Vulnerability on trial: human rights courts approaches to the protection of migrant children’s rights

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 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.