Disasters are not equal in their impact. The very old, the very young, the sick, the wounded, person with disabilities and, in some circumstances, women and minority groups, can face particular and acute challenges. This chapter explores how international law has responded to vulnerability in emergency situations. The genesis and evolution of legal norms governing the protection of various groups of vulnerable people in disaster situations are explored. The chapter is organized around two main arguments. First, relevant international legal norms are very much work in progress, having developed first in response to human conflict and epidemics. Legal norms and practices to govern responses to natural disasters are recent and ill-defined. Secondly, international human rights law has moved away from charity, paternalist and medical models of protection towards a rights-based framework for all vulnerable groups – from women and children through persons with disabilities to minority groups.
Edited by Mary Crock and Lenni B. Benson
Edited by Mary Crock and Lenni B. Benson
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.
Mary Crock and Hannah Martin
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.
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.
Carmelo Danisi and Mary Crock
The number of children on the move in Europe is without historical precedent. In theory, these children should enjoy protections as rich as anywhere in the world. In reality, European practices have been based on minimum standards of protection with a focus on specific (often procedural) rights. By examining how the Council of Europe and the European Union operate to protect human rights, this chapter explores how notions of the best interests of the child have been embedded in these two systems while attempting to control migration flows. It argues that both systems have considered the Convention on the Rights of the Child (CRC) and the CRC Committee as guidance for every context involving children, including for asylum and migration. Acknowledging the vulnerability of migrant children as a group with special needs, they stress the importance of integrating the best interests principle at legislative and administrative levels to pursue the ‘social development’ of children whatever their immigration status. As a result, while controversies persist, ‘Europe’ does provide a common protective foundation for migrant children. If it will grant a consistent approach on the rights of the child as an indivisible catalogue, it also offers a common potential for more sophisticated best interests-friendly solutions to prevail over the need to protect ‘national’ boundaries.