Tuesday

22nd Aug 2017

Opinion

Spain turns its back on migrant children's rights

  • Child migrants are a particularly vulnerable group, especially if they are not given protection. (Photo: plan-international.org)

At this very moment, some children in Spain are being held in adult immigration detention centres, pending return to their home countries.

Other migrant children are living on the streets in Madrid and other Spanish cities, suffering from serious illnesses, or are prevented from applying for asylum. This is happening because they are not Spanish nationals and the authorities have not recognised them as children, but consider them to be adults.

During the International Commission of Jurists' (ICJ's) capacity and coalition building activities with lawyers and civil society organisations to better defend migrant children's rights in various European countries, our Spanish partner, Fundacion Raices, raised attention to the dire situation of migrant children in Spain.

In seven cases concerning migrant children in vulnerable circumstances, Fundacion Raices and other Spanish lawyers requested the United Nations committee on the rights of the child to issue interim measures, i.e. orders to the Spanish authorities, with a view to avoiding irreversible harm to these children.

In states that, like Spain, are parties to the optional protocol to the Convention on the Rights of the Child on a Communications Procedure, the committee on the rights of the child is empowered to examine individual communications by or on behalf of a child or group of children claiming that there has been a violation of their rights under the convention.

Irreversible damage

Pending its determination on the merits, the committee may request the state party to take interim measures, as may be necessary to avoid possible irreversible damage to the victim or victims of the alleged violations.

In one of the seven cases mentioned above, a 16-year-old boy, who was hurt when crossing the border into Spain, requires urgent surgery.

Since the boy is an unaccompanied child, the hospital treating him requires the consent of a responsible adult to authorise his surgery. However, until a guardian has been appointed, no consent to the child’s surgery can be given.

Disregarding the boy’s own passport, which attests to his childhood, following a highly criticised age-assessment procedure, the public prosecutor decided that he is an adult.

However, the boy is in a catch-22 situation since, as far as the hospital is concerned, there is no official document attesting to his age other than his own passport, according to which he is a child.

Therefore, the boy has not had the surgery he so desperately needs. In addition, if considered an adult, he would have to pay for the surgery himself.

The UN committee reacted swiftly to the lawyers’ demands and during the past 7 months requested the Spanish government in those seven cases to take interim measures.

Under international law, respect for interim measures is essential for the protection of human rights.

Existing international law and jurisprudence affirm that any state party’s non-compliance with a request for interim measures constitutes a breach of its legal obligations under international law.

Respecting international law

The binding nature of interim measures has been reaffirmed by the human rights committee in its general comment 33 on the individual complaints procedure.

However, the Spanish government has ignored these requests and failed to comply with any of the requested interim measures. The Spanish government is thus in violation of the international obligation it has voluntarily undertaken - more significantly, the lives and well-being of dozens of highly vulnerable children are at risk.

The UN Convention on the Rights of the Child obliges states to consider the best interests of the child as a primary consideration above any other. However, the Spanish authorities claim that the individuals in these cases are not children but adults.

Yet, in the event of any remaining uncertainty, international law affirms that states must accord the individual the benefit of the doubt and treat him or her as a child - until effectively proven otherwise.

Moreover, the Spanish supreme court has already expressed concern about the age-assessment procedure used by the Spanish authorities, in more than 10 judgments, as did the Spanish ombudsman and the United Nations high commissioner for human rights.

Last month, six civil society organisations in Spain (Amnesty International, Fundacion Raices, the General Council of Spanish Lawyers, the Jesuit Mission for Migrants, Noves Vies and Save the Children) called on the Spanish Government to immediately implement the committee’s request for interim measures in each case.

The ICJ is training lawyers in seven EU countries, including Spain, and supporting them in bringing their cases to international human rights mechanisms, such as the UN committee on the rights of the child, when no effective remedy is available domestically.

The Spanish government is failing these children and is failing to respect its international law obligations.

Respecting one's international obligations and ensuring that no harm is caused to children in violation of their rights should be high priorities for any states that are parties to the UN Convention on the Rights of the Child.

