Post by Ana Aliverti, Assistant Professor, Warwick Law School, University of Warwick

Over the last few years, the Inter-American system of human rights has been receptive to requests by member states and human rights activists in the region to establish states’ human rights obligations in the exercise of migration controls. Of note are the Inter-American Commission on Human Rights’ Reports on Immigration in the United States: Detention and Due Process (2011) and Human Rights of Migrants and Other Persons in the Context of Human Mobility in Mexico (2013), as well as the Inter-American Court recent decisions in Vélez Loor v. Panama (2010) and Pacheco Tineo Family v. Bolivia (2013). Despite the copious and fine quality of these reports and decisions, and their relevance for the development of human rights law not just within the region but further afield, human rights scholars in Europe and North American rarely consider the Inter-American system as a source of legal authority and inspiration. Thus, even though these documents are available online in various languages, including English, they rarely feature in academic commentaries. In this brief comment on the recent Inter-American Court of Human Rights’ advisory opinion on the rights of migrant children, I argue that given the progressive stance of both the Court and some states in the region on issues of migration controls, paying more attention to this embryonic jurisprudence is important for rethinking the relationship between state sovereignty and human rights.

Inter-American Court of Human Rights
Last August, the Inter-American Court issued its 21st Advisory Opinion on the rights and guarantees of children in the context of migration and/or in need of international protection. The request, submitted by a number of South American states (Argentina, Brazil, Paraguay, and Uruguay), attracted a record number of briefs with observations from the Organization of American States (OAS) and UN bodies, civil society, academic institutions, and other non-governmental institutions from across the hemisphere. The request for an advisory opinion sought to establish ‘basic consensual standards’ stemming from the American Convention on Human Rights and other regional and international treaties and instruments related to state obligations concerning migrant children, including the Cartagena Declaration on Refugees.

Advisory opinions aren’t binding for member states. Yet, the advisory jurisdiction has ‘legal relevance’ for all the OAS member states, even if they’re not parties to the American Convention the region’s most comprehensive treaty with strong supervisory provisions. That is to say, the ‘advisory jurisprudence’ of the Court concerns those nations like the United States, which have opted out from the treaty and aren’t bound by conventional obligations.

Source: PBS | Photo: John Moore/Getty Images
In 2013, the Americas hosted around 27 per cent of the migrant population worldwide. One tenth of the regional share was under 19 years old and around 800,000 were refugees or people in similar situations. It is estimated that 25 million people from Latin America and the Caribbean have migrated to North America and Europe, and another 6 million have moved within the region. Although children often travel with their parents, a growing numbers of children are embarking on this journey unaccompanied or separately. In light of this regional situation, applicant states requested the Inter-American Court to establish ‘precise standards, principles and obligations that States must comply with in relation to the human rights of migrants, especially in relation to the rights of migrant children and children born to migrant parents’ in immigration proceedings, including proceedings involving requests for asylum or humanitarian protection.

In its jurisprudence, the Inter-American Court has traditionally been more protective of migrant’s rights vis-à-vis sovereign states than its European equivalent. In its advisory opinion on the Juridical Status and Rights of Undocumented Migrants of 2003, for instance, the Court stated that although states may […] establish mechanisms to control the entry into and departure from their territory of undocumented migrants, [this] must always be applied with strict regard for the guarantees of due process and respect for human dignity’ [par 119]. The Court also noted that ‘even though States have a margin of discretion when determining their immigration policies, the objectives sought by such policies must respect the human rights of migrants’ (Adv Op 21, par 39). The Inter-American Court’s emphasis on the rights of undocumented migrants, reiterated in the case of Velez Loor v Panama (2010), contrasts to that of its European peer which has repeatedly underscored that ‘subject to their obligations under the Convention, States enjoy an “undeniable sovereign right to control aliens’ entry into and residence in their territory”’ (ECHR, Saadi, par 64).

