Earlier this month, a march at the U.S.-Mexico border erupted into chaos as U.S. border protection agents fired tear gas into the crowd, which included small children. After the incident, which made international headlines, human rights experts (and many others) are questioning whether or not the U.S.’s use of force was legal or even justifiable.
The incident occurred at the busiest border in the world – San Ysidro crossing, which links Tijuana and San Diego. A photo taken by a Reuters journalist showing a woman fleeing a tear gas canister with her two young daughters – both in diapers and one without shoes – sparked outrage across the globe. A group of Central American migrants were peacefully protesting in Mexico when the protest got out of control. The result was Mexican police blockading and the migrants fleeing toward the Ysidro border. Responding to the chaos, U.S. border patrol officials temporarily shut down the border in both directions and began firing tear gas into Mexico to push back the migrants from the border fence. U.S. border officials state that some migrants where throwing projectiles at customs and border workers prior to the shut down.
International human rights legal experts have referred to language in the United Nations Charter (UN Charter) regarding the sovereign rights and obligations of member countries. Specifically, Article 2 prohibits nations from the threat or use of force against the territorial integrity of other member states. In short, if the migrants were on U.S. territory and presented an immediate threat, the use of tear gas to disperse them under certain conditions could be justified. Some other legal experts note that the tear gassing was in clear violation of Mexico’s territory and an interference in its affairs. Human rights activists contend that the use of tear gas was excessive and would still be even if the migrants were on U.S. territory at the time it was used.
Many of those migrants gathered at the Ysidro border intended to seek asylum in the U.S., raising questions as to whether the use of tear gas subverted their rights under international law. Article 14 of the Universal Declaration of Human Rights states that every person has the right to seek and enjoy asylum from persecution in other countries.
The U.S.’s Reasoning
While international treaties on the use of chemical weapons in war bans tear gas, according to the Organization for the Prohibition of Chemical Weapons, it is legal for federal authorities and police to use tear gas domestically in situations in which riot control is necessary. The U.S. Customs & Border Protection has guidelines for when its officers are allowed to use less-than-lethal force, which includes tear gas. The guidelines dictate, in part, that this force can be used when empty-hand techniques are not enough to control violent or disorderly individuals as long as it is a reasonable and necessary response. According to the federal agency, American border officials have fired tear gas near the southern border with Mexico a minimum of 126 times since 2012.