Umeå University's logo

The independent migration of children today is a global phenomenon present in manyregions worldwide, where unaccompanied minors seeking asylum do not enjoy full protection oftheir rights. Among their procedural safeguards, the right to legal assistance and representation is afundamental right strictly related to the realization of other rights contained in the UN Convention onthe Rights of the Child. Nevertheless, despite the fundamental role that guardians and legal advisorsplay in the wellbeing of unaccompanied children seeking asylum, many issues are currently affectingthe exercise and implementation of this fundamental right in several European Union Member States.Therefore, the purpose of this article is to examine the content and scope of protection of this rightunder EU law, while highlighting the existence of possible ambiguities or gaps in current legalstandards. Which EU law rules currently protect unaccompanied minors’ access to legal assistance?What changes are necessary in order to strengthen that protection for unaccompanied minors seekingasylum? These are some of the questions that this paper addresses in order to critically analyze thelevel of protection that Europe has provided to unaccompanied children’s right to legal assistance.

The Inter-American Court of Human Rights (IACrtHR) has developed in recent years an innovative jurisprudence that has integrated the entity and extension of States’ obligations regarding children’s rights—as established in Article 19 ACHR—through the evolutive, dynamic, and effective interpretation of the American Convention on Human Rights (ACHR). In fact, by acknowledging the existence of an international corpus juris for the protection of children’s rights, the Court has examined this provision in the light of instruments enshrined within the corpus juris, such as the UN Convention of the Rights of the Child. This process of normative integration was not only limited to the application of international instruments adopted outside of the Inter-American system, but also includes internal references to interconnected rights recognised within the American Convention. Consequently, by analysing the scope of Article 19 ACHR in the light of Article 4 ACHR (right to life) and the corpus juris for the protection of children, the Inter-American Court has further expanded the protection of children’s rights towards the protection of the right to a dignified life. While focusing on the landmark jurisprudence developed by IACrtHR, this paper seeks to unveil the hermeneutical paths undertaken by the regional tribunal in connection with the systemic integration of Article 19 ACHR. In particular, it focuses on the emerging jurisprudential development of positive obligations upon States Members regarding the effective protection of children’s right to a dignified existence.

The focus of this research brief is to propose a critical analysis of the judicial interrelation (and potential cross-fertilization) between international and regional human rights systems, with particular focus on the effective recognition of asylum-seeking children’s rights within the Inter-American system. In this sense, this study intends to make a contribution towards the better understanding of the emerging role that regional systems have (or could have) in reinforcing and guaranteeing the effective enjoyment of human rights of children in the context of migration processes. It focuses on the pioneering jurisprudence developed by the Inter-American Court of Human Rights in the past years, which has developed an evolutive, dynamic and effective interpretation of the American Convention on Human Rights, under the light of the systemic integration of international human rights law. As a result of this innovative method of interpretation, the regional tribunal has reinforced the interpretational guiding value of various provisions of the UN Convention on the Rights of the Child, paving the way for the enhancement of the level of protection of millions of children in the Americas and expanding States’ positive obligations in relation to them.

This paper proposes a critical analysis of the innovative jurisprudential approaches taken by the Inter-American Court of Human Rights in integrating the content and scope of protection of the human rights of children, in the context of migration processes. How might one provide an effective protection to unaccompanied children that enter irregularly into the territory of a given country, when the safeguards guaranteed at the national level are elusive or inefficient? By focusing on the pioneering jurisprudence developed by the Inter-American Court of Human Rights in recent years, this paper intends to unveil how a systemic integration of children’s rights, under the light of the current international law developments, could provide an effective protection for the rights of children in the context of migration processes. In fact, as a result of an evolutive, dynamic and effective interpretation, the regional tribunal has expanded the scope of protection of the American Convention on Human Rights, by taking into consideration and making known, references to instruments and provisions enshrined within the corpus juris of international human rights law, such as the UN Convention of the Rights of the Child, and—consequently—improving the level of protection of millions of children in the Americas.