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"The rights of the child and international human rights law"

Rights Rights and Freedoms

"The rights of the child
and international human rights law"

Keynote presentation
given by Dr Sev Ozdowski OAM, Human Rights Commissioner at the 1st International
Congress on Child Migration, Tuesday 29 October 2002, Hyatt Regency, New
Orleans

This morning I am
going to talk to you about unaccompanied child migrants in the wider context
of current world trends. In so doing, I have taken full account of the
lessons to be learned from the experiences of the victims of British child
migration schemes.

Unaccompanied minors
are children and young people under 18 years of age outside their country
of origin. They have been separated - voluntarily or involuntarily - from
their parents or care givers.

This is not a new
problem.

From the Old Testament,
we know that the child Joseph in Canaan was sold to a party of Ishmaelite
traffickers who took him to Egypt where he was compelled to work as a
slave. Unusually, this story had a happy ending, because he became the
Pharaoh's trusted adviser, saved Egypt from famine, and ultimately was
reunited and reconciled with his family. He also provided the source material
for the hit Broadway show, "Joseph and the Amazing Technicolour Dreamcoat"!

In 1618, a group
of 100 boy 'vagrants' (to use the vernacular of the day) were shipped
from the London area to Virginia, their passage arranged by London's City
fathers. There they were forced to work on tobacco plantations under what
must have been shocking conditions. Arguably, this was the first example
of state-sponsored child migration.

Through to current
times, where in 2001, a 15 year old girl in Benin City, Nigeria, hypothetically
named Sarah, is forced to take part in "voodoo" cult rituals.
Terrified, Sarah agrees to go to London where she is compelled to work
as a prostitute under slave-like conditions.

So, this snapshot
covering several thousand years shows that child migration is not new.
Secondly, lamentably, these examples demonstrate that if anything, conditions
are now worse than ever, despite international legal mechanisms designed
to protect unaccompanied child migrants.

But first, let us
distinguish the different categories of child movement.

The unaccompanied
children of today may be seeking asylum because of fear of persecution
or lack of protection due to human rights violations in their country.
In other words, children who fulfil the classical definition of "refugee"
under the Refugee Convention.

Or, they may be children
who travel alone, seeking to escape conditions of serious hardship, for
a better life. Typically, they would qualify for humanitarian protection,
by virtue of their special vulnerability as unaccompanied children.

Or, they may be the
victims of trafficking.

It is important upfront
to note the essential difference between trafficking and smuggling.
Trafficking is moving children without their informed consent; it applies
whether a child was taken forcibly or voluntarily [1].
The US Government defines it as:

"all acts
involved in the transport, harbouring, or sale of persons within national
or across international borders through coercion, force, kidnapping,
deception or fraud, for purposes of placing persons in situations of
forced labor or services, such as forced prostitution, domestic servitude,
debt bondage or other slavery-like practices." [2]

Smuggling, on the
other hand, is where the child or parents knowingly buy the service of
a people smuggler to move them illegally to another country. [3]

The child victims
of trafficking are overwhelmingly girls, whereas unaccompanied smuggled
children may be of either sex.

I have already referred
you to the seventeenth century example of British children sent to Virginia.
The migration of these so-called "Orphans of the Empire" - trafficked
by their own government - was mercifully halted in 1967. The total number
of "state-sanctioned" exported British children to various colonies
finally reached 130,000, as we have already heard. [4]

The Canada Home Children
scheme, from 1869 until the last arrival in 1948, about which you will
hear much more shortly [Canadian speakers David and Catherine Lorente],
involved 100,000 unaccompanied children sent to Canada from Britain.

Once Canada stopped
the program, the Australian government escalated its own, which had been
temporarily suspended during the Second World War. From 1947 to 1967,
around 3000 children from Britain and Malta (under British jurisdiction)
were forcibly sent to Australia and put into the care of charitable organisations
- Dr Barnardo's Homes, the Catholic Church, Salvation Army, YMCA, Boy
Scouts Association and so on.

