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A Response: The Child in International Refugee Law

Published on September 1, 2017        Author: 

I am grateful to each of the participants for engaging with The Child in International Refugee Law in such a thoughtful way.

As all four contributions have identified, the central thesis of The Child in International Refugee Law is that the the Convention on the Rights of the Child (“CRC”) has a critical role to play, alongside the 1951 Refugee Convention, in enhancing the visibility and protection afforded to refugee children. Rather than simply asserting a need for greater interaction between the 1951 Refugee Convention and the CRC, the book attempts to map out the substantive contours of that relationship, and to anchor the relationship in the international rules of treaty interpretation.

In his contribution, Bjorge engages with the book’s treatment of the international rules of treaty interpretation, and in particular the argument developed in Chapter 1 that these rules should be drawn upon to promote greater engagement with the CRC as an interpretative aid to inform the interpretation of the 1951 Refugee Convention refugee definition. I agree with everything that he has said. Bjorge agrees, perhaps unsurprisingly (see, e.g. The Evolutionary Interpretation of Treaties (OUP, 2014)), that Articles 31-33 of the Vienna Convention on the Law of Treaties (“VCLT”) require a systemic approach to the interpretation of the 1951 Refugee Convention and that such an interpretative approach is, on the whole, likely to be beneficial for refugee children. However, he raises a sage warning that a systemic approach to treaty interpretation can, particularly in today’s unfortunate political climate, be used opportunistically by States to reduce rather than strengthen the protection afforded by the 1951 Refugee Convention. In these circumstances, says Bjorge, “it may well be that literalism or textual interpretation is rather better than its reputation”. Read the rest of this entry…

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Review: Jason Pobjoy’s Book, The Child in International Refugee Law

Published on August 31, 2017        Author: , and

Jason Pobjoy’s newly released book, The Child in International Refugee Law, represents a major contribution not only to the advancement of protection claims of children, but to refugee law more broadly, taking its place among such seminal works as J. Hathaway and M. Foster’s, The Law of Refugee Status (2d Edition 2014) and G.Goodwin-Gill and J.McAdam’s The Refugee in International Law (3d Edition, 2007).

The publication of Pobjoy’s treatise comes at an opportune time, when there is increasing sophistication among practitioners and scholars about the complex issues involved in conceptualizing children’s claims and providing effective representation to children refugees accounting for their unique needs and vulnerabilities as children. The body of law regarding children’s claims builds on earlier work regarding in particular refugee law’s treatment of women claimants that challenges refugee law’s dominant male paradigm. Similarly, the body of children’s refugee law challenges the dominant adult paradigm: As Pobjoy advocates and presents so comprehensively, in the case of children every criteria in the refugee definition must be interpreted in a child-centered manner, grounded in the specific structure of rights and obligations of the Convention on the Rights of the Child (CRC). This review focuses on Chapter 4 of Pobjoy’s book, “A Child-Rights Framework for Identifying Persecutory Harm.”

The publication of Pobjoy’s treatise also comes at a precipitous moment in the development of U.S. refugee law. There is growing sophistication among the American refugee bar and scholarly communities, especially evident over the past decade. Although in the past the U.S. has been, in some respects, an outlier, doggedly parochial and resistant to acknowledging the role that international human rights law should play in the interpretation of its domestic asylum provisions, there has been a shift: American lawyers have been urging a more internationalist approach; they have been including arguments about international human rights law in their advocacy; and, presenting the jurisprudence of other states parties to the UN Refugee Convention in support of their clients claims to protection. The U.S. Supreme Court has recognized the roots of U.S. law in the UN Refugee Convention and Protocol, has referenced the jurisprudence of other states parties, and federal courts have suggested at least implicitly a human rights standard. See Deborah E. Anker, Law of Asylum in the United States, Ch. 1 (2017). And as the American non-profit Opportunity Agenda points out, in other areas of law, the U.S. Supreme Court “has increasingly cited human rights law as persuasive authority for important constitutional decisions.” The Opportunity Agenda, Legal and Policy Analysis: Human Rights in State Courts: 2011, at 2. It may be unclear at this challenging moment in U.S. politics what long-term effect this new advocacy in refugee law will have, but the orientation is changing in an internationalist direction. Read the rest of this entry…

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Persecuting Children: How the Convention on the Rights of the Child has pushed the evolution of refugee law

Published on August 31, 2017        Author: 

