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United States Withdraws from the UN Human Rights Council, Shortly After Receiving Criticism About Its Border Policy

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On June 19, 2018, the United States withdrew from the UN Human Rights Council. Announcing this decision, U.S. Ambassador to the United Nations Nikki Haley characterized the Council as “a protector of human rights abusers and a cesspool of political bias.” U.S. Secretary of State Mike Pompeo observed that while “the United States has no opposition in principle to multilateral bodies working to protect human rights,” nonetheless “when organizations undermine our national interests and our allies, we will not be complicit.” The withdrawal occurred one day after the UN High Commissioner for Human Rights criticized the United States in a speech at the Human Rights Council for its “unconscionable” practice of forcibly separating undocumented families entering the United States. In August, U.S. National Security Advisor John Bolton stated that in addition to withdrawing from the Council, the United States would also reduce its assessed contribution to the United Nations by the amount that would ordinarily flow to the Human Rights Council and the UN High Commissioner for Human Rights.

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1 U.S. Dep't of State Press Briefing, Remarks on the UN Human Rights Council (June 19, 2018), at https://www.state.gov/secretary/remarks/2018/06/283341.htm [https://perma.cc/MPB4-9AQW] [hereinafter June 19 Press Briefing].

2 Id.

3 Id.

4 UN High Comm'r for Human Rights, Opening Statement and Global Update of Human Rights Concerns by UN High Commissioner for Human Rights Zeid Ra'ad Al Hussein at 38th Sess. of the Human Rights Council (June 18, 2018), at https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=23206&LangID=E [hereinafter June 18 Statement].

5 Associated Press, Bolton Presses Russia About Meddling in U.S. Election Process, Politico (Aug. 23, 2018), at https://www.politico.com/story/2018/08/23/john-bolton-russia-meeting-election-meddling-794339 [hereinafter Bolton story].

6 UN Secretary-General, Secretary-General's Address to the Commission on Human Rights (Apr. 7, 2005), at https://www.un.org/sg/en/content/sg/statement/2005-04-07/secretary-generals-address-commission-human-rights.

7 John R. Crook, Contemporary Practice of the United States, 100 AJIL 697, 699 (2006).

8 Id. at 697–98 (quoting U.S. Dep't of State Press Release, Explanation of Vote on the Human Rights Council Draft Resolution (Mar. 15, 2006), at https://2001-2009.state.gov/p/io/rls/rm/63143.htm).

9 Id. at 698.

10 John R. Crook, Contemporary Practice of the United States, 103 AJIL 355, 357–58 (2009) (quoting U.S. Dep't of State Press Release, U.S. to Run for Election to the UN Human Rights Council (Mar. 31, 2009), at https://2009-2017.state.gov/r/pa/prs/ps/2009/03/121049.htm); John R. Crook, Contemporary Practice of the United States, 103 AJIL 604, 608 (2009) (noting that the United States ran unopposed and was elected to the Council).

11 Nikki Haley, U.S. Ambassador to the UN, Ambassador Nikki Haley Addresses the UN Human Rights Council (June 6, 2017), at https://geneva.usmission.gov/2017/06/06/ambassador-nikki-haley-address-to-the-u-n-human-rights-council [https://perma.cc/TR64-WW24].

12 Nikki Haley, U.S. Ambassador to the UN, Remarks at the Graduate Institute of Geneva on “A Place for Conscience: The Future of the United States in the Human Rights Council” (June 6, 2017), at https://usun.state.gov/remarks/7828 [https://perma.cc/R56F-FV88] [hereinafter June 6 Graduate Institute Address].

13 Id.

14 Id.

15 Trump, Donald J., Remarks to the United Nations General Assembly in New York City, 2017 Daily Comp. Pres. Doc. 658 (Sept. 19, 2017) (“[I]t is a massive source of embarrassment to the United Nations that some governments with egregious human rights records sit on the U.N. Human Rights Council”).

16 Human Rights Council Res. 5/1, UN Doc. A/HRC/RES/5/1 (Aug. 7, 2007).

17 June 6 Graduate Institute Address, supra note 12.

18 June 19 Press Briefing, supra note 1; see also White House Fact Sheet, President Donald J. Trump is Standing Up for Human Rights at the UN (June 21, 2018), at https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-standing-human-rights-u-n [https://perma.cc/G2ZM-VK78] (noting that “[t]he Administration believes that withdrawal from the [Council] will cast a spotlight on the urgent need for structural reform”).

19 UN, Human Rights Council, Press Statement by the President of the Human Rights Council, Ambassador Vojislav Šuc (Slovenia) (June 19, 2018), at https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=23220&LangID=E.

20 UN Secretary-General, Note to Correspondents on the Withdrawal of the United States of America from the Human Rights Council (June 19, 2018), at https://www.un.org/sg/en/content/sg/note-correspondents/2018-06-19/note-correspondents-withdrawal-united-states-america-human.

21 June 18 Statement, supra note 4.

22 See U.S. Dep't of Justice Press Release, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (Apr. 6, 2018), at https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry [https://perma.cc/QNE3-LY8J].

