Reno V. Flores: A Violation of International Law?

NEW ENGLAND INTERNATIONAL AND COMPARATIVE LAW ANNUAL

In 1985, a fifteen year old girl named Jenny Lisette Flores was arrested and detained by the Immigration and Naturalization Service ("INS") on suspicion of being a deportable alien.⁽²⁾ Jenny was summarily strip searched, and incarcerated in a juvenile detention facility.⁽³⁾ In such a facility, Jenny could expect to be confined with adults of the opposite sex, and continually subjected to arbitrary strip searches.⁽⁴⁾ In essence, these camps were jails.⁽⁵⁾ For Jenny, and the other children like her,⁽⁶⁾ the camps did not provide adequately for education, recreation or medical attention.⁽⁷⁾ These children would be subjected to such custody indefinitely pending a deportation hearing.⁽⁸⁾ According to a policy which had been recently adopted by the INS Western Regional Office in California, Jenny and the other detained alien juveniles could only be released to "'a parent or lawful guardian,' except in 'unusual and extraordinary cases,' when the juvenile could be released to 'a responsible individual who agree[d] to provide care and be responsible for the welfare and well being of the child.'"⁽⁹⁾ Due to this policy, Jenny was confined for two months awaiting her deportation hearing.⁽¹⁰⁾

Following a class action suit brought on behalf of the detained aliens,⁽¹¹⁾ the INS revised their policy.⁽¹²⁾ The juvenile aliens pressed their suit,⁽¹³⁾ claiming that the new policy was invalid.⁽¹⁴⁾ In a 7-2 decision, the Supreme Court held that the INS regulation was constitutionally valid.⁽¹⁵⁾

The purpose of this article is to analyze the Supreme Court's decision in light of applicable international law.⁽¹⁶⁾ Part II of this article concerns the majority opinion,⁽¹⁷⁾ the concurring opinion⁽¹⁸⁾ and the dissenting opinion of Flores.⁽¹⁹⁾ Then, Part III applies relevant international law to the Flores case in an attempt to determine whether the outcome of the case would have been affected.⁽²⁰⁾ Finally, the conclusion summarizes the findings of the author and reiterates the relevancy of international law.⁽²¹⁾

A. Majority Opinion

The case, as submitted to the Supreme Court, was based upon three principal attacks against an INS regulation, Section 242.24 of Title 8 of the Code of Federal Regulations.⁽²²⁾ It was alleged that the regulation was facially invalid as it: 1) violated the alien juveniles' substantive due process rights, 2) violated the alien juveniles' procedural due process rights and 3) exceeded the power granted the Attorney General under Section 1952(a)(1) of Title 8 of the U.S. Code.⁽²³⁾ The Court⁽²⁴⁾ held that the offending regulation was facially valid in all respects.

As the Court observed, the attack upon the regulation was a facial challenge.⁽²⁵⁾ Hence, for the respondents to prevail, they were required to "'establish that no set of circumstances exist[ed] under which the [regulation] would be valid.'"⁽²⁶⁾ The Court first dispensed with the alien juveniles' arguments concerning the condition of the detention facilities.⁽²⁷⁾ The Court pointed to the settlement agreement, and presumed that the INS was in full compliance.⁽²⁸⁾

Turning its attention to the substantive due process claim, the Court defined the asserted right as "the alleged right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution."⁽²⁹⁾ Observing the novelty of the newly-defined right, the Court held it was not a constitutional right.⁽³⁰⁾ The Court was also unpersuaded by the argument that private placement would be in the child's "best interest." The Court reasoned that, since institutional custody was not unconstitutional, then "it does not become so simply because it is shown to be less desirable than some other arrangement for the particular child."⁽³¹⁾ In any event, there was no constitutional violation "[s]o long as certain minimum requirements [were] met . . . ."⁽³²⁾ Of importance is the Court's acceptance of the notion that, as most of the detained juveniles were aliens, Congress could make laws which might, if applied to citizens, be unacceptable.⁽³³⁾

The alien juveniles also asserted that their procedural due process rights were violated, since the INS was not required to make a determination whether it was in each juvenile's best interest to remain in INS custody, or to be released to an adult.⁽³⁴⁾ In addressing this point, the Court first observed that the Fifth Amendment applied to aliens.⁽³⁵⁾ Nevertheless, the Court held that the regulation did not violate these rights as the juveniles were given the right to a hearing.⁽³⁶⁾ These rights were protected by the facts that a waiver of one's right to a hearing was revocable, and that there was no indication that the delay in holding the hearing was excessive.⁽³⁷⁾

Finally, the Court addressed the issue of whether the regulation went beyond the scope of the Attorney General's discretion to continue custody over alien juveniles.⁽³⁸⁾ The Court held that the regulation would not extend beyond the Attorney General's power, if the regulation "rationally pursue[d] a purpose that it is lawful for the INS to seek."⁽³⁹⁾ The INS' purpose was seen as the "'concern for the welfare of the juvenile.'"⁽⁴⁰⁾ Thus, the INS could not release the alien juvenile "'to just any adult.'"⁽⁴¹⁾ Moreover, as the INS had neither the resources, nor expertise to conduct home studies, the INS could not determine whether a certain adult was satisfactory.⁽⁴²⁾ Hence, the INS rationally pursued this interest, the Court held, by making a list of appropriate custodians, such as parents.⁽⁴³⁾ In short, the Court held that "a detention program justified by the need to protect the welfare of juveniles is not constitutionally required to give custody to strangers if that entails the expenditure of administrative effort and resources that the Service is unwilling to commit."⁽⁴⁴⁾

B. Concurring Opinion

Justice O'Connor, with whom Justice Souter joined, wrote a separate opinion in order to clarify that the alien juveniles did have a constitutional interest in freedom from confinement.⁽⁴⁵⁾ Justice O'Connor opined that "'[f]reedom from bodily restraint' means more than freedom from handcuffs, staightjackets, or detention cells."⁽⁴⁶⁾ Thus, the core liberty interest is implicated "even if the conditions of confinement are liberal."⁽⁴⁷⁾ Relying on Schall v. Martin,⁽⁴⁸⁾ Justice O'Connor reiterated that "children have a protected liberty interest in `freedom from institutional restraints.'"⁽⁴⁹⁾ Thus, the notion of parens patriae was viewed as a justification for state action, rather than an excuse to limit the due process rights afforded juveniles.⁽⁵⁰⁾ In Justice O'Connor's opinion, the true issue in this case was "whether a governmental decision implicating a squarely protected liberty interest comports with substantive and procedural due process."⁽⁵¹⁾ Nevertheless, Justice O'Connor felt that the INS regulation still survived constitutional scrutiny.⁽⁵²⁾

