This chapter discusses methodological approaches developed in order to study human rights law integration and fragmentation from a users’ perspective. To study human rights norms in an integrated way, three methodologies are presented and compared: relational and inclusive case law analysis, rewriting (quasi-)judicial decisions from an integrated perspective on human rights norms, and analysing interactions between different branches of human rights law and general human rights law. In order to arrive at an inclusive approach to rights holders, two methodologies are put forward, namely relational and inclusive case law analysis, and a case-based approach to human rights violations. Thereinafter, the chapter analyses some methodological refinements made in the study of users’ perspectives. The study of human rights law as an integrated whole from a users’ perspective seems characterised by three common features: cross-thinking (understood as thinking across established boundaries both within human rights law and between disciplines), a focus on impact and effectiveness, and an inclination towards collaborative research. Finally, the relevance of adopting an integrated approach and/or a users’ perspective beyond human rights law is argued for and illustrated.
This chapter focuses on diversity/fragmentation as a desirable issue in a context of human rights integration. The chapter develops a ‘smart’ concept of human rights integration that strives for an appropriate balance between integration and fragmentation. Such human rights integration is not to be confused with a project of unification of human rights. The chapter first briefly describes the state of the art with regard to fragmentation and integration in human rights law, including scholarly debates on this issue. Next, the chapter makes the case for increased integration compared to the status quo. The main part of the chapter then identifies and analyses several arguments/rationales for limits to human rights integration. These are categorized under three headings: specialisation, contextualisation and experimentation. Finally, the chapter argues that the success of smart human rights integration is not to be assessed in terms of outcomes, but in terms of process, and that its central feature is thus a global human rights conversation. The idea is not so much that one human rights monitoring body acts in the same way or comes to the same conclusion as another body on the same issue, but rather that it is informed about what others do/have done, and reflects upon the desirability of adopting the same approach.
Mathias Holvoet and Paul De Hert
This contribution aims to better understand how and why International Criminal Law (ICL) is pluralistic and how this pluralism is at least partly the result of the contesting actions, interests and backgrounds of the various ICL users and the context in which they operate. The hypothesis is that the adoption of a users’ perspective helps to understand ICL pluralism. After a discussion of the various dimensions of pluralism in ICL, this chapter identifies the most important ICL users. Nevertheless, it will also be demonstrated, through the example of the case against the former Chadian dictator Hissène Habré, that pluralism can be overcome, as ICL is also often a collaborative ingenious effort of various users which are able to align their interests in the pursuit international criminal justice.
Edited by Mary Crock and Lenni B. Benson
The principal domestic mechanism through which Australia gives effect to its protection obligations under the UN Convention Relating to the Status of Refugees, and under other human rights treaties, is the protection visa. This chapter describes the procedural treatment of asylum-seeking children in Australia and considers whether it is compliant with Australia’s obligations under key provisions of the Convention on the Rights of the Child. This chapter adds to the existing literature by examining the treatment of all asylum-seeking children and by focusing on legislative and policy changes in 2014 and 2015 affecting procedural rights at the primary and merits review stage of the protection visa application process.
Mary Crock and Lenni B. Benson
In this introductory chapter we identify themes that will be carried throughout the book. We begin in section 2 with a discussion of the human rights challenges presented by children on the move, posing questions that our contributors will address as they build on the themes we identify. This is followed by an examination of obstacles that have been created to recognizing child migrants as rights bearers. After setting out in section 4 a brief outline of the book’s structure, the chapter concludes with some comments on global initiatives that have been made to address the challenges associated with mass migration, on the one hand, and of forced movement of refugees, on the other. We will argue that the uncertainty and risks facing the world in the new millennium certainly constitute problems – but they also offer opportunities for positive change. Four foundational principles inform our discussion of how states should respond to children on the move. The first is that childhood is unique in that the status of being a child is transitory and (absent disabilities) the capacities of children evolve as children age. Second, it follows that children require special protection and assistance, most particularly in their younger and adolescent years, if they are to develop and thrive. The third point is that procedural accommodations should be made for children in recognition of the physical and cognitive stages of their development. The fourth and final principle both flows from and unites the three that precede it. It is that the treatment of child migrants matters because it has long-term consequences – both for the children themselves and for their host communities.
Kathryn E. van Doore
Children are increasingly on the move in, through and out of South East Asia for independent voluntary migration, or due to forced migration, or trafficking. This chapter examines how the best interests principle embodied in the Convention on the Rights of the Child intersects with the issue of child migration and trafficking in the Association of South East Asian Nations (ASEAN) region. It asserts that South East Asia is in a unique position to adopt a child rights-based approach to child trafficking and migration policy regionally with the best interests of the child as the paramount consideration.
Timnah Baker and Kate Bones
International and domestic jurisprudence and guidance on the definition of ‘refugee’ have largely developed around the adult applicant. Decision-makers and courts have often struggled to engage with the different experiences and vulnerabilities of children seeking asylum. This chapter examines the application of the refugee definition to children in the law of Australia and the United States, providing comparative case studies on two aspects of the definition that present particular issues in the jurisdictions: the level of harm required to amount to persecution, and ‘membership of a particular social group’. The chapter concludes by drawing on the two case studies to highlight the possibilities of transnational and cross-jurisdictional dialogue in the field of refugee law.
Mary Crock and Phoebe Yule
The central argument in this chapter is that the Convention Relating to the Status of Refugees (‘Refugee Convention’) can and should be read in a manner that considers the experiences and particular vulnerabilities of children. We begin in section 2 with a (necessarily brief) examination of the Convention definition of the term ‘refugee’, exploring how the various elements can and should be read to accommodate the protection needs of children. Section 3 looks at the Convention’s exclusionary provisions and how these can affect children who have been embroiled in violence and conflict. We conclude with some reflections on the substantive rights that should flow in acknowledging the application of the Refugee Convention to children on the move as forced migrants.