. Linda Carter, Professor of Law Emerita, University of the Pacific, McGeorge School of
Law
16. Dr. Grace Cheng, Associate Professor of Political Science, Hawai’i Pacific University
17. Marjorie Cohn, Professor Emerita, Thomas Jefferson School of Law
18. Jorge Contesse, Assistant Professor, Rutgers (Newark) Law School
19. Michael D. Cooper, Managing Director, The Ploughshare Group LLC
20. Omar Dajani, Professor, University of the Pacific, McGeorge School of Law
21. Thomas A. Dallal, Esq., Deputy Director, Diakonia International Humanitarian Law
Resource Center, Jerusalem
22. Margaret M. deGuzman, Associate Professor, Temple University, Beasley School of Law
23. Daniel H. Derby, Professor, Touro Law Center
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24. Margaret Drew, Associate Professor & Director, Human Rights at Home Clinic, University
of Massachusetts Law School
25. Ariel Dulitzky, Clinical Professor of Law, University of Texas School of Law
26. Monica Feltz, Esq., Executive Director, International Justice Project
27. Martin S. Flaherty, Leitner Family Professor of International Human Rights Law, CoDirector, Leitner Center for International Law & Justice, Fordham Law School
28. Daniel Fullerton, Counsel, Public International Law & Policy Group
29. Hannah Garry, Clinical Professor of Law & Director, International Human Rights Clinic,
University of Southern California, Gould School of Law
30. Seyedeh Shannon Ghadiri-Asli, Legal Officer, International Criminal Tribunal for the
Former Yugoslavia
31. Peter Halewood, Professor of Law, Albany Law School
32. Alexandra Harrington, Adjunct Professor, Albany Law School
33. Deena Hurwitz, Esq., Charlottesville, VA
34. Dr. Alice de Jonge, Senior Lecturer, Monash University, Australia
35. Christine Keller, Esq., Legal Officer, International Criminal Tribunal for the Former
Yugoslavia
36. Jocelyn Getgen Kestenbaum, Telford Taylor Visiting Clinical Professor of Law, Benjamin
N. Cardozo School of Law
37. Nigel N.T. Li, President, International Law Association, Chinese (Taiwan) Branch;
Chinese (Taiwan) Society of International Law
38. Robert Lutz, Paul E. Treusch Professor of Law, Southwestern Law School
39. Daniel Barstow Magraw, Senior Fellow, Foreign Policy Institute and Professorial Lecturer,
Johns Hopkins University School of Advanced International Studies
40. Anna R. Maitland, Schuette Clinical Fellow, Center for International Human Rights,
Northwestern University, Pritzker School of Law

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41. Kathleen Maloney, Adjunct Professor, Lewis & Clark School of Law
42. Annette M. Martínez-Orabona, Adjunct Professor, Inter-American University of Puerto
Rico, School of Law
43. Thomas M. McDonnell, Professor of Law, Pace University, Elisabeth Haub School of Law
44. Jeanne Mirer, Esq., President, International Association of Democratic Lawyers
45. Catherine Moore, LLB, LLM, Coordinator for International Law Programs, University of
Baltimore School of Law
46. Steven S. Nam, Distinguished Practitioner, Center for East Asian Studies, Stanford
University
47. Dr. Andrew Novak, Term Assistant Professor of Criminology, Law & Society, George
Mason University
48. Natasha Lycia Ora Bannan, President, National Lawyers Guild
49. Aparna Polavarapu, Assistant Professor, University of South Carolina School of Law
50. Dianne Post, Esq., Central Arizona National Lawyers Guild
51. William Quigley, Professor of Law, Loyola University New Orleans, Loyola College of
Law
52. Balakrishnan Rajagopal, Professor of Law & Development, Massachusetts Institute of
Technology
53. Jaya Ramji-Nogales, I. Herman Stern Professor of Law, Temple University, Beasley
School of Law
54. Nicole Rangel, Esq., Associate Legal Officer, International Criminal Tribunal for the
Former Yugoslavia
55. Marny Requa, Associate Professor, Georgian Court University (Lakewood, NJ)
56. Nani Jansen Reventlow, Associate Tenant, Doughty Street Chambers, U.K.
57. Francisco J. Rivera Juaristi, Director, International Human Rights Clinic, Santa Clara
University School of Law
58. Gabor Rona, Visiting Professor of Law, Cardozo Law School
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59. Joshua Root, Esq., Instructor of Human Rights and International Law, Newport, RI
60. Leila Sadat, Henry H. Oberschelp Professor of Law; Director, Whitney R. Harris World
Law Institute, Washington University School of Law
61. Margaret L. Satterthwaite, Professor of Clinical Law, New York University School of Law
62. Beth Van Schaack, Leah Kaplan Visiting Professor in Human Rights, Stanford Law School
63. Mortimer Sellers, Regents Professor and Director, Center for International and
Comparative Law, University of Baltimore School of Law
64. Corey Shenkman, Esq., Principal Investigator, Institute for Social Policy and
Understanding
65. Dr. Anette Sikka, Asisstant Professor of Legal Studies, University of Illinois, Springfield
66. Matiangai Sirleaf, Assistant Professor, University of Pittsburgh Law School
67. David L. Sloss, Professor of Law, Santa Clara University Law School
68. Rachel A. Smith, International Law Association, American Branch, Program Director
69. Juliet S. Sorensen, Harry R. Horrow Professor of International Law, Northwestern
University, Pritzker School of Law
70. Dr. Michael Stein, Executive Director & Visiting Professor, Harvard Law School Project
on Disability
71. Milena Sterio, Professor of Law & Associate Dean, Cleveland State University, ClevelandMarshall College of Law
72. Jessica Stern, Executive Director, OutRight Action International
73. Anastasia Sarantos Taskin, Esq., Taskin Law & Mediation
74. Juliet S. Sorensen, Harry R. Horrow Professor of International Law, Northwestern
University, Pritzker School of Law
75. Beth Stephens, Distinguished Professor, Rutgers (Camden) Law School
76. Dr. Tara Van Ho, Assistant Professor, Aarhus University Department of Law

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77. Constance de la Vega, Professor of Law, University of San Francisco
78. Meghan Waters, Esq., Denver, CO
79. Dr. Ralph Wilde, Reader, University College of London Faculty of Laws, U.K.
80. Matthew Zagor, Associate Professor, Australia National University College of Law
81. Katja Ziegler, Sir Robert Jennings Professor International Law, Director, Centre of
European Law and Internationalisation, University of Leicester School of Law, U.K.

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Motion for Leave to File Amicus
Curiae Brief and Brief of Amici Curiae International Law Scholars and Nongovernmental
Organizations with the Clerk of the Court for the United States District Court for the District of
Hawai’i by using the appellate CM/ECF system on March 11, 2017.
I certify that all participants in the case are registered CM/ECF users and that service will
be accomplished by the appellate CM/ECF system.
I certify under penalty of perjury that the foregoing is true and correct.

DATED this 11th day of March, 2017.

_______________________________
Aaron X. Fellmeth (admitted pro hac vice)
Arizona State University
Sandra Day O’Connor College of Law
Mail Code 9520
111 E. Taylor St.
Phoenix, AZ 85004-4467
[phone]
[e-mail]
Counsel for Amici Curiae