Vulnerability on trial: human rights courts approaches to the protection of migrant children’s rights
Beduschi, AC
Date: 2017
Abstract
Although vulnerability does not have an express legal basis in international human rights law,
human rights courts, and particularly the European Court of Human Rights (ECtHR), have
increasingly drawn on this concept in their jurisprudence. The ECtHR has developed an
important line of cases concerning migrant children, which it ...
Although vulnerability does not have an express legal basis in international human rights law,
human rights courts, and particularly the European Court of Human Rights (ECtHR), have
increasingly drawn on this concept in their jurisprudence. The ECtHR has developed an
important line of cases concerning migrant children, which it considers as particularly vulnerable
to physical and mental harm during the migratory process. The Inter-American Court of
Human Rights (IACtHR) also anchored this notion in an influential advisory opinion on the
rights of migrant children. This article critically examines this case-law against the existing
scholarship on vulnerability and the legal framework on human rights protection. It argues that
the concept of vulnerability, when complemented by considerations of best interests of the child,
can operate as a magnifying glass for State obligations, exposing a greater duty of protection
and care vis-à-vis migrant children. It suggests that the human rights courts should deploy a
more substantial approach to migrant children’s rights based on the concept of vulnerability and
on the principle of best interests of the child. Above all, this approach would foster stronger
protection of these children’s rights in the long term. In addition, if effectively applied, it would
allow the human rights courts to avoid stigmatising the most exposed individuals in the ongoing
global migration crisis.
Law School
Faculty of Humanities, Arts and Social Sciences
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