PART 3: It’s Time To Say Goodbye to ‘Last Resort’ Language
An advocate’s reflections on campaigning within a child-rights framework
Lilly Carson has been interning with the Global Campaign to End Child Detention since September 2017. She manages the Campaign’s social media accounts and assists with campaigning. Lilly is from Melbourne, Australia, and has a Masters of International Relations from the University of Melbourne. One day Lilly hopes to work in a role supporting the development and implementation of policies that uphold the human rights of all migrants and internally displaced people.
As an International Relations graduate and self-professed global governance nerd, the most exciting thing about working on this campaign has been seeing change in action.
At uni, I wrote painfully academic essays on the relevance of NGOs as agents of civic education and read theories about the power of normative condemnation. Although this kind of reading and writing is my cup of my tea, I’ll admit that it’s a little abstract.
Being part of this movement has turned what was once abstract into something concrete. The Global Campaign to End Child Detention is great example of how activists can turn theory into action.
In its first six years, the Campaign worked tirelessly to build a movement and raise public awareness of child immigration detention. The mission was to persuade the general public and the international legal community of the Campaign position:
Immigration detention is never in the best interest of the child and will always constitute a child rights violation.
When viewed through the lens of our Campaign position, there is a clear tension between Article 3 and Article 37 of the Convention on the Rights of the Child.
If child immigration detention is never in the best interests of the child, then why, according to Article 37, can it still be used as a ‘last resort’?
In 2012, the Committee on the Rights of the Child held a general discussion about the rights of children in the context of migration. During the event, the Campaign held a special presentation to highlight the experience of administratively detained children around the world. Entitled ‘Hear Our Voices,’ the presentation was the culmination of a week-long workshop in which six formerly detained children shared stories of their detention with over 25 State parties to the Convention on the Rights of the Child, five key UN agencies, and 120 participants.
At the this day of general discussion, the Campaign was a key contributor to the dialogue around child detention and the need to pursue alternatives. This resulted in the Committee finally addressing the tension between using detention as a last resort and detention always being a child rights violation. They clarified that that Article 37 does not apply in the context of immigration detention. The Committee then made the following recommendation:
“The detention of a child because of their or their parent’s migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child. In this light, States should expeditiously and completely cease the detention of children on the basis of their immigration status.”
The language of this recommendation is significant. Did you notice how it states that immigration detention is always a child rights violation? That’s right – using detention as a ‘last resort’ does not refer to detaining children for immigration purposes.
Since the Committee’s discussion, the Campaign has been working with its partners to preserve this recommendation in international human rights law.
This hasn’t been easy. Many States have been reluctant to say goodbye to the last resort framework.
In 2016 the United Nations (UN) adopted a set of political commitments relating to refugees and migrants, which are colloquially referred to as the “New York Declaration”. As discussed in a previous blog post, the decision to allow the use of child immigration detention ‘as a measure of last resort’ in the Declaration has profound consequences.
The language of ‘last resort’ makes it look as though governments that continue to lock up children due to their immigration status have exhausted all other alternative options.
The language of ‘last resort’ is misleading because it implies that child immigration detention is an acceptable practice, despite available affordable, effective and humane alternatives.
In effect, the language of ‘last resort’ gives governments the opportunity to lock children up as a first resort as part of a border management policy.
Fast forward to November 2017; The Committee on the Rights of the Child together with the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families released two complementary joint general comments on the human rights of children in the context of international migration. Both comments were formally launched on 16 April 2018.
The comments reaffirm the 2012 recommendation that immigration detention is always a child rights violation. They also significantly strengthen international human rights law in this area. These comments say goodbye to the child detention as a ‘last resort’.
The purpose of UN general comments is to clarify the content of rights and duties outlined in human rights treaties. Laws shouldn’t stand still in time and place. Just think about the ways in which the moral consciousness in your local community has shifted over the last 10, 20 and 50 years.
However, there are 193 UN Member States. So as you can imagine, it isn’t easy to change or introduce international legal frameworks. This is why UN general comments are so necessary; they an efficient mechanism for modernising outdated language in treaties. They are necessary because human rights treaties are not created perfect and States often need experts to supply an interpretation of the text. What’s more, general comments are regarded to have a ‘highly authoritative character with legal basis’.
Now that international human rights law is on our side, the Campaign is set to move into its next phase. We’re shifting our strategy to focus on national law.
International law is strongest when it is consolidated into domestic law. In many States, international human rights treaties don’t become law until they are adopted as national law.
Let’s take a look at the example of Belgium; over the course of 2016 the country significantly reduced the number of children held in immigration detention to almost zero. However, towards the end of that year the government announced its plan to build a closed detention centre for families with children. This giant step backwards makes me wonder; would this detention centre be possible if Belgium had a law that prohibited the detention of all children and their families?
This is why we’re shifting our focus to coordinate globally in order to strategically engage with national governments to make change a reality.
On International Youth Day, 12 August 2018, we’re launching the Global NextGen Index.
It’s been developed to hold countries accountable for their commitments in the UN Global Compacts on Migration and Refugees.
The Index uses annual scorecards to evaluate 22 countries on their progress to implement alternatives to immigration detention of children. The NextGen Index is a chance to map the pathway for States to make change, and to coordinate the push at the national and global level to make it happen.
If you’re also excited about seeing change in action here’s how you can get involved.
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