Binding Gestures: a customary norm regarding the UN Convention on the Rights of the Child?

ABSTRACT

In March of 2017, officials with the U.S. Department of Homeland Security publicly acknowledged a proposed policy of forced separation of unauthorized migrant children from their parents. Conceived as a deterrent to other families that might yet contemplate crossing the U.S. southern border, the proposal sought to formalize and expand on similar practices of deterrence already implemented on a more ad hoc basis. By way of a brief examination of the internal logics and implications of deterrence thinking in this context and more broadly, fundamental incompatibilities with the United Nations Convention on the Rights of the Child are revealed. Although the U.S. has not ratified the Convention, I argue that it is nonetheless beholden to a robust and binding customary norm of international law obliging all states to respect its key provisions, including rights that would prohibit the separation of children from their parents as a preemptive measure to deter unauthorized migration.

KEYWORDS:

• Children
• migration
• affect
• deterrence
• rights
• UNCRC
• subjecthood

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. Jenny L. Flores, et al., v. Jeh Johnson, et al., United States District Court, Central District of California, Civil Minutes – General, Case No. CV 85-4544 DMG (AGRx).

Additional information

Funding

This work was supported by an Insight Grant from the Social Sciences and Humanities Research Council of Canada under [grant number 435-2014-1045].