By Prof. Connie de la Vega, the Marshall P. Madison Professor And Academic Director Of International Programs and Dean’s Circle Scholar at the University of San Francisco School of Law
Separating children from their parents violates international law and in particular the Convention on the Rights of the Child which has been ratified by every country in the world except the United States. It also violates the International Convention for the Protection of the Rights of All Migrant Workers and their Families. While fewer countries have ratified that treaty, it is in force and is reflective of international standards. The International Covenant on Civil and Political Rights also addresses some of these issues, and the United States is party to that treaty which is the Law of the Land under the United States Constitution.
The following is a summary of the provisions in the CRC and ICCPR:
Article 3 of the CRC provides that all actions taken by courts, administrative authorities, and legislative bodies should include the best interests of the child. Article 9 specifically provides “that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine …that such separation is in the best interests of the child.” There are more provisions protecting children being separated from their parents that in that article including those separated by the State. Article 10 deals with requests by a child or his or her parents to enter or leave a country.
Perhaps more important are the provisions in the International Covenant on Civil and Political Rights which the US is a party to. Article 17 – “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home…” This article includes the right to the protection of the law against such interference. Article 23 – “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Article 26 – “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.” This includes discrimination on a variety of grounds including “national or social origin, property, birth or other status.” Article 9 addresses protections during detention.
These provisions are the Supreme Law of the land under Article VI of the Constitution and the which includes that “Judges in every State shall be bound thereby…”.