1st Edition

Children's Rights and Refugee Law Conceptualising Children within the Refugee Convention

By Samantha Arnold Copyright 2018
    208 Pages
    by Routledge

    220 Pages
    by Routledge

    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.

    Chapter 1 Introduction

       Introduction

       A dichotomy: children’s rights and refugee law

       A children’s rights approach

          Building upon the ‘human rights approach’

       Invisibility in refugee law

       Locating children’s rights in refugee law: Article 6 and the ‘Three Ps Approach’

       Methodology of analysis

    Chapter 2 Children, childhood and refugee law

       Abstract

       Introduction

       Indicators of childhood and being a child and refugee law

       A paradigm shift: the emergence of childhood

       The modern children’s rights movement

          The beginning of the Children’s Rights Movement

       Global childhood

       Conflicts within the paradigm shift: an externalisation of rights, romanticism and the role of the family

       A conceptualisation of childhood

       Limitation to the modern conceptualisation of children's rights

       Conclusion

    Chapter 3 International Children’s Rights Law

       Abstract

       Introduction

       Origins of children’s rights in international law

       Convention on the Rights of the Child 1989 and life, survival and development

       Provisional rights

          Health

          Standard of living

          Education

          Non-discrimination

       Protection rights

          Labour exploitation

          Other forms of economic exploitation

          Involvement in other illicit trades

          Military conscription

          Child marriage

          Other non-economic forms of harm

       Participation rights

          Agency in the Convention on the Right of the Child

          Determining agency

          Right to be heard

       The role of the family in the Convention on the Rights of the Child and provisional, protection and participation rights

       Children’s rights and refugee law – an indirect link?

       Conclusions

    Chapter 4 Children in the development of refugee law

       Abstract

       Introduction

       Children and the beginnings of international human rights law (pre-1951)

       Beginnings of refugee law

       The historical trajectory of children in the refugee paradigm

       Modern refugee law under the United Nations

       Conclusion

    Chapter 5 A children’s rights approach to refugee law?

       Abstract

       Introduction

       Part I

       Context setting

       Children within the Refugee Convention and the need for a cross-treaty interpretive approach: some assumptions

       Bridging the gap: treaty interpretation

       The challenge of implementing international law

          International law as national guidance

       The object and purpose of the Refugee Convention

       The object and purpose of the Convention on the Rights of the Child

       Conclusion on objects and purposes

       A children’s rights approach – justification through UN Guidance

          United Nations High Commissioner for Refugees

          Committee on the Rights of the Child

       Challenges in the interpretation of the Refugee Convention in respect of children’s rights

       Part II

       A brief introduction to persecution

          Persecution and children

          Actors of persecution and protection and the role of the family

          Children who are not eligible for protection: exclusion

          Convention grounds

       Conclusion

    Chapter 6 Constructing a children’s rights approach: the application of children’s rights in refugee law

       Abstract

       Introduction

       Challenges to consistency in the interpretation of child refugee claims

       Part I

       Provisional rights and refugee protection

          Family

          Education

          Conclusion on provisional rights

       Part II

       Protection rights and refugee protection

          Exploitation

          Labour and trafficking

          Forced military recruitment and protection of children during conflict

          Involvement in illicit activities – gangs

          Other forms of harm: Indiscriminate violence and torture

          Family as persecutor and protector – unattached children

          Conclusion on protection rights

       Part III

       Participation rights and refugee protection

          Imputed beliefs

          Religion

          Political Opinion

          Conclusions: participation rights

       Conclusions

          A Children’s Rights Approach

    Chapter 7 Conclusions

       Abstract

       Introduction

       Dichotomies

       A children’s rights framework

       Invisibility in refugee law

       A bourgeoning children’s rights approach to the interpretation of the Refugee Convention

       Limited case law

       A children’s rights barometer for persecution: present day case law

       A particular convention ground

       The findings

       The questions

       Moving forward

       Conclusion

    Biography

    Samantha Arnold is a Post-Doctoral Research Fellow within the Irish National Contact Point of the European Migration Network based in the Economic and Social Research Institute and an Adjunct Assistant Professor in the School of Law at Trinity College Dublin. Samantha completed her PhD in the School of Law, Trinity College Dublin. Her research interests include refugee and immigration law and policy and children’s rights. She has published on these and related areas.

    "In this meticulously researched and lucidly presented book, Samantha Arnold investigates the implications of the enduring legal disjunction between children's rights and refugee protection norms.  At a time when the number of distress child migrants in need of international protection is at an all time high, understanding how children fit into refugee law is a key legal question and an urgent practical necessity. Both legal scholars and child rights advocates stand to gain considerably from this timely study." 

    Jacqueline Bhabha

    Professor of the Practice of Health and Human Rights

    Harvard T.H. Chan School of Public Health