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

Human Rights

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

By Samantha Arnold
Routledge October 2017

Specifications

ISBN-13
9781138052710
Publisher
Routledge
Publication
October 2017
Format
Hardback
Jurisdiction
U.K. ? Countri(es) for reference only

Details

Children make up half of the world’s refugees and over 40 per cent of the world’s asylum seekers. Yet, 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 policy-makers working in the areas of migration and asylum law, children’s rights, and international human rights law.

Table of Contents

Chapter One Introduction
1. Introduction
1.1 Dichotomy: children’s rights and refugee law
1.2 A children’s rights approach
1.2.1 Building upon the ‘human rights approach’
1.2.1.1 Children as subjects of law and the Refugee Convention
1.3 Invisibility in refugee law
1.4 Locating children’s rights in refugee law: Article 6 and the ‘Three Ps Approach’
1.5 Methodology of analysis
Chapter 2 Children, childhood and refugee law
Abstract
2. Introduction
2.1 Indicators of childhood and being a child and refugee law
2.2 A paradigm shift: the emergence of childhood
2.3 The modern children’s rights movement
2.3.1 The beginning of the Children’s Rights Movement
2.4 Global childhood
2.5 Conflicts within the paradigm shift: an externalisation of rights, romanticism and the role of the family
2.6 A conceptualisation of childhood
2.7 Conclusion
Chapter 3 International Children’s Rights Law
Abstract
3. Introduction
3.1 Origins of children’s rights in international law
3.2 Convention on the Rights of the Child 1989 and life, survival and development
3.3 Provisional rights
3.3.1 Health
3.3.2 Standard of living
3.3.3 Education
3.3.4 Non-discrimination
3.4 Protection rights
3.4.1 Labour exploitation
3.4.2 Other forms of economic exploitation
3.4.3 Involvement in other illicit trades
3.4.4 Military conscription
3.4.5 Child marriage
3.4.6 Other non-economic forms of harm
3.4.6.1 Indiscriminate violence
3.4.6.2 Torture, inhuman or degrading treatment or punishment
3.5 Participation rights
3.5.1 Agency in the CRC
3.5.2 Determining agency
3.5.2.1 Right to be heard
3.6 The role of the family in the CRC and provisional, protection and participation rights
3.7 Children’s rights and refugee law – an indirect link?
3.8 Conclusions
Chapter Four Children in the development of refugee law
Abstract
4. Introduction
4.1 Children and the beginnings of international human rights law (pre-1951)
4.2 Beginnings of refugee law
4.3 The historical trajectory of children in the refugee paradigm
4.4 Modern refugee law under the United Nations
4.5 Conclusion
Chapter Five A children’s rights approach to refugee law?
Abstract
5. Introduction
Part I
5.1 Context setting
5.2 Children within the Refugee Convention and the need for a cross-treaty interpretive approach: some assumptions
5.3 Bridging the gap: treaty interpretation
5.4 The challenge of implementing international law
5.4.1 International law as national guidance
5.5 The object and purpose of the Refugee Convention
5.6 The object and purpose of the CRC
5.7 Conclusion on objects and purposes
5.8 A children’s rights approach –justification through UN Guidance
5.8.1 UNHCR
5.8.2 Committee on the Rights of the Child
5.9 Challenges in the interpretation of the Refugee Convention in respect of children’s rights
Part II
5.10 A brief introduction to persecution
5.10.1 Persecution and children
5.10.1.1 Persecution in UNHCR Guidance
5.10.1.2 Persecution in practice
5.10.2 Actors of persecution and protection and the role of the family
5.10.3 Children who are not eligible for protection: exclusion
5.10.4 Convention grounds
5.10.4.1 Children as a particular social group
5.10.4.1.1 Childhood as an immutable characteristic and refugee law
5.10.4.2 Race and nationality
5.10.4.3 Religion and political opinion
5.11 Conclusion
Chapter Six Constructing a children’s rights approach: The application of children’s rights in refugee law
Abstract
6. Introduction
6.1 Challenges to consistency in the interpretation of child refugee claims
Part I
6.2 Provisional rights and refugee protection
6.2.1 Family
6.2.2.1 Right to the highest attainable standard of health
6.2.2.2 Adequate standard of living
6.2.3 Education
6.2.4 Conclusion on provisional rights
Part II
6.3 Protection rights and refugee protection
6.3.1 Exploitation
6.3.2 Labour and trafficking
6.3.3 Forced military recruitment and protection of children during conflict
6.3.4 Involvement in illicit activities – gangs
6.3.5 Other forms of harm: Indiscriminate violence and torture
6.3.6 Family as persecutor and protector – unattached children
6.3.7 Conclusion on protection rights
Part III
6.4 Participation rights and refugee protection
6.4.1 Structure of Part III
6.4.2 Imputed beliefs
6.4.3 Religion
6.4.3.1 Female genital mutilation revisited
6.4.3.2 Child marriage
6.4.3.3 Sexual orientation and gender identity
6.4.4 Political opinion
6.4.5 Conclusions: Participation rights
6.5 Conclusions
6.5.1 A Children’s Rights Approach
Chapter Seven Conclusions
Abstract
7. Introduction
7.1 Dichotomies
7.2 A children’s rights framework
7.3 Invisibility in refugee law
7.4 A bourgeoning children’s rights approach to the interpretation of the Refugee Convention
7.5 Limited case law
7.6 A children’s rights barometer for persecution: present day case law
7.7 A particular convention ground
7.8 The findings
7.9 The questions
7.10 Moving forward
7.11 Conclusion
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