The Spanish government should live up to its obligations, and immediately implement the committee on the rights of the child’s request for interim measures in these cases.

The International Commission of Jurists (ICJ) is composed of 60 eminent judges and lawyers from all regions of the world and promotes and protects human rights through the rule of law, by using its unique legal expertise to develop and strengthen national and international justice systems.

Child migrants endure 'abysmal conditions'

The Council of Europe's special representative on migration and refugees released a report that says minors in Europe are enduring "abysmal conditions".

Macron goes east to test appetite for EU integration

The next few months will be decisive in selecting who stays in the core of the EU and who stays behind, writes Tomas Prouza, a former state secretary for European Affairs of the Czech Republic.

Column / Brexit Briefing

The return of the chlorinated chicken

Britain has only just started on the path towards a post-Brexit trade deal with the US, but you can already see the same all-too-familiar disagreements.

Stop blaming Trump for Poland’s democratic crisis

If you were to judge events purely on the US media's headlines, you would be forgiven for wondering if the Polish government had anything to do with its recent controversial judicial reforms.

News in Brief

  1. US will ask Nato allies to send more troops into Afghanistan
  2. Greece to be absent at event on Communism and Nazism
  3. Czechs want observer status in Eurogroup meetings
  4. Putin sends EU-blacklisted ambassador to US
  5. Austria has begun checks at Italian border
  6. Slovenian PM: Brexit talks will take longer than expected
  7. Merkel backs diesel while report warns of economic harm
  8. UK to publish new Brexit papers this week

Stakeholders' Highlights

  1. European Jewish CongressEuropean Governments Must Take Stronger Action Against Terrorism
  2. European Healthy Lifestyle AllianceDoes Genetics Explain Why So Few of Us Have an Ideal Cardiovascular Health?
  3. EU2017EEFuture-Themed Digital Painting Competition Welcomes Artists - Deadline 31 Aug
  4. ACCABusinesses Must Grip Ethics and Trust in the Digital Age
  5. European Jewish CongressEJC Welcomes European Court of Justice's Decision to Keep Hamas on Terror List
  6. UNICEFReport: Children on the Move From Africa Do Not First Aim to Go to Europe
  7. Centre Maurits CoppietersWe Need Democratic and Transparent Free Trade Agreements Says MEP Jordi Solé
  8. Counter BalanceOut for Summer, Ep. 2: EIB Promoting Development in Egypt - At What Cost?
  9. EU2017EELocal Leaders Push for Local and Regional Targets to Address Climate Change
  10. European Healthy Lifestyle AllianceMore Women Than Men Have Died From Heart Disease in Past 30 Years
  11. European Jewish CongressJean-Marie Le Pen Faces Trial for Oven Comments About Jewish Singer
  12. ACCAAnnounces Belt & Road Research at Shanghai Conference

Stakeholders' Highlights

  1. ECPAFood Waste in the Field Can Double Without Crop Protection. #WithOrWithout #Pesticides
  2. EU2017EEEstonia Allocates €1 Million to Alleviate Migratory Pressure From Libya in Italy
  3. Dialogue PlatformFethullah Gulen's Message on the Anniversary of the Coup Attempt in Turkey
  4. Martens CentreWeeding Out Fake News: An Approach to Social Media Regulation
  5. European Jewish CongressEJC Concerned by Normalisation of Antisemitic Tropes in Hungary
  6. Counter BalanceOut for Summer Ep. 1: How the EIB Sweeps a Development Fiasco Under the Rug
  7. CESICESI to Participate in Sectoral Social Dialogue Committee on Postal Services
  8. ILGA-EuropeMalta Keeps on Rocking: Marriage Equality on Its Way
  9. European Friends of ArmeniaEuFoA Director and MEPs Comment on the Recent Conflict Escalation in Nagorno-Karabakh
  10. EU2017EEEstonian Presidency Kicks off Youth Programme With Coding Summer School
  11. EPSUEP Support for Corporate Tax Transparency Principle Unlikely to Pass Reality Check
  12. Counter BalanceEuropean Parliament Improves the External Investment Plan but Significant Challenges Ahead