Amicus Curiae Brief — Trump v. Int'l Refugee Assistance Project, 138 S. Ct. 50 (2017) (No. 16-1436)

16-1436 and 16-1540

IN THE

Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et ai.,

Petitioners,

Vv.

INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.,

Respondents.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, et al.,

Petitioners,

Vv.

HAWAII, et al.,

Respondents.

On Writs of Certiorari to the United States Court

of Appeals for the Ninth and Fourth Circuit

BRIEF OF AMICUS CURIAE

INTERNATIONAL LAWYERS FOR INTERNATIONAL

LAW IN SUPPORT OF RESPONDENTS

PROFESSOR CURTIS FJ DOEBBLER

Counsel of Record

C/O COMAR LLP

85 Broad Street, 27 Floor

New York, New York 10004

Tel — (646) 600-5470

Fax — (206) 984-4734

Emaill: curtis@doebbler.net

Email2: cdoebbler@gmail.com

16 September 2016

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ...................csessecceees iii

I \cctcntcavtisinitihiciarsnnnriantnttimmiemmacinietion ix

INTEREST OF AMICUS CURIAE ................. l

SUMMARY OF ARGUMENTS ......................... 2

ET ctvtntiniciinsniipaintnnticintuniticmmuninebiivianinenti 4

I. THE COURT SHOULD APPLY

INTERNATIONAL LAW. ..............ccccseseseeeees 4

A. THE COURT SHOULD APPLY

TREATIES APPLICABLE TO THE

Fe Ee I cccncecrenenessseneconosacseasescsoenes 9

B. THE COURT SHOULD APPLY

CUSTOMARY INTERNATIONAL LAW

APPLICABLE TO THE UNITED

FF Be SP scresecsnenerveeveitnapiscinsantaneeesennntensnetenseoes 11

il

Il. INTERNATIONAL LAW PROVIDES FOR

LIMITS ON THE AUTHORITY OF THE

FF EIT 0 cecccccnsescecseccccetensucessecvsesooousss 14

Ill. INTERNATIONAL LAW APPLICABLE

TO THE UNITED STATES PROHIBITS

DISCRIMINATION. ..............20cccceeceeeeecees 17

A. DISCRIMINATION BASED ON

NATIONAL ORIGIN IS PROHIBITED

BY APPLICABLE INTERNATIONAL

BAlIIUY cessceccrecsnenssnssnsensesnsenenssncesscessneneseenansenonseees 22

B. DISCRIMINATION BASED ON

RELIGION IS PROHIBITED BY

APPLICABLE INTERNATIONAL

C. DIFFERENTIATIONS BASED ON

NATIONAL ORIGIN OR RELIGION

REQUIRE JUSTIFICATION ................0000 26

CR EID <ccmtasincessenvesrmnevsemensenepncavecseeseasecnees 28

ili

TABLE OF AUTHORITIES

US Laws & Treaties

Charter of the Organization of American

States, 119 U.N.T.S. 3 (1951)....................-006 20

Charter of the United Nations, 1 U.N.T.S.

\ 0). Ma creat 28 Ree 17, 25

International Covenant on Civil and

Political Rights, 993 U.N.T:S. 3

ES SEE ie ae Be 17, 18, 22, 23, 24-27

Protocol of Amendment to the Charter of

the Organization of American States,

O.A.S. Treaty Series No. 1-A, ratified by

the United States on April 23, 1968 and

entered into force on March 12, 1970............ 20

Religious Freedom Restoration Act of 1993,

Pub. L. No. 103-141, 107 Stat. 1488

i sasinatonnnnds 5

Title VII of the Civil Rights Act of 1964

(Pub. L. 88-352, 78 Stat. 241, enacted

eae arctan cermddiennidipieiiadianoceciinninies 5

United States Constitution ................... 4,5, 14, 15

United States Constitution art. IL......0000000000...... 10

United States Constitution art. IT, § 3............... 14

United States Constitution art. ITI, § 2............. 11

United States Constitution art. IV, cl. 2.............. 9

Vienna Convention on the Law of Treaties,

1155 U.N.T.S. 331 (1980)... cccccceeseeeeeeeee. 6,7

iV

Other Instruments

American Declaration of the Rights and

Duties of Man, O.A.S. Res. XXX, adopted

by the Ninth International Conference of

American States (1948) and reprinted in

Basic Documents Pertaining to Human

Rights in the Inter-American System,

O.A.8. Doc. OEA/Ser.L.V/I1.82 doc.6

AS Fi; per eer ae 19, 20

Declaration on the Elimination of All

Forms of Intolerance and of

Discrimination Based on Religion or

Belief, U.N.G.A. Res. 36/55 (25

ok ET EE AEs eee ee 25

Executive Order No. 13,780, 82 Fed. Reg.

13209 of 6 March 2017 ................0.-. 2, 13, 24, 28

Universa! Declaration of Human Rights,

U.N.G.A. Res. 217A (IID, U.N. Doc

AIB10 at 71 C1DED) sceccsereccereceocecessencesenss 17, 19, 25

Domestic and International Cases

A v. Australia, Comm. No. 560/1993, U.N.

Doc. CCPR/C/59/D/560/1993 (30 April

ETD sivasiersiiniscsestiinagamiaamesamaiaeiieaaaiaemial 27

Barcelona Traction (Belgium v. Spain),

1970 I.C.J. 3 (Judgment of Feb. 5)................. 21

Bay Boy Case, Res. No. 23/81, Case No.

Ee CID Ws NUIINUED Kciciutineittceasniensminicnndnanniit 20

Vv

Bolivarian Republic of Venezuela, et al., v.

Helmerich & Payne International

Drilling Co., et al., 581 U.S. (2017)....... 12

Broeks v. the Netherlands, Comm.

172/1984, U.N. Doc. A/42/40, at 139

Cook v. United States, 288 U.S. 102 (1933)......... )

Dooley v. United States, 182 U.S. 222

Espinoza v. Farah Mfg. Co., Inc., 414 U.S.

