Children's Rights and Refugee Law : Conceptualising Children within the Refugee Convention book cover
1st Edition

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

ISBN 9780367280819
Published March 28, 2019 by Routledge
208 Pages

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Book Description

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.

Table of Contents

Chapter 1 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



   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


Chapter 3 International Children’s Rights Law



   Origins of children’s rights in international law

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

   Provisional rights


      Standard of living



   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?


Chapter 4 Children in the development of refugee law



   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


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



   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


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



   Challenges to consistency in the interpretation of child refugee claims

   Part I

   Provisional rights and refugee protection



      Conclusion on provisional rights

   Part II

   Protection rights and refugee protection


      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


      Political Opinion

      Conclusions: participation rights


      A Children’s Rights Approach

Chapter 7 Conclusions




   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


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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.