In Search of Best Practice
Edited by Mary Crock and Lenni B. Benson
Chapter 4: First things first: international law and the protection of migrant children
In this chapter we discuss the evolution of international law relative to the protection of child migrants. After a brief historical account of the traditional protective frameworks of international humanitarian law (IHL), refugee law and general human rights law, section 3 turns to a closer analysis of the United Nations Convention on the Rights of the Child (CRC). We examine the ways in which this Convention has changed thinking about children on the move. In this context, two core legal precepts are explored. The first is the concept of the ‘best interests’ of the child (CRC, Article 3). The second is the injunction that affording a child dignity and respect must include allowing children to participate in relevant decision-making processes (CRC, Article 12). While the concept of best interests has a long lineage, we argue that it is the participation provisions that have been truly transformative in the discourse on children’s rights. Section 4 follows with a brief case study of the rights of children displaced by armed conflict and/or natural disasters enshrined in the more recent UN Convention on the Rights of Persons with Disabilities (CRPD). This Convention is modelled in more than one respect on the CRC (as shown, for example, in the parallels between CRC, Article 3 and CRPD, Article 7(2), and CRC, Article 12 and CRPD, Articles 7(3) and 12). The chapter concludes with an acknowledgement of the many ways that states have found to deny children the protective force of international human rights laws.
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