Help Stop Spanish and Moroccan Abuses of Unaccompanied Migrant Children

What international laws protect unaccompanied migrant children?

Spain and Morocco, as parties to the Convention on the Rights of the Child (CRC), have a legal obligation to provide all children in their jurisdiction with the care and protection necessary for their well being. In addition to the CRC, Spain and Morocco are parties to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention against Discrimination in Education, all of which guarantee rights crucial to unaccompanied migrant children’s well being. Finally, Spain has legal obligations to these children under the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

These treaties guarantee children, including unaccompanied migrant children, the following rights:

• The Right to Protection and Care on a Non-discriminatory Basis
• The Right to Protection from Physical or Mental Violence
• The Right to Special Protection and Assistance
• The Right to Assistance Toward Recovery and Rehabilitation
• The Right to Education
• The Right to Health Care
• The Rights of Children Deprived of Their Liberty

The Right to Protection and Care on a Non-discriminatory Basis
Article 3 of the CRC guarantees each child “such protection and care as is necessary for his or her well-being.” States must “ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” Article 3 further requires that the best interests of the child be a primary consideration “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.” Similarly, the Charter of Fundamental Rights of the European Union (2000 Revised) guarantees in article 24(1) that children shall have the right to such protection and care as is necessary for their well-being; article 24(2) of the charter enshrines the “best interest of the child” standard.

Article 2 of the CRC 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 . . . .” Article 24(1) of the ICCPR states, “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”

The Right to Protection from Physical or Mental Violence
Article 19 of the CRC requires states to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” Such protective measures should include preventive social programs and the “identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” The United Nations’ Committee on the Rights of the Child, which monitors implementation of the CRC, has relied on this provision to call for state action to address violence or threats of violence by children against other children in schools and other institutions.

Article 37 of the CRC prohibits torture or other cruel, inhuman or degrading treatment or punishment. Similar prohibitions are contained in articles 7 of the International Covenant on Civil and Political Rights (ICCPR) and articles 2 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Right to Special Protection and Assistance
Article 20 of the CRC requires that “[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.” States must “ensure alternative care for such a child,” which “could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children.”

The Right to Assistance Toward Recovery and Rehabilitation
Article 39 requires states to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.”

The Right to Education
Article 28 of the CRC and article 13 of the International Covenant on Economic, Social and Cultural Rights guarantee the right to education. As with other economic, social, and cultural rights, this right may be achieved progressively. A state party to the International Covenant on Economic, Social and Cultural Rights agrees “to take steps . . . to the maximum of its available resources” to realize the right to education.

Fundamental to the right to education is the state’s obligation to provide it in a nondiscriminatory manner. The right to freedom from discrimination in education flows from the nondiscrimination provisions of the Convention on the Rights of the Child, the ICCPR, the International Covenant on Economic, Social and Cultural Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination. It is explicitly guaranteed in the Convention against Discrimination in Education. As the Committee on Economic, Social and Cultural Rights has observed, the right to freedom from discrimination in education “is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination.”

Under the Convention against Discrimination in Education, states undertake “[t]o give foreign nationals resident within their territory the same access to education as that given to their own nationals.” The Committee on Economic, Social and Cultural Rights has interpreted the principle of nondiscrimination to extend “to all persons of school age residing in the territory of a State party, including non-nationals, and irrespective of their legal status.”

The Right to Health Care
Under article 24(1) of the CRC, children have the right “to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and the rehabilitation of health. State parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.”

The Rights of Children Deprived of Their Liberty
Article 37 of the CRC prohibits the unlawful or arbitrary arrest, detention, or imprisonment of children. All deprivations of liberty must be in conformity with the law, and “shall be used only as a measure of last resort and for the shortest appropriate period of time.” The child “shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so.” Children deprived of their liberty have the right to prompt access to legal and other assistance, and the right to challenge the legality of the deprivation of their liberty before a court or other competent, independent and impartial authority.

The United Nations Rules for the Protection of Juveniles Deprived of their Liberty provide authoritative guidance on the minimum standards for the protection of children deprived of their liberty.

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