In April, the New York Times reported that U.S. immigration officials had separated more than 700 migrant children from adults claiming to be their parents at the U.S.-Mexico border. The policy was met with widespread criticism once revealed, with critics denouncing it as immoral, inhumane, and even unconstitutional. “It’s hard to conceive of a policy more horrific than intentionally separating children from their parents as a form of punishment,” Sen. Dianne Feinstein (D-Calif.) said in a statement. “This is not what the United States of America should be.” In yet another rebuke of the policy, a district judge in San Diego denied a motion last week to dismiss a class action lawsuit filed by the American Civil Liberties Union against U.S. Immigration and Customs Enforcement over the child separations.
While criticism has mostly centered on whether the policy is morally inhumane or in violation of U.S. law, some organizations and experts have also suggested that the family separation policy violates international law. In particular, on June 5, a spokesperson for the U.N.’s Office of the United Nations High Commissioner for Human Rights (OHCHR), Ravina Shamdasani, denounced the Trump administration’s family separation policy at the border as “arbitrary” an “unlawful interference in family life, and a “serious violation of the rights of the child.” Shamdasani noted that, while the U.S. is the only country not to have ratified the UN Convention on the Rights of the Child, it nonetheless has an obligation to adhere to generally accepted human rights principles. “The use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles,” Shamdasani stated. “The child’s best interest should always come first, including over migration management objectives or other administrative concerns. It is therefore of great concern that in the US, migration control appears to have been prioritized ahead of the effective care and protection of children.”
Respect for family unity is a core tenet of many international human rights treaties and agreements. Article 9(1) of the Convention on the Rights of the Child states that “States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.” Similarly, Article 17(1) of the 1969 American Convention on Human Rights recognizes the family as “the natural and fundamental group unit of society” that “is entitled to protection by society and state.” Lastly, Article 17(1) 1966 International Covenant on Civil and Political Rights (ICCPR) declares that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence.”
Of these international agreements, the United States has only signed and ratified the ICCPR. However, the extent to which the principle of family unity features in international human rights documents suggests that the principle may be considered part of the canon of customary international law. While states have a legitimate authority to control the flow of immigrants and asylum-seekers over their borders, they also have a duty to honor their international human rights commitments.
For more on the principle of family unity in international law, see the following:
“Governing Rule 8: Respect for Family Unity,” in Sohn, L. B., & Buergenthal, T. (Eds.). (1992, October). The movement of persons across borders. American Society of International Law.
Hathaway, James C. The rights of refugees under international law. Cambridge University Press, 2005.
Starr, S., & Brilmayer, L. (2003). Family separation as a violation of international law. Berkeley J. Int’l L., 21, 213.
Van Bueren, Geraldine. The international law on the rights of the child. Vol. 35. Martinus Nijhoff Publishers, 1998.