An increasing flow of migrants from Central America, seeking a reprieve from violence in their home countries, has become an increasingly divisive political issue in the US.
At least 57,000 children alone have been detained after crossing the border since last fall (source). Americans from across the political spectrum have called for various measures to address the crisis. Aug. 1. the House voted, largely along party lines, to fund measures to deport hundreds of thousands of immigrants without due process and boost security along the border.
President Obama has asked for funding to house them and speed up the immigration hearing process, which currently faces a massive backlog. A recent poll (source) found that 70 percent of Americans, across the political spectrum, believe that the US government should treat these children as refugees.
When considering how to respond to this issue, there are several important factors to consider on the ethics of the matter, who qualifies as a refugee, and the US’s obligations under international law.
First, let’s think about the scale of the issue. The civil war in Syria is currently causing one of the worst humanitarian crises in the world, and neighboring Jordan has had to absorb 500,000 refugees into a country of 6.4 million (source), 435 times as great an influx as the US’s. As has been pointed out, 57,000 people entering a country of over 300 million is by comparison miniscule.
Considering the resources our country is willing to invest in aiding refugees in other parts of the world (for instance, the US contributed 38 perceent of all donations to the UN Office of the High Commissioner for Refugees (UNHCR) in 2013, and private citizens and companies donated nearly $10 million to the UNHCR, let alone to other humanitarian organizations (source), one would think we would be able to welcome refugees to our own country.
Now to consider our international legal obligations. As many readers may be unfamiliar with international law, I’ll provide a brief overview of how it works. There are two main forms of international law: customary, and treaty. Customary law arises from the conduct of nations, creating universally accepted principles that are binding everywhere, always, without need for a treaty. Examples of this form of law include the right to freedom from torture, freedom of navigation on the high seas, and international humanitarian law (the law of war).
Treaties are legal instruments agreed upon by two or more nations which bind those states to certain obligations. Of particular relevance to this issue is the 1967 Protocol Relating to the Status of Refugees (source), which the US has signed and ratified, and is bound by. The Protocol also binds its signatories to most provisions in the 1951 Convention Relating to the Status of Refugees. This treaty defines who qualifies as a refugee, their obligations in the country that takes them in, and that country’s obligations to refugees.
Central to how international law is applied to the situation is whether these children, and other immigrants fleeing from violence in Central America, technically qualify as refugees. It is the responsibility of the state that potential refugees are entering to assess their status. In situations where the state lacks the capacity to do this, the UNHCR steps in, but this likely is not necessary in the case of the US. A survey by the United Nations found that 60 percent or more of the children are likely to qualify for refugee status (source).
Those who are determined to be eligible for refugee status are provided a wide variety of protections, the most important of which for many is non-refoulement. This is a principle of customary international law that prevents nations from returning refugees to their country of origin if they would face the danger of persecution or violence there. Since many of those crossing our border are fleeing increasing insecurity and a lack of state services in their home countries (source), this principle certainly applies. There is some debate as to whether non-refoulement applies before refugee status is granted. Non-refoulement is also contained in the United Nations Convention Against Torture, to which the US is also a signatory, and prevents states from deporting people to countries where they may face torture. Considering the level of violence perpetrated by many drug cartels and gangs, this law might also apply.
More worrying and perhaps most applicable is the potential to violate the right to seek asylum and the rights of detained persons. The 1951 Convention and the Universal Declaration of Human Rights ( which has the status of customary law) both guarantee the right to seek asylum. The International Covenant on Civil and Political Rights guarantees the rights of detained persons, including those detained for immigration reasons, to be treated with dignity and humanity and to receive a fair and timely hearing.
Consequently, any children already detained must be treated humanely and if they apply for refugee status be granted a hearing. The Obama administration’s plan to provide additional resources for detention and hearings may fulfil some of the nation’s international obligations, but plans to deport those who do not meet the criteria for refugee status will likely still violate our international obligations to protect the best interests of children. Even more worrying are attempts by some Republican members of congress to deport the children as quickly as possible back to their home countries. This would not only be a serious violation of international law and the children’s rights, but a moral outrage.
And a final thought to appeal to readers to put themselves in the shoes of a Salvadoran or Honduran or Guatemalan: while the threat of war or civil violence may seem distant from America, consider what you would want for you or your children if you were forced to flee home due to the threat of violence and death to a distant, safer country. Would you want them to welcome you with open arms and give you the chance at a peaceful life, or have them scramble to return you back from the situation you fled to save your life?
Editor’s note: Dustin Johnson is a native of Los Alamos pursuing a career in international development. He is currently doing an internship with an local conservation NGO in Mongolia before returning to Halifax, Nova Scotia in the fall to complete his masters degree.