Article by Nick Reem, JD 2021
In April, United States (US) Attorney General Jeff Sessions issued a memorandum directing federal prosecutors to enact a “zero-tolerance policy” in prosecuting illegal entrants to the US, including asylum seekers and parents traveling with children. In practice, this policy involuntarily separated about 2,000 children from their parents. While the Trump Administration has since reunified a majority of these families per court order, hundreds of children remain in custody or separated from their families despite President Trump’s subsequent Executive Order prioritizing family unity.
Sessions justified this policy through deterrence theory: “If you don’t want your child to be separated, then don’t bring them across the border illegally.” However, this false choice obscures graver concerns. The forced separation of children from their parents as a deterrent to illegal entry violates international law, and it is paramount to the interests of the United Nations (UN) as the primary promoter of human rights, to hold the US accountable for its violations.
Pertinent International Law
Foundational to the case that US family separation violates international law is the Universal Declaration of Human Rights (UDHR). While not a binding treaty, many scholars argue that the UDHR is customary international law by virtue of its frequent invocation, and such customary international law is binding on all states.
In relevant part, Article 5 holds that “no one shall be subjected to […] cruel […] treatment or punishment.” Article 12 holds that “no one shall be subjected to arbitrary interference with his […] family […]”. Article 14 holds that “everyone has the right to seek […] in other countries asylum from persecution.” And Article 16 holds that “the family is the […] fundamental group unit of society and is entitled to protection by society and the State.”
Building upon the UDHR, the International Covenant on Civil and Political Rights (ICCPR) reiterates the human right to family and protection of children. The US ratified the ICCPR, therefore, it is binding international law on the US.
Article 7 of the ICCPR holds that “no one shall be subjected to […] cruel […] treatment or punishment.” Article 17 reads: “no one shall be subjected to arbitrary or unlawful interference with his […] family […]”. Article 23 holds “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” And Article 24 holds that “every child shall have […] the right to […] protection as […] required by his status as a minor, on the part of his family, society and the State.”
Finally, the Convention on the Rights of the Child (CRC) promotes children’s rights through the American family law framework that prioritizes the best interests of the child. The US is the only country not to have ratified the (CRC), although it is a signatory, and under the Vienna Convention on the Law of Treaties Article 2(1)(a), the CRC is likely binding on the US.
The CRC holds in Article 7 that “the child shall [have] […] as far as possible, the right to know and be cared for by his or her parents.” Article 8 holds “state parties undertake to respect the right of the child to preserve his or her identity, including […] family relations.” And Article 9 holds that (a) “state parties shall ensure that a child shall not be separated from his or her parents against their will […]”; (b) “state parties shall respect the right of the child who is separated from […] parents to maintain personal relations and direct contact with both parents on a regular basis”; and (c) “where such [separation] results from any action initiated by a state party, such as detention [or] imprisonment […] of one or both parents of the child, that state party shall […] provide the parents [or] the child […] with the essential information concerning the whereabouts of the absent member(s) of the family.”
Application of International Law to “Zero-Tolerance” Policy
Cruel Treatment or Punishment
At first glance, it is instinctually cruel to separate children from parents as punishment for illegal entry and is unjustified as a means of deterrence. This cruelty is apparent in the images of grief of these separations, the anecdotes of parents’ desperation to learn of their children’s welfare, and the detached mental state of children resultantly in US custody. The negative impact of these separations is amplified by the psychological literature detailing the short and long-term effects of forced separation on the psyche and development of the child.
Children separated under the US policy are more likely to behave in anti-social ways, affecting their lifetime capacity for happiness and, ultimately, their economic productivity. The strict liability imposed under 8 U.S.C. § 1325(a) at the core of the “zero-tolerance” policy is unjustified when applied to minor children at the mercy of their parents’ decision to illegally enter. Subjecting children to such severe and lasting psychological harm constitutes cruel treatment or punishment under Articles 5 and 7 of the UDHR and ICCPR, respectively.
The Sanctity of the Family Unit
The UDHR, ICCPR, and CRC all speak to the universal importance of the sanctity of the family unit worthy of protection by society and the State. According to the UDHR, the concept of family is a necessary and stabilizing force.
The Preamble of the UDHR begins: “whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world […]”. The policy of forcibly removing children from their parents runs contrary to shared, universal values and human rights that the United States and the world are morally and legally bound to uphold. Such a policy runs counter to human instinct and must be met with more than mere words of condemnation. The “zero-tolerance” policy violates Articles 12 and 16 of the UDHR; Articles 17, 23 and 24 of the ICCPR; and Articles 7, 8 and 9 of the CRC. Moreover, the lack of effective recordkeepingand means of communication between separated parents and children violates Articles 8 and 9 of the CRC.
Right to Seek Asylum
Lastly, the UDHR affirms the human right to seek asylum and the obligation of a state to provide it. The US proved itself hostile to this obligation, as reports have surfaced of widespread and systematic denial of entry to asylum seekers on the US-Mexico border.
Under new US policy guidance, asylum claims based on fear of gang or domestic violence have been automatically rejected. Denial of asylum violates Article 14 of the UDHR and promotes the very illegal entry the US purports to deter through its zero-tolerance family separation policy.
Call for UN Action
It is critical for the UN to take formal action against the hegemonic US if the UN is ever to be an effective steward of human rights. By directly confronting the US’s illegal immigration policies, the UN would remind the world that no country is above international law or the obligation to protect and advance human rights in order to promote “freedom, justice, and peace in the world.”
Unfortunately, such action would necessarily be limited by the US’s permanent membership on the UN Security Council and veto power. Additionally, the US has demonstrated its antipathy toward the UN Human Rights Council through its withdrawal of membership in June, ostensibly over “anti-Israel bias,” but also at a moment of pointed criticism over the family separation policy. However, the UN has many tools at its disposal, including the ability to send a Special Rapporteur to investigate the crisis and issue a formal report of condemnation.
While most options for enforcement of the US’s violations are limited, the confrontation itself is necessary and vital. Shaming tactics have had mixed results, but any action is preferable to no action. Subversion of the remnants of global goodwill towards the US would negatively impact the US’s ability to further its interests in a host of areas, including international investment opportunity and the resolution of the costly armed conflict in the Middle East.
While measures such as formal sanctions are impossible, UN action could tangibly impact US primacy and serve a punitive function for the aforementioned violations and as a deterrent for future violations, including the Trump Administration’s current consideration of reenacting the child separation policy. Doing so would also reassert the importance of human rights in international law and its equal application to all nations.