27 Pages Posted: 9 Jun 2017
Date Written: May 19, 2017
Although vulnerability does not have an express legal basis in international human rights law, international human rights courts, and particularly the European Court of Human Rights (ECtHR), have increasingly drawn on this concept in their jurisprudence. The ECtHR has developed an important line of cases concerning migrant children, whom it views as particularly vulnerable to physical and mental harm during the migratory process. The Inter-American Court of Human Rights (IACtHR) also anchored this notion in an influential advisory opinion on the rights of migrant children. This article critically examines this case-law against the existing scholarship on vulnerability and the legal framework on human rights protection. It argues that the concept of vulnerability, when complemented by considerations of the best interests of the child, can operate as a magnifying glass for State obligations, exposing a greater duty of protection and care vis-à-vis migrant children. It suggests that the human rights courts should deploy a more substantial approach to migrant children’s rights based on the concept of vulnerability and on the principle of the best interests of the child. Above all, this approach would foster stronger protection of these children’s rights in the long term. In addition, if effectively applied, it would allow the human rights courts to avoid stigmatising the most exposed individuals in the ongoing global migration crisis.
Keywords: International Law, International Human Rights Law, International Refugee Law, UN Convention on the Rights of the Child, European Court of Human Rights, Inter-American Court of Human Rights, migrant children, unaccompanied children, vulnerability
JEL Classification: K33, K37
Suggested Citation: Suggested Citation
Beduschi, Ana, Vulnerability on Trial: Protection of Migrant Children's Rights in the Jurisprudence of International Human Rights Courts (May 19, 2017). Boston University International Law Journal, Vol. 36, No. 1, 2018 (Forthcoming). Available at SSRN: https://ssrn.com/abstract=2971116