The nature of modern warfare has made children increasingly vulnerable to conflict related injury, deprivation and displacement. International refugee law was slow to recognise children as being worthy of separate consideration: the only express references to children in the UN Convention relating to the Rights of Refugees are in Article 4, referring to refugee parents’ freedom to religious education of their offspring; and Article 17(2)(c) which relates to the working rights of refugee parents whose children are nationals of a host country). Pobjoy’s masterful review of the comparative jurisprudence on children as refugees confirms the nature and extent of the change that is occurring. Chapter 4 of his book examines an aspect of the Refugee Convention that remains un-defined, yet central to the protection of refugees. This is the concept of ‘being persecuted’. As many of us have documented, children can experience persecution both in the same way as adults and in ways that are particular to their identity as children: See, for example, see Pobjoy, section 4.3; J Bhabha and W Young, ‘Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New US Guidelines’ (1999) 11 International Journal of Refugee Law 84, 103; J Bhabha and M Crock, Seeking Asylum Alone: A Comparative Study – Unaccompanied and Separated Children and Refugee Protection in Australia, the UK and the US (2007), Chapter 7; and G Sadoway, ‘Refugee children before the Immigration and Refugee Board’ (1996) 15(5) Refuge 17. Like adults, children can be killed, kidnapped, tortured and targeted for harm in ways that are readily identified as ‘persecution’. What has been harder for people to accept is that children also suffer harms that are peculiar to childhood. As Pobjoy writes at 117:

Only a child can be at risk of infanticide, underage military recruitment, forced child labour, forced underage marriage, child prostitution, child pornography, domestic child abuse, corporal punishment or pre-puberty FGC.

Moreover, children experience harm in ways that are different to adults. Because of their size and evolving capacities, they can be acutely susceptible to injury and harm.

Pobjoy explores these realities brilliantly. Noting the legislative and policies initiatives that have been taken in international, supra-national and domestic contexts, he argues nevertheless that more judges and policy makers should be taking the time to consider the different persecutory experiences of refugee children.

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Treaty Interpretation and The Child in International Refugee Law

Published on August 30, 2017        Author: 

Jason Pobjoy explains in The Child in International Refugee Law (CUP 2017) how the rule set out in Article 31 of the Vienna Convention on the Law of Treaties (VCLT), the ‘general rule of interpretation’, in his words, ‘comprises a single holistic “rule” of interpretation’, and that the adoption, by the International Law Commission (ILC),

of a “single, closely integrated rule”’ underscores the need to look beyond a literal construction of the text and to consider the terms of the treaty in light of their object and purposes, in their context and taking into account subsequent extrinsic sources (p 34).

He goes on to explain that this ‘rejection of strict literalism has found favour in domestic refugee jurisprudence’ and then sets out how Articles 31–33 mandate a ‘systemic approach’ to the interpretation and application of the Refugee Convention, with the Convention on the Rights of the Child naturally playing a particularly important role (p 34–43). It is extremely well done.

This approach, clearly and convincingly set out in Chapter 1 of the book, is undoubtedly correct. It is of a feather with the dictum of the International Court of Justice in Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, according to which a treaty ‘does not operate in a vacuum’ but rather ‘in the context of a wider framework of legal rules of which it forms only a part’ (ICJ Rep 1980, p 73, 76, para 10). Against this background, the book in Chapter 6 develops the argument that the Convention on the Rights of the Child is a complementary source of protection for children, going into some detail on state practice to make out the argument.

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

Published on August 30, 2017        Author: 

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.

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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.

Read the rest of this entry…

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Announcement: Book Discussion on Jason Pobjoy’s “The Child in International Refugee Law”

Published on August 29, 2017        Author: 

The blog is happy to announce that over the next few days, we will host a discussion of Jason Pobjoy’s new book, The Child in International Refugee Law. Jason Pobjoy is a barrister at Blackstone Chambers, where he has a broad practice including public and human rights law, refugee and immigration law and public international law. He is a Research Associate at the Refugee Studies Centre, University of Oxford.

Jason will open the discussion this afternoon with an introduction to the text . This will be followed by posts from Colin Harvey, Eirik Bjorge, Mary Crock, and Deborah Anker with Nancy Kelly & John Willshire Carrera. Jason will close the symposium with a reply to the discussants.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in- comments will of course be open on all posts.

