Study On The Identification Of Child Refugee From The Perspective Of International Human Right Law

Children make up more than half of the world’s refugees.In the 21 st century,the earth is still full of various disturbing factors.War,armed conflict,environmental destruction,economic backwardness and other factors have led to the increase of the global displaced population,and asylum-seekers and refugee groups have become the focus of the international community.With the development of the children’s rights movement,child refugees are getting more and more attention.The issue of child refugee involves the qualification of child refugee,the protection procedure of child refugee,the social and economic rights of child refugee,the judicial relief of child refugee and so on.The thesis is focused on the identification of child refugee status.We hope that there will be more interaction between international refugee law and children rights law to provide more comprehensive international protection for asylum-seeking children.To achieve the objective,refugee status review officials should focus on the rights of the children in interpretation of the Convention and Protocols relating to the Status of Refugees,and the Convention on the Rights of the Child should be taken as a supplementary legal source for the recognition of child refugee status.The substantive and procedural requirements of traditional international law to recognize refugee status are not conducive to the protection of child refugees,and international refugee law will lag behind the requirements of child protection.Therefore,some scholars put forward the reform of international refugee law.One way would be to amend the Convention and Protocol relating to the Status of Refugees and to establish new rules of refugee law.The thesis proposes that the recognition of refugee status of children should go beyond the traditional criteria of the Convention and its Protocol on the definition of refugee.However,the reformulation of refugee rules would encounter many obstacles and the conditions for amending the Convention and The Protocol relating to the Status of Refugees were not sufficient.Firstly,the revision of the Convention requires consensus among countries.It is unrealistic to expect countries to expand the scope of the definition of refugee through the revision of the Convention under the current situation that countries are unwilling to accept refugees.Secondly,there will be more interaction between international refugee law and children rights law,and refugee status review officials should focus on the rights of the children in interpretation of the definition of refugee,so as to meet the realistic needs of child refugees to obtain refugee status.The thesis argues that,based on the existing international refugee conventions,the provisions on children’s rights in the Convention on the Rights of the Child can be introduced into the substance and procedure of identifying child refugees,so as to facilitate the better interaction between refugee protection and children’s rights,and thus facilitate the identification of child refugee status.In addition to the introduction and conclusion,the thesis is divided into five chapters:The first chapter is "Legal Framework of Child Refugee Status Recognition".Firstly,this chapter introduces the definition of "child refugee".Child refugees are both children and refugees,they are vulnerable groups deserving special protection.Child refugee is not explicitly defined in the Convention and protocols relating to the Status of Refugees,regional legal instruments on refugees and internal refugee law.Based on international refugee conventions and academic research literatures,the thesis considers that child refugee refers to "persons under the age of 18 who have fled their country for the grounds enumerated in the Convention on the Status of Refugees and its protocol,regional legal documents or national refugee law,recognized by the United Nations High Commissioner for Refugees(UNHCR)or the host government and deserve international protection".Secondly,the attention of children in international refugee law has changed with the development of the children’s rights movement.Before the 1990 s,children were neglected in international refugee law.After the adoption of the Convention on the Rights of the Child,children have gradually gained more attention in the international refugee law system.In order to provide better protection for child refugees,scholars proposed that refugee status review officials should focus on the rights of the children in interpretation of the Convention and Protocols relating to the Status of Refugees,and the Convention on the Rights of the Child should be taken as a supplementary legal source for the recognition of child refugee status.These views are also supported by the practice of child refugee protection.Finally,this chapter presents the legal source of child refugee status recognition and soft law rules.These include international refugee law,mainly the Convention on the Status of Refugees and its Protocols,the protection of the Rights of the Child,mainly the Convention on the Rights of the Child and its Optional Protocols,as well as soft law rules such as guidelines and manuals issued by UNHCR and the Committee on the Rights of the Child.These are the legal basis for studying the protection of child refugees.The second chapter is "Convention on the Rights of the Child as the Supplementary Legal Source of Child Refugee Status Recognition".In the international refugee legal system,although there are regional legal instruments and internal refugee law as supplementary sources to the Convention and Protocol on the Status of Refugees,due to the absence of specific legal provisions relating to children,these rules are still insufficient to provide comprehensive international protection for children applying for refugee status.The convention on the Rights of the Child is taken as the supplementary legal source for the recognition of child refugee status,which means that according to the development status of children’s rights,breaking the traditional path of recognizing refugees under international refugee treaties or internal refugee law,and the best interests of children should be taken as the principle to provide refugee protection for asylum-seeking children in a more reasonable way.Firstly,under the international refugee law,the principle of the best interests of children and the obligation of non-refoulement under the Convention on the Rights of the Child will be implemented in the substance and procedure of child refugee status recognition,so as to facilitate children