Child Refugees and International Law: Legal Imagination in the Service of Others

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What is seen and experienced often determines outcomes, in law as elsewhere. Background assumptions about the world (including legal texts) can distort the interpretation and application of norms. Partial perspectives render invisible what should be obvious or perhaps what only becomes obvious with revised theories and concepts. As Jason Pobjoy makes plain in his outstanding book, there is no principled reason why children should face the formidable obstacles they do in the sphere of refugee protection. Refugee law makes no distinctions based on age; in theory a child who meets the Convention definition is every bit a refugee as an adult. This absence, of course, cuts both ways; it does not make explicit textual provision for the particular circumstances of children either. All refugees are not however treated equally, and in practice there are pervasive problems of visibility and incorrect assessment (Jason Pobjoy, The Child in International Refugee Law, (2017, Cambridge University Press) 5).

Pobjoy does a remarkable job in highlighting the deficiencies (for example, the evidence of the low number of references by domestic decision-makers to the UN Convention on the Rights of the Child) while also mapping out, with admirable precision, credible ways forward. Pobjoy thus unearths the lip-service often paid to the best interests of the child principle when compared with hard facts, but also charts a course for those globally and locally who genuinely want to take the rights of the child seriously within the international refugee protection framework.

Although, as indicated in the Preamble to the 1951 Refugee Convention, it was plainly conceived in human rights terms, international refugee law can now look dated from that perspective (despite the heroic efforts of its most dedicated defenders). Innovative regional developments have helped address limitations, but there has been no formal addition to the international legal regime since the 1967 Protocol, and elements of the text of the 1951 Convention (such as article 33(2)) have been overtaken by other international legal trends (the idea of a public order or national security exception to the non-refoulement principle would now seem counter-intuitive to many human rights lawyers, however attractive the idea may still seem to some states). The international refugee rights regime has also been outpaced in places by the more extensive coverage of international human rights law. What is impressive about Pobjoy’s book is how he gives life to refugee law by bringing children’s rights, and the creative framework that comes within it, into the heart of the normative order. This is not about replacing refugee law, but about building securely on it; perhaps even saving it (as others working on gender and sexual orientation have similarly tried to do). Remedying deficiencies and silences, certainly, but also ensuring a human rights perspective informs key elements (particularly on definitional questions). Here Pobjoy is echoing the guidance of James Hathaway in advocating strongly for a human rights method of keeping refugee law relevant. What is so impressive is the sustained and successful attempt to transform the interpretation and application of refugee law by aligning the legal regimes. The achievement is to render visible what was previously airbrushed out of mainstream accounts of refugee law and of the principle of non-refoulement. Although Pobjoy is not alone (to his great credit he everywhere acknowledges this) in making the case for a child-rights framework, there remains astonishing levels of neglect. The child-rights framework is evidently transformative in ways that test and challenge traditional accounts of human rights and refugee protection. Things cannot remain the same after this intervention.

If this book was only about unearthing silenced narratives then that would be significant enough. But Pobjoy’s work is an example of the careful and targeted deployment of legal imagination (and determined legal research) in the service of others; in this instance the service of the child refugee. He insists that the rights of the child must be embraced within refugee law, and as a basis – in their own terms – for inclusive forms of complementary protection. This is engaged scholarship with the express purpose of transforming legal practice and improving lives. Because international refugee law is often so radically embedded within domestic legal orders (its procedural silence still remains remarkable in this respect), there is an opportunity to re-think and reshape doctrine in a (potentially) impactful way from within.

How does he do this? First, he locates the refugee child within international law, for example, by spelling out the implications of a child-rights framework and then encouraging a systematic approach to the interpretation of the Refugee Convention. He does this in a convincing way by walking the reader through the required approach to treaty interpretation. This is then used as a base from which to launch distinctive ‘modes of interaction’ with refugee law, as part of his desire for a creative alignment of these areas of law, policy and practice (Pobjoy (2017) 31-43)

Second, Pobjoy then moves directly into international refugee law. His focus is largely on the definitional elements, and his aim is to highlight what a child-specific lens will offer. He examines the refugee status determination system, highlighting the visibility problems that he exposes. He then explores what an age-sensitive assessment of risk (well-founded fear requirement) means, and works through the key components. The implications for persecutory harms are then assessed (based again on the dominant human rights based approach), followed by an exploration of the nexus to a Convention ground. This section of the book opens a new landscape of challenge for advocates, decision-makers and adjudicators. He shows precisely how refugee law might be re-imagined, and this is a body of work demanding urgent practical realisation by decision-makers. If not already happening, it is easy to imagine Pobjoy’s arguments being strategically deployed to inform and test the boundaries of existing refugee law.

Third, Pobjoy goes beyond refugee law to make the case for the CRC as a complementary source of protection; circling around a specific and distinctive non-refoulement obligation. He quite rightly notes the tendency to conflate the non-refoulement principle in a way that disrespects the meaning of different treaty standards. In particular, he observes a trend of mentioning the UN Convention against Torture and the relevant ICCPR obligations without noting the separate position in the CRC. This matters because he argues that the scope of complementary protection under the CRC is arguably broader and embraces not only articles 6 and 37 but the article 3 best interests of the child principle too.

It is too often said at this point that a work is ‘essential reading’. But that is exactly what this book is; particularly for anyone who has an advocacy, adjudication or decision- making function. This is a ‘how to’ guide anchored solidly and securely in the firm ground of existing normative commitments. International refugee law often appears as a legal order in serious trouble; as odd as that may sound following the glowing reaffirmation in the New York Declaration 2016. It has had to rely on creative lawyering to keep its core concepts updated, and the scholarly contributions of key individuals to this collective effort (as well, of course, as the work of international organisations such as UNHCR) remain insufficiently acknowledged. Pobjoy is following this path in a way that will re-energise and renew international refugee law with the express purpose of defending the rights of the child. The book is so persuasive precisely because it has such a grounded normative foothold. This is a perspective based on solid research that aims to shift legal doctrine and practice away from partial, limiting and distorted world-views. As a direct result of this legal analysis the hope is that children’s voices will be heard and listened to, refugee children will be seen again but essentially for the first time and in a new light, and that processes and practices will change, often radically. These are the normative battlegrounds where the conflict over the proper interpretation of refugee and human rights law must be won. Pobjoy has shown us how.

Whether continuing interpretative innovation will really save international refugee law is a matter for another day. Whatever the strategic risks involved, the efforts in evidence here must surely soon combine with work for international legal reform. A new Protocol to the 1951 Convention is, for example, long overdue and without it the well-founded fear is that no amount of creative alignment with human rights and associated feats of legal imagination will protect international refugee law from irrelevancy.


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