Advisory Opinion No. 21 advances and further develops that progressive approach in delimiting the general obligations of the states in relation to every person in their territory or subject to their authority, responsibility or control, irrespective of her or his immigration status:

the motive, cause or reason why the person is in the State’s territory has no relevance as regards the State’s obligation to respect and to ensure that her or his human rights are respected. In particular, it has no significance whatsoever in this regard whether or not the entry of that person into the State’s territory was in keeping with the provisions of its laws. The respective State must, in all circumstances, respect the said rights, because they are based, precisely, on the attributes of the human personality; in other words, regardless of whether the person is a national or resident of its territory or whether the person is there temporarily, in transit, legally, or in an irregular migratory situation. (par 62)

Nogales Placement Center in Brownsville, Texas (Source: PBS | Photo: Ross D. Franklin-Pool/Getty Images)
For a start, states should not prevent the entry of foreign children into national territories nor require them to produce documentation they’re unable to obtain. States should allow foreign children into the territory to conduct a preliminary assessment (par 83) to comply with due process protections, including ensuring appropriate access to consular assistance, the appointment of a guardian to represent the child before state authorities, and the provision of an interpreter, if required. Decisions taken in the context of migration proceedings should be subject to a judicial remedy and appeals must have a suspensive effect. This means that a deportation order can only be executed if it has been confirmed by judicial review (pars 140-2).

In relation to the grounds for depriving children of their liberty, the Court reiterated that imprisonment as punishment for immigration law-breaking is forbidden under Inter-American law, stating categorically that: deprivation of liberty as a penalty or a punitive sanction in the area of immigration control […] must be regarded arbitrary and thus contrary to the Convention and American Declaration (par 147). Confinement in the context of migration controls is only justified, the Court stated, as a precautionary measure: measures of deprivation of liberty should only be used when they are necessary and proportionate in a specific case in order to ensure the appearance of the person at the immigration proceedings or to guarantee the implementation of a deportation order and only for the shortest time possible (par 151).

In relation to children, the Court observed that the detention based exclusively on migratory reasons ‘exceeds the requirement of necessity’ because it is not ‘absolutely essential’ to avoid those procedural risks (par 154). Deprivation of liberty on children, it emphasised, is never in their best interest. It is not even justifiable when their parents are confined; indeed, when the best interest of the child demands keeping the family together, ‘the imperative requirement not to deprive the child of liberty extends to her or his parents’ (par 158). If deprivation of liberty for children should be the last resort in cases involving juvenile offenders, the Court reasoned, the conditions in which detention is justifiable in the context of migration proceedings involving children should be even more restrictive. Further, owing to their special status, children should be cared for by child protection services rather than by immigration and border control personnel (par 166).

The strong terms in which the Court opposed the detention of migrant children was, however, watered down somewhat, as it conceded that in certain situations,

when children are with their families and there is evidence of an exceptional, inevitable, and imperative need for precautionary measures during immigration proceedings, and there is no other option that would cause less harm than placing the child in a center where the child can coexist with her or his family; or when children are unaccompanied or separated and there is no possibility of accommodating the child in a family or community environment such that the child would be placed in an accommodation center―then it is possible for States to resort to such measures as placing children in a shelter or accommodation, either for a short period or for as long as necessary to resolve the immigration status. (par 173)

Despite this shortfall, the advisory opinion, which draws heavily on reports and comments by UN bodies (particularly, the Special Rapporteur on the Human Rights of Migrants, the Committee on the Rights of the Child, and the UN High Commissioner for Refugees), offers a promising step in building a progressive line of human rights jurisprudence on state obligations in the context of migration. Such jurisprudence stems from the Inter-American system of human rights which is geopolitically connected to states in the ‘Global South,’ the same states which are pushing for stronger protections in this context, with Mexico being one of the most vocal ones. Focusing on the most vulnerable of all―unaccompanied and separated children and children at risk of being separated from their parents―to unearth the harms of border controls may serve to destabilise the principle of territoriality and sovereign powers in human right law and force us to think anew the relationship between nationality, immigration status, and human rights.

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How to cite this blog post (Harvard style):

Aliverti A (2014) The Promise of Human Rights? The Inter-American Court’s Advisory Opinion on the Rights of Migrant Children. Available at: http://bordercriminologies.law.ox.ac.uk/promise-of-human-rights/ (Accessed [date]).