Whatever the intention
- settling the Empire with "good British stock" or "rescuing"
children from poverty - the facts speak for themselves. From Catholic
agencies alone, 87% of those children came to Australia without parental
consent. 96% of them had one or both parents alive in Britain. [5]
In May 2002, the Australian government announced a "benefits package"
of US$2m for the former child migrants, along with a statement of regret.

On a happier note,
with regards to Australia, some involuntary migration movements were more
fortunate. In 1939, 20 children from the Vienna Boys Choir were touring
in Western Australia when war broke out. Rather than being interned by
the Australian government, the boys were given safe haven for the duration
of the war, with Melbourne families. The foster care was arranged by the
Archbishop of Melbourne. After the war, all the boys except one chose
to stay in Australia and take citizenship.

There are other historical
examples of state-sponsored creative efforts to save children in war.
These include the 1944 exodus of Polish children from Stalin's forced
labour camps through what was then Persia to New Zealand. The New Zealand
government invited 733 children to migrate there, and paid for their care
and education. Most were unaccompanied but some came with their mothers.

Among several thousand
Holocaust survivors who came to Australia after the war, 300 of them were
orphans, brought to Australia by the Australian Jewish Welfare Society
between 1947 and 1950. [6]

Today, the figures
of unaccompanied children crossing international borders dwarf all previous
figures of child migration.

During 1999 alone,
the most recent year for which UNHCR has some numbers on this, more than
20,000 unaccompanied children applied for asylum in Western Europe, North
America or Australia. They were refugees, humanitarian asylum seekers
or victims of trafficking. [7]

To amplify, separated
children crossing borders may be refugees, humanitarian asylum seekers,
trafficked girls like Sarah forced to work as prostitutes, or simply children
lost in the aftermath of war. Their relatives may have paid a people smuggler
to transport them to a place where they believed the child would be safe.
They can be from all corners of the globe, but in general, the flows are
from south to north and from east to west.

The globalisation
of the world economy, including much improved communication and transportation,
has increased flows of people across borders. Transnational organised
criminals have taken advantage of the freer movement to open new markets
for their trade. So today, children can literally travel across the world
undetected.

There are also many
more wars now, creating large numbers of displaced or orphaned children.
The number of refugees from armed conflicts worldwide increased from 2.4
million in 1974 to more than 27.4 million in 1996. [8]
At the end of 2001, there were 37 civil wars in 30 countries, with 38%
in Africa and 41% in Asia. [9]

The majority of unaccompanied
refugee and humanitarian asylum seeker children who make
it to the west go to Western Europe (especially the Netherlands, the Nordic
countries and Switzerland), the USA and Canada. [10]
A small number end up in Australia and New Zealand.

The majority of trafficking
victims
, on the other hand, are sent to Western Europe, the Middle
East, Thailand and India - and also to the US. The majority are girls,
trapped in debt bondage and forced to work as unpaid prostitutes. Every
year, 300,000 women and girls are trafficked into Thailand alone, to be
exploited in the commercial sex trade. [11] They come
from Burma, Laos, Cambodia and southern China (reputedly a major element
of Triad commerce). Every year, between 5,000 and 7,000 Nepali girls are
trafficked to India. Most of them are deceived into a life as sex workers.
According to UNICEF, approximately 200,000 Nepali women, most of them
girls under 18, work in Indian cities. [12]

Child trafficking
from the former Soviet Union has reached epidemic proportions. From Ukraine
alone, in the first decade after the collapse of communism, 400,000 women
and girls were trafficked into international commercial sex markets (Western
Europe, Israel, the US)[13] . That is the Ukrainian
Interior Ministry estimate; NGOs and independent researchers believe the
number could be much higher. [14]