EE SEE 6

F. H. Zwaan-de Vries v. The Netherlands,

Comm. No. 182/1984, U.N. Doc.

ee 23

Gonzales v. Cuba, Report No. 67/06; Case

No. 12,476 decided during its 126*»

Regular Session (16 — 27 October 20086) ........ 20

Griggs v. Duke Power Co., 401 U.S. 424

EG SS EE 6

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).. 15,16

Hilton v. Guyot, 159 U.S. 113 (1895) ......0000000.... 11

Ibrahima Gueye, et al. v. France, Comm.

No. 196/1985, U.N. Doc.

CCPR/C/35/D/196/1985 (1989) ............0..0006. 23

Joseph v. Sri Lanka, Comm. 1249/2004,

U.N. Doc. A/61/40, Vol. II, at 347 (HRC

Juridical Condition and Rights of the

Undocumented Migrants, No. OC-18/03,

Ser. A, No. 18 (September 17, 2008)......... 20, 21

Kolovrat v. Oregon, 366 U.S. 187 (1961) ............. g

vi

McLaughlin v. Florida, 379 U.S. 184 (1964)...... 23

Missouri v. Holland, 252 U.S. 416(1920) )........... )

Mohammed Alzery y. Sweden, U.N. Doc.

CCPR/C/88/D/1416/2005 (10 November

TIT i tioiieieitei annie epenpaienediningtenninaihieeaiiiintiabantiist 27, 28

Roach and Pinkerton v. United States,

Resolution No. 3/87, Case No. 9647,

0.A.S. Doc. OEA/ser.IJVII.71, doc. 9

ie a ois adincbccectntnnaeenbhiaimmnbageightiidiansente 20

Sosa v. Alvarez-Machain, 542 U.S. 692

TI Sear cesineieel abacdas died ctasinianiesicemeninibiaatiaeeicia intact 10

‘The Baby Boy Case, Resolution No. 23/81,

Case 2141 (March 6, 1981)........................0068 21

Th uete Habana, 175 U.S. 677

EE Ae ES See arene oe 11, 12, 13, 16

The Scotia, 81 U.S. (14 Wall.) 170 (1871).......... 13

Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796)....... 10

Water Splash, Inc. v. Menon, 581 U.S. ___

og eg Bs My, SE )

Worcester v. Georgia, 31 U.S. (6 Pet.) 515

SRE AED EES ES SCO eae oreo 14

Books, Articles and Other Materials

American Law Institute, Restatement

(Third) of the Foreign Relations Law of

the United States (1987) ............. 7, 8, 12, 14, 15

Bart, S.H., Halleck’s International Law,

Vol. LI, C. Kegan Paul & Co., London,

Noahs sacacs:tnenshaccinmsos karaniasnitacioes 15

vil

General Comment No. 18 on Non-

Discrimination, reprinted in U.N. Doc.

HRI/GEN/1/Rev.9 (Volume I) (27 May

2008) LF ESSERE JOM SEA ee RENE EN EEE SLES SEES 17, 18, 19

Sf 8 ese soe er enm™ 5

Henkin, L., How Nations Behave: Law and

Foreign Policy 47 (2d ed., 1979) ...............:.-200+: 6

International Law Commission’s Draft

Articles on State Responsibility,

annexed to U.N.G.A. Res. 56/83 of

December 12, 2001, and corrected by

U.N. Doc. A/56/49(Vol. D/Corr.4............060006 8,9

Jay, J., C.J., Charge to Grand Juries: ‘The

Charees of Chief Justice Jay to the

Grand Junes on the Eastern circuit at

the circuit Courts held in the Districts of

New York on the 4th, of Connecticut on

the 22d days of April, of Massachusetts

on the 4th, and of New Hampshire on

the 20th days of May, 1790 in The

Correspondence anc Public Papers of

John Jay, Vol. III, 387, 393 (Henry P.

ESE ES Sr 11

Paust, J., “May the President Violate

Customary International Law? (Cont'd):

The President is Bound by International

Law,” 81 Am. J. Int’ L. 377 (April 1987) ..15,16

vill

Siracusa Principles on the Limitation and

Derogation Provisions in the

International Covenant on Civil and

Political Rights, adopted by a meeting of

experts on September 28, 1984, U.N.

Doc. E/CN.4/1984/4 (1984) .0......0......cccc cece

The Federalist No. 22 (Alexander

SO er

The Federalist No. 64 (John Jay).......................

The Federalist, No. 80 (Alexander

ESTEE ERTEER SNE GS SY CESSES ee ONO

Weissbrodt, D., Fitzpatrick, J., Ni Aolain,

F., and Newman, F.C., Inbernational

Human Rights: Law, Policy, and

Process, Carolina Academic Press, LLC,

Durham, NC (4 ed. 2007)....... ra Ee Ape

ix

ACRONYMS AND ABBREVIATIONS

ADRDM

Am.J.Int’l L.

American Declaration on the

Rights and Duties of Man

American Journal of International

Law

Company

Communication

Dallas

Document

Edition

Federal Regulation

Inter-American Commission on

Human Rights

International Covenant on Civil

and Political Rights

Manufacturing

number

Organization of American States

Page

Paragraph

Peters

Public Law

Resolution

Supreme Court Reporter

Series

United States

United Nations

U.N.G.A.

U.N.T.S.

Vol.

Wall.

x

United Nations General Assembly

United Nations Treaty Series

Volume

Wallace

INTEREST OF AMICUS CURIAE

The amicus, International Lawyers for International

Law, are lawyers and law professors from the United

States of America and from outside the United

States of America who are experts in international

law. They are Mr. Inder Comar, Member of the bars

of California and New York; Dr. Margreet

Wewerinke-Singh, Professor of Law, University of

the South Pacific; Mr. Arno Develay, Member of the

bars of Paris (France) and the State of Washington;

and Professor Curtis F.J. Doebbler, Member of the

bars of the Supreme Court of the United States and

the District of Columbia; Research Professor of Law,

University of Makeni.

