This week’s “ESC Carte Blanche” editor is Margherita!

Hi! I’m Margherita, I’m 23 years old and I’m from Italy. I came to OCC because I am doing a two-year master’s degree in International Security and Policy and I wanted to experiencing the situation on the field, in an area linked to my studies.”

“I love children and it pains me that in this field they are no longer recognized by governments as children, but only as people on the move and for me, this is absurd. I decided to write this article because everyone needs to think about this issue and everyone needs to know how things really are. I want to give a voice to all these children: they are the main reason why I am here.”

Introduction

Climate catastrophes, conflicts, violence, and inequality continue to force people, including many children, to flee their home countries.

From the start of the year to today, around 6,000 children are on the move seeking protection and care, particularly if they travel alone and without a family. In these situations, children are especially vulnerable and they risk ending up in the hands of exploiters and traffickers (Save The Children, n.d.). Minors make up almost one-third of all people on the move arriving in Europe (Sullivan, Denis, Hawkins, 2019). They are boys, girls, and adolescents who leave their home country for a variety of reasons, voluntarily or involuntarily, with or without the legal custody of their parents or any other adults. Furthermore, it is important to distinguish between unaccompanied foreign minors (MSNA), who are minors who do not have the support of their parents or other legally responsible adults and separated minors who are individuals who are separated from both parents or legal guardians but not necessarily from other family members (Bierwirth, 2005).

Drawings of “Pirates” (13-17 years old children classes), Open Cultural Center, Polykastro, Greece

“Today there are more children in need of humanitarian assistance than at any other time in recent history.”

Catherine Russell, Executive Director of UNICEF

This paper is going to explore deeply the phenomenon: children on the move are not rightly protected because they are seen only as “migrants” and not as children anymore. Therefore, the question that leads to this research is whether it would be relevant to advocate for a specific organization for them. Their protection has its specific part on human rights, and this is the starting point for the construction of an intersectional approach to the question. Even if Public International Law (PIL) cannot intervene directly, it shows that the protection of children has its specific part in human rights and it calls for the construction of an intersectional approach to this question to specific conventions.

On August 19, 2014, the Inter-American Court of Human Rights released an advisory opinion on the “Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection”. This significant Opinion was the first occasion that the Court had addressed states’ responsibility to defend children on the move rights, as a reaction to a collaborative submission by four OAS (footer: Organization of American States) members. Latin American states have raised worry about the lack of connection between migratory and child protection laws, as well as the widespread adoption of a criminal justice approach to solve children’s difficulties. According to the UN Refugee Agency, children seeking international protection often flee domestic violence and organized armed criminals. The issue has gained prominence in inter-American human rights law and the world in recent years. The request for advisory opinion drew tremendous interest from a variety of organizations (Contesse, 2017).

Addressing the legal and humanitarian needs of children on the move within the framework of Public International Law is essential because it ensures the protection and the respect of their human rights, but also because it prevents abuses and facilitates access to justice.

Legal framework for protecting children on the move in Public International Law

To start answering the research question, we must provide an overview of some relevant international human rights instruments applicable to children on the move. Firstly, children are protected by the United Nations Convention on the Rights of Children (1989), an international agreement on childhood. The summary of the Convention says that children are more than just “objects” whose parents make decisions for them, they are human beings with their own set of rights. According to the Convention, childhood is distinct from adulthood and lasts until the age of 18. This is a unique protected period during which children must be permitted to grow, study, play, develop, and flourish with dignity. The Convention went on to become the most widely ratified human rights convention in history, transforming children’s lives (UNICEF, n.d). Secondly, we can also take into consideration the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) which is a UN multilateral treaty ensuring the safety of workers on the move and their families. The problem here is that children on the move have been characterized as passive, weak, and exploited. Viewing children primarily in this manner ignores the fact that some children do decide to travel, and they do so in much the same way as adults. Assuming that children can only ever be pushed or persuaded to leave their country is an assumption that ignores the realities of many children’s situations. Furthermore, holding this viewpoint may force children into exploitative situations from which they should be safeguarded when they have no viable options (IOM, n.d). Having understood that, the risks encountered by children on the move are important to consider because the migration process contains inherent instabilities, hazards, and dangers, to which children are especially vulnerable. These may include being targeted for violence, theft, and exploitation, which is especially true for the poor, inexperienced, and illegal and they frequently are unable to obtain aid from local authorities.

A child on the move may also be subjected to making important adult decisions by family members or others, which in some situations exposes him or her to serious harm that and in any other setting, would trigger a strong child protection system (UNICEF, 2004).

