SAN JOSÉ (6 December 2014) – On 19 August 2014 the Inter-American Court of Human Rights (IACtHR) issued its groundbreaking Advisory Opinion-21 (OC-21) concerning the Rights and Guarantees of Children in the Context of Migration and / or in Need International Protection in response to a request made in 2011 by the four MERCOSUR States of Argentina, Brazil, Paraguay and Uruguay.
Now, the MERCOSUR Institute of Public Policy in Human Rights (IPPDH) has published a guide to Advisory Opinion OC-21, which helps to explain the importance of this remarkable statement and also to provide both a historical context for the Advisory Opinion, as well as an overview of its main points.
Among the ten points highlighted in this new guide to Advisory Opinion OC-21 are:
- Child rights “should prevail over any consideration of her or his nationality or migratory status”;
- “States may not resort to the deprivation of liberty of children who are with their parents, or those who are unaccompanied or separated”;
- States must design and incorporate “non-custodial measures . . . that prioritize the comprehensive protection of the rights of children”;
- Places for accommodating children must “ensure the comprehensive protection of rights in a non-custodial environment”;
- “States may not expel one or both parents for administrative immigration offenses” when “the child’s right to family life is sacrificed in an unreasonable or excessive manner”;
- States must take the Advisory Opinion into consideration “when designing, adopting, implementing and applying their immigration policies.”
As the IDC has previously written, the Advisory Opinion is a key declaration that establishes minimum obligations for States to guarantee the protection of migrant children’s rights. Importantly, the Advisory Opinion reconfirmed and expanded upon the important 2012 Recommendation of the United Nations Committee on the Rights of the Child (para. 78) that:
Children should not be criminalized or subject to punitive measures because of their or their parents’ migration status. The detention of a child because of their or their parent’s migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child. In this light, States should expeditiously and completely cease the detention of children on the basis of their immigration status.
The Advisory Opinion and this new Guide published by the IPPDH are key tools for policy makers, UN and inter-governmental bodies, and civil society organisations taking actions or advocating on behalf of migrant children in the context of migration.
Resources:
Inter-American Court: Advisory Opinion OC-21
MERCOSUR IPPDH, Press Release: Inter-American Court establishes protection standards for migrant children
International Detention Coalition: Inter-American Court finds that the immigration detention of children is always arbitrary
Global Campaign to End Child Immigration Detention: Inter-American Court of Human Rights strongly against child detention