23 Jeff Sessions, Attorney General, U.S. Dep't of Justice, Attorney General Sessions Delivers Remarks Discussing the Immigration Enforcement Actions of the Trump Administration (May 7, 2018), at https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-discussing-immigration-enforcement-actions [https://perma.cc/3Z79-5V7W]. A long-standing settlement between the United States and immigration rights groups—the Flores settlement—prevents the United States from detaining children for more than brief periods of time. See Katherine Hawkins, Where Family Separation Began: A Case in El Paso Shows Flores is the Solution, Not the Problem, Just Security (June 22, 2018), at https://www.justsecurity.org/58363/family-separation-began-case-el-paso-shows-flores-solution-problem (describing aspects of the 1997 Flores settlement agreement). As Sessions's comments indicate, the Trump administration understood that its decision to detain and prosecute all adults thought to be crossing illegally would therefore result in the separation of families.

24 See Brian Naylor, DHS: Nearly 2,000 Children Separated from Adults at Border in 6 Weeks, NPR (June 16, 2018), at https://www.npr.org/2018/06/16/620451012/dhs-nearly-2-000-children-separated-from-adults-at-border-in-six-weeks (noting that the U.S. Department of Homeland Security reported the separation of 1,995 minors from April 19 to the end of May).

25 June 18 Statement, supra note 4 (making this criticism in the course of a broader address that also criticized the human rights practices of various other countries). His office had expressed “deep[] concern[]” about the policy several weeks earlier. UN, Office of the UN High Comm'r for Human Rights, Press Briefing Note on Egypt, United States and Ethiopia (June 5, 2018), at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23174&LangID=E.

26 Chico Harlan & William Branigin, Trump's Family-Separation Policy Faces International Condemnation from Pope Francis, Theresa May, and Others, Wash. Post (June 20, 2018), at https://www.washingtonpost.com/world/pope-francis-criticizes-trumps-family-separation-policy-on-migrants-says-populism-is-not-the-solution/2018/06/20/65c15102-7472-11e8-9780-b1dd6a09b549_story.html?utm_term=.2b9406109e08.

27 Murray, Stephanie, Mexican Foreign Minister Calls U.S. Family Separations “Cruel and Inhumane,” Politico (June 19, 2018), at https://www.politico.com/story/2018/06/19/family-separations-mexico-foreign-minister-reaction-654183.

28 Org. of Am. States [OAS], IACHR Expresses Concern over Recent Migration and Asylum Policies and Measures in the United States (June 18, 2018), at http://www.oas.org/en/iachr/media_center/PReleases/2018/130.asp.

29 Exec. Order No. 13,841, 83 Fed. Reg. 29,435 (June 20, 2018). While making family separation no longer a norm, this order sought to preserve the underlying “zero-tolerance” prosecutorial approach. It therefore instructed the attorney general to seek modification of the Flores settlement to make it lawful for undocumented families to be detained together. See id.; see also Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45,486 (Sept. 7, 2018) (announcing a proposed rule intended to “terminate the” Flores settlement by “creat[ing] an alternative to the existing licensed program requirement for family residential centers, so that ICE may use appropriate facilities to detain family units together during their immigration proceedings”). As this litigation and related regulatory efforts are ongoing, however, the United States has “effectively return[ed] to the ‘catch and release’ policy that President Trump promised to eliminate.” Miriam Jordan, Katie Benner, Ron Nixon & Caitlin Dickerson, As Migrant Families Are Reunited, Some Children Don't Recognize Their Mothers, N.Y. Times (July 10, 2018), at https://www.nytimes.com/2018/07/10/us/politics/trump-administration-catch-and-release-migrants.html.

30 L. v. U.S. Immigration & Customs Enf't, 310 F. Supp. 3d 1133, 1149 (S.D. Cal. 2018) (including an exception if “the parent is unfit or presents a danger to the child” or “the parent affirmatively, knowingly, and voluntarily declines to be reunited with the child”).

31 See generally Nick Miroff, Amy Goldstein & Maria Sacchetti, “Deleted” Families: What Went Wrong with Trump's Family-Separation Effort, Wash. Post (July 28, 2018), at https://www.washingtonpost.com/local/social-issues/deleted-families-what-went-wrong-with-trumps-family-separation-effort/2018/07/28/54bcdcc6-90cb-11e8-8322-b5482bf5e0f5_story.html?utm_term=.61090872e29c.

32 Leslie Shapiro & Manas Sharma, How Many Migrant Children Are Still Separated from Their Families?, Wash. Post, at https://www.washingtonpost.com/graphics/2018/local/tracking-migrant-family-separation/?noredirect=on&utm_term=.068a91015164 (last updated Aug. 27, 2018) (noting that as of August 27, the adults originally attached to 322 still-separated children are now outside the United States, presumably because of deportations or decisions to depart voluntarily rather than to face formal removal).

33 June 19 Press Briefing, supra note 1. Pompeo and Haley left the briefing room without answering any questions, the first of which was: “Is the timing related to the criticism of the border policy?” See id.

34 Iceland to Take Vacated U.S. Seat on Human Rights Council, UN News (July 13, 2018), at https://news.un.org/en/story/2018/07/1014672.

35 Bolton story, supra note 5 (quoting Bolton as remarking that: “‘We'll calculate 22 percent of the Human Rights Council and the High Commissioner's budget, and our remittances to the U.N. for this budget year will be less 22 percent of those costs—and we'll say specifically that's what we're doing’”). The United States pays 22% of the general UN budget. Id.

36 UN, Human Rights Council, 3rd UPR Cycle: Contributions and Participation of “Other Stakeholders” in the UPR, at https://www.ohchr.org/en/hrbodies/upr/pages/ngosnhris.aspx (last updated May 22, 2017).

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