At a press briefing in Geneva on June 5, Ravina Shamdasani, a spokeswoman for the U.N. human rights office, said “the zero tolerance policy recently put in place along the U.S. southern border has led to people caught entering the country irregularly being subjected to criminal prosecution and having their children — including extremely young children — taken away from them as a result.”

U.S. legal obligations

The U.S. policy amounts to a violation of international law, Shamdasani said in a statement. Though the U.S. Senate never ratified the U.N.’s Convention on the Rights of the Child, which applies to those younger than 18, the United States signed it and ratified other treaties with similar obligations.

“The practice of separating families amounts to arbitrary and unlawful interference in family life, and is a serious violation of the rights of the child,” said Shamdasani.

“While the rights of children are generally held in high regard in the U.S., it is the only country in the world not to have ratified the U.N. Convention on the Rights of the Child,” she said. “We encourage it to accede to the convention and to fully respect the rights of all children.”

In her statement, Haley said that while OHCHR “ignorantly attacks the United States with words, the United States leads the world with its actions, like providing more humanitarian assistance to global conflicts than any other nation.”

“We will remain a generous country, but we are also a sovereign country, with laws that decide how best to control our borders and protect our people,” Haley said. “Neither the United Nations nor anyone else will dictate how the United States upholds its borders.”

In March 2017, then-U.S. Secretary of State Rex Tillerson said in a letter to eight international organizations that the United States would not continue participating in the U.N. Human Rights Council unless it underwent considerable reform.

The eight organizations — the Better World Campaign, Committee for Human Rights in North Korea, Freedom House, Freedom Now, Human Rights First, Human Rights Campaign, Jacob Blaustein Institute for the Advancement of Human Rights and the U.N. Association of the United States of America — wrote Tillerson asking the United States to stay engaged with the Human Rights Council.

The children separated from their parents at the U.S.-Mexico border often are transferred into the care of the U.S. Office of Refugee Resettlement, which seeks a temporary guardian for them, according to U.N. officials.

But the children are not technically refugees — displaced people forced to cross borders who would be in danger if they returned home.

Where do the children go?

The U.S. office said that since 2003, it has been responsible by law for the care and placement of more than 175,000 unaccompanied alien children and has been “incorporating child welfare values as well as the principles and provisions” of several laws on human trafficking and the proper detention, treatment and release of children.

It said in a statement on its website that by law it “promptly places an unaccompanied child in the least restrictive setting that is in the best interests of the child, taking into consideration danger to self, danger to the community, and risk of flight.”

Once the parents are released from U.S. custody, their children are reunited with them and the families are deported back home — mainly to Honduras, Guatemala and El Salvador — where many have been fleeing insecurity, violence and injustices. The Office of the U.N. High Commissioner for Refugees, UNHCR, said it is monitoring the situation but does not yet know how asylum requests are affected.

A child’s best interests

In 2009, then-U.S. President Barack Obama tried unsuccessfully to revive efforts to have the United States sign onto the global children’s rights treaty ratified at that time by every U.N. member except the United States and Somalia. In 2015, Somalia ratified it, leaving the United States the sole holdout.

The legally binding treaty entered into force in 1990. It specifies children have basic rights to education, health care and protection from abuse. Nations in Africa, Asia and the Middle East have used it improve child protection laws for schools and courts. U.S. opponents, however, have long argued it could open the door to outside interference.

Shamdasani said the use of immigration detention and family separation as a deterrent runs counter to human rights standards and principles. The child’s best interest should always come first, she said, including when there are migration management objectives or other administrative concerns.

One of the U.N. human rights office’s biggest concerns, she said, is that the agenda of greater U.S. migration controls appears to be taking priority over the care and protection of migrant children.

“Children should never be detained for reasons related to their own or their parents’ migration status. Detention is never in the best interests of the child and always constitutes a child rights violation,” she said. “The U.S. should immediately halt this practice of separating families and stop criminalizing what should at most be an administrative offense — that of irregular entry or stay in the U.S.”