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Brief Amici Curiae of International Law Scholars and Nongovernmental NO. 17-965 In the Supreme Court of the United States DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al., Petitioners, v. HAWAII, et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit AMICI CURIAE BRIEF OF INTERNATIONAL LAW SCHOLARS AND NONGOVERNMENTAL ORGANIZATIONS IN SUPPORT OF RESPONDENTS Bruce V. Spiva Aaron X. Fellmeth Elisabeth C. Frost Counsel of Record Amanda R. Callais Sandra Day O’Connor PERKINS COIE LLP College of Law 700 13th Street, NW Arizona State University Washington, D.C. 20005 111 E. Taylor St. Phoenix, AZ 85004-4467 (480) 241-8414 [email protected] Counsel for Amici Curiae Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i TABLE OF CONTENTS TABLE OF AUTHORITIES................... ii INTEREST OF AMICI CURIAE ............... 1 I. SUMMARY OF THE ARGUMENT........ 2 II. ARGUMENT.......................... 4 A. International Law Is Relevant to Assessing the Legality of the Proclamation....................... 4 B. International Law Regarding Discrimination on the Basis of Religion and National Origin ................. 9 1. The International Covenant on Civil and Political Rights............... 9 2. The International Convention on the Elimination of All Forms of Racial Discrimination.................. 14 C. Relevant Provisions of the Proclamation ................................. 16 1. Legitimate Aim and Proportionality .............................. 18 III. CONCLUSION ....................... 20 APPENDIX Appendix A List of Amici .................App. 1 ii TABLE OF AUTHORITIES Federal Cases F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004) ....................... 7 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) ................. 7 Immigration & Naturalization Serv. v. Stevic, S.A., 467 U.S. 407 (1984) ....................... 6 Kerry v. Din, 135 S. Ct. 2128 (2015) .................... 12 Landon v. Plasencia, 459 U.S. 21 (1982) ....................... 12 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804) ................. 7 The Paquete Habana, 175 U.S. 677 (1900) ....................... 7 Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) .................. 7 United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801) ................ 8 Constitutional Provisions U.S. Const. art. II, § 3........................ 8 U.S. Const. art. VI, cl. 2 .................... 4, 8 iii Legislative Materials and Executive Orders 138 Cong. Rec. S4781-01 (daily ed. Apr. 2, 1992) ................... 5, 9 140 Cong. Rec. S7634-02 (daily ed. June 24, 1994) .................. 14 Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 27, 2017) .................... 2, 16, 17 Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017) ............ 2 Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017) ............................ 2 Convention Against Torture, Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 8 (Jan. 30, 1990) (statement of Abraham Sofaer) ....................................... 6 Treaties, International Declarations, and Resolutions Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 113 . 6 International Convention on the Elimination of All Forms of Racial Discrimination Dec. 21, 1965, G.A. Res. 20/2106 (XX), Annex, 660 U.N.T.S. 195 ................................. 6, 14, 15 International Covenant on Civil and Political Rights art. 2(2), Dec. 19, 1966, 999 U.N.T.S. 171 .................................. passim iv Universal Decl. of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) ...................................... 13 Other International Materials Comm. on the Elimination of Racial Discrimination, General Recommendation 30: Discrimination against non-citizens, U.N. Doc. CERD/C/64/Misc.11/rev.3 (2004) ............ 11 Comm. on the Elimination of Racial Discrimination, General Recommendation No. 35: Combating Racist Hate Speech, U.N. Doc. CERD/C/GC/35 (2013) ................................. 15 Comm. on the Elimination of Racial Discrimination, Commc’n No. 48/2010, U.N. Doc. CERD/C/82/D/48/2010 (2013) .............. 16 Human Rights Comm., General Comment No. 18, ¶ 6, U.N. Doc. HRI/GEN/1/Rev.1 (July 29, 1994) .................................. passim Human Rights Comm., General Comment No. 27, ¶ 11, U.N. Doc. No. CCPR/C/21/Rev.1/Add.9 (Nov. 1, 1999) ........................... 18 TBB-Turkish Union in Berlin/Brandenburg v. Germany, No. 48/2010 UN Doc. CERD/C/82/D/48/2010 (Apr. 4, 2013) ........ 15 Report of the Comm. Against Torture, U.N. Doc. CAT/C/28/Add.5 (Feb. 9, 2000) ............ 5, 7 v Other Sources Aaron Xavier Fellmeth, Paradigms of International Human Rights Law (2016) ............. 11, 19 Alex Nowrasteh, Guide to Trump’s Executive Order to Limit Migration for “National Security” Reasons, Cato Institute: Cato at Liberty, Jan. 26, 2017, at https://www.cato.org/blog/guide- trumps-executive-order-limit-migration- national-security-reasons ................. 19 Alexander Hamilton, Pacificus No. 1 (June 29, 1793) reprinted in 15 The Papers of Alexander Hamilton 33 (Harold C. Syrett et al. eds. 1969) . 8 Central Intelligence Agency, The World Factbook, https://www.cia.gov/library/publications/resour ces/the-world-factbook/index.html .......... 17 Hurst, Hannum, The Status of the Universal Declaration of Human Rights in Nat’l and Int’l Law, 25 GA. J. INT’L & COMP. L. 287 (1995/96) . 14 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 (2010) ................................. 13 Restatement (Third) of Foreign Relations Law § 111(3)-(4) (Am. Law Inst. 1987) .......... 5, 7 S. Exec. Rep. No. 103-29 (1994) ................ 6 vi U.S. State Dep’t, Report of the Visa Office 2016, Table XIV: Immigrant Visas Issued at Foreign Service Posts, Fiscal Years 2007–2016, https://travel.state.gov/content/dam/visas/Stati stics/AnnualReports/FY2016AnnualReport/FY 16AnnualReport-TableXIV.pdf ............. 20 U.S. Sup. Ct. R. 37.3......................... 2 U.S. Sup. Ct. R. 37.6......................... 1 1 INTEREST OF AMICI CURIAE1 The Amici are 84 international law scholars and several nongovernmental organizations. See Appendix A (listing all Amici). The individual Amici whose views are presented here are international law scholars specializing in public international law and international human rights law. They research, teach, speak, and publish widely on international law issues, and routinely advise and practice in matters addressing such issues before American courts. They include members of the International Human Rights Committee of the International Law Association, American Branch2 as well as tenured university professors, law school faculty members, 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. As scholars and practitioners in 1 Pursuant to Supreme Court Rule 37.6, amici state that 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 or their counsel has made a monetary contribution to the preparation or submission of this brief. All parties have consented to the filing of this brief. 2 This brief represents the opinion of the individual Committee member signatories, but not necessarily that of the International Law Association (“ILA”) or the ILA American Branch. 2 the area, the Amici have a strong interest in ensuring that the Court reaches a decision that conforms to the existing body of international law binding on the United States. The Amici support the Respondents in this matter and urge affirmance of the decision below. Pursuant to Supreme Court Rule 37.3, the Amici submit this brief without an accompanying motion for leave to file an amicus curiae brief because all parties have consented to its filing. I. SUMMARY OF THE ARGUMENT 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 Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats of September 24, 2017 (“Proclamation”),3 apparently superseding Executive Order 13780 of March 6, 2017 (“EO”), which replaced the now-rescinded Executive Order 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 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 the Proclamation. In assessing the 3 See Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 27, 2017). 3 legality of the Proclamation, 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
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