Explanation of Position on Agenda Item 72(b), A/C.3/72/L.43/Rev. 1 on Protection of Migrants

Laurie Shestack Phipps
Adviser for Economic and Social Affairs
New York City
November 20, 2017


Thank you, Mr. Chairman.

States have the responsibility to protect the human rights of all persons in their territories and subject to their jurisdiction, regardless of migration status. The United States takes this responsibility very seriously and urges other States to do so as well.

We would like to clarify our views on several elements in the text and state for the record our dissociation from consensus on several provisions.

We underscore our understanding that none of the provisions in this resolution create or affect rights or obligations of States under international law. The United States, like all sovereign nations, has the fundamental right to establish a lawful system of immigration free from the influences and desires of other States. The commitments in the resolution will not supersede U.S. law and policy and the federal government’s authority to act according to its sovereign interests. In pursuing these goals, the United States will continue to take steps to ensure its national security and territorial sovereignty, and to prioritize the well-being, health, and safety of its people, including by exercising its rights and responsibilities to prevent irregular migration and control its borders, consistent with its international obligations.

We also believe that this resolution should not be sidetracked by an undue focus on bilateral issues. In this spirit, we believe that referencing a bilateral legal matter – such as the case cited in preambular paragraph 11 – is highly inappropriate.

With regard to this resolution’s references to the 2030 Agenda for Sustainable Development, we addressed our concerns in a statement delivered earlier today, November 20.

We also want to express our objections to several provisions in the text that we cannot support.

First, the United States dissociates from the language on the New York Declaration in preambular paragraph 7 and operative paragraph 11. We reiterate the understandings expressed in the United States’ explanation of position on that document, which is available as UN Document Number A/71/415. Our understandings concerning the New York Declaration apply to all other resolutions adopted by this Committee at its current session that contain language either welcoming or reaffirming the declaration. Furthermore, we underscore our view that no languge in this resolution or any others adopted by this Committee at its current session should pre-judge or prejudice the upcoming negotiation of a global compact on safe, orderly and regular migration.

Second, the United States dissociates from language in preambular paragraph 28 expressing concern at measures which “treat irregular migration as a criminal rather than an administrative offence. ” In the context of the rest of this paragraph, this language inappropriately suggests that laws that criminalize offenses relating to irregular measures may have the effect of denying migrants the full enjoyment of their human rights and fundamental freedoms. The United States is committed to protecting the human rights of migrants, regardless of their migration status, while also maintaining its right to enforce its immigration laws, including through its criminal laws, under certain circumstances. We see no need for this resolution to express concern in this regard. As we consistently proposed throughout the negotiation of this resolution, we believe the paragraph should express concern at measures that deny migrants the full enjoyment of their human rights and fundamental freedoms more broadly without singling out criminal laws.

Third, the United States dissociates from the language in operative paragraph 4(a) that calls upon States to pursue alternatives to detention while assessments of migration status are underway. In certain instances, U.S. law requires, for safety and/or national security reasons, that migrants who enter unlawfully remain in U.S. government custody pending adjudication of their migratory status. The United States maintains its right to enforce its immigration laws, which are consistent with its sovereign right, to determine whom to admit to its territory, subject to international obligations.

Fourth, the United States dissociates from the language regarding the procedures applicable to migrant children in operative paragraph 4(b). The U.S. government draws from a wide range of available resources to safely process migrant children, in accordance with applicable laws and is committed to ensuring that migrant children, including those in the custody of the U.S. government, are treated in a safe, dignified, and secure manner and with special concern for their particular vulnerabilities. The United States believes that its current practices with respect to children are consistent with this commitment and serve as an example to other countries. However, as we have underscored in our separate General Statement, we do not read this resolution to imply that states must join human rights or other international instruments to which they are not a party, or that they must implement those instruments or any obligations under them. Among other things, this understanding applies to this resolution’s references to the principle of the best interests of the child, which is derived from the Convention on the Rights of the Child.

Fifth, the United States dissociates from operative paragraph 7, which mischaracterizes the crime of migrant smuggling. The Protocol against the Smuggling of Migrants by Land, Sea and Air to the Convention against Transnational Organized Crime makes clear that it does not require nor does it prevent States from criminalizing the acts of migrants who are engaged in being smuggled. We underscore our strong belief that States should combat the distinct crimes of human smuggling and trafficking in persons and to emphasize that trafficking in persons is a crime of exploitation – including involuntary servitude, debt bondage, slavery, commercial sexual exploitation, and forced labor. While smuggled migrants may become vulnerable to such crimes if they engage the services of a criminal smuggling organization, they are not inherently considered crime victims. Protection is not guaranteed for every migrant. Migrants must meet certain criteria to be granted protection under national laws. We reiterate the importance for States to proactively identify trafficking victims and provide them with access to protection and basic health and other services, to raise public awareness of the risks involved in migrant smuggling, and to enhance international legal and law enforcement cooperation to investigate and prosecute the criminal groups that facilitate both human trafficking and migrant smuggling.

We request that these dissociations be reflected in the record for this meeting and for this resolution.

Thank you.