By Todd Tucker ~ Politico ~ June 25, 2018
What happens next on the U.S. border? Though Donald Trump’s executive order on Wednesday released some political pressure by keeping immigrant families together in detention, rather than separating children from their parents, it’s not likely to be the end of the story. U.S. law prohibits detaining children for longer than 20 days, so we could be back in a separation situation in July; and the order does nothing at all for the more than 2,000 children already separated from their parents.
The change is unlikely to mollify critics, who still see the existence of immigrant detention centers—and even the building of new ones, as the order envisions—as an internment-camp policy unworthy of American standards. It’s not clear who will be able to fix it: Though Congress has the power to change the underlying law, that process has been gummed up, with even moderate Republicans balking at a bipartisan alliance to provide a humane and lasting solution.
But outside Capitol Hill, a new front for accountability opened this week: The Mexican government’s human rights arm, along with its counterparts from Colombia, Ecuador, Guatemala and Honduras, launched a formal complaint against the Trump administration at the Organization of American States. Normally a sleepy regional organization with headquarters by Washington’s National Mall, the OAS is now poised to become—by default—the most significant institutional response to Trumpism in what is otherwise a town under one-party control.
In appealing to the OAS, the five agencies are invoking a little-known tool in international law. Since the 1948 launch of the OAS, the United States has been bound by the terms of the Inter-American Declaration of the Rights and Duties of Man, known as the Bogotá Declaration. The most significant human rights document up to that time (the United Nations Declaration on Human Rights came shortly thereafter), it obliged the states of the Americas to protect “the right to life, liberty and the security” of every human being, to give protection to families and to grant “all children … the right to special protection, care and aid.” In their complaintthis week, the five countries are alleging that the “U.S.’ new immigration policy abandoned the protection of the right to family unity and the superior interest of migrant girls, boys, and teenagers, and decided to use family separation as a sanction against people that wish to migrate.”
After Wednesday’s executive order, the Mexican human rights agency reiterated its complaint, sent monitors to the northern border and called on governments around the world to “form a united front” against Trump’s migration policies and the ongoing detentions and separations.
Mexico’s complaint now goes to the OAS’ Inter-American Commission of Human Rights. This is a panel of seven human rights experts (currently all non-U.S. nationals) empowered to ask member states to change their policies or make other types of reparations for human rights abuses. In urgent situations in which there is a risk of irreversible damage, the commission can also order what are called “precautionary measures” to safeguard rights—something Mexico specifically asked for on the separation policy, which represented in its view a “total contempt for the rights of children” that posed “irreparable harm” to them
If the commission orders precautionary measures or ultimately finds the U.S. in violation of the Bogotá Declaration, there’s an open question about what happens next. There’s no enforcement mechanism that applies to the United States; most Latin American countries signed up for the more enforceable obligations of a 1978 convention, which includes the ability to order monetary penalties against states that violate human rights, but the Carter administration was unable to persuade Congress to ratify it.
Still, there are several reasons why Mexico’s latest move might yield fruit in the ongoing efforts to rein in Trump’s migration policies.
First, the U.S. is legally bound to follow commission decisions. The OAS has determined that—so long as a country is a member of the organization—it is legally and morally bound to comply. In a landmark 2011 decision, the first of its kind, the commission ruled that the United States had failed to protect the human rights of Jessica Gonzales. In that case, Castle Rock, Colorado, police had failed to enforce a restraining order against her estranged husband, who then abducted and killed her three kids. The U.S. Supreme Court heard her case, and found her constitutional rights had not been violated as a matter of U.S. law. Undeterred, Gonzales then took her case to the commission, which sided with her and confirmed U.S. obligations to fight gender bias in law enforcement. Far from objecting to these proceedings, the George W. Bush administration, and then the Obama administration acknowledged the gravity of the situation, showed up and argued their case—moves that gave the process the implicit if not explicit U.S. seal of approval. The commission’s decision gave Gonzales a tool to push for domestic policy change, which ultimately culminated in a new Justice Department policy on gender bias in 2015.
Even if the Trump administration completely brushed off a ruling, the formal nature of commission decisions make them harder to ignore than, say, a Justin Trudeau press appearance. Legislatures throughout the Americas will take formal notice of the decisions, which make for compelling citations in lawsuits against Trump or articles of impeachment. Indeed, legal scholars predict that the Gonzales decision will over time influence Supreme Court jurisprudence.
This legally binding quality sets the OAS’ decisions apart from interventions in other multinational venues. The various trade and investment tribunals around the world lack subject matter jurisdiction over migrants. The U.S. has opted out of compulsory jurisdiction of the global International Court of Justice, and the Trump administration withdrew from the U.N. Human Rights Council on Tuesday—echoing an earlier decision by George W. Bush not to join during his term. The U.S. can leave the council without leaving the U.N., whereas the U.S. would have to leave the OAS entirely to avoid being bound by commission decisions.
This gets to the second reason: Trump actually does need the OAS. The OAS is the main organ through which the United States puts pressure on Venezuela and Cuba—a major priority among Florida voters Trump needs to keep in his column heading into the next election. The OAS has regional legitimacy that the administration lacks, and to give this up would be geopolitically and electorally risky.