This brief is submitted by amicus in the public

interest of ensuring the proper understanding and

application of the international law relevant to this

case.!

! Petitioner granted blanket consent for the filing of amicus

curiae in this matter. Amicus curiae sought consent from

Respondents, and received consent from the Respondents’

counsel of record. Pursuant to Rule 37(a), amicus provided 10-

days’ notice of its intent to file this amicus curiae brief to all

counsel. Amici further state that no counsel for any party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person or entity, other than the

International Lawyers for International Law, made a monetary

contribution to the preparation or submission of this amici

curtae brief.

2

SUMMARY OF ARGUMENT

This Amicus Curiae brief argues that this Court

should apply applicable international law to

determine whether Executive Order No. 13,780, 82

Fed. Reg. 13209 of 6 March 2017 (hereinafter

Executive Order) is consistent with the United

States’ legal obligations.

This Court and all United States courts should

apply international law, including treaties ratified by

the United States and customary international law.

Treaties are legally binding on the United States

as part of U.S. law.

Customary international law, although different

in character from treaties, is also legally binding on

the United States as part of U.S. law. Both sources of

international law are relevant to the matter before

the Court and should be applied by the Court.

The President of the United States is bound by

international law in accordance with the intention of

the Framers of the Constitution and _ its

interpretation by this Court.

International law prohibits insidious

discrimination. This prohibition is found in treaties

and customary international law that is legally

binding on the U.S. President and the Executive.

Discrimination based on national origin is

prohibited by treaties and customary international]

law that are legally binding on the U.S. President

and the Executive.

Discrimination based on religion is prohibited by

treaties and customary international law that are

legally binding on the U.S. President and the

Executive.

3

Differentiations based on religion require rational

justifications that must be closely scrutinized to

ensure that they are based on reliable evidence.

The Court should apply the prohibition of

discrimination that is found in international law

applicable to the United States in evaluating the

legality of the Executive Order.

4

ARGUMENTS

[. THE COURT SHOULD APPLY

INTERNATIONAL LAW

This Court should apply international law as part of

its obligation to uphold the rule of law and to

preserve the system of constitutional democracy of

the United States.

First, the Constitution of the United States and

the precedents of this Court interpreting the U.S.

Constitution indicate that international law—both

treaties and customary international law—are part

of United States law. The U.S. Constitution

expressly declares treaties to be part of U.S. law and

this Court has repeatedly recognized that customary

international law is part of the laws of the United

States that must be applied by the courts. When

international law is overlooked, relevant law is not

applied to decide a case at law. In this case,

international law is relevant law that should be

applied.

Second, the United States has represented to its

own people that it will respect international law by

ratifying treaties in which it undertakes to

guarantee certain rights to all individuals under its

jurisdiction, such as the rights to be free from

discrimination based on nationality and religion.

This is an essential ingredient of the trust of the

American people in their government. It is

incumbent that the United States President uphold

such representations to the American people for the

5

proper functioning of the government as envisioned

by the U.S. Constitution. The Court should ensure

this crucial trust is maintained.

Third, the United States has represented to its

own people that it will respect international law by

enacting laws expressly recognized the prohibitions

under international law against discrimination based

on religion and national origin. The prohibition of

discrimination based on religion found in the U.S.

Constitution’s First Amendment is the basis of The

Religious Freedom Restoration Act of 1993, Pub. L.

No. 103-141, 107 Stat. 1488 (November 16, 1993),

which prohibits discrimination based on religion

except where the government is acting to secure a

compelling interest in the least restrictive manner

possible. Jd. § 3, (a) and (b). The Religious Freedom

Restoration Act, id., is based on the Congressional

finding that “the framers of the Constitution,

recognizing free exercise of religion as an inalienable

right, secured its protection in the First Amendment

to the Constitution.” Id. at § 2(a)(1). This Court’s

protection of religious freedom has an extensive

history and has been established in light of the

understanding that the United States’ very existence

owes much to people fleeing religious persecution.

Discrimination based on national origin is prohibited

by Title VII of the Civil Rights Act of 1964 (Pub. L.

88-352, 78 Stat. 241, enacted July 2, 1964). The

Guidelines on Discrimination Because of National

Origin, Pt. 1606, 45 FR 85635, Dec. 29, 1980,

implementing Title VII, provide that this provision of

law “protects individuals against employment

discrimination ... on the basis of ... national origin ...

[including that the] . . . principles of disparate

treatment and adverse impact equally apply to

national origin discrimination.” Jd. at § 1606.2. Thus,

consistent with international law as described below,

this Court has recognized that U.S. law “proscribes

not only overt discrimination, but also practices that

are fair in form, but discriminatory in operation.”

Griggs v. Duke Power Co., 401 U. S, 424, 481 (1971).

This Court has also held in Hspinoza v. Farah Mfg.

Co., Inc., 414 U.S. 86 (1973), that discrimination on

national origin may be found even where a different

ground it expressed in the law. In these holdings, the

Court has applied the prohibition of discrimination

on the basis of national origin in a manner that is

consistent with international law.

Fourth, respect for international law is essential

to the United States good reputation in the

international community. By ratifying treaties and

participating in international affairs the United

States represents to the international community

that it will respect international law. As Professor

Louis Henkin wrote almost forty years ago, and is

still true today, “almost all nations observe almost

all principles of international law and almost all of

their obligations almost all of the time.” Henkin, L.,

How Nations Behave: Law and Foreign Policy 47 (2d

ed., 1979). Nations that do not respect international

law open themselves to ridicule, or expose

themselves to the charge that they are rogue States.