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Is Ukraine a “Stranger” to the EU? OPAL Case

Published on August 28, 2017        Author: 

In their recent contribution to the Global Trust Working Paper Series, Professor Eyal Benvenisti and Dr. Sivan Shlomo Agon raise one conspicuous, though rarely asked, question within a broader topic of state sovereignty in a globalised world. They wonder how sovereign decision-making powers can be restrained in the face of interests of “strangers”, i.e. third countries, as well as natural and legal persons, to which the effects of national policies “radiate” without allowing them to hold the decision-makers politically accountable. The authors make the first proposition that:

“international courts can and in fact do play a role in promoting the duties of states towards strangers affected by their policies, thereby alleviating some of the democratic and accountability deficits associated with globalization” (p.2).

Their second proposition is that international courts have developed ways to account for the “interests of affected others from within and outside” their host systems. Both propositions are then tested against the ample practice of the WTO dispute settlement system.

The article echoes well in the universe of “global administrative law” (GAL), i.e. a normative paradigm promoted by Professor Benvenisti which introduces practices of accountability (transparency, good process, reasoned decision-making, and basic legality) in what would otherwise be a non-democratic process of global administration. (For early conceptualizations of GAL, see the EJIL’s symposium issue).

The article is also provocative as it resonates far beyond the ambit of the WTO law. The present note offers to look for the advanced propositions in a group of energy-related cases currently pending before the Court of Justice of the EU (CJEU).

Admittedly, international energy law is rarely scanned for general international law trends and patterns. This may be due to the highly technical complexity of the underlying field of study, combined with the traditional view of energy as a nation state prerogative (recall General Assembly resolution 1803 (XVII) of 14 December 1962 “Permanent sovereignty over natural resources”). Yet, the intensity of present-day energy cooperation, spurred by critical socio-economic and even geopolitical needs, has effectively isolated exclusively national areas of regulation (e.g., access to upstream energy resources) and produced a layer of new, inherently international rules of community building. Read the rest of this entry…

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Announcements: New additions to the UN Audiovisual Library of International Law; CfP Contingency in the Course of International Law; Conference on Dispute Resolution in the Law of International Watercourses and the Law of the Sea

Published on August 27, 2017        Author: 

1. New additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Professor Franck Latty on “Le droit international du sport” and “La responsabilité internationale de l’Etat dans le contentieux arbitral d’investissement”.

2. Call for Papers: “Contingency in the Course of International Law: How International Law Could Have Been”, Amsterdam, 14-16 June 2018. The conference will ask a question that is deceptive in its simplicity: How might international law have been otherwise? We want to question the present state of international law by challenging its pretence to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: “If there is a sense of reality, there must also be a sense of possibility.” Fleur Johns (UNSW) will give a public keynote and Samuel Moyn (Yale) will give a closing address. Please see here for more information. The deadline for the submission of abstracts is 1 December 2017.
3. Luxembourg Conference on Dispute Resolution in the Law of International Watercourses and the Law of the Sea. The Conference “A Bridge Over Troubled Waters: Dispute Resolution in the Law of International Watercourses and the Law of the Sea” of the Max Planck Institute Luxembourg and the Vrije Universiteit Brussel will take place on 25-26 September 2017 in Luxembourg. The deadline for registration is 4 September 2017. The program and registration details can be accessed here.
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Who is the victim of cultural heritage destruction? The Reparations Order in the case of the Prosecutor v Ahmad Al Faqi Al Mahdi

Published on August 25, 2017        Author: 

On 17 August 2017, Trial Chamber VIII of the ICC issued its Reparations Order in the Al Mahdi case. The Chamber found that Al Mahdi was liable for 2.7 million euros for (a) the damage caused by the attack of nine mosques and the Sidi Yahia Mosque door; (b) the economic loss caused to the individuals whose livelihoods depended upon the tourism and maintenance of these ‘Protected Buildings’ and to the community of Timbuktu as a whole; and (c) the moral harm caused by the attacks, as illustrated by one of the victims quoted in the order: “My faith is shattered. My family fled [.] […] I lost everything and all my faith” (at §85).

The Reparations Order builds upon the reparations principles established in Lubanga and Katanga. However, it is also one of the few opportunities public international law has had to pronounce upon appropriate reparations for heritage destruction—forming part of the string of ‘firsts’ involved in Al Mahdi thus far.

Who is a ‘relevant victim’ of cultural heritage destruction?

The Chamber identified three groups of victims: the inhabitants of Timbuktu, as the direct victims of the crime; the population of Mali; and, notably, the international community. The latter category is a new element in the reparations jurisprudence of the Court, and its inclusion in the present Order seems to be mostly a consequence of the particular category of crime the Chamber was dealing with. Read the rest of this entry…

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