In addition, children of workers on the move may be deprived of access to fundamental services such as health care and education, with the language barriers frequently preventing children from receiving an education. Children who do not attend school (due to lack of access or pressure to contribute to family earnings) are prone to the worst types of child employment, such as the sex industry (McKenzie, 2006). All this data and these vulnerabilities are exacerbated by weak legal protection (UNICEF, 2004) because children on the move are not seen as children anymore. 

In many cases, a gap exists between their rights under international law and the actual reality in the countries they live in. The contrast between the principles agreed upon by governments and the day-to-day realities of individual lives highlight children on the move vulnerability in terms of dignity and human rights (Grant, 2005). Human rights protection for communities on the move are far less developed than the international refugee protection system, and no international entity currently has a statutory protection mandate for people on the move similar to the UNHCR. However, these people have rights under various branches of international law, thanks to treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), that are universally applicable and thus protect people on the move. As with other communities on the move, there is no international framework that specifically addresses children on the move. However, in addition to the ICCPR and ICESCR, laws on general child welfare and the protection of children from economic exploitation and dangerous work apply to accompanied or unaccompanied children on the move, whether forced or voluntarily. Similarly, the protective measures outlined in the Convention on the Rights of the Child, the ILO Conventions on Child Labour, the UN Protocol on Trafficking, and several regional treaties are all relevant. It is essential to remember that there is no international framework that specifically addresses children on the move, even if the measures outlined in the Convention on the Rights of the Child, the ILO Conventions on Child Labour (footer: ILO Convention 138 (Minimum Age Convention, 1973); ILO Convention 182 (Worst Forms of Child Labour Convention, 1999); and ILO Recommendation 190 (Worst Forms of Child Labour Recommendation, 1999)) and the UN Protocol on Trafficking are all relevant in the field.

Rights that must be recognised

Right to non-discrimination. To ensure the survival and development of children, the concept of non-discrimination has to be developed. This means that actual measures should be implemented at all levels to protect children from specific hazards that undermine their right to life. Priority procedures for involved children are possible and regularly evaluating these measures will ensure their effectiveness. (CRC (footer:  Convention on the Rights of the Child) Committee, 2005) The principle of non-discrimination applies to all interactions with children on the move, including those who are unaccompanied, separated, refugees, or migrants (Art. 2 of the Convention on the Rights of the Child). As a result, states should be called upon to take action to protect minors from all forms of discrimination.

Right to education and healthcare. These children may find themselves excluded from the educational system because of their migratory situation, encountering linguistic barriers, discrimination, and lack of identity documents necessary for school enrollment. Education is a fundamental right for all children, regardless of their origin or migratory status. However, many children on the move are faced with a lack of educational opportunities, which compromises their cognitive, social, and emotional development. Without access to education, these children are deprived from the improvement of knowledge and skills necessary to realize their full potential and make a positive contribution to society (Arzubiaga, 2009).

Moreover, the lack of access to medical care is another significant challenge faced by children on the move. Many times, these children need urgent medical care due to physical trauma, disease, or pre-existing medical conditions, but they encounter difficulties in receiving assistance due to language barriers, lack of health insurance, or discrimination. The lack of access to education and medical care not only undermines the individual well-being of migrant children but also has long-term negative consequences for host societies. Quality education and access to medical care are key to building inclusive, resilient, and sustainable societies (Bhabha, 2009). Certain components of education can naturally protect children. Identifying as a student and learner provides a sense of self-worth, fosters social networks, provides adult supervision, and provides access to a scheduled routine. Maintaining education can give important continuity and support for children living through hard times (Triplehorn, 2003).

Right to family unity and protection from separation. The stories of children, some of whom are very small, separated from their parents while they seek safety are heartbreaking. Children, regardless of their origin or migration status, are first and foremost children. Those who have been left with no choice but to flee their homes have the right to be protected, to access essential services, and to be with their families, just like all children. Detention and family separation are traumatic experiences that can make children more vulnerable to exploitation and abuse and create harmful stress that, as numerous studies have shown, can have an impact on the long-term development of children. The right to family unity is a contentious issue for people on the move. The question is if the principle of family unity requires a State to admit non-national family members of someone legally residing on its territory. While many states do, others do not. Article 10 of CRC States must deal with family reunion “in a positive, humane, and expeditious manner” and permit parents and children to spend time with each other if they live in different states.

Responsibility of international organizations in preserving the rights of children on the move under Public International Law: are they efficient?