The failure of the United States to respect

international law harms the United States and is

inconsistent with the consensus of States expressed

in the text of the Vienna Convention on the Law of

7

Treaties, 1155 U.N.T.S. 331 (1980), which although

only signed and not ratified by the United States,

expresses a widely accepted rule of customary

international law in its article 27 that “[a] party may

not invoke the provisions of its internal law as

justification for its failure to perform a treaty.” Id.

Article 26 of the Vienna Convention, id., furthermore

declares that “[e]very treaty in force is binding upon

the parties to it and must be performed by them in

good faith.” Id. Finally, the American Law Institute’s

Restatement (Third) of the Foreign Relations Law of

the United States (1987), notes that “{a] state

violates international law if, as a matter of state

policy, it practices, encourages, or condones... a

consistent pattern of gross’ violations’ of

internationally recognized human rights.” Id. at

§ 702. A note to this provision of the Restatement

notes that “the obligations of the customary law of

human rights are erga omnes,” thus obligation owed

to all states and in which all States have an interest

of enforcement. When the United States ignores

international law its reputation in the international

community can potentially suffer in the eyes of all

States; embarrass American citizens; and fuels the

arguments of those States and non-State actors who

seek to use extra-legal means to influence the actions

of the United States. It also subjects the U.S. to the

possibility of being found responsible for an

internationally wrongful act by international bodies

such as United Nations special mandate holders or

the Inter-American Commission on Human Rights.

This is the case because as the Restatement, id.,

notes, failure to apply a rule of international law ina

8

domestic context “does not relieve the United States

of its international obligation or of the consequences

of a violation of that obligation.” Id. at § 115. As the

final arbiter of the extent to which international law

should apply in the U.S. courts, this Court should

safeguard the reputation of the United States by

ensuring the application of international law,

including the prohibitions of discrimination based on

religion and national origin.

Fifth, disrespect for international law imposes

significant restrictions on the ability of future

administrations to be able to conduct international

affairs in the best interest of the American people.

Regardless of domestic law, the United States may

face the consequences of having committed an

internationally wrongful act. These consequences or

reparations for injuries are summarized in the

International Law Commission’s Draft Articles on

State Responsibility, annexed to U.N.G.A. Res. 56/83

of December 12, 2001, and corrected by U.N. Doc.

A/56/49(Vol. [D/Corr. 4., as including restitution,

compensation, satisfaction, and interest on any

principal sum due, Id. at arte 35-38. Moreover, if the

internationally wrongful ucts are serious, as

systematic acts of discrimination based on religion or

national origin and targeting many people are likely

to be, all States in the international community

“shall cooperate to bring te an end through lawful

means any serious breach.” Id. at art. 41. These

negative consequences are likely to affect the foreign

relations of the U.S. government for many years.

They are also reasons why this Court should,

9

whenever possible, as in this case, ensure respect for

international law.

A. THE COURT SHOULD APPLY

TREATIES APPLICABLE TO THE

UNITED STATES

Treaties are expressly made part of U.S. law by

Article IV, Clause 2, of the U.S. Constitution that

states “all Treaties” made, or which shall be made,

under the Authority of the United States, shall be

the supreme Law of the Land.”

During the founding of the United States, two of

the most prominent founders, Alexander Hamilton

and John Jay expressed the opinion that treaties

were binding and should be applied by U.S. courts.

The Federalist No. 22 at 197 (Hamilton); No. 80 at

501-503 (Hamilton); and No. 64 423-424 (Jay). This

Court has recognized that treaties are part of U.S.

law that must be applied by the Court in numerous

cases. See, e.g., Missouri v. Holland, 252 U.S. 416

(1920); Cook y. United States, 288 U.S. 102 (1933);

Kolovrat v. Oregon, 366 U.S. 187 (1961); and Water

Splash, Inc. v. Menon, 581 U.S. ___ (2017), 137S. Ct.

1504 (2017). This is especially the case where

application of the treaty carries significance for the

United States in international affairs. As Justice

James Iredell stated long ago, and is equally valid

today,

a treaty, when executed pursuant to full power, is

valid and obligatory, in point of moral obligation,

on all, as well on the legislative, executive, and

judicial departments . . . as on every individual of

the nation, unconnected officially with either,

10

because it is a promise in effect by the whole

nation to another nation, and if not in fact

complied with, unless there be valid reasons for

noncompliance, the public faith is violated. Ware

v. Hylton, 3 U.S. (3 Dall.) 199, 272 (1796).

Treaties which the United States have ratified must

be applied by the U.S. courts because Article II of the

U.S. Constitution makes them applicable both in and

of themselves and as part of U.S. law and because

the Court itself has affirmed the application of

treaties to relevant disputes. The foregoing reasons

the Court should take cognizance of the treaties that

the United States has ratified as part of U.S. law in

reviewing the actions of the Executive.

B. THE COURT SHOULD APPLY

CUSTOMARY INTERNATIONAL LAW

APPLICABLE TO THE UNITED STATES

The international law applicable to the United States

includes customary international law, which

according to Article III of the U.S. Constitution must

be applied as “Laws of the United States.” Id. at § 2,

cl. 1. The Court has repeatedly and consistently over

time recognized that customary international law is

part of U.S. law that it will apply. This Court has

stated that “{flor two centuries we have affirmed that

the domestic law of the United States recognizes the

law of nations [i.e. customary international law].”

Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004).

Indeed, the first Chief Justice of this Court, Chief

Justice John Jay, expressly charged Grand Juries

“that the laws of nations make part of the laws of

this and of every other civilized nation. They consist

11

of those rules for regulating the conduct of nations

towards each other; which, resulting from right

reason, receive their obligations from that principle

and from general assent and practice.” John Jay,

C.J., Charge to Grand Juries: The Charges of Chief

Justice Jay to the Grand Junes on the Eastern

circuit at the circuit Courts held in the Districts of

New York on the 4th. of Connecticut on the 22d days

of April, of Massachusetts on the 4th, and of New

Hampshire on the 20th days of May, 1790 in The

Correspondence and Public Papers of John Jay, Vol.

