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21 Berkeley J. Int'l L. 213 (2003)
Family Separation as a Violation of International Law

handle is hein.journals/berkjintlw21 and id is 221 raw text is: Family Separation as a Violation of International Law* By Sonja Start** & Lea Brilmayer*** Devastating to the individuals involved and frequently destructive in its long-term impact on cultural groups and entire societies, the involuntary separa- tion of families is a widespread problem that deserves increased attention as an issue of international human rights. Today, the international legal system is be- ginning to address the concerns of the family and the need for justice within the family, and to develop norms that in many circumstances treat involuntary fam- ily separation as a violation of international law. Its approach, however, has been fragmentary and inconsistent, viewing family separation through particular lenses, such as children's rights or privacy, without establishing a coherent framework that brings these various perspectives together. In this article, we identify and compare the emerging principles of international law that relate to the issue of family separation and elaborate on them in a way that, we hope, will help to build such a framework. Our analysis focuses on several case studies, including Australia's long his- tory of removing Aboriginal children from their parents, recent anti-polygamy policies in France, current immigration and child welfare laws in the United States, and mass family separation in crisis situations worldwide. Each of these varied cases reflects one or more of the many facets of the problem of family separation, including the cultural significance of the family, the difficulty of defining family, the balancing of interests and rights among different mem- bers of the family, and the balancing of these individuals' rights against the broader social, political, or economic interests of society or the state. In addi- tion, each case tests the boundaries of possible international norms addressing this problem. Issues involving the integrity of families are difficult for international law to resolve because they involve a variety of competing values, values that are often both passionately held and deeply contested among and within cultures. These include the rights and interests of individual family members, including the special rights of children as well as the rights of adults to form relationships, * The authors thank Chim~ne Keitner for her insightful comments; JJ Prescott, Ben Keith, and Josh Klein for editing help; and Olivia Horgan and the BJ.I.L. editorial staff for all their hard work and many helpful suggestions. ** J.D., Yale Law School, 2002. *** Howard M. Holtzmann Professor of International Law, Yale Law School.