Human Rights of Unaccompanied Migrant Children: Focus on Detention
Author: Nathalie de Larminat
Translated into Spanish by Florencia Prieto
The Rights of the Child, which for the first time identifies children as independent individual subjects of international law, is a new concept. It is only in 1989 that the international community with the instrument of the United Nations (UN) provided a statute on their rights with the Convention on the Rights of Child (CRC). This legally binding international agreement, which sets the rights of all children as an independent human beings, is one of the foundations of all international treaty laws and customary laws related to children.
While national laws have in place specific obligations to the children within their territory, States have been struggling to adapt those laws to the rights of non-national children and in particular migrant children. The plight of non-accompanied migrant children, which number started to increase in the 2010s, has put further constraints on State as they struggle to identify who their ultimate guardians are. Overtaken by this new tragedy and potentially due to a lack of political will and administrative resources, some States have attempted to resolve this problem by putting those unaccompanied migrant children in detention.
In this paper, we will look at the genesis of the rights of the child and its evolution in international law and jurisprudence until it delves into the specific of the rights of unaccompanied migrant children in detention. This journey will identify how States decide to focus on specific Articles of the CRC to justify their detention policies and how jurisprudence and scholars’ research have helped to rethink those paradigms.
1. From the Right of the child … to the human rights of migrant children
a. First declaration of the rights of the child
In 1924, the League of Nations, which precedes the creation of the United Nations (UN) in 1946, established the first international declaration aimed to protect children: The Declaration of the Rights of the Child also known as the Geneva Declaration of the Rights of the Child. This declaration recognized for the first time specific rights to children. It is a very succinct declaration with only five principles that touched upon the basic right of the child such as support for his/her development.
Since 1924, child rights have evolved towards better protection and in 1946 the United Nations created the United Nations International Children’s Emergency Fund (UNICEF) with the mandate to help children all over the world. Two years later, in 1948, the UN adopted the Universal Declaration of Human Rights, which is the first internationally recognized declaration on human rights. Children are only mentioned two times in this declaration in Articles 25 and 26. In comparison to the Geneva Declaration, they are here attached to a family and education is at the discretion of the parents. They are, as their mothers, entitled to “special care and assistance” and “social protection.” Children are not yet considered a distinct subject that needs to have their rights acknowledged and protected.
b. UN Convention and Declarations
The UN started its focus on children’s rights in 1959 with the Declaration of the Rights of the Child, which is an extended version of the Geneva Declaration. None of these two declarations mention when childhood starts and ends. This declaration has ten principles, which are also quite straightforward and touch upon the basic rights of the children. It includes the right to free education and the right to a name and nationality.
The International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (ESCR) entered into force in 1976, which in accordance with the Universal Declaration of Human Rights, insists on civil and political freedom. The Covenant does mention children three times insisting on their protection and education for all children but again within the realm of the family.
For the first time in 1973, the age of what could be considered the end of childhood is mentioned in the International Labor Organization (ILO) Minimum Age Convention 138. It sets the age of 18 as the minimum age for undertaking hazardous work with the view “to achieving the total abolition of child labor”.
Those treaties and covenants paved the way to the 1989 Convention on the Rights of the Child, which recognizes the roles of children as actors in society.
c. Convention on the Rights of the Child
The Convention on the Rights of the Child (CRC) is an extensive document with 54 articles covering finally broad aspects of what constitutes children’s rights. As Rhona Smith (2013), a British legal academic, indicates this document represents “the apex of international children’s rights” (p.353) and recognizes “that children are entitled to human rights as their own independent rights” (p.342). It stipulates that they require special protection.
The CRC confirms the ILO Convention by affirming that a child is a “human being below the age of eighteen years”. Article 6 indicates that States parties “shall ensure to the maximum extent possible the survival and development of the child.” In addition, they have the duty to preserve his/her identity. Finally, Article 22 deals directly with the case of migration “whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.” For the first time, this document, with its attached General Comments, offers the first references for the framework on the protection of child migrants and a reference for laws and policies available.
Jacqueline Bhabha (2018), a professor at the Harvard School of Public Health, considers that the CRC covers three general principles applicable to all children and as such to child migrants. The first is the non-discrimination principle, which indicates that States have to treat all children equally independently of their status linked to citizenship, national origin, and legal status.
The second principle is the best interests of the child, which requires States to make it the primary consideration above all. Article 3(2) indicates that the State has an active obligation to ensure the child’s wellbeing. Rhona Smith (2013) considers this very principle to have “now crystallized into customary international law” (p.356). F
Finally, the third principle requests States to guarantee a right to a legal entity. Both scholars do not mention Article 37, which indicates that “the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time” as they focus primarily on the human rights’ core principles of a child.
In 2019, the head of the OSCE Office for Democratic Institutions and Human Rights (ODIHR) considered that “the Convention on the Rights of the Child was a true milestone in pushing the rights of the world’s youngest citizens further up the international agenda”. However, he notes that the rights of migrant children are not being respected as children are being detained, among other infringements of their rights. He stated that the CRC obliges countries to put the best interest of the child at the center of their decisions, which includes prioritizing children’s rights over any immigration-related procedure.
