"Detention as a Last Resort," in Protecting Migrant Children

Abstract

Improper confinement of children in migration contexts – unnecessary, prolonged, or in harmful conditions – constitutes a severe and highly troubling phenomenon in the world today, and has reached crisis proportions in the United States. One of the tools that the international human rights system offers for combating this phenomenon is the prohibition of arbitrary detention. The Human Rights Committee’s General Comment No. 35 on the right to liberty and security of person elaborates standards for characterizing detention as arbitrary, in this field as well as others.2 It provides guidance to states, and support to advocates seeking to limit the use of detention against children who cross borders. The standards do not, however, define every instance of detention of a person under eighteen years of age in the course of migration enforcement as inherently arbitrary. The term ‘detention’ covers a range of forms and durations of control, applied in a variety of situations. The general comment’s treatment of the issue is consonant with article 37(b) of the Convention on the Rights of the Child, which requires that ‘[t]he arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.’3 This chapter will first introduce the Human Rights Committee and its case law restricting detention of children in the migration context. Then it will turn to the general comment adopted in 2014, and reasons that favor the Committee’s nuanced approach to the factors that make detention of a minor arbitrary.