III, 387, 393 (Henry P. Johnston, ed., 1891). Justice

Gray, writing the opinion for the Court expressly

agreed stated that “[t]he most certain guide .. . [to

the applicable international law] is a treaty or a

statute... when... there is no written law upon the

subject, the duty still rests upon the judicial

tribunals of ascertaining and declaring what the law

is... .” Hilton v. Guyot, 159 U.S. 113, 163 (1895).

The opinion of this Court in Hilton v. Guyot, id,

states that “[iJnternational law, in its widest and

most comprehensive sense ... is part of our law, and

must be ascertained and administered by the courts

of justice as often as such questions are presented in

litigation between man and man, duly submitted to

their determination.” Id. In The Paquete Habana,

175 U.S. 677 (1900), Justice Gray again writing the

opinion for the Court where states’ that

“liJnternational law is part of our law, and must be

ascertained and administered by the courts of justice

of appropriate jurisdiction as often as questions of

right depending upon it are duly presented for their

determination.” Id. at 700. Justice Gray further

12

clarified that “[t]his rule of international law is one

which . . . {this Court] . . . administering the law of

nations are bound to take judicial notice of, and to

give effect to... .” Id. at 708. This Court has again

recently recognized that customary international law

is part of U.S. law that must be applied by the U.S.

courts. Bolivarian Republic of Venezuela, et al., v.

Helmerich & Payne International Drilling Co., et al.,

581 U.S. ____ (2017), 137 S. Ct. 348 (2017). This

view is shared by the Restatement (Third) of the

Foreign Relations Law of the United States (1987),

that reads “lijnternational law and international

agreements of the United States are law of the

United States ... [c]ases arising under international

law or international agreements of the United States

are within the Judicial Power of the United States . .

..” Id. at § 111.

Moreover, customary international law cannot be

derogated from by later legislation. Unlike treaty law

that is created at a fixed time—i.e. when the United

States becomes a party to a treaty that it has

ratified—and which this Court has determined can

be superseded by later in time legislation, customary

international law remains in force at all times. As

this Court stated, in its Opinion written by Justice

William Strong, customary international law

is of universal obligation, and no statute of one or

two nations can create obligations for the world.

Like all the laws of nations, it rests upon the

common consent of civilized communities. It is of

force not because it was prescribed by any

superior power, but because it has been generally

13

accepted as a rule of conduct. The Scotia, 81 U.S.

(14 Wall.) 170, 187 (1871), quoted with approval

by the Court in The Paquete Habana, op cite at

711.

It is law that once created, functions as ongoing

process whereby its validity is renewed according the

continuing opinio juris and practice of States. It

would be inconsistent with this understanding to

allow the rules of customary international law

prohibiting discrimination to be derogated from by

later-in-time legislation. As rule of customary

international law exists with the full force of its

creation at all times that it remains a rule of

customary international law. Even good faith efforts

by States to change a rule, are violations of the rule

of customary international law until that rule has

been changed the consensus of States expressed

through their opinio juris and practice.

In accordance with its longstanding precedents

the Court take cognizance of the United States’ legal

obligations under customary international law in

reviewing Executive Order for consistency with the

laws of the United States.

Il. INTERNATIONAL LAW PROVIDES

FOR LIMITS ON THE AUTHORITY OF

THE PRESIDENT

International law does not distinguish among actors

who lawfully represent a State. All actors are

effectively bound by international law and may incur

the responsibility of a State for an internationally

wrongful act. This is certainly true for the U.S.

14

President, who is the most. senior official

representing the United States in the international

community. As such the President is subject to

international law.

This basic understanding of international law—

that all state actors are bound to obey it—-has been

reiterated time and time again throughout the

history of international law. Hugo Grotius, the famed

Dutch legal scholar who is often referred to as a

founder of modern international law, opined in Book

III, Chapter XVIII, Part VI, of De Jure Belli ac Pacis

(1625) that international law governs the relation

between State and individuals and even those

between citizens of different States. The

Restatement (Third) of the Foreign Relations Law of

the tes (1986), op cite, in its Introduction

states unambiguously that “[iJn conducting the

foreign relations of the United States, [officials of the

United States] are not at large in a political process;

they are under law.” Id. at 5.

The President is bound by treaties that have

received the advice and consent of the United States

Senate as the U.S. Constitution expressly states that

the President of the United States “shall take Care

that the Laws be faithfully executed,” including as

indicated above international law. U.S. Const. art. II,

§ 3. These treaties should be applied by the Court

whenever an exercise of Executive authority raises

an issue of consistency with the United States’ treaty

obligations. Indeed, this Court has frequently

reviewed executive power based on treaties. Justice

John McLean in Worcester v. Georgia, 31 U.S. (6

15

Pet.) 515 (1932), found that treaties with native

American Nations are treaties that “must be

respected and enforced by the appropriate organs of

the Federal Government.” Id. at 594. In Dooley _v.

United States, 182 U.S. 222 (1901), Justice Henry

Billings Brown cited with approval the seminal work

of American General Henry Wager Halleck, a jurist

and expert in international law, that states that the

“(t]he stipulations of treaties ... are obligatory upon

the nations that have entered into to them... and

therefore the Executive is bound by the laws of war

that are international law. Id. at 231-232 (citing

Bart, S.H., Halleck’s International Law, Vol. II,_ 433

(1878). Recently in Hamdan v. Rumsfeld, 548 U. S.

557 (2006), this Court applied international law to

an armed conflict involving the United States and

held that “. . . the Executive is bound to comply with

the rule of law .. .” including international law. Id.

at 635.