C. Dissenting Opinion

Justice Stevens, with whom Justice Blackmun joined, dissented from the majority opinion, asserting that "the Court [was] simply wrong when it assert[ed] that `freedom from physical restraint' [was] not at issue in this case."<sup>(53)</sup> While Justice Stevens agreed with Justice O'Connor that the interest in freedom from institutional confinement was implicated, he was "not as convinced as she . . . that `the Court . . . [held] otherwise.'"⁽⁵⁴⁾ Justice Stevens' dissent centered around two main observations. First, the case, in his opinion, involved the detention of alien juveniles who posed no risk of flight, nor any risk of harm to themselves or the community, and who have responsible adults ready to care for them.⁽⁵⁵⁾ Second, the detention of these alien juveniles was indefinite, and has lasted, at times, for up to a year.⁽⁵⁶⁾ Additionally, Justice Stevens believed that the Attorney General's actions were not contemplated, nor intended by Congress, and that there should be an individual determination as to whether detention of the alien juvenile was necessary.⁽⁵⁷⁾

According to Justice Stevens "[t]he linchpin in the Court's analysis [was], of course, its narrow reading of the right at stake in this case."⁽⁵⁸⁾ Justice Stevens argued that a fundamental right was a stake as the alien juveniles' liberty had been curtailed.⁽⁵⁹⁾ Thus, Justice Stevens insisted that a strict scrutiny test, not a rationally related test, must be employed.⁽⁶⁰⁾ In applying the appropriate test, Justice Stevens observed that the regulation did not pass constitutional muster.⁽⁶¹⁾ In his view, the fatal flaw of the regulation was the fact that it was not narrowly tailored.⁽⁶²⁾ "If the government is going to detain juveniles in order to protect their welfare, due process requires that it demonstrate on an individual basis, that detention in fact serves that interest."⁽⁶³⁾

A. The Applicability of International Law in the United States

Ever since the conception of the Constitution, the United States has, at least in theory, been bound by international law. Article VI, section 2 of the Constitution expressly states that "treaties shall be the supreme law of the land."⁽⁶⁴⁾ Additionally, "[p]ublic international law has been incorporated into the common law of the United States . . . and we are thus bound to construe the federal common law, to the extent reasonably possible, to avoid violating principles of public international law."⁽⁶⁵⁾ Unfortunately, there has never been great reliance nor adherence, to customary international law,⁽⁶⁶⁾ or even jus cogens⁽⁶⁷⁾ in the United States. Blatant violations of both forms of international law are rampant.⁽⁶⁸⁾ This unfortunate occurrence is the combined result of the failure by attorneys to argue relevant international law,⁽⁶⁹⁾ and the circumvention by the courts of this body of law.

The Supreme Court itself does not appear to be insulated from this phenomena. For example, in Thompson v. Oklahoma,⁽⁷⁰⁾ Justice Scalia, in his dissent, eloquently displayed his distaste for relevant international law:

We must never forget that it is a Constitution for the United States of America that we are expounding. The practices of other nations, particularly other democracies, can be relevant in determining whether a practice uniform among our people is not merely a historical accident, but rather so 'implicit in the concept of ordered liberty' that it occupies a place not merely in our mores but, text permitting, in our Constitution as well . . . But where there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.⁽⁷¹⁾

In Thompson, the issue was whether a juvenile could be given the death penalty. Justice Scalia may have overlooked the facts that the Constitution itself provides that treaties shall be the supreme law of the land,⁽⁷²⁾ and that the United States had, at that time, signed two treaties which expressly prohibited the act in question.⁽⁷³⁾ In addition, the practice of other nations is an indication of customary international law and, in light of The Paquete Habana,⁽⁷⁴⁾ the majority correctly looked to such practices for guidance.⁽⁷⁵⁾

Further diminishing the application of international law in United States courts is the courts' use of the "escape clause." In The Paquete Habana, the Court noted in dictum that international law applies only "where there is no treaty, and⁽⁷⁶⁾ no controlling executive or legislative act or judicial decision . . . ."⁽⁷⁷⁾ As there is almost always some form of executive, legislative or judicial action governing any given case, international law is viewed as unimportant. In its most drastic application, the exception swallows the rule. For example, when the President advocated and executed the "so-called nonconsensual extraterritorial arrests - i.e., kidnapping - to bring alleged offenders . . . before U.S. courts," he clearly violated international law.⁽⁷⁸⁾ Given the absence of any constitutional or statutory authority granting the President the power to violate the territorial sovereignty of another country, international law should be applicable.⁽⁷⁹⁾ Nevertheless, since the President's act itself constitutes an Executive act, the courts would not apply international law.

In light of the foregoing, an attempt to argue international law in United States courts usually proves fruitless. That is not to say, however, that attempts should not be made. "U.S. constitutional law has had [a] . . . profound impact upon the development of international human rights law."⁽⁸⁰⁾ Unfortunately, it seems as though the reverse is not true. The United States courts' narrow application of international law is a distressing occurrence. Instead of constantly deferring to the Executive branch, "the courts should be the final arbiters of whether an executive interpretation or reinterpretation of customary international law is reasonable."⁽⁸¹⁾ Additionally, all branches should recognize the extreme importance of international law by acting in a manner consistent with its provisions. The United States is, like it or not, a model to which the entire world turns its attention.⁽⁸²⁾ If the United States chooses to blatantly offend international law, it must be prepared to face the ramifications of reciprocity.

Turning to the Flores case, it should be noted that the alien juveniles had initially raised certain international law issues.⁽⁸³⁾ These arguments were not, however, presented in the case before the Supreme Court. Hence, this paper will discuss certain provisions of international law in order to determine their effect, if any, upon the Flores case.⁽⁸⁴⁾

B. Customary International Law

The relevant issue in Flores, for international law purposes, is whether the Executive branch, acting through the Attorney General, abused its authority by proceeding in a manner inconsistent with customary international law.⁽⁸⁵⁾ Section 702 of the Restatement (Third) of Foreign Relations stresses that "[a] state violates international law if, as a matter of state policy, it practices, encourages, or condones . . . prolonged arbitrary detention."⁽⁸⁶⁾ The term "arbitrary" is defined as acts "not pursuant to law," or "incompatible with the principles of justice or with the dignity of the human person."⁽⁸⁷⁾ Detention may also be seen as arbitrary if there is an unreasonable delay in bringing a detainee to trial.⁽⁸⁸⁾ Although it appears as though customary international law does not require the release of a detainee on bail pending a trial, it does so only if that trial is not "unreasonably delayed."⁽⁸⁹⁾ Most importantly, "`[i]t shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and should occasion arise, for execution of the judgment.'"⁽⁹⁰⁾

