#16. International Law Could Hold US Accountable for Violating Detained Immigrant Children’s Rights

After a host of media outlets’ front-page headlines reported that thousands of immigrant children had been forcibly separated from their families by US officials, in June 2018 the Trump administration announced an end to its family separation policy, and a federal court ordered the reunification of separated families. However, as Michael Garcia Bochenek and Warren Binford reported for the American Prospect in August 2019, when they investigated US Border Patrol facilities in El Paso, Texas, in June 2019, “child after child sat before us describing when and how U.S. officials forcibly separated them from their families this year.” The report documented the deplorable conditions and emotional abuse that detained children endured—but also how international law could help to hold US officials to account for violations of children’s rights. The UN Convention on the Rights of the Child—which the United States helped draft between 1979 and 1989, and which it officially signed in 1995—could mobilize international pressure on the United States to address these violations, Bochenek and Binford reported.

Under US law, children should not be held in custody by Border Patrol for more than 72 hours. Beyond that time, detained children are supposed to be transferred to the custody of the Department of Health and Human Services, and either reunified with family in the United States or placed in the custody of another caregiver. However, Bochenek and Binford reported that, earlier in 2019, the Border Patrol “was detaining children for more than 90 days on average, in violation of both these legal limits and the children’s rights.”

The UN Convention on the Rights of the Child is the “most widely ratified human rights treaty in the world,” Bochenek and Binford wrote, and some of its specific terms are “now norms of customary international law,” indicative of a “global consensus” regarding all countries’ obligations to respect children’s rights. But, they also noted, “no president has ever sent [the treaty] to the Senate for ratification, the formal agreement to be bound by its terms,” making the United States the only signatory among UN member countries not to have done so.

What steps could be taken to make a strong argument that US violations of children’s rights violated US obligations under international law? One possible avenue, as Bochenek and Binford considered, is “the regular accounting every U.N. member has to make at the Human Rights Council, a process known as Universal Periodic Review.” In 2006 the UN General Assembly mandated the United Nations’s newly formed Human Rights Council to undertake “a universal periodic review, based on objective and reliable information, of the fulfilment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States.”

In November 2020, when the United States is next up for review, every other UN member will “be able to ask questions and make comments and recommendations on U.S. respect for the Universal Declaration of Human Rights, its voluntary commitments, and its treaty and customary international law obligations,” Bochenek and Binford wrote. [Note: In their August 2019 American Prospect article, Bochenek and Binford reported that the United States was due for Universal Periodic Review in May 2020. As of that date, however, the Universal Periodic Review website states that the United States will undergo review in November 2020. See “Timeline for UPR Engagement in the Current Cycle: United States,” UPR Info, undated, https://www.upr-info.org/en/review/United-States (accessed May 18, 2020).] Furthermore, during that review process, NGOs can submit information—including statements from detained children themselves—to inform those discussions. [Note: As of May 2020, the ACLU’s Human Rights Program, Planned Parenthood, and the US Human Rights Network had submitted statements. See “Civil Society and Other Submissions: Timeline for UPR Engagement in the Current Cycle: United States,” UPR Info, undated, https://www.upr-info.org/en/review/United-States/Session-36—May-2020/Civil-society-and-other-submissions (accessed May 18, 2020).]

While noting that Universal Periodic Review is “not a court process” and that “real change” will likely have to come through domestic strategies (such as the lawsuits being brought against the US government by the American Civil Liberties Union), Bochenek and Binford nonetheless asserted that there is “real value in the political pressure of regular review by other countries.” Member states of the United Nations and NGOs submitting statements could invoke the UN Convention on the Rights of the Child to pressure the United States to act.

Reports of abuse of immigrant children in US detention have made headlines in the best-known US news media. For example, in July 2019, Fox News reported on inhospitable detention center conditions for migrant children. The article reported that, “[o]f the 2,669 children detained by the Border Patrol, 826 had been held longer than 72 hours”—though the 72-hour maximum timeframe was described by Fox News not as binding law but as “generally permitted under Customs and Border Protection standards.” Bochenek and Binford’s American Prospect article remains distinctive in highlighting how international law, including the United Nations’s Universal Periodic Review and its Convention on the Rights of the Child, could be mobilized to pressure US policymakers to reform policies that have led to cruel consequences for detained children and their families.

Michael Garcia Bochenek and Warren Binford, “The U.S. is Mistreating Children in Its Custody. Can International Law Help?” American Prospect, August 15, 2019, https://prospect.org/article/us-mistreating-children-its-custody-can-international-law-help.

Student Researcher: Christina Chacon Sanchez (City College of San Francisco)

Faculty Evaluator: Jennifer Levinson (City College of San Francisco)

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This post was originally published on Radio Free.