Similarly, customary international law should be

applied by the Court because it is part of U.S. law

according to the Constitution and the holdings of this

Court. In reviewing the constitutional history of

Presidential authority in light of international law,

Professor Jordan Paust, a foremost authority on

international law in the U.S. courts, concludes that

the U.S. Constitution

documents an early expectation that

international law is part of the supreme federal

law to be applied at least by the Executive and

the judiciary. It also documents broader legal

policies at stake, all of which make it quite

evident that if the President violates

16

constitutionally based international law, he

violates not only his constitutional oath and duty,

but also the expectations of the Framers -- still

generally shared -- about authority, delegated

powers and democratic government. Paust, J.,

May _the President Violate. Customary

International Law? (Cont'd): The President is

Bound by International Law, 81 Am. J. Int’ L.

377, 378 (April 1987).

This expectation has been reiterated by this Court in

The Paquete Habana, op cite, where the Court found

that while Congress may authorize action contrary to

the mere “usage” of the international community of

States “by direction of the Executive, without express

authority from Congress,” Id. at 711, therefore by

rational implication, no such authority could be

granted to violate a rule of international law.

The matter before the Court implicates the

discretion of the President to act in a manner that is

contrary to rules of international law. Such authority

generally does not exist under U.S. law. This Court

should ensure the President’s adherence to

international law in the matter before the Court.

Ill. INTERNATIONAL LAW APPLICABLE

TO THE UNITED STATES PROHIBITS

DISCRIMINATION

The prohibition of insidious forms of discrimination

is one of the most widely held principles of

international law. It is expressly stated in treaties

that the United States has ratified as well as

customary international law.

17

Article 1, paragraph 2 of the Charter of the

United Nations, 1 U.N.T.S. XVI (1945) states that a

purpose of the United Nations is to “develop friendly

relations among nations based on respect for the

principle of equal rights and self-determination of

peoples.” Id. Furthermore, almost every major

human rights treaty prohibits insidious forms of

discrimination, including those that have been

ratified by the United States. For example, article 26

of the International Covenant on Civil and Political

Rights (hereinafter “ICCPR”), 993 U.N.T.S. 3 (1976),

that repeats the obligation in the Universal

Declaration of Human Rights, U.N.G.A. Res. 217A

(III), U.N. Doc A/810 at 71 (10 December 1948), this

time as a legal obligation, obliging the United States

and cther State Parties to ensure that “[a]ll 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... .”

Id. The United Nations Human Rights Committee,

which is created in the ICCPR as the authoritative

body for the interpretation of the ICCPR, has

expressed in its General Comment No. 18 on Non-

Discrimination, reprinted in U.N. Doc.

HRI/GEN/1/Rev.9 (Vol. I) (27 May 2008), that

“(njon-discrimination, together with equality before

the law and equal! protection of the law without any

discrimination, constitute a basic and general

principle relating to the protection of human rights.”

Id. at 212. The Committee continued, explaining that

“Article 26 not only entitles all persons to equality

18

before the law as well as equal protection of the law

but also prohibits any discrimination under the law

and guarantees to all persons equal and effective

protection against discrimination on any ground.” Id.

By ratifying the ICCPR the United States expressly

“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... .”

ICCPR, op cite, art. 2(1). The Human Rights

Committee, which is created by this treaty, in Broeks

vy. the Netherlands, Comm. 172/1984, U.N. Doc.

A/42/40, at 139 (1987), has held that article 2,

paragraph 1, of the ICCPR prohibits insidious

discrimination in the enjoyment of any individual

rights. Id. paras. 12.3 to 12.5. It is noteworthy that

the U.N. Human Rights Committee in Broeks v. the

Netherlands, id., also recognized that “(t]he right to

equality before the law and to equal protection of the

law without any discrimination does not make all

differences of treatment discriminatory. A

differentiation based on reasonable and objective

criteria does not amount to prohibited discrimination

within the meaning of article 26.” Id. at para. 13.

Thus the prohibition of discrimination does not

proport to make illegal all distinctions made by the

government, but merely those which are not

reasonable. Despite the fact that the United States

has not agreed to allow aggrieved persons to bring

communications to the Human Rights Committee

concerning violations of their right not to be

discriminated against, the United States is

nevertheless fully bound by the international legal

19

obligation to ensure that no person under its

jurisdiction suffers insidious discrimination,

including discrimination based on their national

origin or religion.

Several non-legally-binding, but authoritative,

international instruments also reiterate’ the

international consen»us aginst insidious forms of

discrimination. For example, Article 1 of the

Universal Declaration of Human Rights, op cite,

states that “[a]ll human beings are born free and

equal in dignity and rights” and article 2 states that

“[e]veryone is entitled to all the rights and freedoms

set forth in this Declaration without distinction of

any kind... .” Similarly, the American Declaration

of the Rights and Duties of Man (hereinafter

“ADRDM”), O.A.S. Res. XXX, adopted by the Ninth

International Conference of American States (1948)

and reprinted in Basic Documents Pertaining to

Human Rights in the Inter-American System, O.A.S.

Doc. OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992),

states that “[a]ll persons are equal before the law

and have the rights and duties established in this

Declaration.” Id. Although the United States is not

legally bound by these two instruments, both have

been widely recognized as reflecting customary

international law in their statement of the principle

of non-discrimination, respectively in the

international community as a whole and in the

Americas.

The Inter-American Commission on Human

Rights ([ACHR) has the “principal function shall be

to promote the observance and protection of human

20

rights.” Art. 112 of the Protocol of Amendment to the

Charter of the Organization of American States

(hereinafter “Buenos Aires Protocol”), O.A.S. Treaty

Series No. 1-A, ratified by the United States on April

23, 1968 and entered into force on March 12, 1970.