In applying customary international law to the Flores case, it must first be determined whether the INS procedures amounted to a "detention" for international law purposes. It will be recalled that in Flores, the Court rationalized that "'[l]egal custody' rather than 'detention' more accurately describe[d] the reality of the arrangement . . . since these [were] not correctional institutions . . . . "⁽⁹¹⁾ Both the concurring and dissenting opinions, however, were of the mind that the juveniles in question were clearly detained.⁽⁹²⁾ In any event, the General Assembly Resolution on U.N. Rules for the Protection of Juveniles Deprived of Their Liberty, any form of detention implicates international concern.⁽⁹³⁾ This specifically includes "detention . . . in a public or private custodial setting . . . ."⁽⁹⁴⁾ Thus, the majority's attempt to describe the INS procedures as "custody," rather than "detention," is merely a play on words. The process of arresting alien juveniles and placing them in any form of detention center would, most likely, be seen as "detention" for international law purposes. Next, it must be determined whether these detentions were "prolonged arbitrary detentions." There is no doubt that the INS' acts of arresting juveniles on the suspicion of being deportable and "detaining" them until a deportation hearing is held are acts pursuant to laws of the United States. Nevertheless, the acts may not be as compatible with international law. There are several treaties and resolutions concerning the detention of juveniles, which might evidence the fact that the INS regulation was, indeed, a violation of international law.⁽⁹⁵⁾

The critical aspect of arbitrary detention, as it relates to Flores, is the "reasonable time" requirement. Again, detention should be seen as the exception, not the rule.⁽⁹⁶⁾ Notwithstanding that proposition, the present question is whether the alien juveniles were brought to trial within a reasonable time. The majority in Flores avoided the issue and refused to assume that an excessive delay would ensue.⁽⁹⁷⁾ The dissent, however, indicated that the alien juveniles were detained indefinitely.⁽⁹⁸⁾ Moreover, the regulation itself does not speak of any time limit within which a detainee must be brought to a hearing.⁽⁹⁹⁾ It certainly cannot be said that the practice of detaining alien juveniles indefinitely is compatible with the notion in international law that a person must be brought to trial within a reasonable time.⁽¹⁰⁰⁾

Australia has addressed a similar issue and has, unlike the United States, placed great emphasis on international law norms. In Akers v. The Minister of State for Immigration, Local Government and Ethnic Affairs,⁽¹⁰¹⁾ the Federal Court of Australia for the Western Australia District observed that "[t]here is growing recognition in international law that aliens or non-citizens may expect to have access to the same basic civil rights as enjoyed by nationals."⁽¹⁰²⁾ There, an American citizen residing in Australia, had been attempting to get permanent residency status in Australia. Her application was rejected, as well as her application for reconsideration. Mrs. Akers was hand-delivered a rejection notice, arrested, and taken to a detention center. She remained there for months pending her trial.

In striking similarity to the INS rule, the Australian authorities were only allowed to detain Mrs. Akers "for such period as is reasonably required to enable the Minister to consider whether a deportation order should be made."⁽¹⁰³⁾ The court held that "where the non-citizen has maintained appropriate contact with departmental officers, has made due application for the grant of appropriate permits, has exercised rights of review to which he or she is entitled and is otherwise law abiding, the need for arbitrary arrest is much less apparent."⁽¹⁰⁴⁾ Moreover, since "[d]eprivation of liberty is not a step to be taken as a matter of convenience," and since "[she] was entitled to expect that due regard would be afforded her human rights and dignity," the court noted that "[i]f her arrest were considered necessary she could have been released from custody on condition that she report to departmental officers regularly."⁽¹⁰⁵⁾ From this case, it may be reasonably implied that the form of detention utilized by the INS in Flores was of the type deemed an "arbitrary arrest" by international law standards.

C. International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights ("ICCPR")⁽¹⁰⁶⁾ is the only United Nations-sponsored treaty concerning this area of international human rights which the United States has signed and ratified.⁽¹⁰⁷⁾ It is crucial to note that the United States ratified this treaty over nine months before Flores was decided.⁽¹⁰⁸⁾ Equally important is the fact that the treaty was ratified after INS regulation 242.24 was codified.⁽¹⁰⁹⁾ Hence, the ICCPR should have played a significant role in the determination of Flores. Not only was this "law" available before Flores was decided, but the ICCPR was the latter in time, and as the "supreme law of the land," it would have trumped the INS regulations. Since, however, the ICCPR was a non self-executing treaty, the ICCPR was neither argued by counsel, nor addressed by the Court.⁽¹¹⁰⁾

Despite the fact that the ICCPR was not self-executing, the treaty could still have been viewed as evidence of customary international law.⁽¹¹¹⁾ In applying the ICCPR, it appears as though there are several breaches within the Flores case. Each of these potential violations will be addressed in turn.

1. Article 9

Article 9 of the ICCPR states that:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Additionally, paragraph 4 intimates that persons deprived of their right to liberty "shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention . . . ." These statements are simply a restatement of the customary international law principle that a person must be brought to trial within a reasonable time.⁽¹¹²⁾ As noted earlier, the detention of aliens for an indefinite time is a violation of customary international law.⁽¹¹³⁾ For the same reasons, such actions would likewise breach the ICCPR. Even assuming that, at the time the average time of detention was thirty days, as the majority in Flores insists,⁽¹¹⁴⁾ this may still be a breach of the "without delay" principle laid out in paragraph 4 of the ICCPR.

In paragraph 3 of Article 9, the ICCPR mandates that "[i]t shall not be the general rule that persons awaiting trial shall be detained in custody . . . . " This general rule may, however, be limited to criminal proceedings.⁽¹¹⁵⁾ Nevertheless, the Restatement, which cites this general rule, does not make a distinction between criminal and civil proceedings.⁽¹¹⁶⁾ Additionally, it could be argued that the provision is inapplicable to juveniles, since the word "juvenile" is absent from Article 9, while it appears in other sections of the ICCPR, such as Article 10. However, "[d]uring drafting of the [ICCPR] there were lengthy debates as to the advisability of including a separate article exclusively devoted to children's rights . . . [t]he delegate from the United States took the position that: The draft Covenants were meant to cover all persons, irrespective of age . . . ."⁽¹¹⁷⁾ The question remains.

