International law on refugee children
International treaties are important to refugee children because they set standards. When a State ratifies a treaty, the Government of the State promises to the international community that it will conduct itself according to the standards in the treaty.
The 1951 Refugee Convention and the 1967 Protocol (Relating to the Status of Refugees) set standards that apply to children in the same way as to adults:
(1) a child who has a "well-founded fear of being persecuted" for one of the stated reasons is a "refugee",
(2) a child who holds refugee status cannot be forced to return to the country of origin (the principle of non-refoulement), and
(3) no distinction is made between children and adults in social welfare and legal rights.
One article in the Convention sets standards which are of special importance to children: refugees must receive the "same treatment" as nationals in primary education, and treatment at least as favorable as that given to non-refugee aliens in secondary education (art. 22).
The 1969 Organization of African Unity Convention (Governing the Specific Aspects of Refugee Problems in Africa) broadened the definition of "refugee" to include persons in Africa who flee from war and other events that seriously disrupt public order. The OAU Convention makes no distinction between children and adults. The 1984 Cartagena Declaration also expanded the concept of refugee, and although the standard is not legally binding, States in Latin America do apply it.
The treaty which sets the most standards concerning children is the 1989 Convention on the Rights of the Child (CRC). While the CRC is not a refugee treaty, refugee children are covered because all CRC rights are to be granted to all persons under 18 years of age (art. 1) without discrimination of any kind (art. 2).
The Convention on the Rights of the Child is important to refugee children because it sets comprehensive standards. Because they are "rights," the prohibition against discrimination (art. 2) means that whatever benefits a State gives to the children who are its citizens, it must give to all children, including those who are refugees on its territory.
The "Triangle of Rights" The CRC's major innovation is that it gives rights to children. We are used to thinking of children as having needs that should be met, rather than as having legal rights. Because of the CRC, children now have internationally recognized human rights.
Although the rights in the CRC cover almost every aspect of a child's life, there are three rights that are so fundamental that they can be thought of as underlying the entire CRC: the "best interests" rule, non-discrimination, and the right to participate. These three rights are so important and so interrelated that it is helpful to think of them as a "triangle of rights". The three rights of the triangle reinforce each other to reach the objective: "the survival and development" of children (art. 6).
"Best interests" rule The "best interests" rule has two main applications: government policy-making and decisions made about children on an individual basis.
Non-discrimination The non-discrimination article (art. 2) requires States to "respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's ... national, ethnic or social origin ... or other status". In other words, every child within a State's jurisdiction holds all CRC rights without regard to citizenship, immigration status or any other status. Refugee children, asylum seekers, and rejected asylum seekers are entitled to all the rights of the CRC.
Participation Participation is a theme that runs throughout the CRC. Art. 12 provides that: "States Parties shall assure to the child who is capable of forming his or her views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child." In one way or another, nearly every article concerns some aspect of children's participation in society.