The United States is party to the Charter of the

Organization of American States, 119 U.N.T.S. 3

(1951) that created the IACHR. The [ACHR has held

that the provisions of the ADRDM are incorporated

into the text of the Charter because they reflect

customary international law. The IACHR reaffirmed

the customary international nature of the ADRDM,

in its opinions in The Baby Boy Case, Res. No. 23/81,

Case No. 2141 (March 6, 1981) concerning abortion

in the United States and in the case of Roach and

Pinkerton v. United States, Resolution No. 3/87,

Case No. 9647, O.A.S. Doc. OEA/ser.IJVLI.71, doc. 9

rev. 1 (1987), in which it found the provisions of the

ADRDM are part of international law applicable to

the United States. Id. at paras. 45-48. And in

Gonzales v. Cuba, Report No. 67/06; Case No. 12,476

decided during its 126 Regular Session (16 — 27

October 2006), the IACHR, relying on the ADRDM as

concerns Cuba, who like the United States has not

ratified the American Convention on Human Rights,

determined that there is an “international consensus

regarding the States’ prohibition of any

discriminatory treatment.” Id. at para. 228.

Similarly, the Inter-American Court of Human

Rights in its Advisory Opinion on the Juridical

Condition and Rights of the Undocumented

Migrants, No. OC-18/03, Ser. A, No. 18 (September

21

17, 2003), stated that the prohibition of

discrimination

it is a fundamental principle that permeates all

laws. Nowadays, no legal act that is in conflict

with this fundamental principle is acceptable, and

discriminatory treatment of any person ... is

unacceptable. This principle (equality and

nondiscrimination) forms part of general

international law. At the existing stage of the

development oof international law, the

fundamental principle of equality and

nondiscrimination has entered the realm of jus

cogens.” Id. at para. 101.

The prohibition discrimination, as one of the

foundational principles of human rights contained in

the ADRDM, is therefore part of the law that is

legally binding on the United States. The customary

international law nature of the general prohibition of

insidious discrimination is confirmed by the

International Court of Justice in the Barcelona

Traction (Belgium y. Spain), 1970 1.C.J. 3 udgment

of Feb. 5), where it found the principle of equality

and the prohibition of discrimination to be

“imperative rules of [international] law.” Id. at p.

304.

This Court should recognize the prohibition of

insidious forms of discrimination as a rule of

customary international law, both in its general

form, and as argued below, in_ respect to

discrimination based on national origin and religion.

22

A. DISCRIMINATION BASED ON

NATIONAL ORIGIN IS PROHIBITED BY

APPLICABLE INTERNATIONAL LAW

Discrimination based on national origin is prohibited

by international law in the ICCPR, op cite, which the

United States has ratified. Article 26 unequivocally

declares “[a]ll persons are equal before the law and. .

. entitled without any discrimination to the equal

protection of the law .. . [including the obligation

that] . . . the law shall prohibit any discrimination

and guarantee to all persons equal and effective

protection against discrimination on any ground

such as... national . . . origin.” Id. Article 2,

paragraph 1, of the ICCPR, id., repeats the

prohibition of discrimination in respect of the rights

in the treaty stating “[t]hat 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... national... origin... .” Id. The ICCPR,

id., includes the right to be free from arbitrary

detention (art. 9), the right to liberty of movement

(art. 12), the right of aliens lawfully within the

territory of a States to a fair trial in expulsion

proceedings (art. 13), the general right to fair trial

(art. 14), the right to recognition before the law (art.

16), the right to privacy and family life (art. 17), the

right to freedom of religion (art. 18), the right to

freedom of expression (art. 19), as well as the general

prohibition of discrimination in _ article 26.

Discriminatory treatment in the enjoyment of any of

these rights or any other right provided by U.S. law

23

is prohibited. Broeks v. the Netherlands, op cite, at

paras. 12.3-12.5.

The Committee has interpreted “other status” in

the second sentence of article 26 of the ICCPR, op

cite, as prohibiting discrimination based on national

origin. Ibrahima Gueye, et al. v. France, Comm. No.

196/1985, U.N. Doc. CCPR/C/35/D/196/1985 (1989) at

para. 9.4. The Committee takes into account, as it

did in F. H. Zwaan-de Vries v. The rlands,

Comm. No. 182/1984, U.N. Doc. CCPR/C/OP/2 at 209

(1990), that “the right to equality before the law and

to equal protection of the law without any

discrimination does not make all differences of

treatment discriminatory. A differentiation based on

reasonable and objective criteria does not amount to

prohibited discrimination within the meaning of

article 26.” Id. at para. 13.

Customary international law also _ prohibits

discrimination based on national origin. This is the

opinion of the prominent legal scholars David

Weissbrodt, Joan Fitzpatrick, Fionnuala Ni Aolain,

and Frank C. Newman, International Human

Rights: Law, Policy, and Process (4t® ed. 2007), who

after evaluating a significant number of United

Nations and other international instruments

conclude that there is “an international legal

consensus against discrimination based that national

origin.” Id. 878.

While this Court has held that distinctions based

on national origin are inherently suspect and

therefore subject to struct scrutiny. McLaughlin v.

Florida, 379 U.S. 184, 192 (1964), applying this test

24

may not be sufficient to meet the United States

international obligations unless the above noted

provisions of international law are taken into

account. The Court should apply the standards of

international law that prohibit discrimination based

on national origin in considering the legality of the

Executive Order.

B. DISCRIMINATION BASED ON

RELIGION IS PROHIBITED BY

APPLICABLE INTERNATIONAL LAW

Discrimination based on religion is prohibited by

international law applicable to the United States

under both treaties and customary international law.

The ICCPR, op cite, article 26, already noted

above, declares “[a]ll persons are equal before the

law and... entitled without any discrimination to

the equal protection of the law . . . [including the

obligation that] . . . the law shall prohibit any

discrimination and guarantee to all persons equal

and effective protection against discrimination on

any ground such as religion.” Article 2, paragraph 1

of the ICCPR, also noted above, obliges States not to

discriminate based on an individual’s right to

religion, which is secured in article 18 of the ICCPR.