to obtain refugee status.Secondly,if the child does not meet the requirements for refugee status,the principle of the best interests of the child and the obligation of non-refoulement under the Convention on the Rights of the Child should be independent legal sources of international protection for children.The receiving State may provide humanitarian or other forms of international protection for the child without returning the child to his or her country of origin or habitual residence.Therefore,this chapter analyzes the theoretical basis,relevant practices,challenges and prospects of the convention on the Rights of the Child as a supplementary legal source of child refugee status recognition.The third chapter is "The Interpretation System of Child Refugee Status Recognition in International Refugee Law".Firstly,this chapter analyzes the rules of interpretation of the International Refugee Convention concerning child refugee.Since the Convention and protocols relating to the Status of Refugees lack clear provisions on the protection of child refugees.In order to provide better protection for child refugees,the interpretation of the Convention on the Status of Refugees should not be limited to the text interpretation,but should focus on the purpose and system interpretation of the Convention.Then,this chapter introduces the methods of cross-treaty interpretation under the international human rights law system,and analyzes the challenges and basis of interpreting the international Refugee Convention by invoking the Convention on the Rights of the Child.Finally,based on the analysis of refugee cases,this chapter holds that child refugee status recognition needs the entry measures adopted by the receiving country and the judicial protection of the refugee court.The judicial interpretation of international refugee law by refugee court plays the role of gatekeeper to child refugee status recognition.If the host country has domestic law obstacles to the recognition of child refugee status,or the refugee court has limited interpretation of international refugee treaties and domestic refugee law,it will not be conducive to the recognition of child refugee status.This section presents an overview of the differing characteristics of the tribunal’s interpretation of international refugee law,as well as the application of the Convention and Protocols relating to the Status of Refugees by regional human rights courts and national courts.The fourth chapter is "The Procedural Guarantee of Child Refugee Status Recognition ".Refugee status recognition procedure is a necessary procedure for child to obtain refugee status.Both UNHCR and governments have the right to review refugee status.According to the relevant provisions of the international refugee law and the law on the Rights of children,combined with the judicial precedent of the recognition of refugee status of children,the thesis holds that the principle of non-refoulement,the requirement of separate assessment,and the right to family reunion to some extent limit the discretion of countries in the recognition of refugee status.These principles or rules will be applied throughout the refugee status process.First of all,the principle of non-refoulement is not only embodied in international refugee law,but also an important principle in international human rights law.The receiving country may also fulfill the obligation of non-refoulement under international human rights treaties,if the child fails to meet the requirements of the Convention and Protocol relating to the Status of Refugees or the internal refugee law.Receiving countries should not return children to their countries of origin or habitual residence without granting them refugee status.Secondly,the Committee on the Rights of the Child stresses that "asylum-seeking children,including accompanied or separated children,regardless of their age,should have access to asylum procedures and other complementary mechanisms that provide international protection".If a child’s refugee claim is not individually assessed by the refugee review Officer,it would violate the convention on the Rights of the Child’s right to express their views freely in judicial and administrative proceedings.Finally,it needs to be made clear that the principle of family reunification should be interpreted in a way that benefits children and does not lead to more adverse outcomes for children.Even if the head of the family does not qualify,other members of the family can continue to apply refugee status.The fifth chapter is "The Identification Criteria of Persecution in Child Refugee Status Recognition".To focus on the rights of the children in interpretation of the definition of refugee,the emphasis is on the assessment of a child’s risk of "persecution",which takes into account the child’s particular circumstances and is based on the rights of the child in the Convention on the Rights of the Child.In theory,the rights enshrined in the Convention on the Rights of the Child could be the object of "persecution" in the refugee definition.In addition to identifying the rights of children,it is important to assess which rights,to what extent,can be considered "persecution" within the meaning of international refugee law.Child refugee applicants need to demonstrate that they have met the subjective and objective criteria of "persecution" set out in the Convention and the Protocol relating to the Status of Refugees,including the subjective factor of fear of persecution and the objective factor of realistic risk of persecution."Fear" is a subjective state of mind supported or justified by objective facts with cogent cause.The objective factor of cogent cause needs to be combined with the statement of the refugee applicant and the situation of the country of origin.The assessment of a child’s risk of "persecution" has resulted in a number of rules or approaches that are different from the traditional approach to refugee status,given the particular circumstances of the child.Subjective factors include "attaching parents’ fears to children" and "removing subjective fear requirements from child refugee application procedures".Objective evidence includes "the burden of proof shall be shared by the examiner and the child","the human rights protection of the child’s country of origin shall be examined under the framework of the Convention on the Rights of the Child",and "the rule that doubtful benefits are attributable to the child".Some methods which developed in the case of adult refugee claims are applied to children,giving greater attention to the special circumstances of the child and be helpful for child to gain refugee status.