Why Airline Companies Should Step Up And Fight Against Trump’s Executive Order

A group of human rights experts, scholars and faculty from 9 law schools have written a letter to European airline companies urging them not to participate in President Trump’s immigration ban.

While the ban is currently halted, Trump has indicated his intent to defend the ban, as well as personally rebuked the judge, in a highly dictatorial disrespect for judicial authority. Now airlines, who had complied with the ban despite the federal stay until Homeland Security decided to temporarily suspend it, are under fire by human rights advocates for helping U.S. authorities enforce the ban in the first place, by playing border police at their own gates, and not allowing citizens of the seven targeted nations to board flights on tickets they had paid good money for. With fast-paced changes happening at every step of the process, and the risk that either the federal courts will be forced to lift the stay, or Trump could once again pull an authoritarian move to reinstitute the ban unlawfully, it is crucial that airline carriers not take it upon themselves, as private actors, to play immigration police and assist the U.S. government in acting contrary to domestic and international law.

The letter (which, full disclosure: I was involved in drafting!) argues that given that the Executive Order’s legal status is at best ambiguous, and has been subject to a number of stays issued by federal judges across the country since its official announcement, airlines should not be relying on it as legal authority for denying passengers with valid travel documents to board. Doing so, the authors argue, would be in contravention of international and european human rights obligations. Specifically, obligations to refrain from discrimination, and to protect refugees. Airline carriers, in this uncertain climate, must perform their duties according to what is both ethically responsible, and legal: rejecting a ban that violates the U.S. constitution, the 1951 Refugee Convention, the International Convention on the Elimination of All Forms of Racial Discrimination, and various other provisions of national, and international law.

The 2005 United Nations Guiding Principles on Business and Human Rights declare that businesses have an obligation to not be complicit with human rights violations – in this case, the implementation of a ban that is unlawful under both domestic U.S. law, and under international human rights law. Denying boarding to passengers based on ethnicity, racial origin, national origin or religious beliefs could violate EU anti-discrimination laws, and laws prohibiting discrimination in the access to goods and services in several European jurisdictions, giving European incorporated airlines further incentive not to cooperate from an unlawfully executed ban.

The letter advises airline companies to board all passengers affected by the ban, but in particular refugees, due to their specially protected status under international law. The letter also advises that airlines use their position to offer other protections to affected travelers, such as offering to connect them to legal assistance, proactively ensure those with refugee claims reach safe harbors and advance refugee and asylum seekers rights.

The Uber boycott last weekend, that eventually led to Uber CEO Travis Kalanick withdrawing from Trump’s economic advisory board has highlighted public’s expectation that businesses not participate or support discriminatory policies. Twitter users have also circulated a spreadsheet detailing stores and companies to boycott for further enriching either Trump, or his family. Boycott, consumer pressure, and a focus on ethical business practices has made some push for progress, and enraged the President slightly, even if it isn’t a substitute for the systemic overhaul that some problems in this country need. Pressuring airline companies to stay on the right side of history and not be complicit in propagating human rights abuse and international law violations is a small piece to the ultimate puzzle of defeating an illegal, immoral, racist and dehumanizing piece of legislation.