Children's Rights and Refugee Law

Conceptualising Children within the Refugee Convention

Samantha Arnold

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351683562
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Children make up half of the world's refugees and over 40 per cent of the world's asylum seekers. However, children are largely invisible in historical and contemporary refugee law. Furthermore, there has been very limited interaction between the burgeoning children's rights framework, in particular the Convention on the Rights of the Child (CRC), and the 1951 Convention relating to the Status of Refugees (Refugee Convention). This book explores the possibility of a children's rights approach to the interpretation of the Refugee Convention and within that what such an approach might look like.

In order to construct a children's rights approach, the conceptualisations of children outside the legal discipline, within international children's rights law and then within refugee law and refugee discourse are analysed. The approach taken is socio-legal and comparative in nature and the suitability of the Refugee Convention as a framework for the interpretation of child claims is examined. The book analyses to what extent the Refugee Convention is capable of dealing with claims from children based on the modern conceptualisation of children, which is underscored by two competing ideologies: the child as a vulnerable object in law to be protected and the child as subject with rights and the capacity to exercise their agency. The influence each regime has had on the other is also analysed. The work discusses how a children's rights approach might improve outcomes for child applicants.

The book makes an original contribution to child refugee discourse and as such will be an invaluable resource for academics, researchers and policymakers working in the areas of migration and asylum law, children's rights and international human rights law.

1 Introduction

Introduction

In 2015, the United Nations High Commissioner for Refugees (UNHCR) estimated that worldwide there were 21.3 million refugees,¹ 51 per cent of whom were children. While children remain less likely to apply for asylum than their adult counterparts, there has been an increase in both the number of child refugees and child asylum seekers, globally.² In 2015, the number of asylum applications submitted by or on behalf of separated or unaccompanied children trebled year on year, from 34,300 in 2014 to 98,400 in 2015.³ It would be logical to assume, given these numbers, that children would be a highly visible group within refugee law and refugee discourse, in particular in relation to their qualification as refugees. This, however, has not been the case to date.

This book explores the conceptualisation of children within refugee law and refugee discourse. It examines the suitability of the 1951 Convention relating to the Status of Refugees (Refugee Convention) as a framework for the interpretation of child claims. It also analyses to what extent a children’s rights approach to the interpretation of the Refugee Convention is possible, while recognising that children’s rights violations must not only amount to persecution, but must be characterised by differential impact on the basis of discrimination with a link to a convention ground. This analysis is necessary as there is a significant gap between the two areas of law, not least of all because the Convention on the Rights of the Child (CRC) was adopted by the General Assembly of the United Nations (UN) nearly 40 years after the adoption of the Refugee Convention. The fact that the Refugee Convention was adopted at a time when there was no CRC and international children’s rights law was only emerging, poses a challenge to children’s rights, refugee discourses and indeed refugee determinations.

Children’s rights in international law,⁴ including refugee law,⁵ have, however, experienced noticeable expansion since the late 1980s. The rapid growth and the near-universal acceptance of the CRC as a formula for protecting the ‘period of childhood’ were catalysts for this research. The emergence of concerted efforts at bridging the two areas of law provided the impetus to address the hypothesis that a children’s rights approach to the interpretation of the Refugee Convention is both possible and needed. Notwithstanding the progress made in children’s rights discourse in recent decades, the CRC has had relatively little discernible impact to date on child refugee law. Developments in refugee law prior to and after the adoption of the CRC indicate that such an approach is nevertheless a logical next step in the evolution of child refugee law.

The overarching purpose of this research is to establish that a children’s rights approach to the interpretation of the Refugee Convention is possible and to look at how children’s rights are dealt with in refugee law. This book looks at the most underdeveloped aspect of refugee law as it applies to children – their qualification as refugees. This book does not examine procedural aspects of seeking refuge. The focus surrounds the ways in which children are conceptualised within refugee law discourse, not how their applications are considered or how they are treated in the process of seeking asylum. Topics such as credibility, interview procedures, guardianship, participation or the voice of the child in the context of the asylum process are excluded from discussions. These subjects are not dealt with herein as they have already been dealt with, to a greater extent as compared with the topic at hand, in the refugee and children’s rights discourses.⁶ That said, while procedural⁷ and care⁸ aspects of child asylum are undoubtedly more developed in the literature, there is still work to do to ensure a fully CRC compliant asylum procedure. Though this is not the focus of the research, it is important to emphasise that without a children’s rights approach to the substantive issues, child refugee claims are at risk of being wrongfully disallowed thus impacting upon children’s access to other, including procedural, rights.

