On 17 November 2017, the Committee on the Rights of Child (CRC Committee) together with the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW Committee) published not one but two joint General Comments (JGCs) on the human rights of children in the context of international migration. This was a significant event because two treaty monitoring bodies have worked together on a topic of global importance and this was the first time both Committees adopted two General Comments on the same issue. The first JGC covers General Principles (General Comment No 3 CMW and General Comment No 22 CRC) [JGC-GP] and the second deals with States’ human rights obligations in countries of origin, transit, destination and return (General Comment No 4 CMW and General Comment No 23 CRC) [JGC-SO]. The JGCs reiterate the central tenet of children’s rights that children are rights holders and first and foremost children, regardless of their or their parents’ nationality or migration status. Although the JGCs do not focus on one type of migration, it is acknowledged that children in unsafe or irregular migration are more likely to suffer rights’ violations than children in voluntary migration situations (JGC-GP, para 8).
The two Committees were compelled to draft the JGCs by the continuing phenomenon of children caught up in international migration and the extent and diversity of human rights violations they experience on their journeys. The publication of the JGCs followed months of consultation and discussion engaging experts, NGOs and stakeholders (including child rights and migration organizations). The JGCs are an important contribution to the dialogue on international migration, especially in light of the New York Declaration on Refugees and Migrants adopted by the UN’s General Assembly on 19th September 2016 and the ongoing negotiations on the Global Compact on Refugees, led by UNHCR and the Global Compact on Safe, Orderly and Regular Migration, led by the IOM. International migration, according to the Committees, places children in a situation of ‘double vulnerability’, as children and as children affected by migration (in whatever form that takes). Consequently, both Committees are committed to strengthening the protection of all children in the context of international migration (JGC-GP, para 4).
Shared Commitment to Protecting Children’s Rights
This collaboration between the two Committees demonstrates the capacity for standard setting of the two treaty monitoring bodies which is essential in addressing cross-cutting human rights issues, such as international migration. Both Committees have been able to draw upon each other’s expertise, experience and knowledge in relation to the implementation and realisation of human rights in the context of international migration. The publication of the JGCs highlights the centrality of children’s rights in international migration law and further illustrates a commitment to the universal, interdependent and indivisible nature of human rights. According to the OHCHR, the JGCs have ‘global resonance’ because of the almost universal ratification of the Convention on the Rights of the Child (CRC).
Aims and Objectives of the JGCs
The purpose of both JGCs is to provide ‘authoritative guidance’ to ensure full compliance with States’ obligations under both Conventions and to ensure that the rights of children are fully protected in the context of international migration (para 7, JGC-GP). The JGCs aim to provide a comprehensive overview of general measures of implementation and states’ legal obligations.
Although the term ‘migration’ is not defined, the scope of migration addressed in the JGCs is broad, covering both regular and irregular migration and accompanied and unaccompanied children. The principle of non-discrimination in the CRC (article 2(2) CRC) means that States owe obligations to all children irrespective of their parents’ or legal guardians’ nationality or migration status (JGC-GP, para 9). The rights of children on the move are not dependent on a requirement to acquire refugee status under the Refugee Convention 1951 or recognition through another form of protection, such as complementary or subsidiary protection (See e.g. Chapter V and Article 18 of the EU Qualification Directive). Children are rights holders regardless of their migration status. The only status that is relevant is that of being a child – i.e. anyone under the age of 18 (Article 1 CRC; JGC-SO, para 3).
The JGCs challenge the most recent EU Member State responses to the so-called ‘refugee crisis’ (eg Hungary’s border fences with Croatia and Serbia) and address policies of States which exercise strict migration control and narrow the scope of their jurisdiction and obligations, regardless of the impact on the protection needs and rights of children on the move. The Committees oppose the politics of non-entrée (para 12 JGC-GP; see also: Gammeltoft-Hansen and Hathaway), and the migration policies of States, who pay lip service to the value of international refugee law, whilst trying to avoid its impact. The recent trend of deals between countries of refuge and countries of transit/origin, to curb the flow and mass influx of unwanted migration, for example the EU-Turkey deal or the Italy-Libya agreement potentially violate States’ obligations under the CRC and CMW. Both Committees urge States to cooperate in order to facilitate ‘safe, orderly and regular migration with full respect for human rights’ (JGC-GP, para 50).
