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RIGHTS OF REFUGEE CHILDREN-A CRITICAL ANALYSIS
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RIGHTS OF REFUGEE CHILDREN-A
CRITICAL ANALYSIS
AUTHORED BY - ASHUTOSH TRIPATHI
“Having control over who touches your body, and how, lies at the core of
human dignity and autonomy” – Justice Major, In R. v. Ewanchuk[1]
Seema, Lakshmi and Chanda are all
terror stricken girls, aging between 6-7 years. They were brought to a brothel
in Kolkata from Bangladesh and Nepal. They were allowed to leave, not because
they were rescued but because they fell into the insidious circle of HIV and
with no treatment, they were nonetheless, dying. They are a victim of the vicious
circle of peddling human flesh. In fact, perplexity arises when they live life
in servitude where all they can hope for, is a safe heaven.
The Universal Declaration of Human Rights (‘UDHR’) guarantees every
human being, a right to Nationality where there can be no deprivation or denial
to change his Nationality.[2]
Trouble arose, when the Economic and Social Council (‘ECOSOC’) was tackling the
situation of ‘Stateless Persons’ when it clashed with the Refugee Convention of
1951. It was sensed, that special treatment needs to be accorded on
Statelessness and owing to the conference of Plenipotentiaries, The Convention relating to Status of
Stateless Persons was adopted in 1954. Even today, statelessness is a huge
problem in South Asia and the situation aggravates when a stateless person
falls victim to human trafficking.
If one dates back to the early 1980s,
the focus of the United Nations (‘UN’) got channelized towards the
surreptitious and insidious practice of human trafficking which had assumed an unparalleled
and frightening dimension resulting in grave violation of human rights,
especially women and children.[3] It
was in 1949, when the Convention for the
Suppression of Traffic in Person and the Exploitation of Others paved way to
eliminate the ‘white slave trade’. Further, in 2000, the Palermo Protocol to the United
Nations Transnational Organised Crime Convention (‘UNTOC’) which classified
trafficking as an international crime.
Even though there is no limit to the
standards of practice when it comes to Nationality of Refugees, yet The Hague
Convention of 1930, The 1948 UDHR, The 1954 Convention relating to the Status
of Stateless Persons, The 1961 Convention on the Reduction of Statelessness,
The 1989 Convention on the Rights of Child fall short, because these poor souls
are denied their fundamental rights.
REFUGEE CHILDREN: RIGHTS
UNKNOWN OR CELEBRATED?
About 15 years ago, Professor
Goodwin-Gill called out a “total realignment of protection’ for child refugees
while contemplating The 1989 Convention
on the Rights of the Child (‘CRC’).[4] Similarly,
Professor Jane McAdam applauded Article 3 of the CRC which adds a cushion to
the function of the Refugee Convention.[5] The
role of International Treaties is crucial as they set norms. The CRC’s major novelty,
the ‘Triangle of Rights’ and the ‘Best Interests’ rule is the most comprehensive
innovation because even though CRC does not cover refugee children, it
restricts discrimination of all forms[6], grant
legal rights to every person below the age of 18[7] and
creates a special category of protected children by virtue of Article 3.
CRC also holds utmost power when it
comes to Refugee children because even if a State has not ratified the Refugee
Convention, but is a party to the CRC, then it may be applied for preliminary protection
to Refugee children and for United Nations High Commissioner for Refugees (‘UNHCR’)
to advocate its adherence.
COMBATING VULNERABILITY OF
REFUGEE CHILDREN TO HUMAN TRAFFICKING: INTERNATIONAL PERSPECTIVE
The office of the United Nations High
Commissioner for Human Rights has always given primary consideration to the ‘best
interests’ of the child in case of his parent’s deportation, detention or
return.[8]
This can also be inferred from various reports of the Special Rapporteur on
rights of migrants where the efforts of UNHCR are clearly visible when it comes
to family reunification.[9] In
case, the child does not qualify for the Refugee status, the office calls for
an immediate practical assessment in the best interest of the child.[10]
INDIAN YARDSTICK
Trafficking being prohibited in India[11],
still holds a taboo where due to social stigma[12]
and fear of mortification, people remain desensitized.[13] In
India, trafficking has been labelled both directly and indirectly in part III
over Fundamental Rights and Part IV over Directive Principles of State Policy[14],
however they do not mention ‘trafficking’, but exploitation which is one of the
element of trafficking. The Immoral
Traffic Prevention Act, 1956 is the only legislation which concretely addresses
trafficking but still confuses with prostitution. Furthermore, with major gaps
in prosecution, missing gender sensitivity and no uniform definition of a
child, there are many reasons to believe that trafficking in India, is not
considered as an organized crime and with a very few ratifications and
protocols, there is not much of a belief while advocating trafficking cases.
