Of Relative Rights and Putative Children: Rethinking the Critical Framework for the Protection of Refugee Children and Youth

Australian International Law Journal, Vol. 20, pp. 33-53, 2013

Sydney Law School Research Paper No. 13/95

22 Pages Posted: 18 Dec 2013

Date Written: December 15, 2013

Abstract

This article is about a complex policy problem for governments everywhere: the phenomenon of children and young people presenting as forced migrants, either alone or in the company of responsible adults. The special vulnerability of children in situations of displacement is apparent and (typically) is readily acknowledged. Rather than responding directly and simply to the needs of the embodied child, however, governments have found serial justifications for denying protection and for adopting policies that harm, rather than help, the children in question. Using as a case study Australia’s recent response to children presenting as unauthorised maritime arrivals (‘UMA’), the article explores the discourses that have developed to deny children rights that are enshrined in international law. I argue that these have centered around three disabling ideas. The first is that the rights of children are compromised by their standing relative to the rights and interests of adults. The second is that the rights of refugee children and youth are affected by their status as non-citizens or aliens. This is because rights vested under international law will only have meaning if ‘enabled’ by domestic law. The third challenge to the notion of rights in refugee children and youth revolves around the perceived imperative that countries adopt measures to deter irregular migration. The idea is that policies must be set so as to deter adults from placing refugee children and youth in situations of peril by sending them alone in search of asylum. The protection of the putative child is invoked in defence of policies that are acutely harmful to embodied children. In Australia’s case, examples of such policies are found in the mandatory detention of undocumented refugee children and youth and the decision to deflect UMA children and youth to regional processing centres on Nauru and Papua New Guinea’s Manus Island. Without denying the difficulties governments face in these matters, I argue that Australia’s laws and policies have now reached a tipping point. The very concept that refugee children and youth might be rights bearers has been put in question.

Keywords: immigration, refugees, children, family migration, rights of the child

JEL Classification: K10, K30

Suggested Citation

Crock, Mary Elizabeth, Of Relative Rights and Putative Children: Rethinking the Critical Framework for the Protection of Refugee Children and Youth (December 15, 2013). Australian International Law Journal, Vol. 20, pp. 33-53, 2013, Sydney Law School Research Paper No. 13/95, Available at SSRN: https://ssrn.com/abstract=2368079

Mary Elizabeth Crock (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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