Co-authored by Megan Corrarino, Robert L. Bernstein International Human Rights Fellow at Human Rights First
With Somalia's October 1, 2015, ratification of the Convention on the Rights of the Child (CRC), the United States is currently the only country in the world that has failed to ratify the treaty.
The CRC is the preeminent international legal document on children's rights. Its core principle is that the best interest of children--including their particular developmental and survival needs--must be considered in all policies affecting children. The treaty aims to ensure that children's voices, so often absent from decisions affecting them, are heard.
Adopted by the United Nations in 1989, the CRC is "the most rapidly and widely ratified human rights treaty in history." Most of the 196 states parties ratified the CRC in the early 1990s. After Saudi Arabia ratified it in 1996, Somalia, the United States, and, briefly, South Sudan, remained the only non-parties. For nearly two decades, Somalia and the United States were considered outliers in the international community. And now, the United States stands alone.
While the United States is not legally bound by the CRC, it is a signatory to the treaty, obligating it to refrain from acts that would undermine or defeat its objectives. Ironically, the United States played a critical role in drafting the CRC but never ratified it because of unfounded fear-mongering from politicians and activists who argued that it would undermine parents' rights and "give our children unrestricted access to abortion, pornography, gangs and the occult."
The CRC does none of that. Instead, it offers an international legal tool that protects children's basic rights, including the rights to a legal identity (Article 8), to family unity (Article 9), to education (Article 28), and to freedom from arbitrary arrest or detention (Article 37). States must provide special protection to children in vulnerable conditions, such as those seeking asylum (Article 22). The Economist points out that, contrary to fear-mongers' assertions that the CRC would undermine parental rights, 19 of the treaty's provisions recognize the role of parents.
Unfortunately, the detention of migrant children in the United States is a shameful example of the need to incorporate the best-interest-of-the-child principle in U.S. policy decisions. Families are separated. Children are routinely and arbitrarily detained, often in facilities that are not child-appropriate. They are insufficiently protected from sexual assault and abuse--in violation of U.S. law, as a recent U.S. Commission on Civil Rights report found. And children spend extended periods of time in conditions that are damaging to their physical and mental health. A broad cross section of Americans, including many faith groups, has called on the Obama Administration to end the harmful practice of family detention.
A June 2015 complaint filed by groups that provide legal representation to detained immigrants highlighted the devastating impact of even short-term detention on children. The report described 10 cases of mothers and children detained by ICE. In one case, Maria and her 9-year-old son "Daniel" "fled Honduras following severe domestic violence, including a rape of Maria at knifepoint with Daniel nearby. Maria and Daniel were detained for 6 months, further traumatizing Daniel who, the report said, "cries inconsolably, continues to have nightmares, has experienced enuresis and headaches, was set back a grade in school, and has ear pain." A mental health expert declaration filed with the complaint concluded "that the ongoing stress, despair, and uncertainty of detention--even for a relatively brief period of time--specifically compromises the children's intellectual and cognitive development and contributes to the development of chronic illness in ways that may be irreversible."
Because the United States has not ratified the CRC, it does not receive guidance from the Committee on the Rights of the Child, the U.N. committee charged with overseeing CRC compliance. But many of the Committee's recommendations to states parties that receive similar flows of migrant children, such as Mexico, offer guidance on how the United States should protect the best interests of these children.
In June 2015, the Committee on the Rights of the Child instructed Mexico to end detention of migrant children in order to comply with its international legal obligations. Between October 2014 and April 2015, Mexico had detained more Central American migrants than the United States. Mexico's detention of children fleeing Central America was highly problematic, involving systemic denials of access to legal protections, separation from family members, incarceration with adults, and high rates of deportation. Such problems led researchers at Georgetown Law Human Rights Institute to conclude that the "immigration system in Mexico operates more like a child-deportation-machine"--a machine that was well-funded and encouraged by the United States, as both President Obama and Department of Homeland Security Secretary Jeh Johnson acknowledged.
In July 2015, a month after the Committee's recommendations, the Permanent Committee of Mexico's National Congress ordered "immediate suspension of detention and repatriation of migrant children, and that all corresponding administrative procedures be undertaken based in the principle of the best interest of the child." The quality of the implementation remains to be seen, but a congressional call to end the detention of children and to recognize the best-interest-of-the-child principle could represent an important turning point in Mexican policy-making with respect to child asylum-seekers. That change makes the United States the only nation in the journey of Central American children that does not consider the best interests of the child in its immigration detention policy.
There have been some positive steps. In August, Judge Dolly M. Gee of Federal District Court for the Central District of California issued an order requiring the release of children without unnecessary delay to a family member. The order also held that children cannot be detained in unlicensed or secure facilities. The administration says it will continue to detain families despite the order, which the government is appealing. Judge Gee's decision pushes the administration to take steps that, if implemented, would be in the child's best interest. But even an important court decision for one group of child detainees does not--and cannot--create a uniform federal policy that incorporates the best-interests-of-the-child principle.
The journey of Central American children begins when they are forced to flee increasing violence at home. Their transit through Mexico should not include detention, as Mexico's National Congress now agrees. Upon arrival in the United States, children must not be arbitrarily detained, and must be allowed to pursue asylum and reunite with their family as required under U.S. law. International legal norms are clear: detention is never in a child's best interest, and arbitrary detention, or detention in conditions that are inappropriate for children, is prohibited.
The United States' continued refusal to ratify the CRC is damaging both to our international reputation and to the health and safety of the children within our borders. Children and their families are fleeing to the United States because our country has long offered hope to those who cannot find it elsewhere. We must continue to honor that hope by protecting our most vulnerable.