The foregoing distinction might prove important, as the Court in Flores pointed to the distinction between alien adults and alien juveniles.⁽¹¹⁸⁾ In the case of juveniles, however, "the INS cannot simply send them off into the night on bond or recognizance."⁽¹¹⁹⁾ In any event, the query should not be whether the INS should "simply send them off into the night," but whether they too have a right to be released pending trial if "someone will care for those minors . . . ."⁽¹²⁰⁾ In Flores, there were responsible adults willing and able to care for the alien juveniles pending their deportation hearings.⁽¹²¹⁾ The Court held, however, that the INS may make the "reasonable presumption" implicated in their policies that only certain individuals are responsible enough to care for the alien juveniles, and need not grant individualized hearings to determine whether other adults are responsible enough to care for them.⁽¹²²⁾ Despite the majority's position, this appears to be an attempt to deny the alien juveniles' right to liberty by arguing that it is too expensive to do otherwise.⁽¹²³⁾ Neither customary international law, nor the ICCPR allows for the such balancing of liberty and economics. Therefore, the general rule which allowed for the release of alien adults should have been applied to the alien juveniles who had responsible adults available to care for them.

2. Article 10

Article 10 begins by demanding that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." Returning to the Akers case, the Australian court inferred that detaining an alien, as opposed to releasing the alien, was an indication that her "human rights and dignity" were not given "due regard."⁽¹²⁴⁾ By its reference to the general rule that alien adults should not be detained or required to post bond pending his or her hearing, the majority in Flores implicitly acknowledged that to do otherwise would be a violation of the alien's human rights and dignity. The Court founded its argument on the shaky distinction between adults and juveniles.⁽¹²⁵⁾

Paragraph 2(b) of Article 10 clearly orders that "[a]ccused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication." Thus, Article 10 explicitly denotes the intention that time frame for detaining juveniles and adults is distinct. It follows that the thirty day time period referred to by the majority in Flores may meet the "reasonable time" or the "without delay" requirements, but it would most likely fail under the "as speedily as possible" test afforded juveniles. Article 10 of the ICCPR holds that the rights afforded juveniles concerning the deprivation of their liberty is greater than those afforded an accused adult. The majority in Flores argued that juveniles have less of a right to liberty than adults.⁽¹²⁶⁾ This position is in sharp contrast to the provisions of the ICCPR.

3. Article 24

Finally, Article 24 is a general provision which is specifically dedicated to children. The Article states that:

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

The applicability of this Article to Flores is unclear. The generic phrase, "measures of protection as are required by his status as a minor," is too general to hold the INS in breach of the ICCPR. Indeed, the Court would hold that the INS did afford the measures required of a minor. The Court would, most likely, utilize this phrase as an excuse to deprive the alien juveniles of their right to liberty in the name of protecting their status as minors.

D. International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights ("ICESCR")⁽¹²⁷⁾ entered into force on January 3, 1976. Although the United States signed the treaty on October 5, 1977, it has never been ratified. Hence, this treaty would not have bound the Court in Flores. Nevertheless, the treaty could have been used as persuasive authority, as well as evidence of customary international law.⁽¹²⁸⁾

1. Article 10

According to paragraph 3 of Article 10:

"Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions."

Hence, it should be determined whether the INS regulation concerning alien juveniles was consistent with "special measures of protection and assistance." Undoubtedly, the majority in Flores would argue that the INS policies did just that in the sense that the alien juveniles would not be released "`to just any adult.'"⁽¹²⁹⁾ It seems logical, however, that "special measures of protection" would be more akin to a "best interest of the child" standard. A "best interest of the child" argument was made before the Court in Flores, but the Court rejected the argument on the ground that the INS was not constitutionally required to meet such a standard.⁽¹³⁰⁾

The Court characterized a "best interest" claim as a "less discriminatory alternative" argument.⁽¹³¹⁾ Since the right before the Court, as defined by the majority, was not a fundamental right, there was no need to analyze any less discriminatory alternatives.⁽¹³²⁾ In short, the Court reasoned that "[t]here is . . . no constitutional need for a hearing to determine whether private placement would be better, so long as institutional custody is (as we readily find it to be . . .) good enough."⁽¹³³⁾ Surely, "good enough" is not the lofty standard the drafters of the ICESCR had in mind. Therefore, under the notion that States should adopt "special measures of protection and assistance" to juveniles, the INS should have been required to grant individualized hearings in order to determine what was in each alien juvenile's best interest. The argument that the resources of the INS are insufficient to provide for such hearings is without merit.⁽¹³⁴⁾

E. Convention on the Rights of the Child

In 1924, the United Nations first recognized, in the Declaration of Geneva, that "mankind owes to the child the best that it has to give." The Convention on the Rights of the Child ("CRC")⁽¹³⁵⁾ stemmed from the "push for formal international legal recognition of the human rights of children."⁽¹³⁶⁾ The CRC is a comprehensive compilation of human rights, which specifically addresses the unique situation of children. Several States, including the United States, argued against the drafting of such a treaty.⁽¹³⁷⁾ These States argued that "it was unnecessary, repetitive and harmful to the human rights treaty-making process to encourage the proliferation of a series of special constituency treaties."⁽¹³⁸⁾ While other treaties were, in theory, meant to apply to children, those treaties were seen as "too general to adequately protect the special needs of children."⁽¹³⁹⁾ Hence, the CRC was adopted by the United Nations General Assembly on November 20, 1989. As of December 31, 1993, there were 137 signatories and 154 parties to the CRC.⁽¹⁴⁰⁾

The United States has signed the treaty, but it has yet to ratify it. Again, the treaty may be viewed as evidence of customary international law. There are two crucial points to note when analyzing the CRC: 1) the "[i]mplementation of the entire Convention is to be governed by the theory of the `best interests of the child,'"⁽¹⁴¹⁾ and 2) "as a result of the last minute rush . . . [the] human rights protections for alien children" was omitted from the CRC.⁽¹⁴²⁾

1. Article 37

Article 37 entails the liberty rights of children. Paragraph (b) mandates that "[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily." This paragraph simply reiterates the wording of several other human right treaties, and reinforces the customary international law notion that arbitrary detention is illegal.⁽¹⁴³⁾ It is significant, however, that this statement specifically addresses the child's right to liberty. Contrary to the majority's position in Flores, international law recognizes a juvenile's right to liberty. Under the CRC, a State may not infringe upon this right by rationalizing that "`juveniles, unlike adults, are always in some form of custody . . . '"⁽¹⁴⁴⁾

When applying Article 37 to the facts of Flores, one must recall Article 2, which indicates that the CRC applies "to each child within [the State's] jurisdiction and without discrimination of any kind . . . ." Thus, the alien juveniles are of the class of children to which the CRC was meant to apply. In Flores, the alien juveniles were detained by the INS pursuant to the laws of the United States.⁽¹⁴⁵⁾ However, paragraph (b) of Article 37 mandates that such detention "shall be used only as a measure of last resort and for the shortest appropriate period of time." In this case, even the majority concedes that there are adults or organizations available to care for the alien juveniles pending their hearing.⁽¹⁴⁶⁾ Given this, it is beyond debate that the continued detention of these juveniles is not "a measure of last resort."

