REFUGEE CHILDREN AND THE PROTECTION UNDER THE PRINCIPLE OF THE

BEST INTERESTS OF THE CHILD

Dina Imam Supaat

Faculty Of Syariah And Law
Universiti Sains Islam Malaysia
dinasupaat@yahoo.com; dina@usim.edu.my

ABSTRACT

Refugee children are vulnerable due to their status as children and refugee. In states
that are not parties to the 1951 Convention Relating to the Status of Refugees, it is
difficult for refugee children to claim protection under the law and to access the
justice system. As the principle of the best interests of the child is a fundamental rule
in children protection, its application should extend to refugee children. This article
aims to show that the rule has become a customary international law and
consequently a basis of state obligation to protect refugee children present in its
territory especially in Malaysia and other Asian countries where an influx of refugee
from Myanmar seems endless. It first discusses the condition of refugee children in
Malaysia and other states where express protection is absent and followed by the
parameter of protection under the rule. Next it presents evidence of formation of the
best interests of the child rule as international custom. The study argues that there
are consistent and uniform practices that bind states to the rule without state consent
though challenges are expected. Lastly it explains the benefit of the application and
utilisation of the principle in state response that would promote the enjoyment of
children’s rights.