Back to Basics: How Trump’s Zero Tolerance Policy evidenced the Inefficiency of the Human Rights Framework, and the Urgency to re-center Human Dignity

Abstract: In 2018, images of migrant children held in cages and sleeping on concrete floors while being held in immigration detention in the United States shocked the world. Within the framework of the zero tolerance policy on immigration mandated by President Trump, thousands of families have been separated at the border. The trauma borne out of these separations was purposefully capitalized upon to serve as a deterrent for future migration into the United States. As a consequence of this practice, migrants suffered a range of human rights violations. Pressure exerted from the international community to halt the practice was in vain. The implementation of this policy proved once again that the international human rights framework is in practice inefficient at halting states from infringing upon human rights within their jurisdictions. Therefore, the zero tolerance policy and its inhumane implementation are used as lens through which to analyze the shortcomings of the international human rights framework. What followed is a realization that through various processes, such as the proliferation, fragmentation and inflation of the human rights language, its formalism and its politicization, the rights framework has been siphoned off from what is at its core: the respect for human dignity. Thus, re-focusing attention on human dignity and respect for humanity as grounding values of the human rights framework is proposed to mitigate some of the encountered obstacles. Human dignity as principle is already enshrined in all major international human rights conventions’ preambles, yet as such it has no direct operability. It is theorized, that giving the principle of human dignity meaning by operationalizing it as soft legal mechanism in order to mainstream a human dignity approach at all institutional levels could add a protective layer for the individual. Mainstreaming a human dignity approach would as such entail considering if any given law if enacted would respect the fundamental value of respect for human dignity. In applying this to the zero tolerance policy under review, it becomes evident, that its enactment would not have passed a review based on compliance with most basic notions of humanity. Placing the human being at the center of the legal system more sharply uncovers how state-enacted laws often contravene minimum respect for human dignity. More than that, by introducing a human dignity approach at the very least a reflection on dignitarian implications of governmental actions would be mainstreamed, turning into a “lingua franca” guiding behavior in a variety of fields. The added value of a human dignity approach as complement to the international human rights framework thus comes to light.