TRAFFICKING OF PERSONS
(PREVENTION, PROTECTION & REHABILITATION) BILL, 2018
The UNTOC along with its protocols has
played a vital role in revising anti-trafficking legislations of many nations. By
introducing this bill, Government of India aims to become a global leader to
fight human trafficking. However, the future of the bill is unforeseen since
its text already confuses human trafficking with migrant smuggling. It is also
disconcerting the actual context of global impacts for refugee children and
migrants.
RESTORING CULTURAL NORMALCY
The cognitive comfort of refugee
children can be assured most effectively by restoring the lost community life. A
clear line needs to be drawn between child victim and the trafficker. Refugee
children who have been rescued should be given efficient rehabilitation in a
safe atmosphere keeping in mind, gender sensitivity. Anti-trafficking trainings
must be given with full enthusiasm and effective monitoring along with
strengthened community initiatives. While it is visible that Nations have made
a little progress towards the fight for child trafficking, following loops need
to be filled with utmost priority.
·
Ensuring
a voluntary return to one’s country of origin and not resorting to temporary
asylums and resettlements in a third nation.
·
Ensuring
an optimum degree of fragmentation on the eagerness of the host Government to
allow refugee children to resolve their own activities, i.e. refugee
participation.
·
People
oriented planning, i.e. understanding demographic profiles of refugee children
and regulating the background within which refugees manage their everyday life.
·
Communicating
traditional dance, music and other forms of art and sports which play an
important role in representing culture.
·
Renewing
and strengthening the practice of rituals and religion.
·
Enforcing
the gamut of cooperation strategies and avoiding coercive practices.
·
Retaining
the identity of children by maintaining their own mother tongue.
·
Tracing
the parents of unaccompanied children to reunify their families.
Psychosocial well-being is of utmost
necessity as far as refugee children are concerned and appropriate remedial
assistance is needed to ensure full recovery of their poor soul. The transition
from full dependency to no dependency is a slow and a developing phase in their
life which calls for high self-esteem, identity and security in order to make
them adapt to the society. The after effects of this disruption in their lives
can be highly serious and daunting, depriving them from their primary role
model, identity and their emotional development. Therefore, it needs to be
understood that the effects of this social upheaval caused by their forced
movement affects the coherence of their culture and social values need to be
kept intact for their very own identity and emotional well-being.
[2] Universal Declaration of Human
Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) Art 15.
[3] Halima E. Warzazi, ‘Exploitation of Labor through Illicit and
Clandestine Trafficking’ E/CN.4/Sub.2/1986/6 (UN Publications 1986).
[5] J McAdam, ‘Complementary Protection in
International Refugee Law’ (Oxford University Press 2006) 173-174.
[6] UN General Assembly, ‘Convention on the Rights of the Child’ (November 1989 United
Nations, Treaty Series, vol. 1577) Art. 2.
[8] Report of the 2012 Day of General Discussion: ‘The Rights of all Children in the
Context of International Migration’ (UNHRC 2013) [72].
[9] Jorge
Bustamante, Human Rights Council: ‘Report
of the Special Rapporteur on the Human Rights of Migrants’ UN Doc A/HRC/11/7
(14 May 2009) [57], [123].
[10] UNHCR, ‘Guidelines on
Policies and Procedures in Dealing with Unaccompanied Children Seeking
Asylum’ (February 1997) [9.2].
[11] Constitution of India 1950 (Indian
Constitution) Art. 23.
[12] Verelst A and Ors, ‘Mental
health of victims of sexual violence in eastern Congo: Associations with daily
stressors, stigma and labelling’ BMC women's
health 2014 14:106.
[13]United States Department of State,
‘Trafficking in Persons Report’ (June
2010) .
Article Information
RIGHTS OF REFUGEE CHILDREN-A CRITICAL ANALYSIS
Authors: ASHUTOSH TRIPATHI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/02
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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