Recalling that Article 3 of the CRC demands that the best interests of the child be the primary consideration, the majority in Flores could also not simply dismiss the best interests of the child as a least discriminatory alternative.⁽¹⁴⁷⁾ The fact that the INS procedures were "good enough" would simply not suffice under the exacting requirements of the CRC. There is no question that, if the United States had signed and ratified the CRC, the INS policy was a blatant violation of the CRC.

Additionally, the length of time which these alien juveniles were detained pending their hearings would also be a violation the CRC. As the dissent noted, there were times when this period could extend to as long as one year.⁽¹⁴⁸⁾ Even if one were to accept the majority's conclusion that thirty days was the average, this would still not meet the best interests of the child, and would violate the mandate that the detention should be "for the shortest appropriate period of time."

Finally, paragraph (d) of Article 37 indicates that:

Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

This is yet another reference to the speed with which the State must act in order to abide by the CRC. The question as to whether the alien juveniles in Flores received "prompt access" to the courts is, therefore, in issue. Again, even if thirty days were the norm, it does not appear as though this would be a time frame which creates visions of the word "prompt."

There is also the question as to whether the INS' procedures provide for an "impartial authority" before which an alien juvenile may plead his or her case. Once detained by the INS, an alien juvenile is given a "Form I-221S" which entitles the alien juvenile the right to "request the Immigration Judge to redetermine this decision."⁽¹⁴⁹⁾ This "immigration judge is a quasi-judicial officer in the Executive Office of Immigration Review . . . ."⁽¹⁵⁰⁾ Although the judge is in a "division separated from the Service's enforcement staff,"⁽¹⁵¹⁾ this still might not conform to the rigid requirements of the CRC. A rather plausible argument could be made that an immigration judge is not an "impartial authority." Perhaps there would be a requirement under the CRC that such cases would go to a district court. In short, despite the violations of the CRC, the Court in Flores would have overlooked this "law" as the United States has not bound itself to the treaty by ratification.

F. American Convention on Human Rights

The American Convention on Human Rights [("ACHR")]⁽¹⁵²⁾ is an international treaty for the protection of human rights on a regional basis, i.e., in the Western Hemisphere. In this respect, it is roughly comparable to the European Convention for the Protection of Human Rights and Fundamental Freedoms which was adopted in 1950, entered into force in 1953, and which has been ratified by most of the countries of Western Europe.⁽¹⁵³⁾

This Convention was signed by Chile, Colombia, Costa Rica, El Salvador, Ecuador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Uruguay, and Venezuela. The United States has never signed this treaty, but it may be referred to as an indication of customary international law.

1. Article 7

Simply stated in paragraph 1, "[e]very person has the right to personal liberty and security." The term "person" is defined in Article 1, paragraph 2 as meaning "every human being." Hence, there is the implicit notion that even juveniles have the right to liberty. Paragraph 2 of Article 7 provides that one's liberty may only be deprived "for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto." Moreover, paragraph 5 mandates that the person must be brought "promptly" before a judge and that a trial must be afforded a trial "within a reasonable time or to be released . . . ."

The ACHR is, obviously, much more limited in power, and its standards are more lax than other more recent treaties. Applying the standards to Flores, the INS could have detained the alien juveniles since doing so was pursuant to the laws of the United States. In addition, the thirty day delay before trial, referred to by the majority in Flores, might meet the "reasonable time" standard set out in the ACHR.

2. Article 19

Article 19 is a general provision specifically addressing the rights of children. It states that "[e]very minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state." It is difficult to say whether such a vague requirement would have any effect on Flores. The decision in Flores would appear to conform to this Article. The majority could use this provision as further justification for treating the alien juveniles differently than it would treat alien adults.

3. Article 24

Article 24 simply states that "[a]ll persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law." The United States delegate stated that this simply meant that "[t]he article [was] in line with the 14th Amendment to the United States Constitution."⁽¹⁵⁴⁾ Since this is an international treaty, however, the implications may be far greater than the United States delegate envisioned.

The Court in Flores addressed an equal protection argument proffered by the alien juveniles.⁽¹⁵⁵⁾ In relevant part, the Court held that there was no equal protection problem in "releasing to unrelated adults juveniles detained pending federal delinquency proceedings . . . but detaining unaccompanied alien juveniles pending deportation proceedings," because of "the difference between citizens and aliens . . . ."⁽¹⁵⁶⁾ Applying the ACHR, the Court would be faced with the fact that the treaty is international in scope, thus encompassing both aliens and United States citizens. Hence, when the ACHR mandates that "all persons are equal before the law," it means that aliens, as well as citizens, must be afforded equal protection. The Court would not be able to rest its argument, therefore, on the distinction between aliens and citizens.⁽¹⁵⁷⁾

4. Article 27

Article 27 is an escape clause under which Articles 7, 19 and 24 could all be suspended. Article 27 states:

[i]n time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

In Flores, the Court remarked that the immigration "problem" concerning alien juveniles was "serious."⁽¹⁵⁸⁾ The majority would, most likely, utilize the escape clause provided in Article 27 to avoid other potential problems with the ACHR. It would not be too far of a stretch for the Court to conclude that the immigration problem is an "emergency that threatens the independence or security" of the United States. Indeed, some United States courts have already held that aliens may be detained until the United States is able to deport them, because to do otherwise "would allow one country to export its unwanted nationals and force them upon another country . . . ."⁽¹⁵⁹⁾

G. General Assembly Resolution on U.N. Rules for the Protection of Juveniles Deprived of Their Liberty

Another Resolution greatly affecting the liberty interests of juveniles, the Resolution on U.N. Rules for the Protection of Juveniles Deprived of Their Liberty ("JDL"),⁽¹⁶⁰⁾ was adopted by the General Assembly on December 14, 1990. In the preamble, the United Nations remarked that it was "[a]larmed at the conditions and circumstances under which juveniles are being deprived of their liberty world wide." Again, since this is merely a Resolution, there is no binding effect, but the Resolution should be consulted for an indication of customary international law.

This Resolution was an attempt to codify the rules regarding depriving juveniles of their liberty. Section 1, Article 2 mandates that "[j]uveniles should only be deprived of their liberty in accordance with the principles and procedures set forth in these Rules . . . ." Section 2, Article 11, paragraph (b) defines deprivation of liberty to include:

any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority.