From the African
continent, children are trafficked to Western Europe and the Middle East
to be sold as sex slaves. They are also trafficked to neighbouring countries.
In the mid-90s in Uganda, for example, the "Lord's Resistance Army",
a heavily-armed rebel group that was fighting the Ugandan government,
systematically abducted between 6,000 and 8,000 children. Most were between
the ages of 10 and 17, and were marched to southern Sudan. They were forced
to take part in combat, carry heavy loads, act as personal servants to
the rebels, and, in the case of girls, serve as "wives" to rebel
commanders. Roughly half the children escaped but the remainder probably
died in captivity. [15]

There are significant
differences between the past movements of children across borders and
current migration. One common theme, however, is that the parents (and
children) often have no idea of what really awaits their children at the
end of their journey.

One key difference
between the past and today is the sponsorship of this mass
movement of children. In the past it was dominated by state sponsorship,
with very heavy NGO involvement, such as the Catholic Church or Barnardo's.
Now, transnational criminal syndicates, and small-time people smugglers
such as fishermen and truck drivers, dominate this market.

So, a second difference
is that the children (or their families) now bear the cost of their own
movement. They incur huge debts that must be repaid.

A third difference
is that in the past, children were moved in relatively large groups and
by secure transportation. Now, they come in small groups, under inherently
dangerous transportation, either crammed into trucks or leaky boats, or
walking alone for thousands of kilometres over dangerous terrain. [16]

The motives for sending
children across borders are also very different now from previously. Britain's
motivation for sending its children abroad was more about empire-building
than securing the best interests of the child. There is no doubt, however,
that some people believed they were saving children from poverty by sending
them to the open air and spaces of the colonies.

Nowadays, any government
placement of "at risk" children into alternative care is done
purely with a child protection motive, and always within the broadly defined
local community. No western government today would allow export of its
"at risk" children overseas.

Parents - not governments
- now send their children away in an attempt to save their lives or to
earn money. For instance, extreme poverty can force desperate parents
to sell their daughters to traffickers to avoid paying a future dowry.

Or the child's parents
may have died [17] forcing them to leave the country
in order to survive.

Finally, a key difference
is that, in the past, there were no international legal protections specifically
for children. Since the mid-1980s, a sizable body of international children's
rights instruments (treaties, guidelines, rules) have developed. Later
I will examine whether these rules are making any discernable difference
to the welfare of these unaccompanied children. But first I will outline
the range of government reactions to these 'unlawful' child arrivals.

Some western countries
have established systems or programs for the safe return of unaccompanied
children to their home country, but most have not. The UNHCR points out
that western governments

"…vacillate
between stringent control measures, including locking children up in
jail, x-raying them to assess their age or shipping them back to 'safe'
third countries, and serious efforts to care for the youngsters in the
spirit of …the Convention on the Rights of the Child which requires
signatories to provide adequate protection and assistance to children,
whether alone or with their families."
[18]

Government reactions
range from very low levels of support:

Many countries immediately
deport children, simply turning them around at the border, especially
if the child has not explicitly sought asylum. Trafficked children are
deported to their countries of origin, sometimes literally dumped over
the border with no assistance.

There is a particular
unwillingness to offer protection to young boys over 13 who are often
deemed by officials as "adult".

Some countries detain
unaccompanied children while their circumstances are investigated. For
instance, police raid a city's brothels, arrest and detain girls and women,
possibly subjecting them to human rights abuses in detention. Trafficked
girls under this scenario are often not treated as children in need of
protection, but as criminals. They do not get support, health care or
the opportunity to testify against their traffickers - they are then quickly
deported.

Some of the more
supportive responses include:

In Canada, unaccompanied
minors are treated as children in need of protection and are looked after
by provincial social services. [19]

In Denmark, unaccompanied
children stay at one of the Red Cross children's centres while the authorities
process their claim. [20]

Elsewhere, unaccompanied
children are placed in foster care. For example, in Australia in 2002,
a group of unaccompanied child asylum seekers from Afghanistan were removed
from detention and placed in foster care while their refugee applications
continued to be processed. [21]

Other countries presumptively
give unaccompanied children permission to stay. In the UK, any child is
entitled to protection under the Children Act 1989. If the child is unaccompanied,
the immigration authorities have the power to grant temporary admission
("exceptional leave to remain"). [22]

The trouble is, countries
are not sufficiently sharing their experiences of dealing with children
in a way that systematically protects and assists them. So with that in
mind, let's look at some of the world's better practice examples.

