Book Review: The Child in International Refugee Law

The Child in International Refugee Law by Jason M. Pobjoy, Cambridge University Press, 2017.

Reviewed by Marina Sharpe*

Human rights give legal expression to our most foundational shared precepts of justice. It is therefore always surprising to reflect on the relative recentness of their entry into the corpus of international law. The International Covenant on Civil and Political Rights (ICCPR)[1] and the International Covenant on Economic, Social and Cultural Rights[2] only entered into force in the latter half of the 1970s, more than two decades after the 1951 Convention relating to the Status of Refugees (“1951 Refugee Convention”) became effective.[3] This gap of over twenty years explains in large part why the scholarly project to join up human rights with refugee law remains ongoing. It would even be fair to say that prior to the publication of Jason Pobjoy’s The Child in International Refugee Law,[4] the effort was in its infancy. Indeed, Hathaway’s treatise articulating refugee rights as derived from the 1951 Refugee Convention and the ICCPR was only published in 2005,[5] and McAdam’s book on the ambit of human rights-based non-refoulement came out as recently as 2007.[6] As the first legal treatise to focus on the relationship between human rights and refugee law in the context of a specific class of individuals—the works of Hathaway and McAdam focus on refugees or persons in need of international protection generally—Pobjoy’s contribution has moved the literature on the relationship between human rights and refugee law into its next phase of development, and not a moment too soon.

There are currently more refugees in the world than at any time since World War II, and a large proportion of them are children. All children have special needs, as recognized by international law in the Convention on the Rights of the Child (CRC).[7] Because they lack the protection of their State of origin and, in some cases, of a parent or guardian, refugee children are particularly vulnerable. Yet until the publication of The Child in International Refugee Law, the toolbox that lawyers and other advocates, scholars, and judges could draw upon in this context was nearly empty. In addition to contributing to scholarship on the relationship between human rights and refugee law, The Child in International Refugee Law’s analysis of how the CRC should inform the interpretation and application of the 1951 Refugee Convention’s refugee definition makes a major contribution to this toolbox.

According to Pobjoy, children face two principal challenges in applying for refugee status. He terms the first their “invisibility”: the failure of legal systems or decision-makers to consider children as refugees in their own right. Invisibility affects both unaccompanied or separated as well as accompanied children, though the former can now often apply for refugee status. An accompanied child, however, usually cannot submit her own claim; her status is often based entirely on that of her parent or guardian, regardless of any independent basis of refugee status. The second challenge faced by refugee children is “incorrect assessment”: the failure of decision-makers, when they do hear children’s claims, to consider the applicant’s childhood. Immaturity, for example, may affect the applicant’s ability to describe the risk she would face if returned.

Pobjoy suggests that there are three principal ways in which the CRC can contribute to remedying these two challenges. First, in Chapter 2, Pobjoy explores the CRC as a source of procedural guarantees not otherwise available, which may address the challenge of “invisibility.” Specifically, he argues that the CRC’s Article 12 protection of the child’s right to express her views freely in all matters affecting her and to be heard in judicial and administrative proceedings affecting her may be violated if a child is removed without having had her claim independently examined. He further argues that the CRC’s Article 9 duty of non-separation may be violated in asymmetrical jurisdictions that allow parents to extend status to children but do not allow the opposite, because this asymmetry may make parents reluctant to advance their child’s claim separately.

In the next three chapters, Pobjoy explores the second principal role of the CRC: as an aid in interpreting the 1951 Refugee Convention’s Article 1(A)(2) refugee definition, in which context the CRC may address the challenge of “incorrect assessment.” Chapter 3 focuses on the refugee definition’s well-founded fear requirement. Pobjoy critiques the bipartite understanding of well-founded fear that requires the claimant to establish both objective risk and subjective trepidation, because a child will often be unable to identify or articulate a prospective risk of harm. This argument made in the specific context of the refugee status of children is nonetheless consistent with cutting-edge refugee scholarship.