Hence, as Article 15 clarifies, "[t]he Rules apply to all types and forms of detention facilities in which juveniles are deprived of their liberty." There is no doubt that the detention in Flores was of the type of detention to which the JDL would have applied.⁽¹⁶¹⁾

1. Section I

Section I refers to both imprisonment and to "deprivation of liberty" in general, thereby creating a distinction between criminal punishment and civil punishment. The JDL, however, intimates both forms should be used as a last resort. According to Article 2:

[d]eprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release.

Yet again there is the requirement that detention should be a last resort, for the shortest time possible. Applying the JDL to Flores, it is clear that the detention would be a violation of international law. It can hardly be said that this is an "exceptional case."⁽¹⁶²⁾ Additionally, since there are no explicit time limits on the detention, the INS would also violate the JDL.⁽¹⁶³⁾ Under the JDL, the INS would not be able to lawfully hold alien juveniles unless, inter alia, there were a determination as to how long the juveniles would be detained.

2. Section IV

Articles 29 and 30 set some relevant standards which should be applied to all detention centers. Article 29 requires that "juveniles should be separated from adults, unless they are members of the same family," while Article 30 mandates that "[o]pen detention facilities for juveniles should be established. Open detention facilities are those with no or minimal security measures." Despite the majority's assumptions,⁽¹⁶⁴⁾ it appears that neither of these mandates were complied with in Flores. There is evidence that the INS used jails to house alien juveniles;⁽¹⁶⁵⁾ maintained facilities with barbed wire, automatic locks, and observation areas;⁽¹⁶⁶⁾ housed alien juveniles with adults of the opposite sex;⁽¹⁶⁷⁾ and did not provide for recreation, education or visitation.⁽¹⁶⁸⁾ Hence, the INS regulation would have most likely violated the rules pronounced in the JDL.

The importance of international law in American decisions has unfortunately not been fully appreciated. In cases such as Reno v. Flores,⁽¹⁶⁹⁾ certain bodies of relevant international law are ignored by the attorney, and the courts. In applying the relevant treaties and customary international law to the Flores case, one may begin to grasp the relevance of such law. While there exist several problems concerning the binding effect of international law, a concerted effort by attorneys to argue applicable international law precepts might begin to influence the courts. Only then may we truly consider ourselves members of the international community.

END NOTES

1. Law clerk for Justice Raya S. Dreben of the Massachusetts Appeals Court. B.S. 1992, Pennsylvania State University; J.D. 1995, New England School of Law. I would like to thank Grace H. Lee for her unending patience.

2. Note, The Supreme Court - Leading Cases, 107 Harv. L. Rev. 144, 175 (1993).

3. Gorman, Reno v. Flores: The INS' Automatic Detention Policy for Alien Children, 7 Geo. Immigration L. J. 435, 435-36 (1993).

4. Reno v. Flores, 507 U.S. 292, 328, 113 S. Ct. 1439, 1460-61 (1993) (Stevens, J., dissenting).

5. Id. at 328 n. 12 (Stevens, J., dissenting).

6. The Supreme Court estimated that thousands of alien juveniles are arrested each year. (Indeed, "more than 8,500 in 1990 alone . . . ." Flores, 507 U.S. at 295). Of these, approximately seventy percent are unaccompanied by an adult or legal guardian. Id.

7. Gail Q. Goecke, Note, Substantive and Procedural Due Process for Unaccompanied Alien Juveniles, 60 Mo. L. Rev. 221, 222 n. 7 (1995).

8. Flores, 507 U.S. at 323 (Stevens, J., dissenting).

9. Id. at 296 (quoting Flores v. Meese, 934 F.2d 991, 994 (9th Cir. 1990) (quoting INS policy), vacated, 942 F.2d 1352 (9th Cir. 1991) (en banc); see 8 C.F.R. § 242.24 (1984).

10. Gorman, supra note 3, at 436. Jenny's mother was in the United States, but she did not come to claim Jenny for fear that she too would be deported. Goecke, Note, supra note 7, at 222 n. 6. In addition, Jenny's aunt could not have claimed Jenny as the aunt did not fit within the INS' policy. Gorman, supra note 3, at 436.

11. For a detailed summary of the extensive procedural history involved in this case, see Flores, 507 U.S. at 296-99.

12. The new policy, which was published on May 17, 1988, applied to both juvenile aliens awaiting deportation hearings, as well as to those awaiting exclusion hearings. Earlier, those in exclusion proceedings could "be paroled, in some circumstances, to persons other than parents and legal guardians, including other relatives, and 'friends.'" Flores, 507 U.S. at 296 (citing 8 C.F.R. § 212.5(a) (2) (ii) (1987)).

The new policy stated that juvenile aliens "shall be released, in order of preference, to: (i) a parent; (ii) a legal guardian; or (iii) an adult relative (brother, sister, aunt, uncle, grandparent) who are [sic] not presently in INS detention." 8 C.F.R § 242.24 (b) (1) (1992).

This new policy added other new rules as well. See, e.g., 8 C.F.R. § 242.24(b) (2) (simultaneous release of the juvenile and adult when both are presently detained by the INS); 8 C.F.R. § 242.24(b) (3) (designation by sworn affidavit of parent or legal guardian who is in INS custody or outside the United States, of another person as capable and willing to care for child); 8 C.F.R § 242.24(b) (4) (in unusual and compelling circumstances, release to adults who execute care and attendance agreement).

Importantly, the new policy further mandated that, if the juvenile was not released, the INS may briefly hold the minor in a juvenile facility. 8 C.F.R. § 242.24(d) (emphasis added).

13. The claims contesting the conditions of the detention centers had already been settled by a consent decree. See Flores, 507 U.S. at 296.

14. The suit was based on an alleged violation of substantive due process and procedural due process. It was further alleged that the policy exceeded the scope of the Attorney General's powers. Flores, 507 U.S. at 299-300.

15. Flores, 507 U.S. 292.

16. It is, therefore, beyond the scope of this paper to analyze the Court's opinion per se. For articles analyzing the Court's opinion. See Gorman, supra, note 3; Note, supra, note 2; Goecke, supra, note 7; see also, Daniel D'Angelo, Note, Reno v. Flores: What Rights Should Detained Alien Juveniles Be Afforded?, 21 New Eng. J. Crim. & Civ. Confinement 463 (1995); Pamela Theodoredis, Note, Reno v. Flores: Detention of Alien Juveniles, 12 N.Y.L. Sch. J. Hum. Rts. 393 (1995); Denise E. Choquette, Note, Reno v. Flores: The Supreme Court's Continuing Trend Toward Narrowing Due Process Rights, 15 B.C. Third World L. J. 115 (1995); George Michael C. Ranalli, Note, Reno v. Flores: Plenary Power Over Immigration Alive and Well, 45 Mercer L. Rev. 889 (1994).