The First JGC: General Principles
In JGC-GP, the Committees clarify the scope of a state’s jurisdiction, which includes ‘jurisdiction arising from a State exercising effective control outside its borders’. A State’s obligations cannot be avoided by using non-entrée policies, thus confirming recent European Court of Human Rights (ECtHR) jurisprudence on jurisdiction [eg Hirsi v Italy and ND and NT v Spain, see Pijnenburg: here]. In addition children attempting to enter the State’s territory by land or sea also come within that State’s jurisdiction (JGC-GP, para 12). Unlike Article 2(1) ICCPR, there is no territorial limitation in the CRC (Article 2 CRC) and the CMW applies to all migrant workers and their families within States’ territory or subject to their jurisdiction (Article 7 CMW).
Consistent with previous CRC General Comments, the four overarching principles of non-discrimination (article 2 CRC), best interests of the child (article 3 CRC), right to life, survival and development (article 6 CRC) and the right to be heard and children’s views to be given due weight (article 12 CRC) are considered ‘fundamental principles of the Conventions’ (JGC-GP, paras 19 and 20). In addition non-refoulement and the prohibition of collective expulsion are ‘fundamental principles’ with regard to the rights of children in the context of international migration (JGC-GP, paras 45 – 47).
Authorities responsible for children’s rights and child protection should take a leading role in the development of policies and decision-making for migrating children, including children migrating with their families (JGC-GP, para 14 and 65). In addition, the collection of biometric data should be for child protection purposes only and States should prohibit the sharing of data for immigration enforcement.
The best interests principle (Article 3(1) CRC), which is unique to children’s rights has a prominent role (JGC-GP paras 27 – 33). Children’s interests should have a ‘high priority’ and ‘larger weight must be attached to what serves the child best’ to ensure the full and effective enjoyment of rights (JGC-GP, para 28). Children have a right to have their best interests assessed and determined and taken into consideration at every stage of the asylum process, and in relation to any migration policies, immigration laws, planning, implementation and decision-making (JGC-GP, para 29). The Committees do not suggest that the principle should be an independent source of protection status, as advocated by Pobjoy.
The paragraphs on the child’s right to life, survival and development reflect the impact irregular and dangerous migration can have on a child’s life and physical, mental, spiritual, moral and social development (JGC-GP, paras 40 – 44).
The non-refoulement obligations in relation to children derive from international human rights, humanitarian, refugee and customary international law, and prohibit States from returning children to a state where they would be at ‘real risk of irreparable harm’, such as harm contemplated under Articles 6(1) and 37 CRC (JGC-GP, para 46). This echoes the approach of the CRC in General Comment No 6, which sets a high threshold for children resisting return.
The Second JGC: State Obligations.
JGC-SO deals with State obligations towards children in the context of international migration and focuses on the protection of their key rights as previously highlighted by the CRC Committee in General Comment No 6. The heading of Part II refers to these obligations applying to children in the State’s territory, which suggests a narrowing of jurisdiction with regard to child’s rights and appears to contradict the space created by the broader scope of jurisdiction in JGC-GP.
A State’s legal obligations, according to JGC-SO, include: age assessments which are informed and accurate, a right to liberty from immigration detention, due process guarantees and access to justice, a right to a name, identity and nationality, a right to protection of family life, protection from all forms of violence and abuse, including exploitation, sale and trafficking of children, protection from economic exploitation, a right to an adequate standard of living, a right to health and right to education and professional training. The human rights norms are based on the CRC given its focus on children as rights holders. In realising these rights, child protection and welfare actors should manage the care of children in this context rather than immigration officials and States should develop a child-sensitive due process framework to deal with claims for asylum, implementing a best interests assessment and determination procedure and guaranteeing a child’s right to be heard.
The collaboration on the two JGCs gave both Committees an opportunity to draw from a broad range of human rights’ expertise, which is reflected in the quality of analysis of the legal obligations relating to children’s rights in the context of international migration.
The JGCs reaffirm States’ duty of international cooperation to ensure safe, orderly and regular migration, but only briefly acknowledge the shadier side of international cooperation (see Gammeltoft-Hansen and Vedsted-Hansen) which restricts migration, facilitates offshore detention and processing centres, allows extraterritorial migration control and encourages policies which undermine refugee protection and the human rights of migrants. It is important that both Committees challenge this form of international cooperation in State reporting.
At best, these JGCs may influence States to adopt a more child-friendly approach in their migration policies, especially irregular migration. However, there remains a substantial gap between what has been promised to children in the context of international migration and their everyday experiences of human rights violations on the migration journey. As soft law instruments, the General Comments will have limited impact on preventing human rights violations, with minimal adherence to the principles within. States, which tend to be countries of transit or destination, are likely to react negatively to the broad scope of jurisdiction set out in JGC-GP and the emphasis on child rights’ and child protection agencies managing children’s (and their families’) migration. Given recent trends in border control policies adopted by countries of transit and destination, States will continue to retreat behind their borders and State sovereignty to restrict access to their territory notwithstanding their obligations under the CRC.