Chapter 4 continues to address how the CRC should inform the interpretation of the 1951 Refugee Convention’s definition of refugee, here in relation to the identification of persecutory harm. The definition’s “being persecuted” element is now widely understood in line with Hathaway’s conceptualization: “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”[8] Pobjoy explains how, in the claims of children, such human rights violations should be understood with reference to the CRC, which identifies child-specific forms of harm and strengthens particular rights when the rights-holder is a minor. Here again, Pobjoy’s presentation is based on a sophisticated understanding of contemporary scholarship around the “being persecuted” element of the refugee definition, which his analysis marshals and even advances. Chapter 4 also covers four child-specific forms of persecution in depth: domestic child abuse, the denial of the right to education, family separation, and psychological forms of harm.

Chapter 5 further expands on how the 1951 Refugee Convention’s Article 1(A)(2) refugee definition should be interpreted with reference to the CRC in claims involving children. It focuses on the definition’s nexus criterion—the requirement that persecution be “for reasons of race, religion, nationality, membership of a particular social group or political opinion”—with emphasis on the grounds most relevant to children: the last two plus religion. Again, Pobjoy relates general debates to his focal area, in this case whether the applicant must demonstrate that the perpetrator intended to persecute her for a 1951 Refugee Convention ground, or whether it is sufficient to establish a causal link between a Convention ground and the applicant’s situation. Pobjoy argues that this latter “predicament approach” is more appropriate for children than the former intention-oriented approach, because a child’s heightened vulnerability is often the reason why she is susceptible to persecution.

Pobjoy identifies in Chapter 6 the third way in which the CRC can contribute to the protection of refugee children: as an independent source of status, beyond that available under the 1951 Refugee Convention. Pobjoy builds on the foundation laid by McAdam,[9] developing the argument that Articles 6 (right to life, survival, and development) and 37 (right to liberty and freedom from torture and cruel, inhuman, or degrading treatment) of the CRC, and perhaps even Article 38 (prohibition of underage military recruitment), give rise to child-centric complementary protection from refoulement. He then goes on to address Article 3 (the best interest principle), which is increasingly precluding the removal of children who do not qualify for refugee status under the 1951 Refugee Convention. Pobjoy reviews State practice, academic commentary, and soft law in this regard, finding that Article 3 is increasingly being invoked to protect children—who do not qualify for refugee status but who would nevertheless face harm if removed—from refoulement.

In addition to these issue-specific contributions, the book makes at least two major overarching contributions: one to the international refugee law literature, and the other to public international law more generally. First, while it is not the only work to consider children in the refugee status determination (RSD) process and the role of the CRC in this context,[10] The Child in International Refugee Law is the first book-length study to focus on the role of the CRC in the refugee claims of children generally, as opposed to unaccompanied children specifically. This lays the foundation for further work on the post-recognition standards of treatment owed to all child refugees. This important avenue for future research would be responsive to Hathaway’s call to “build upon” his analysis, grounded in the 1951 Refugee Convention and the two international human rights covenants, to “define the entitlements of sub-groups of the refugee population entitled to claim additional protections.”[11]

The right to education, particularly secondary education, illustrates the importance of such further research. Both the 1951 Refugee Convention and the CRC protect the right of all children to public primary education.[12] Regarding public secondary education, the 1951 Refugee Convention requires only that States parties accord refugee children treatment no less favorable than that accorded to aliens generally in the same circumstances.[13] The CRC, by contrast, requires States parties to make general and vocational secondary education available and accessible to every child.[14] Refugee children thus have greater rights to secondary education under the CRC than they do under the 1951 Refugee Convention, a critical point as refugee children are at particular risk of missing out on secondary school.

The book’s public international law significance relates to treaty interpretation. Article 31(3)(c) of the Vienna Convention on the Law of Treaties mandates the consideration of any “relevant rules of international law applicable in the relations between the parties” in the process of treaty interpretation.[15] This exhortation reflects the principle of systemic integration, which requires that treaties be interpreted against the background of other international legal principles. Article 31(3)(c) is, however, far from clear. It raises three questions: the meaning of “rules of international law,” which rules are “relevant,” and who “the parties” are. Pobjoy parses these issues, ultimately establishing the permissibility of interpreting the 1951 Refugee Convention in light of the CRC. An emerging authority on the law of treaties agrees with this conclusion.[16] In establishing the CRC as “relevant” to the interpretation of the 1951 Refugee Convention and in producing doctrine that proceeds in this regard, Pobjoy has effectively provided a case study that advances understanding of systemic integration, a challenging public international law issue.[17]