1. Do not turn
them around at the point of arrival
. Provide appropriate time to
establish their circumstances. The Danish model is a good example, where
in practice no child under the age 15 arriving at the airport is refused
entry to the country. 15 to 18 year olds and land border arrivals are
assessed on a case-by-case basis.

2. Do not detain
them for longer than absolutely necessary
. Although international
law prohibits the detention of children except as the last resort and
even then only for the shortest period of time, few governments enact
laws that ensure this. However, in the UK, it is government policy not
to detain any unaccompanied child unless in exceptional circumstances,
and then only overnight before they can be collected by a social worker
in the morning. [23]

3. Appoint a
guardian for each child:
In Sweden, all separated children are appointed
a guardian known in Swedish as 'the good man'. The guardian ensures
that all decisions are in the child's best interests, and that he or
she has suitable care, legal assistance, interpreters etc. [24]

4. Provide a
lawyer for each child:
In Austria, the Minister of Interior issued
instructions in October 2000 to improve the conditions of detention,
by mandating that unaccompanied children receive legal assistance. [25]

5. Processing
should occur in child-friendly accommodation
, where unaccompanied
children are cared for by suitable professionals who understand their
cultural, linguistic and religious needs. [26] For
instance, in Finland, provision is made for children to be placed with
private families or residential centres, supported by specialised professional
help as necessary. [27] When processing unaccompanied
children, countries should be motivated by child protection principles,
not migration or crime control measures.

Time does not permit
me to provide you with more than an overview of these key issues. I now
want to turn to the formal international instruments dealing with the
protection of unaccompanied child migrants.

In 1989, the adoption
of United Nations Convention on the Rights of the Child (CRC) formally
established children's legal rights to special protection and assistance.

The genesis of this
treaty was recognition by the world community that the existing legal
framework failed to adequately recognise child-specific human rights.
The adoption of the CRC was a watershed in UN-inspired painstaking negotiation.
It became the most ratified human rights treaty in history, with only
Somalia and the USA yet to ratify.

Its subject matter
is wide, covering everything from the child's right to protection from
sexual exploitation to the right to play. It covers the child's civil,
political, economic, social and cultural rights.

The principles articulated
in Article 20 of the CRC apply to all unaccompanied children. Article
20(1) states:

"A child temporarily
or permanently deprived of his or her family environment, or in whose
own best interests cannot be allowed to remain in that environment,
shall be entitled to special protection and assistance provided by the
State."

Article 20(3) provides
guidance on long-term solutions for unaccompanied children over whom a
state has assumed care:

"…When
considering solutions, due regard shall be paid to the desirability
of continuity in a child's upbringing and to the child's ethnic, religious
and linguistic background."

In addition, the
UNHCR has developed a set of Guidelines on Policies and Procedures
in Dealing with Unaccompanied Children Seeking Asylum
.

However, despite
the CRC, current national and international legal structures are still
inadequate in dealing with today's movement of children across borders.
While this deficiency is partially evident in relation to the refugee
and humanitarian categories (because host countries' national laws do
not fully reflect the CRC), it is starkly evident in the trafficking category.
These children are just not adequately protected by either international
or national laws.

However, there has
been a recent attempt to improve the situation. In November 2000, the
UN General Assembly adopted the Convention on Transnational Organized
Crime (CTOC). This included a Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children.
[28]

Unfortunately, neither
the Convention on Transnational Organized Crime nor its protocols have
entered into force, because not enough countries have ratified them. Ratification
would require countries to undertake in-depth measures to combat the buying
and selling of women and children for sexual exploitation or sweat shop
labour. Countries would have to treat unaccompanied children as victims
in need of protection like any other homeless child, rather than as criminals.

