Deploying international law to combat forced labor in immigration detention centers

• Author: Azadeh Shahshahani/Kyleen Burke
• Position: Legal & Advocacy Director at Project South and a past president of the National Lawyers Guild/Criminal defense attorney representing indigent clients in her hometown of Suffolk County, New York
• Pages: 57-86

DEPLOYING INTERNATIONAL LAW TO

COMBAT FORCED LABOR IN IMMIGRATION

DETENTION CENTERS

AZADEH SHAHSHAHANI AND KYLEEN BURKE*

ABSTRACT

Using the guise of a “Voluntary Work Program,” immigration detention

centers across the United States are coercing detained immigrants into

forced labor and justifying it by paying them mere cents an hour. This inhu-

mane program is frequently challenged in domestic courts under federal law.

Advocates may also benefit from incorporating arguments based on interna-

tional law into their strategies. In particular, various treaties that the United

States has ratified (the International Covenant on Civil and Political Rights,

the Convention Against Torture, and the Abolition of Forced Labour

Convention) or at least signed (the American Declarations of the Rights and

Duties of Man), as well as customary international law, mandate parties pro-

tect all persons held in civil detention, as is the case of those in immigration

detention, from forced labor and other internationally condemned practices.

Detained immigrants, attorneys, non-governmental organizations, and other

advocates may thus make use of the international mechanisms available to

enforce the human rights of immigrants subject to forced labor conditions,

and they may likewise rely on international law to litigate these cases in fed-

eral courts. Though the United States has repeatedly attempted to skirt its

responsibility to international bodies, the path of pursing accountability

under international standards is not foreclosed. Moreover, effective and suc-

cessful reliance on international law may help build the necessary legal

infrastructure to prevent the United States from continuing to wage violence

against detained immigrants, especially as these arguments become more

widely accepted and the use of international mechanisms of accountability

becomes more frequent.

* Azadeh Shahshahani is the Legal & Advocacy Director at Project South and a past president of the

National Lawyers Guild. Shahshahani has worked for more than 15 years in the U.S. South to protect the

human rights of immigrants, including detained immigrants. She is co-counsel in a class action lawsuit on

behalf of detained immigrants subjected to forced labor at the Stewart Detention Center against the pri-

vate prison corporation CoreCivic. Kyleen Burke is a criminal defense attorney representing indigent cli-

ents in her hometown of Suffolk County, New York. Kyleen studied law at Northeastern University

School of Law, where she had the immense privilege to intern with Project South and partner in their

efforts to challenge the immigration detention system.

57

TABLE OF CONTENTS

I. INTRODUCTION ..................................... 58

II. IDENTIFYING APPLICABLE INTERNATIONAL HUMAN RIGHTS LAW . . . . 61

A. Ratified Treaties............................... 62

1. The International Covenant on Civil and Political

Rights ................................... 62

2. The Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment. . . . 65

3. The Abolition of Forced Labour Convention ....... 66

B. Treaties That Have Been Signed but Not Ratified: The

American Declaration of the Rights and Duties of Man. . . 67

C. International Common Law ....................... 68

III. ENFORCING INTERNATIONAL HUMAN RIGHTS LAW TO CHALLENGE THE

VOLUNTARY WORK PROGRAM .......................... 69

A. Enforcing the Rights Conveyed by Ratified Treaties . . . . . . 70

1. The Human Rights Committee . . . . . . . . . . . . . . . . . 70

2. The Committee Against Torture ................ 71

3. The International Labour Organization . . . . . . . . . . . 73

B. Enforcement of Treaties Awaiting Ratification. . . . . . . . . 74

IV. ENFORCEMENT OF INTERNATIONAL HUMAN RIGHTS LAW IN U.S.

COURTS TO CHALLENGE FORCED LABOR IN IMMIGRATION DETENTION

CENTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

V. CONCLUSION ...................................... 85

I. INTRODUCTION

The prolonged and inhumane detention of immigrants in the United States

is big business for the private corporations contracted to run these detention

centers. In 2017, CoreCivic, the largest and one of the most notorious prison

operators in the industry, earned over $444 million in profit from detention

centers which primarily imprisoned immigrants.

1

One reason that immigrant

detention is so profitable for corporations like CoreCivic is the systematic ex-

ploitation of detained immigrant labor used to run and maintain detention

centers. Private immigrant detention centers save millions of dollars each

1. CoreCivic Inc., Annual Report (Form 10-K) (Feb. 22, 2018).

58 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 37:57