2. Challenges to the right of unaccompanied migrant children
a. The particular case of unaccompanied child migrants
The Migration Data Portal (MDP), a portal developed by the International Organization for Migration (IOM), estimates that 12 percent of the total migrant stock in 2019 were child migrants (below the age of 18 years). MDP indicates that according to the United Nations Department of Economic and Social Affairs (UN DESA), the number of child migrants rose from 27 million in 2010 to 33 million in 2019. In 2010, the European Commission noted in its Action Plan on Unaccompanied Minors, “the challenge of unaccompanied minors is growing: a considerable number of third-country nationals or stateless persons below the age of eighteen arrive on EU territory unaccompanied by a responsible adult, or are left unaccompanied after they have entered EU territory”.
b. Focus on the detention of migrant children
There is a diversity of issues related to child immigration. One of the biggest challenges they face is that too often immigration control interests take over the best interests of the child and countless migrant children continue to be detained upon arrival in the ‘receiving country’ or upon discovery. While the Article 37(b) of the CRC indicates that detention must be justified, in conformity with the law and used as a last resort (ultima ratio), it does not provide much framework as to what is considered justified and what are the elements and the temporality that constitutes an acceptable last resort. In 2010, the European Commission in its above-mentioned action plan reassesses Article 37(b) without providing any additional context on what is justified and what is the last resort.
c. Evolution of the rights of unaccompanied child migrants and detention
Since 2010 and the years onward, the world has witnessed a dramatic increase in global migration and it has become a pressing human right issue. One of the first cases of jurisprudence, with regard to the structural violence linked to the detention of migrant children, comes from the 2014 Inter-American Court of Human Rights’ Advisory Opinion on the Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection. Among other subjects, the Court expresses its opinion on the basis of the principle of non-detention of migrant children. The Court indicates that it understands detention as a deprivation of liberty.
In accordance with the development of international human rights law, the Court considers that the principle of liberty should be the rule and if measure of deprivation of liberty should be taken “the application of alternative measures should be given priority.” Consequently, the Court considers that “deprivation of liberty is inappropriate when children are unaccompanied or separated from their family, because in this situation, the State is obliged to give priority to facilitating the measures of special protection based on the principle of the best interest of the child, assuming its position as guarantor with the greatest care and responsibility.” In fact, the Court considers that administrative or judicial proceedings involving children who are unaccompanied or separated from their family may not be undertaken until a guardian has been appointed. It is a very interesting development in terms of detention for unaccompanied migrant children as it goes a step beyond Article 37 of the CRC stating that migrant children’s detention even in last resort is not justified and that the State should have in place less harmful alternative than detention.
Ciara M. Smyth, a researcher in the field of immigration law, notes in 2019 that “UN bodies that adopted a position after 2015 tend to take a much more robust stance, advocating for a complete prohibition on the immigration detention of children.” She added, sensing the shift of paradigm that “the principle of the best interests of the child, now regularly referred to by the Court in cases involving children, could serve as the conduit between the two conventions.” As such the Council of Europe in 2019 declares that in order to protect unaccompanied migrant children “the prompt appointment and the role of guardians is paramount for acting in the best interest of the child, and for ensuring that the child’s rights and well-being are respected.” The Council of Europe even considers this Recommendation to be “a ground-breaking soft law instrument firmly anchored in international and European human rights standards.”
It is finally, in 2020 that Felipe González Morales, the UN Special Rapporteur on the Human Rights of Migrants, “recommends that Member States shift away from a focus on enforcement and coercion towards providing human rights-based alternative care and reception for all migrant children and their families.” He clearly states that “international and regional human rights bodies have repeatedly stated that immigration detention of children . . . is a violation of international human rights law.”
Recognizing that there is an international momentum against the detention of migrant children, the UN Special Rapporteur provides more frameworks on the right of migrant children arguing that in this case the ultima ratio within Article 37(b) of the CRC should not be considered. This comment indicates that the international community should focus on Article 3(1) of the CRC, which stipulates, “the best interests of the child shall be a primary consideration.” And that, “migrant children should be considered as children first, and States are obliged to fulfill the rights of every child in their territory”.
In 2012, the Committee on the Rights of the Child recognized that countries have made effort to prohibit the use of immigration detention of children; however, it notes that many were still trying to restrict and reduce it. States have been hierarchizing Articles of the CRC to justify their means. In the case of migrant children, they have argued that Article 37 (b) was the most important to take into consideration with regard to detention as if they had obliterated Articles 2 and 3, which address the most undeniable human rights of a child, which is its best interests overall.
For many years, migrant children’s detention had appeared as the ‘easiest’ way to resolve or hide the problem of unaccompanied migrant children. However, civil society, regional and national human rights institutions have been challenging the existing legal framework. They have forced legislators to review their interpretation of the CRC. It is now widely accepted those child migrants should not be subject to detention. However, according to the Committee on the Rights of the Child (2012) it is understood that further efforts are necessary to ensure an effective and systematic implementation towards ending the immigration detention of children. The 2020 World Migration Report indicates that guardianship appears to be the first step to ensure the right of unaccompanied children.
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Author’s Short Bio
Nathalie de Larminat is a student at the University for Peace, M.A in International Law and Diplomacy.
Nathalie has extensive experience working in the field of Financial Crime and Risk Assessment. She coordinates, develops and supervises the deployment of dedicated programs in the fight against financial crimes, in particular money laundering, bribery & corruption and terrorism financing. She has worked in that capacity in New York, London, Sao Paulo and Paris covering a wide range of countries
She holds a B.A in Political Science and Anthropology and a M.A in International Affairs.