But even if they
do ratify, we know from experience with the Convention on the Rights of
the Child that governments must improve their domestic laws
in order to breathe life into the treaty. It is all very well to set up
an international protection system for unaccompanied children, but it
is largely ineffectual unless countries enforce it via their domestic
laws and policies.

Unless a country
has done this, or submitted itself to the jurisdiction of an external
court (e.g. Britain is bound by decisions of the European Court of Justice
in Strasbourg), the rights enshrined in the treaty cannot actually be
legally enforced. This is the "worm" at the heart of the international
treaty system: there is no international enforcement method, no "international
crimes against children tribunal" to make findings on violations
of international treaties to which a country is a party.

At present, the world's
response to unaccompanied children who cross borders uninvited ranges
from the humanitarian to the highly inappropriate. But either way, the
numbers keep growing.

Try as they might,
most governments are not able to control their borders effectively. Their
response to this problem is the creation of more and more sophisticated
methods of detecting and repelling illegal entrants. Some argue that this
acts as an effective deterrent; others say it is the "push factor"
(war, poverty), not the "pull factor" (peace, prosperity) that
counts.

Whoever is right,
the perceived "pull factor" produces policy responses that are
mostly ad hoc and frequently draconian. Instead of nurturing children
as victims of trafficking or smuggling, they are often criminalised.

When law enforcement
officers raid a brothel, you can be sure that the best interests of the
child prostitute are not of paramount importance in all subsequent actions
and decisions concerning her. When immigration officials detain "illegal
entrants", there is no legal requirement to house unaccompanied children
in foster care as a matter of course.

Unaccompanied children
who arrive uninvited are not treated in the same way as citizen children
who are wards of the host country. They are not even treated at the level
of invited refugee children - that is, those who are chosen from refugee
camps as part of a country's official migration program. Such discrimination
goes to the heart of what the Convention on the Rights of the Child is
about.

Arguably, there will
always be movement of children across borders, clandestine or otherwise.

Combatting trafficking
and smuggling through better detection and policing methods will not stop
children trying to enter western countries. Only the elimination of the
"push factors" such as religious persecution, war, famine and
poverty could possibly achieve this. Unfortunately, this outcome does
not look likely in the next few years. So where do we go from here?

The long-term strategy
has to be a reduction in the "push factors" such as war, poverty
and famine, which I freely acknowledge will not be easily achieved and
is outside the scope of what I am trying to say today.

In the meantime,
industrialised countries must develop short-term strategies that acknowledge
the reality of this continuing flow of unaccompanied children, and treat
them as the children they are.

As a first step,
countries must afford all children - accompanied or unaccompanied - special
protection and assistance. That is what the world's most comprehensive
human rights treaty on children - the Convention on the Rights of the
Child - requires them to do.

In the limited time
available to me today, I have attempted to outline what constitutes the
best implementation of that Convention.

For those of you
who are overwhelmed by the magnitude of this problem, let us take heart
from one of the good lessons that history provides us. I refer here to
Wilberforce's eighteenth century campaign to abolish the slave trade which
led to the abolition of slavery itself in British overseas possessions.
That campaign surmounted hurdles similar to those we now face: the immensity
of the slave trade, the substantial economic interests that were dependent
on its continuation, its international nature, and the difficulty confronting
existing resources (transport, communications) to effect its abolition.
Surely the success of that campaign is an inspiration to us all. Even
the biggest international challenges can be successfully tackled if sufficient
numbers of people work towards the desired outcome.

The movement of unaccompanied
children is a reality that cannot be swept under the carpet. If we are
to learn anything from the past, it is that unaccompanied child migrants
must not be allowed to become someone else's problem. They are the world's
children and we all share collective responsibility for their care and
protection.

Thank you.


