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Home EJIL Book Discussion An Introduction: The Child in International Refugee Law

An Introduction: The Child in International Refugee Law

Published on August 29, 2017        Author: 

I want to start by expressing my thanks to the editors of EJIL: Talk! for arranging this book discussion, and to Deborah Anker (with Nancy Kelly and John Willshire Carrera), Eirik Bjorge, Mary Crock, and Colin Harvey for agreeing to participate in the discussion. The participants are all leaders in their fields, and I am privileged that they have agreed to engage with The Child in International Refugee Law.

It is a sad reality that the horrors faced by refugee children – both in their country of origin, and in their attempt to secure international protection in a host State – continue to dominate our news feeds. In the past month alone, we have seen damning reports of Australia’s offshore processing regime, which has involved the transfer and detention of children, and, in some cases, the separation of children from their parents; reports that thousands of Syrian children in Jordan’s Za’atari camp are being deprived of an education; and reports that over 10,000 child migrants went missing in Europe last year. As Harvey recognises in his contribution, “there is no principled reason why children should face the formidable obstacles they do in the sphere of refugee protection”. The need for change is heightened by the reality that childhood is a wasting asset. As Goodwin-Gill recently observed, “[c]hildhood, once lost, is never recovered”.

The premise underlying The Child in International Refugee Law is that international law has an important role to play in securing greater protection for refugee children. As Beth Simmons persuasively argues, international law provides a “rights based framework to supplement the protective framework that has a much longer history in many societies”. It is particularly important in the context of children, with the Convention on the Rights of the Child (“CRC”) providing a “lever to give … would-be advocates influence over policies likely to have an important impact on the well-being of those who are not able to organize and speak for themselves” (Simmons, Mobilizing for Human Rights (2009) 307).

The central thesis of the book is that the 1951 Refugee Convention is capable of responding in a sophisticated and principled way to refugee claims brought by children. More specifically, the CRC has an important role to play in both informing and supplementing the 1951 Refugee Convention.

In The Child in International Refugee Law I identify three contexts where the CRC might be engaged to assist in determining the status of child seeking international protection (Chapter 1).

First, the CRC might be invoked as a procedural guarantee to inform the refugee determination process (Chapter 2). The 1951 Refugee Convention is silent on the procedures that a state should implement in designing a domestic system of refugee status determination. In contrast, the CRC comprises a number of provisions that may inform the determination process, including the principle that a child has a right to express views freely and be heard in any judicial or administrative proceedings affecting her. In promoting a construction of the child as an independent social actor, the CRC provides a solid legal basis for ensuring that children – both accompanied, and unaccompanied –  are not rendered invisible in domestic asylum processes.

Secondly, the CRC might be drawn upon as an interpretative aid to inform the interpretation of the 1951 Refugee Convention definition (Chapters 3-5). International law, and in particular international human rights law, has grown exponentially over the past 60 years. Many of the relatively nascent precepts contained within the 1951 Refugee Convention have now been rearticulated, recontextualised, and in some cases expanded in a comprehensive suite of international human rights treaties. It is now widely accepted that the 1951 Refugee Convention definition should be interpreted taking into account this broader international human rights framework. In these circumstances there is a clear, principled basis for drawing on the CRC – the most authoritative articulation of the obligations that a state owes to a child – as an aid to inform the interpretation of the 1951 Refugee Convention definition in claims involving children.

Thirdly, the CRC might give rise to an independent source of status outside the traditional refugee protection regime, which may, in certain circumstances, provide a more appropriate and more child-friendly gateway for assessing the protection needs of a child seeking international protection (Chapter 6). It is accepted that the CRC comprises a complementary source of protection via the principle of non-refoulement implicit in, at the very minimum, articles 6 and 7 of the CRC. Article 3 of the CRC, which specifies that the best interests of the child shall be a primary consideration in all actions concerning her, provides a critical additional safeguard for children seeking international protection. In particular, the best interests of the child principle may preclude the return of a child to her home country notwithstanding the fact that the child is not eligible for protection under the 1951 Refugee Convention.

The Child in International Refugee Law analyses the relationship between the 1951 Refugee Convention and the CRC within these three contexts. Although the analysis is anchored in international law, it draws extensively on domestic case-law in order to illustrate the actual and potential scope of the two international legal regimes. In total, over 2,500 refugee decisions involving children were identified and reviewed for the purposes of the project. These cases have been indexed and captured in a web resource (www.childref.org), which, consistent with the central argument developed in the book, has been designed to promote greater interaction between the 1951 Refugee Convention and the CRC. The website is due to be launched at the end of 2017.

The book’s conclusion is that both the 1951 Refugee Convention and the CRC have a critical role to play in securing protection for children seeking international protection. Today, a refugee lawyer must also be human rights lawyer. It is only by embracing the mutually reinforcing relationship between the two legal regimes – responsive both to the difficulties associated with refugeehood and the distinct needs and vulnerabilities of childhood – that these children can be guaranteed the protection to which they are entitled under international law.    

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