In numerous Resolutions, the United Nations General Assembly has emphasized the need to protect the rights of migrant children. Resolution 55/79 on the Rights of the Child, issued in December 2000, urged states to protect all human rights of people on the move, particularly unaccompanied children, and to prioritize the child’s best interests. It further urged States to fully collaborate with and assist the Special Rapporteur of the Commission on Human Rights (footer: Ms. Mary Lawlor is the Special Rapporteur since 1 May 2020.) on the human rights of people on the move in addressing the very vulnerable situation of children on the move. This phrasing is replicated in paragraphs 12 and 13 of A/RES/57/190 4 from February 2003. In the same month, the General Assembly expressed its concern and emphasized the importance of all States Parties fully protecting the universally recognised human rights of communities on the move, particularly women, and children, regardless of their legal status, and treating them humanely, particularly in terms of assistance and protection.

Women and children are generally treated as a single category, which acknowledges that they frequently face the same injustices.

It does not, however, accept that the two groups have different needs and corresponding rights (IOM, n.d). The focus on the significance of protection, regardless of legal status, is greatly appreciated. There is a special need to defend the human rights of children on the move, particularly unaccompanied children on the move, and to ensure that the children’s best interests  and the necessity of reconnecting them with their parents are recognised. Moreover, the August 2005 Report of the Secretary-General on the Special Session of the General Assembly on Children highlights significant gaps in child protection worldwide, including sexual abuse and exploitation (IOM, n.d.).

Women and children are generally treated as a single category, which acknowledges that they frequently face the same injustices. It does not, however, accept that the two groups have different needs and corresponding rights (IOM, n.d). The focus on the significance of protection, regardless of legal status, is greatly appreciated. There is a special need to defend the human rights of children on the move, particularly unaccompanied children on the move, and to ensure that the children’s best interests  and the necessity of reconnecting them with their parents are recognised. Moreover, the August 2005 Report of the Secretary-General on the Special Session of the General Assembly on Children highlights significant gaps in child protection worldwide, including sexual abuse and exploitation (IOM, n.d.).

Many organizations support children on the move. The first one is the International Organisation for Migration (IOM) which is a significant international independent organization within the UN that addresses migration concerns on a worldwide scale (1951). Its mandate includes a wide range of migration-related operations, such as policy research, capacity building, humanitarian relief, and migration management. Its mission is to support migration by offering services and guidance to governments (Pécoud, 2018). An essential organization in the field is UNICEF, which aims to promote respect for children’s rights, provide their basic needs, and expand their prospects. It offers life-saving humanitarian items in refugee camps and operates child-friendly spaces – safe locations where children on the go may play, moms can rest and nurse their babies privately, and separated families can rejoin (“Migrant and displaced children” UNICEF, n.d.). In addition, the UNHCR takes an integrated approach to child protection. It invests in both specialized child protection programming and uses partners’ investments in protection, solutions, and assistance to help protect children (“Child protection” UNHCR, n.d.). The ICMPD also promotes the reintegration of victims of trafficking among separated and alone children, providing services, and protection in the context of the current migration and asylum processes (“TRAM: Trafficking along Migration Routes” ICMPD, n.d). Finally, FRONTEX, as a result, created a set of tools for children and those who work with them and intends to do the same for additional vulnerable groups in the future. The organization, in close collaboration with child psychologists and child education experts, as well as in conjunction with the Agency’s Fundamental Rights Office and the Consultative Forum, has produced a “Toolbox for Children in Return” (“Good Practices in Returning Children with Families” FRONTEX, n.d). However, states continue to see children on the move as part of communities on the move, and no longer as children and this underlines that the organizations listed above have limits.

Conclusion

As just mentioned, the current approaches by international organizations are not formulated for

children on the move. There exist some organizations for migrants and some organizations for children but there isn’t an organization that brings together both essential fields in a unified manner. As previously assumed, children on the move in this sense are not seen as children anymore, but as people on the move. This is the reason why we raised the research question, affirming that it is relevant to advocate for a specific organization for children on the move, especially considering the issues I mentioned earlier. International organizations already focusing mainly on adult migrants do not have the resources, staff, or specific expertise needed to effectively address the special needs of children on the move. In addition, organizations’ primary work with adults on the move are uninformed of the specific concerns affecting children on the move, such as child protection, access to school and medical care, and the unique emotional and psychological needs of children experiencing migration. As evidenced before, organizations already existing primarily serve adults and they struggle to effectively include children on the move in decision-making processes that affect their lives and rights and this causes a lack of representation and voice for children on the move in policies and programs. Advocating for a specific organization for migrant children is essential to meet their needs, such as safe lodging for unaccompanied minors, family reunion services, or specialized legal aid for minors. Finally, this could effectively comprehend and manage specific issues for them, including their safety, development, and rights laws. This can be possible only by committing to incorporating a child-sensitive viewpoint into their migration support activities, as well as collaborating with other organizations with specific experience in child rights, children, and child protection.

References

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The “ESC Carte Blanche ” is a section where we give the mic to our European Solidarity Corps volunteers and give them the creative freedom to write a piece about a topic of their interest linked to migration. 


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