1.
Frances T. Miko and Grace (Jea-Hyun) Park, Trafficking in Women and Children:
the US and International Response, CRS Report for Congress, The Library
of Congress, 18 March 2002, p. 1
2. See http://secretary.state.gov/www/picw/trafficking/def.htm.
3. Miko and Park, Trafficking in Women and Children: the
US and International Response, p. 1
4. See http://www.childmigrants.com/
5. UK Parliament Select Committee on Health, Third Report:
The Welfare of Former British Child Migrants (HC 755) [Cm 4182]. See
http://www.parliament.the-stationery-office.co.uk/pa/cm199798/cmselect/…
6. By 1961, 35,000 pre-war Jewish refugees and post-war
Holocaust survivors had immigrated to Australia. Australia took more Holocaust
survivors per capita than any country except Israel. See www.nswjbd.org
7. UN High Commissioner for Refugees (UNHCR). See http://www.unhcr.ch/children/
8. Graca Machel, The Impact of War on Children
9. Project Ploughshares, Armed Conflicts Report 2002.
See http://www.ploughshares.ca/content/ACR/acr.html
10. UNHCR. See http://www.unhcr.ch/children/
11. US Department of State press release, 3 October 2002.
See http://usinfo.state.gov/topical/global/traffic/02100401.htm
12. See http://www.unicef.org/programme/cprotection/focus/trafficking/stats.htm
13. See International Organisation for Migration, Information
Campaign against trafficking in Women from Ukraine; Research Report, July
1998, p.16.
14. ibid.
15. Report of the UN Secretary General, Assistance to
unaccompanied refugee minors, 26 August 1998, A/53/325
16. For example, a Nicaraguan street child who walked
to the USA alone, and was granted asylum in Arizona.
17. By 2001, AIDS had killed the mother or both parents
of 13.4 million children under 15. Last year alone, the disease orphaned
2.3 million children. See UNICEF Fact Sheet, Orphans and Other Children
Affected by HIV/AIDS, UNICEF, New York, 2001. See http://www.unicef.org/pubsgen/hiv-orphansand/
18. UNHCR. See http://www.unhcr.ch/children/
19. Letter to Dr Ozdowski from Ombudsman of Province
of British Columbia, Canada, dated 4 April 2002.
20. See Danish Red Cross Asylum Department web site:
http://www.asylum.redcross.dk/
21. "There is ongoing cooperation and consultation
with the relevant state or territory agencies over the management and
welfare of unaccompanied minors. The government's concern to ensure the
safety and welfare of unaccompanied minors was demonstrated at the time
of tensions earlier this year at the Woomera IRPC, by the move of most
such minors to alternative places of detention, including fostering arrangements
on the expert advice and with the assistance of the South Australian Department
of Human Services." (http://www.minister.immi.gov.au/borders/index.htm)
22. See http://www.ind.homeoffice.gov.uk
23. See http://www.ind.homeoffice.gov.uk/default.asp?PageId=3165
at point 7.1.
24. UNHCR. See http://www.unhcr.ch/children/
25. ibid.
26. Save the Children/ UNHCR (2000), "Statement
of Good Practice" of the Separated Children in Europe Programme.
See http://www.sce.gla.ac.uk/Global/English/GoodPractice/Booklet/introducti…
27. See http://www.emz-berlin.de/projekte/project/pj05rep/2fi_ind.htm
28. Not yet in force, the United Nations Convention against
Transnational Organized Crime, adopted by UN General Assembly on 15 November
2000. One of its Optional Protocols is the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children. The
protocol will:

Unite nations in
adopting measures to prevent trafficking in persons, especially women
and children, as well as to hunt down and punish international traffickers;

Boost cooperation among nations to combat trafficking more effectively;

Protect trafficking victims and help them return safely to their own
or a third country;
Inform the public about trafficking and its negative consequences for
both traffickers and victims.

See http://www.undcp.org/adhoc/palermo/sum1.html