For superb articles concerning the United States' policies towards aliens, see, Weisselberg, The Exclusion and Detention of Aliens: Lessons form the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933 (1995); Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum. L. Rev. 1833 (1993).

17. See infra notes 22-44 and accompanying text.

18. See infra notes 45-52 and accompanying text.

19. See infra notes 53-63 and accompanying text.

20. See infra notes 64-168 and accompanying text.

21. See infra note 169 and accompanying text.

22. See supra, note 12.

23. Flores, 507 U.S. at 299-300.

24. Justice Scalia authored the majority opinion.

25. Id. at 300.

26. Flores, 507 U.S. at 301 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).

27. Id. at 301.

28. Id. The regulations required that the alien juveniles be held at facilities which met, inter alia, "'state licensing requirements for the provision of shelter care, foster care, group care, and related services to dependent children.'" Flores, 507 U.S. at 298 (quoting Juvenile Care Agreement 176a). The Juvenile Care Agreement was "the consent decree resolving respondents' conditions-of-detention claims." Id.

In contradiction to Justice Scalia's assumption, there is proof that "some juveniles detained pursuant to the regulation upheld in Flores are held in Los Angeles County correctional facilities, under a contract between the INS and the Los Angeles County Probation Department." Note, supra note 2, at 185, n. 85.

29. Id. at 302.

30. Id. at 303.

31. Id.

32. Id. at 304.

33. Id. at 305-306 (citation omitted).

34. Id. at 308.

35. Id. at 306.

36. Flores, 507 U.S. at 308-309.

37. Id. at 309.

38. See 8 U.S.C. § 1252(a) (1). The scope of the Attorney General's authority will be analyzed in greater detail later. See infra notes 84-104 and accompanying text.

39. Id. at 309 (citations omitted).

40. Id. at 310 (quoting Detention and Release of Juveniles, 53 Fed. Reg. 17449 (1988)).

41. Id.

42. Id.

43. Id.

44. Flores, 507 U.S. at 312.

45. Id. at 315 (O'Connor, J., concurring-emphasis supplied).

46. Id.

47. Id.

48. 467 U.S. 253 (1984).

49. Flores, 507 U.S. at 317 (O'Connor, J., concurring) (quoting Schall, 467 U.S. at 265).

50. Id. at 317.

51. Id. at 318 (emphasis supplied).

52. Id. at 319.

53. Flores, 507 U.S. at 320 (Stevens, J., dissenting).

54. Id. at 341 (quoting 507 U.S. at 315 (O'Connor, J., concurring)).

55. Id. at 322.

56. Id. at 323 (emphasis supplied).

57. Id. at 337-38.

58. Id. at 345.

59. Flores, 507 U.S. at 346.

60. Id. at 341-42.

61. Id. at 343.

62. Id.

63. Id. (emphasis in original).

64. U.S. Const. art. VI, § 2.

65. Gisbert v. United States, 988 F.2d 1437, 1447 (5th Cir. 1993) (citing The Paquete Habana, 175 U.S. 677, 700 (1900)).

66. "Like self-executing treaty law, customary international law, being supreme federal law, may supersede all inconsistent state and local laws and - although this issue has not been judicially resolved and is the subject of much debate - perhaps prior inconsistent federal statutes and international agreements as well." Lillich, Special Issue: The United States Constitution in its Third Century: Foreign Affairs: Rights - Here and There: The Constitution and International Human Rights, 83 Am. J. Int'l. L. 851, 856-57 (1989).

67. "Jus cogens describes peremptory norms of law which are nonderogable and form the highest level of international law." Gisbert, 988 F.2d at 1448, n. 21. (citing Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988)).

68. See, e.g., United States v. Alvarez-Machain, 504 U.S. 655 (1992) (allowing nonconsensual extraterritorial arrests); Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953) (detention of alien for twenty-one months held constitutional despite customary international law concept that arbitrary detention is illegal); Gisbert, 988 F.2d 1437 (holding that the Attorney General has authority to detain aliens indefinitely).

69. See Lillich, supra note 66, at 861-62.

70. 487 U.S. 815 (1987).

71. Id. at 868, n. 4 (Scalia, J., dissenting).

72. See supra, note 64.

73. Both of the following treaties forbade the application of capital punishment to juveniles: Article 6(5) of the International Covenant on Civil and Political Rights, Annex to G.A. Res. 2200, 21 U.N. GAOR Res. Supp. (No.16) 53, U.N. Doc. A/6316 (1966) (signed by the United States on 5 October 1997 and ratified on 8 June 1992); Article 4(5) of the American Convention on Human Rights, O.A.S. Official Records, OEA/Ser.K/XVI/1.1, doc. 65, Rev. 1, Corr.2 (1970) (signed but not ratified by the United States).

74. 175 U.S. at 700.

75. Nevertheless, the escape clause would defeat any reliance upon customary international law in this area. See infra notes 76-79 and accompanying text.

76. Despite the word "and" in this legal test, the courts have never required there be a treaty and an executive, legislative or judicial act. Merely having one of those acts is sufficient to circumvent international law. See e.g., Gisbert, 988 F.2d 1437, 1447-49.

77. The Paquete Habana, 175 U.S. at 700.

78. Leigh, Is the President Above Customary International Law?, 86 Am. J. Int'l. L. 757, 757 (1992).

79. Id.

80. Lillich, supra note 66, at 852.

81. Leigh, supra note 78, at 757.

82. Lillich, supra note 66, at 852. ("'[n]ot only have American concepts of freedom shaped the rise of constitutionalism in Europe and elsewhere, but courts overseas refer frequently to U.S. Supreme Court precedents in constitutional cases . . . .'") (citation omitted).

83. Flores, 507 U.S. at 296.

84. For other tangentially related treaties, see International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, reprinted in 30 Int'l. L. Mat. 1597 (1991); General Assembly Resolution on U.N. Guidelines for the Prevention of Juvenile Delinquency, reprinted in 30 Int'l. L. Mat. 1378 (1991).

