Detention As a Last Resort: The Implications of General Comment No. 35

Protecting the Migrant Child (Edward Elgar), Forthcoming

13 Pages Posted: 29 Nov 2017

Date Written: November 24, 2017

Abstract

Improper confinement of children in migration contexts – unnecessary, prolonged, or in harmful conditions – is a severe and troubling phenomenon. In that regard, the UN Human Rights Committee’s General Comment No. 35 (2014) summarizes the treaty body’s interpretation of the right to liberty of person, including protection against arbitrary detention, under the International Covenant on Civil and Political Rights, one of the principal human rights treaties at the global level. This essay describes the Human Rights Committee’s approach to detention of migrants, including child migrants. It explains why General Comment No. 35 employs a broad definition of “detention,” and the resulting need for a nuanced and non-absolutist approach to the “detention” of children in migration contexts. Such “detention” is not invariably arbitrary, but rather should be used only as a measure of last resort, and for the shortest appropriate period of time.

Keywords: detention, children, migrants, human rights

JEL Classification: K33, K37, K42

Suggested Citation

Neuman, Gerald L., Detention As a Last Resort: The Implications of General Comment No. 35 (November 24, 2017). Protecting the Migrant Child (Edward Elgar), Forthcoming. Available at SSRN: https://ssrn.com/abstract=3077068

Gerald L. Neuman (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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