Adou, an 8-year-old Ivory Coast boy, was smuggled in a suitcase across the border between Morocco and the Spanish enclave of Ceuta. His parents were already living and working with regular permits on the Canary Islands, but their financial situation did not meet the Spanish immigration system’s conditions required for them to be reunited with both their children. Hence their dangerous attempt to have him enter the country with somebody else.
Meanwhile, on the other side of the world, news spread about Francisco, a 16-year-old child from El Salvador who, driven by fear of gang violence, tried to migrate to the USA. Facing difficulties with regular migration channels, he resorted to a network of human traffickers. Once in Mexico, he was caught by immigration authorities and repatriated to El Salvador. His mother, who made a similar journey before and was for some years a non-documented worker in Tennessee, considered it better for him to embark on that treacherous route than to stay home.
Safer work was, instead, the driving hope for Hafsa, a 14-year-old girl of the Rohingya minority in Myanmar. A broker took her to a boat directed to Malaysia. As one of the so-called ‘boat people’, she travelled for two months only to find herself in Thailand. With no contact there and no education at all, it is not too far a stretch of the imagination to dread her falling prey to exploitative and abusive practices.
In each case we may argue about the nature of these children’s migration, the trustworthiness of their claims, or the push and pull factors behind their choice (or lack thereof) to take on such dangerous voyages. As their stories show, child migration comes in many forms: it may be linked to a family’s pursuit of better opportunities in life or refer to lone minors fleeing from violence in their home countries; it may be considered regular or irregular depending on the respect of immigration laws; it may be related to migrant work or derive from trafficking in human beings, or a combination of all the above. In any case, child migration also comes with many perils and makes children at risk of double jeopardy: as children they are already more exposed to danger than adults because of their developing capacities; as migrants they are even more at risk of exploitation and violence.
The scope of the challenge is under our eyes. It remains to be seen what to do in response. One option lies in furthering the double protection afforded by the existing rights frameworks for children and migrants. In other words: making sure to include children’s rights in migration laws and policies and migrants’ rights in childhood legislation and programmes. In this way, it becomes clearer what we need to focus on: children’s survival, well-being and full development. It also becomes easier to identify what specific rights apply and how to best address abuses and violations of such rights.
Moreover, such an approach has the advantage to:
1) include both a very comprehensive and far reaching instrument such as the Convention on the Rights of the Child (CRC) and a very specific treaty like the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW);
2) cover almost the whole world as the CRC has been ratified by all but two countries (Somalia and the USA);
3) see migrant children also as rights-holders and agents in their own migration project rather than only passive victims of circumstances;
4) protect these children’s rights throughout the whole process, not only in the contingent moment of transit or arrival at destination.
Let us see how.
While it is rather difficult to lump together in a single legal definition the many realities that fall under the term ‘migrant children’, it is relatively easier to define a child using the CRC (art.1) and understand the legal obligations deriving from it. When we consider “every human being below the age of 18 years” as a child, we know that States must guarantee them a specific set of rights no matter their (or their parents’) origin, status or motivation to migrate.
In this light, worthy of particular attention are the so called general principles of this Convention: non-discrimination (art.2); best interests of the child (art.3); right to life, survival and development (art.6); respect for the views of the child (art.12). If each and all of these provisions were fully implemented in the countries of origin, transit and destination, we would not be reading of any of the above-mentioned children: Adou and Ravi’s best interests to be with their parents would have prevailed over administrative migration rules that lack a child perspective; attention to the threats to Francisco’s life and development, together with consideration for his best interests and his point of view, would have prompted a more careful repatriation decision; Hafsa would not have been discriminated against and forced to look for a safer place away from ‘home’.
A similar approach is valid for other rights in the CRC. In our cases, it is particularly relevant to recall also art.5 on the evolving capacities of the child; arts.9-10 on family life and family reunification; art.28-29 on education; art.32 on economic exploitation; art.35 on trafficking; art.39 on physical and psychological recovery and social reintegration.
One might say that the ICMW also recognises similar rights. Indeed, that Convention affords rights not only to migrant workers but also to their dependent children (art.4). Among others, we do find provisions on: the right to life (art.9); the prohibition of slavery, forced or compulsory labour (art.11); the facilitation of reunification of families (art.44); the prevention and elimination of trafficking in persons and smuggling of migrants (art.68) and specific child-related articles on the right education (art.30), including facilitating the integration of children of migrant workers in the local school system (art.45.2).
The ICMW does provide solid protection in terms of substance. However, having been ratified by only 47 States, it is very limited in its scope of application. Looking back at our cases, only Francisco would be protected by the ICMW, given that both El Salvador and Mexico are State Parties. Lebanon, Myanmar, Thailand, Ivory Coast and Spain have taken no action with respect to the treaty. Consequently, Ravi, Hafsa and Adou would need to turn to the CRC for the protection of their rights.
The worldwide coverage and comprehensive nature of the CRC offer broader and steadier protection. Its focus on the child as an active and capable human being endowed with specific rights proves invaluable in cases where the child’s own opinion and capacities become significant. Taken as a comprehensive framework guiding decisions concerning the rights of any child, the CRC lends additional strength to the rights that are specific to migrant children. However this does not mean that the two instruments are mutually exclusive; on the contrary, they reinforce each other.
This becomes even more relevant when one looks at the rights of such children throughout the whole migration process. Already before starting the journey, respect of the rights of these children in their home country is fundamental: too often violations or a limited implementation of children’s rights are among the reasons why migrant children leave their homes. At that stage they are not migrants yet, therefore the protection of the CRC is key. Afterwards, once the migration is set in motion, attention should focus on interventions with appropriate systems of protection and assessment of capacities at each stage of the process (in transit, upon arrival at destination and throughout the stay in the host country). The involvement of different actors in all these phases is another crucial factor, one that must be based on efficient transnational cooperation with adequate communication and coordination systems. Here the protection of the ICMW, and in particular its Part VI on the promotion of sound, equitable, humane and lawful conditions in connection with international migration, is certainly more detailed and becomes more pertinent than the CRC.
A complex matter such as child migration requires complex responses. This, however, should not inhibit our action. Surely, the reality of patchy legal implementation and the need for further policy refinement may seem overwhelming. Nevertheless, the human rights instruments at our disposal are formidable tools and create opportunities for advocacy that we have a responsibility to fully exploit.
For Adou, Francisco, Hafsa, Ravi, and countless others, the CRC and the ICMW are either obscure documents with little relevance for their lives or, at best, dreams waiting to come true. It is critical that they now become a reality.
Dr. Angela Melchiorre has been working on children’s rights since 2000 and has a wealth of experience across sectors. She is currently a Lecturer in the Master’s Degree in Human Rights and Multi-level Governance at the University of Padua and an Instructor for Human Rights Education Associates (HREA) in Cambridge, MA, USA. Previously, she was Programme Director of the European Master’s Degree in Human Rights and Democratisation in Venice, Italy, and Lecturer in the MA in Understanding and Securing Human Rights at the University of London. Dr. Melchiorre has also experience in NGO work (ActionAid International), diplomacy (Permanent Mission of Italy to the UN in Geneva and New York) and independent consultancies (UNESCO, UNICEF, UN CEDAW Committee).
* Fictional name for ease of reference.