Children’s rights, which for the first time identify children as individual subjects independent of international law, is a new concept. It was not until 1989 that the international community with the instrument of the United Nations (UN) endowed with a statute on their rights with the Convention on the Rights of the Child (CRC). This legally binding international agreement, which defines the rights of all children as independent human beings, is one of the foundations of all international conventional and customary laws relating to children.

While national laws have established specific obligations towards children in their territory, states find it difficult to adapt these laws to the rights of non-national children and in particular migrant children. The plight of unaccompanied migrant children, whose numbers began to increase in the 2010s, has placed additional constraints on the state as it struggles to identify who their ultimate guardians are. Overwhelmed by this new tragedy and potentially by a lack of political will and administrative means, some states have tried to resolve this problem by placing these unaccompanied migrant children in detention.

In this article, we will examine the genesis of children’s rights and its evolution in international law and jurisprudence until it delves into the specifics of the rights of unaccompanied migrant children in detention. This trip will identify how states decide to focus on specific articles of the CRC to justify their detention policies and how jurisprudence and academic research have helped to rethink these paradigms.