A dichotomy: children’s rights and refugee law

There has traditionally been a dichotomy between refugee law and children’s rights. There were concurrent developments in both areas of international law from the 1920s, which dealt with international protection. Children were not, however, referred to in the early development of refugee law.⁹ Child refugees were dealt with instead in the context of either once-off administrative arrangements, such as the Kindertransport in the 1930s¹⁰ or in the child-specific and non-binding 1924 Declaration of the Rights of the Child.¹¹ During this time, children were invisible within mainstream refugee discourse. This book looks to unpack the reasons for the dichotomy historically and to date. It looks to examine the reasons for the invisibility of children within early refugee discourse and the relative invisibility of children in contemporary refugee discourse. Today, there is evidence to show the interconnectedness between the two regimes. However, because the children’s rights framework did not provide guidance as to the qualification of child refugees and because the Refugee Convention did not explicitly refer to children as potential beneficiaries of refugee protection, a series of bridges were required to narrow the gap between the two. These emerged in the form of guidance, but not until the 1990s.

Despite the indications that the gap is narrowing, the dichotomy persists. Contemporary literature on child refugees largely deals with procedural and social and economic needs unrelated to qualifying as a refugee. Child refugee research tends to view the child within refugee law holistically with qualification only forming a small part of the analysis. This area of research is heavily entrenched in welfare discourse.¹² Most of the available information on the qualification of child refugees comes from UN guidance materials produced by the Committee on the Rights of the Child (Committee) and the UNHCR. However, most references to ‘child-specific forms of persecution’ are only recent and somewhat limited.

The number and proportion of children seeking asylum is growing and alongside this is growing acceptance that children have agency and can exercise that agency in a variety of ways. The reasons for the dichotomy and the invisibility of children within refugee discourse are unpacked by examining the developmental path followed by children’s rights law and refugee law. Points where they converge and diverge are analysed. The purpose of this exercise is to demonstrate the existing relationship between the two regimes and the potential for a children’s rights approach. The extent to which the increase in the number of child asylum seekers and refugees, the expansion in children’s rights and children’s rights studies and the cross-pollination between the two regimes have impacted upon developments in child refugee law are analysed.

A children’s rights approach

A wave of literature emerged, arising from the seventeenth and eighteenth centuries and later the Civil Rights movement in the US, which brought to light the important role children play in society. The conceptualisation of children emerging from a multitude of disciplines established that they had an evolving capacity to participate, make decisions and otherwise interact with the societies around them. Childhood was constructed as a period of growth and maturation where intervention was required to ensure protection from harm, which would interrupt or affect the child’s development. The CRC codified the modern understanding of childhood developed outside the legal discipline. The CRC established children as rights holders with rights relating to their innate vulnerability, but also relating to their independent actions, behaviours, beliefs and decisions. The CRC and the discourses that preceded its adoption also established that adults have a role in ensuring children’s access to many of their rights. Subsequent chapters develop on this conceptualisation and apply it in the context of refugee law with a view to ensuring that the analysis is cognisant of the wider children’s rights framework and the childhood status quo that has developed over centuries and has been codified by the CRC.

Building upon the ‘human rights approach’

Michelle Foster in her book, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation, explored the challenges posed by migration caused by deprivation of social and economic rights where it engaged the Refugee Convention. She analysed the ability of the Refugee Convention to encompass refugee claims based on these violations. Foster suggested that the Refugee Convention can encompass violations of social and economic rights and highlighted a number of examples to support this. The main finding was that the Refugee Convention ‘is capable of accommodating a more complex and nuanced analysis’.¹³

Foster attributed the change in tide to Hathaway who in 1991 in his book The Law of Refugee Status described persecution as the ‘sustained or systemic violation of basic human rights demonstrative of a failure of state protection’. In this book, Hathaway suggested that the International Bill of Rights (IBR), comprising the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICESCR), form the framework for the interpretation of persecution.¹⁴ Foster and many others have contended that it is this interpretation that has opened the door to violations of rights that a...