FAILING THE REFUGEE CHILD: GAPS IN THE REFUGEE CONVENTION RELATING TO CHILDREN

FAILING THE REFUGEE CHILD: GAPS IN THE REFUGEE CONVENTION RELATING TO CHILDREN SARAH J. DIAZ* “Although the definition of a refugee contained in Article 1(A)2 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol... applies to all individuals regardless of their age, it has traditionally been interpreted in light of adult experiences. This has meant that many refugee claims made by children have been assessed incorrectly or overlooked altogether.” 1 U.N. High Comm’r for Refugees, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, U.N. Doc. HCR/GIP/09/08 (Dec. 22, 2009) (hereinafter “UNHCR Guidelines”), http://www. unhcr.org/50ae46309.html. (For purposes of this article, I will adhere to the Convention on the Rights of the Child approach to the age of majority for children – defining children as under 18 years of age). United Nations High Commissioner for Refugees (UNHCR) I. INTRODUCTION .......................................... 606 II. CHILDREN AS AN AFTERTHOUGHT: THE INEVITABLE EXCLUSION OF CHILD- SPECIFIC NEEDS FROM THE REFUGEE CONVENTION.................. 608 III. GAPS IN PROTECTION UNDER THE REFUGEE DEFINITION: AN ANALYSIS OF U.S. REFUGEE LAW AND POLICY .............................. 610 A. GAPS IN AFFIRMATIVE PROTECTIONS FOR THE CHILD REFUGEE .... 611 1. The Failure to Include the Paramount Child Right: the lack of a best interests obligation under international refugee law ....................................... 612 2. Public-Sphere Persecution versus Private-Sphere Persecution: How children are marginalized from the definition of “refugee” under the Refugee Convention ...... 616 3. Procedural Deficiencies with the Refugee Convention ... 618 B. GAPS IN PROTECTION FROM ADVERSE POLICIES ............... 620 C. GAPS IN SUBSTANTIVE PROTECTION FOR REFUGEE CHILDREN FORCED INTO CRIMINAL ACTIVITY .............................. 623 * Sarah J. Diaz is an attorney and graduate of the Northwestern Pritzker School of Law, LL.M. Program in International Human Rights. She has worked at the intersection of child migration and human rights for fifteen years, most recently as the National Case Director at the Young Center for Immigrant Children’s Rights. The author would like to thank Christine Evans, Legal Director at the Chicago Alliance Against Sexual Exploitation and Jennifer Nagda, Policy Director at the Young Center, for their thoughtful feedback in the development of the article. © 2019, Sarah J. Diaz. 1. 605

FAILING THE REFUGEE CHILD: GAPS IN THE REFUGEE CONVENTION RELATING TO CHILDREN

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