Throughout the book, Pobjoy’s analysis is grounded in national jurisprudence from the developed English-speaking—and hence common law—world (principally Australia, Canada, New Zealand, the U.K., and the U.S.). While Pobjoy cites an impressive range of such case law, language barriers presumably prevented him from considering civil law jurisprudence. A useful avenue for future research would be for multilingual lawyers to address the same issues considering non-Anglophone or civil law jurisprudence. Future research might also analyze case law from major refugee hosting states in the developing world, where most of the world’s refugees reside. Such additions would make the commonalities that emerge across municipal jurisdictions more readily generalizable to the international plane.

The Child in International Refugee Law is written concisely, but with a view to reader-friendliness. Its central argument—that the CRC should inform refugee status decisions relating to children—develops along a logical arc and is supported by meticulous and wide-ranging research, drawing on historical and contemporary scholarship, Anglophone jurisprudence, treaty law, and soft international law. The argument is also grounded in a firm understanding of relevant refugee and public international law debates, and as a result the book represents a major contribution not only to the critical topic of refugee children, but also to the broader issues of the relationship between international human rights and refugee law, as well as to the issue of the systemic integration of international law. Every personal bookshelf and institutional library with a refugee section, a human rights section, or a public international law section should include it.

* BA, LLB, BCL (McGill); MSc (LSE); DPhil (Oxon); Visiting Fellow, Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University.

[1] International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171.

[2] International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 993 U.N.T.S. 3.

[3] Convention Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 150 [hereinafter 1951 Refugee Convention].

[4] Jason M. Pobjoy, The Child in International Refugee Law (2017).

[5] James C. Hathaway, The Rights of Refugees under International Law (2005).

[6] Jane McAdam, Complementary Protection in International Refugee Law (2007).

[7] Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

[8] James C. Hathaway, The Law of Refugee Status 104–05 (1991).

[9] See Pobjoy, supra note 4, ch. 5; see also Jane McAdam, Seeking Asylum under the Convention on the Rights of the Child: A case for Complementary Protection, 14 Int’l J. Child. Rts. 251 (2006).

[10] See, e.g., Jacqueline Bhabha, Seeking Asylum Alone: Treatment of Separated and Trafficked Children in Need of Refugee Protection, 42 Int’l Migration 141 (2004); Mary Crock, Seeking Asylum Alone: The Treatment of Unaccompanied and Separated Children Seeking Refugee Protection in Australia, 42 Austl. Child. Rts. News 1 (2006); Jacqueline Bhabha, Mary Crock, Nadine Finch & Susan Schmidt, Seeking Asylum Alone—A Comparative Study: Unaccompanied and Separated Children and Refugee Protection in Australia, the U.K., and the U.S. (2007).

[11] Hathaway, supra note 5, at 8.

[12] 1951 Refugee Convention, supra note 3, art. 22(1), 189 U.N.T.S. at 168; Convention on the Rights of the Child, supra note 5, art. 28(1)(a), 1577 U.N.T.S. at 53.

[13] 1951 Refugee Convention, supra note 3, art. 22(2), 189 U.N.T.S. at 168. Regarding contingencies such as this one in the 1951 Refugee Convention, see Marina Sharpe, The 1951 Refugee Convention’s Contingent Rights Framework and Article 26 of the ICCPR: A Fundamental Incompatibility?, 30 Refuge 5 (2014).

[14] Convention on the Rights of the Child, supra note 5, art. 28(1)(b), 1577 U.N.T.S. at 53.

[15] Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.

[16] Eirik Bjorge, Treaty Interpretation and The Child in International Refugee Law, Eur. J. Int’l L. Blog (Aug. 30, 2017), https://www.ejiltalk.org/treaty-interpretation-and-the-child-in-international-refugee-law.

[17] See, e.g., Campbell McLachlan, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 Int’l & Comp. L.Q. 279 (2005).

Leave a Reply

Your email address will not be published.