The combined effect of the _ prohibition of

discrimination in article 2, paragraph 1, and the

right to religion in article 18 is that States cannot

make distinctions based on the religion of a person

when the distinction reasonably may or does

disadvantage the person. In Joseph v. Sri Lanka,

Comm. 1249/2004, U.N. Doc. A/61/40, Vol. II, at 347

(HRC 2005), the U.N. Human Rights Committee

25

found the failure to treat different religious groups

similarly constituted prohibited discrimination.

The customary international law character of the

prohibition of religious discrimination is reflected not

only in the consensus of the 169 States who have

ratified the in the Declaration on the Elimination of

All Forms of Intolerance and of Discrimination Based

on Religion or Belief, U.N.G.A. Res. 36/55 (25

November 1981), adopted by the U.N. General

Assembly by consensus, that declares’ that

“(djiscrimination between human beings on grounds

of religion or belief constitutes an affront to human

dignity and a disavowal of the principles of the

Charter of the United Nations, and shall be

condemned as a violation of the human rights and

fundamental freedoms proclaimed in the Universal

Declaration of Human Rights and enunciated in

detail in the International Covenants on Human

Rights, and as an obstacle to friendly and peaceful

relations between nations.” Id. at art. 3. This

Declaration reiterates that “[n]o one shall be subject

to discrimination by any State, institution, group of

persons or person on grounds of religion or belief.” Id.

art. 2(1). Furthermore, article 2, paragraph 2, of the

Declaration provides guidance as to what type of

discrimination is prohibited stating that “the

expression ‘intolerance and discrimination based on

religion or belief means any distinction, exclusion,

restriction or preference based on religion or belief

and having as its purpose or as its effect nullification

or impairment of the recognition, enjoyment or

exercise of human rights and fundamental freedoms

on an equal basis.” Id. This broad definition prohibits

26

Executive action, even if the distinctions are

ostensibly for reasons other than religion, if there is

evider °e to the contrary.

C. DIFFERENTIATIONS BASED ON

NATIONAL ORIGIN OR RELIGION

REQUIRE JUSTIFICATIONS

Article 26 of the ICCPR does not include any express

justification of discrimination. According to the clear

words of the article no discrimination is possible in

any circumstance. The Siracusa Principles on the

Limitation and Derogation Provisions in the

International Covenant on Civil and Political Rights,

adopted by a meeting of experts on September 28,

1984, U.N. Doc. E/CN.4/1984/4, also takes the view

that “[n]o limitations or grounds for applying them to

rights guaranteed by the Covenant are permitted

other than those contained in the terms of the

Covenant itself.” Id. at para. I(a)(1).

Nevertheless, with due respect for the sovereign

authority of States, the U.N. Human Rights

Committee has interpreted the article to allow for

very limited exceptions. International law prescribes

these exceptions narrowly to ensure that they are not

merely used to interfere with the legitimate

enjoyment of individuals’ rights. The Committee

requires States seeking to justify any form of

differentiation based on grounds such as national

origin and religion.

Applying article 26 of the ICCPR to review

different treatment based on religion, the U.N.

Human Rights Committee stated that there must be

a “reasonable and objective distinction to avoid a

27

finding of discrimination.” Joseph _v. Sri Lanka, op

cite, at para. 7.4. Moreover, the Committee

determined that the interference was discriminatory

because the State entity had “failed to provide any

evidentiary or factual foundation” for its action that

differentiated between groups based on religion. Id.

at para. 7.3. To justify actions that differentiate

based on religion, a State must demonstrate that its

restrictions are necessary for a legitimate purpose,

supporting its claims with adequate evidence. For

example, a detention of a migrant that continues

beyond a period that is necessary and is supported

by sufficient evidence will be arbitrary. A_v.

Australia, Comm. No. 560/1993, U.N. Doc.

CCPR/C/59/D/560/1993 (30 April 1997) at para. 9.4.

Similarly, in a matter involving a French law that

required Sikh’s to remove their turbans for

identification card photographs the U.N. Human

Rights Committee noted that the State had a

legitimate interest in ensuring “for the purposes of

public safety and order, that the person appearing in

the photograph on a residence permit is in fact the

rightful holder of that document,” but that the State

had “not explained why the wearing of a Sikh turban

covering the top of the head and a portion of the

forehead but leaving the rest of the face clearly

visible would make it more difficult to identify the

author than if he were to appear bareheaded.” Id. at

para. 8.4. The Committee consequently found a

violation of the right to religion in article 18 of the

ICCPR based on the unjustified treatment the

claimant received. Id. In Mohammed Alzery v.

Sweden, U.N. Doc. CCPR/C/88/D/1416/2005 (10

November 2006), the U.N. Human Rights Committee

28

found that Sweden’s reliance on representations by

the Egyptian government was not sufficient to justify

its returning an asylum-seeker to Egypt where he

was subsequently subjected to torture. Id. para. 11.5.

The Committee opined that the Sweden should have

verified the information it had been given to ensure

that it was reliable. Id.

While limited justifications for discrimination

may be relied upon it is incumbent upon States to

justify their interests and to provide reliable

evidence that their acts of discrimination are

necessary. Where a State and its officials fail to meet

this significant burden of proof, the result must be

that the State or its officials are acting in violation of

the law. In such a situation, this Court should act to

ensure respect for the law, including international!

law prohibiting discrimination in the exercise of any

individual right that is recognized by U.S. law.

CONCLUSION

For the foregoing reasons, this Court should apply

international law when determining whether the

Executive Order is inconsistent with United States

law, including the prohibitions of discrimination

based on national origin and religion that are part of

under international law.

29

Respectfully submitted,

Professor Curtis Doebbler

Attorney for Amicus Curiae

(admitted to the Bar of the Supreme Court

of the United States on June 26, 2005)

International Lawyers for International Law

c/o Comar LLP

85 Broad Street, 27*> Floor

New York, New York 10004

Tel — (646) 600-5470

Fax — (206) 984-4734

Emaill1: curtis@doebbier.net

Email2: cdoebbler@gmail.com