85. See Flores, 507 U.S. at 309.

86. Restatement (Third) of Foreign Relations § 702 (e) (1987).

87. Id. at cmt. h.

88. Id.

89. Id.

90. Id. (quoting Article 9(3) of the Covenant on Civil and Political Rights).

91. Flores, 507 U.S. at 298.

92. See supra notes 45-63 and accompanying text.

93. See infra notes 159-67 and accompanying text.

94. G.A. Res. 113, G.A.O.R., § 2, art. 11, para. b (1990) (General Assembly Resolution on U.N. Rules for the Protection of Juveniles Deprived of their Liberty) (reprinted in 30 Int'l. L. Mat. 1390 (1991)).

95. This aspect of customary international law will be more closely addressed later. See infra notes 105-67 and accompanying text.

96. See supra note 89. This aspect will also be addressed later. See generally infra notes 105-67 and accompanying text.

97. Flores, 507 U.S. at 309.

98. Id. at 323 (Stevens, J., dissenting).

99. Id. at 324.

100. See supra note 87 and accompanying text.

101. 98 A.L.R. 261 (1988).

102. Id.

103. Id. (citing Section 38 of the Migration Act of 1958). Under United States law, the "juvenile may be temporarily held by INS authorities or placed in any INS detention facility . . . ." 8 CFR § 242.24(d) (1988).

104. Id. (emphasis supplied).

105. Id.

106. (reprinted in 6 Int'l. L. Mat. 368 (1967)).

107. Lillich, supra note 66 at 853. (The United States signed the treaty on October 5, 1977 and ratified the treaty on June 8, 1992).

108. Flores was decided on March 23, 1993, and the United States ratified the treaty on June 8, 1992.

109. The INS rule was published on May 17, 1988, and was codified in 1992.

110. The District Court addressed aspects of international law. Flores v. Meese, No. CV 85-4544-RJK (Px) (C.D. Cal. 1988). The appellate court and the Supreme Court did not, however, address these claims.

111. There were 56 signatories and 125 parties to the ICCPR by December 31, 1993. Thus, it could be argued that this creates enough uniformity in the international community to evidence customary international law.

112. See supra note 87.

113. See supra notes 84-104 and accompanying text.

114. Flores, 507 U.S. at 314.

115. The preceding sentence states that "[a]nyone arrested or detained on a criminal charge . . . ."

116. Restatement (Third) of Foreign Relations § 702 cmt. h.

117. Cohen, The Human Rights of Children, 12 Cap. U. L. Rev. 369, 378 (1983).

118. "'[A]n alien [adult] generally . . . should not be detained or required to post bond except on a finding that he is a threat to national security . . . or that he is a poor bail risk.'" Flores, 507 U.S. at 295 (citation omitted).

119. Id.

120. Id.

121. See Note, supra note 2, at 176.

122. Flores, 507 U.S. at 313.

123. See id. at 330 (Stevens, J., dissenting).

124. Akers, 98 A.L.R. at 261.

125. See supra notes 115-121 and accompanying text.

126. See Flores, 507 U.S. at 295.

127. (reprinted in 6 Int'l. L. Mat. 360 (1967)).

128. There are 57 signatories and 127 parties to this treaty. United Nations, Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1993 114. Thus, given the number of signatories and parties to this treaty, it could be argued that there is enough conformity among States to evidence the emergence of customary international law.

129. Flores, 507 U.S. at 310 (quoting 53 Fed. Reg. 17449, 17449 (1988)).

130. See supra notes 31-33 and accompanying text.

131. Id.

132. Id.

133. Id. at 305 (emphasis supplied).

134. See supra note 122 and accompanying text. It is also interesting to note, as the dissent did, that:

[t]here is a strange irony in both the fact that the INS suddenly decided that temporary release that had been made routinely to responsible persons in the past now must be preceded by a 'home study,' and the fact that the scarcity of its 'resources' provides the explanation for spending far more money on detention than would be necessary to perform its newly discovered home study obligation.

Id. at 330 (Stevens, J., dissenting).

135. U.N. Doc. A/RES/44/25. (reprinted in 28 Int'l. L. Mat. 1454 (1989)).

136. Cohen, United Nations: Convention on the Rights of the Child, 28 Int'l. L. Mat. 1448, 1448 (1989).

137. Id. at 1449.

138. Id.

139. Id.

140. United Nations, supra note 128, at 193.

141. Cohen, supra note 135, at 1450.

142. Id. at 1451.

143. Restatement (Third) of Foreign Relations § 702.

144. Flores, 507 U.S. at 302 (quoting Schall v. Martin, 467 U.S. 253, 265 (1983)). The majority's reliance on Schall for this proposition is tenuous at best. Justice O'Connor, in her concurring opinion, eluded to this as well. Id. at 317 (O'Connor, J., concurring).

The interesting point is that this oft-quoted language from Schall stems from In Re Gault, 387 U.S. 1 (1966). In Re Gault, the Court rejected, rather than adopted, the notion that "a child, unlike an adult, has a right 'not to liberty but to custody.'" 387 U.S. at 17. The Court specifically opined that "[t]he constitutional and theoretical basis for this peculiar system is - to say the least - debatable." Id.

145. See 8 CFR § 242.24.

146. Flores, 507 U.S. at 303.

147. See supra notes 128-33 and accompanying text.

148. Flores, 507 U.S. at 323 (Stevens, J., dissenting).

149. Id. at 308.

150. Id.

151. Id.

152. (reprinted in 9 Int'l. L. Mat. 673 (1970)).

153. Report of the United States Delegation to the Inter-American Specialized Conference on Human Rights, pts. II-III (Apr. 22, 1970) (reprinted in 9 I.L.M. 710 (1970)).

154. Id. at 731.

155. Flores, 507 U.S. at 302.

156. Id.

157. See Flores, 507 U.S. at 305-306.

158. Id. at 295.

159. Gisbert, 988 F.2d at 1447.

160. (reprinted in 30 Int'l. L. Mat. 1390 (1991)).

161. See Flores, 507 U.S. at 298 ("'Legal custody' rather than 'detention' more accurately describes the reality of the arrangement, however, since these are not correctional institutions . . . ."). See also supra notes 90-93 and accompanying text.

162. The majority itself indicated that "the INS arrests thousands of alien juveniles each year (more than 8,500 in 1990 alone) . . . ." Flores, 507 U.S. at 295.

163. Id. at 323-24 (Stevens, J., dissenting).

164. Id. at 301.

165. See Note, supra note 2, at 185, n. 85.

166. Flores, 507 U.S. at 328, n. 12 (Stevens, J., dissenting).

167. Id. at 328 (Stevens, J., dissenting).

168. Id. This would also violate Section IV, subsection D (providing for leisure-time), subsection E (providing for the right to education), subsection F (providing for the right to recreation), and subsection J (providing for the right to visitation).

169. 507 U.S. 292.