The same goes for the children of “foreign fighters” with Dutch ties trapped in camps in Northern-Syria. This blogpost sketches the historical relevance of borders and their perverse incentives towards children in need of human rights protection, with particular reference to the aforementioned groups of vulnerable children.

Borders seem so natural that they almost appear ahistorical. But there was a time where borders did not exist, amongst other reasons because the science of cartography had not progressed enough. In 1648 this situation changed. Cartography allowed for borders to be drawn (Ryngaert in Orakhelashvili 2015). They were considered necessary to secure peace after the Thirty Years War (1618-1648), which caused the death of nearly a quarter of the European population. Since no religious fracture or political body won this war, the way forward was determined to be that independent states would not interfere across their boundaries in the politics or religious vocations of other states (Kissinger 2015). This was formalised in the treaties of Westphalia.

Even though these treaties were a European product, this system of states became a globally applicable one (Kissinger 2015) which can be heralded for many reasons. Amongst other benefits, it created the conditions for the establishment of the United Nations and the development of international (human rights) law (Cutler 2001 and Kissinger 2015). The reason why borders should nevertheless leave us feeling dissatisfied is this new world order’s presumption that states are capable of preventing human suffering as long as they do not interfere in each other’s affairs. Yet, wars have continued ever since and states have also not stopped mingling in one another’s affairs. Moreover, states can fail. The former attorney general of Venezuela qualified Venezuela recently as a failed state.

The world order dating from 1648 is in essence a system based on restraint, which reverberates in international human rights law (Bhuta 2017). International human rights treaties entail jurisdiction clauses that tie the duties of state parties flowing from those treaties primarily to their territory (Besson 2012). This can have the undesired consequence of leaving states staring blindly at human rights treaties when it comes to situations that impact people who have supposedly crossed their borders “illegally,” or people near or outside their borders who are nevertheless affected by their policies. Some states stare blindly in the sense that the restraint states ought to exercise towards other states, is failing people in need of human rights protection at or near their borders.

This blind staring – or narrow interpretation of jurisdiction clauses of human rights treaties – is exemplified by push backs at sea, harsh border control policies, but also states’ reluctance to repatriate the children of “foreign fighters” (and their mothers) from North-East Syria. This narrow interpretation is often legitimised by narratives and assumptions that transform people in need of human rights protection into persons that lack this protection. Narratives that use terms like economic migrants or fortune hunters in relation to migrants and refugees are well known. The fear of a “pull effect” (in Dutch “aanzuigende werking,” which is a myth according to researchers) is an example of an assumption that impacts the legal position of migrants and refugees. Children of “foreign fighters” have been called ticking time bombs, another narrative that seems unjustified (at least towards the youngest children who were taken there rather than choosing to go).

The Dutch government is not actively engaged in the repatriation of children with Dutch ties who are trapped in camps from Syria, except for a few highly-specific cases (it repatriated two orphans in 2019 and recently two children with their mother whose prosecution would be discontinued if she was not present at her trial in the Netherlands within a certain time frame). The Dutch government finds that the UN Convention on the Rights of the Child does not oblige it to repatriate them (a position that has been challenged). The Dutch Ministers of Foreign Affairs and Justice & Security argued in a recent public debate not to alter their reticent policy, whilst referencing the Dutch Supreme Court’s 2020 ruling that Dutch women and children residing in camps in Syria do not fall under Dutch jurisdiction of the UN Convention of the Rights of the Child. They were apparently not aware of the views of the UN Committee on the Rights of the Child which in L.H. et al v. France (later in 2020) found that France has jurisdiction over French children in camps in Syria because it is considered to have “the capability and the power to protect the rights of the children in question by taking action to repatriate them or provide other consular responses.” Also relevant was the fact that France had already repatriated at least 17 French children from the camps in Syria (par. 9.7 of the views).

Another group of children impacted by Dutch borders and having trouble securing their human rights are – as recent research revealed - undocumented children in Curaçao, most recently from Venezuela. These are children without a legal permit to stay in Curaçao. Their situation is in many ways a reason for great concern. Some have been separated from their parents and in the course of their expulsion (temporarily) placed in institutions. Others live in deplorable living conditions and are vulnerable to (sexual) exploitation. Some have been placed in migration detention. There are no reception centres for them. All are uninsured for medical care and for many, schooling is inaccessible. Until today, there have been no asylum procedures in Curaçao and the chances of their human rights being protected seem to be very limited, and dependant mostly on private efforts (see research).

The myth of “aanzuigende werking” (the pull effect) has been embraced by politicians in the Netherlands and Curaçao, overshadowing any human rights concern. In a public debate in 2016, the Dutch Minister of Interior & Kingdom Relations said that in relation to migration from Venezuela to Curaçao, he was concerned about the pull effect. He argued:

“If we say there are bungalow tents ready and dinner will be served three times a day, we invite people to come our way” (Dutch parliamentary documents 2016/2017).

In 2019, the former Prime Minister of Curaçao argued that Curaçao could not allow the “illegal Venezuelans” to stay according to “international standards” as this would enhance the pull effect.

Both the Netherlands and Curaçao intensively influence the (legal) situation of Venezuelans, including children, who seek to enter Curaçao or have already arrived through an “aggressive discouragement policy.” According to Curaçao’s former Minister of Healthcare, this policy is agreed upon “within the Kingdom of the Netherlands.” Curaçao and the Netherlands – amongst others – have built a wall of technology in the sea between Venezuela and Curaçao, composed of radars, cameras and drones. The Netherlands has also provided funds to reconstruct detention facilities in Curaçao in which migrants are being held. Is the scant attention for the human rights of undocumented children in Curaçao part of this discouragement policy?

The world order based on restraint is not a panacea. Trying to cement the borders of the Kingdom of the Netherlands by not actively repatriating or welcoming vulnerable (undocumented) children is a way of using constraint to control the symptoms of a challenge to world order. A challenge that is posed by people on the move. Leaving children to suffer in camps and overlooking the rights of undocumented children is not solving the question of how, and by whom, the human rights of people on the move should be secured when they hinge on the fringes of borders. Humanity is not tamed by geographical borders. It is time for the world to ponder a durable solution to the lack of human rights protection for the most vulnerable that characterises this phenomenon. Until that time, it is laudable that human rights courts and United Nations’ Treaty Bodies seem inclined to expand the scope of the extraterritorial application of human rights treaties. This shows that borders are not always decisive in determining human rights obligations.