Converging law, (un)intended vulnerability and international peace and security

The Security Council may be viewed as the juristic holder of ‘international peace and security’. Yet this is largely undefined in the Charter of its birth. And so too is its relationship with broader international law. Legal arguments abound: some view the Council unbound; others view it bound with discretion to depart for its primary responsibility (and of course there is a spectrum in between). In the search for certainty, international legal equivocation rules. Ipso facto, the Council is a holder of extraordinary power. Yet threats to international peace and security often have a legal expression—egregious violations of international humanitarian and human rights, some of which may be international crimes. Thus viewed, undergirding the Council’s engagement is a shift from ordinary to extraordinary ‘embodied vulnerability’ to hurt and harm. And it, therefore, may be supposed retracting these vulnerability shifts—by conducing compliance with applicable international legal obligations—lies at the core of its decision-making about maintaining international peace and security. And increasingly, if non-consistently, the Council so acts. It, then, is an extraordinary expression of the omnipresent interrelations between power and ‘embodied vulnerability’ to hurt and harm—and its thematic resolutions on children a particular embodiment of those same interrelations.

Prima facie, they are expressive of a rights-protecting relationship. In seizing itself of the subject the Council frames serious violations of international law relating to children as threats to international peace and security. And thereby connects conducing compliance–with those same international legal obligations–to its primary responsibility. Thus the engagement itself may be viewed as a vital dignifying act: the repeated condemnations of serious violations of international law connect ‘embodied vulnerability’ to its international legal expression—and, in doing so, the law itself is reaffirmed and safeguarded. And, so too, are its multifarious acts to conduce compliance: its sui generis monitoring and reporting mechanism and repeated reiterations of its readiness to consider targeted and graduated measures for non-compliance. Through these resolutions the Council, therefore, may escalate conduced compliance, as exemplified by the actions plans prepared by listed parties.

Probe more deeply and there is an underside. The resolutions are premised on a double tiered prioritisation: the designation of six violations of international law as grave and the prioritisation of five over time* within its monitoring and reporting mechanism. Thus the protective effects are partial: focused on discrete dimensions of the law and therefore discrete rights-holders and violators of international legal obligations. Therein lies three points of potential (un)intended vulnerability. In so acting, the Council engages in a form of meta-bargaining about rights. Needless to state this creates the risk of politically infused rights prioritisations; the latter may relate more to the identity, and Council members’ relationship with the rights-violator, than its primary responsibility. Layered on this is the potentiality of the outcomes to reify vulnerability. The double tiered prioritisation may have unintended international legal effects; it may sideline or reframe the positive obligation to ensure the right to freedom from all forms of violence, as expressed in the Convention on the Rights of the Child (CRC). Further this potentiality is exacerbated by the framing; it is indeterminate of rights-based approach; some provisions are systemically connected to applicable law; others are not.

And this matters. The process of ensuring this international legal obligation dignifies: ensures children rights ‘in’ decision-making (their rights to non-discrimination, life, survival and development and be heard, among others). However, in dignifying it may more efficaciously inform decision-making: identify (i) which children are vulnerable to what rights violations; and (ii) the vulnerability trigger (i.e. the layered hurt and harm undergirding children’s vulnerability to specific rights violations). And, in doing so, shape the outcomes: inform the development of safe, accessible and accountable protective or security measures. The alternative, then, may create broader (un)intended vulnerability and insecurity: overlook vital information key to halting and preventing the designated violations and thereby potentially exacerbate existing or create new inequalities. However a vital dignity-affirming safeguard remains: the continuing obligation to interpret and implement the resolutions with regard to broader applicable international law. Still neither the substance or framing of the resolutions conduces international human rights law connected implementation.

Perhaps, unsurprisingly, then, the rights-protecting relationship between this holder of extraordinary power and children’s ‘embodied vulnerability’ to hurt and harm is equivocal. Of course this is complicated. Conducing compliance with the CRC is, after all, not the Council’s primary responsibility. Yet the Council, itself, connects halting serious violations of international law to its primary responsibility—international peace and security. And the aforesaid legal obligation provides a framework for informed decision-making. Indeed it is an obligation most states are bound to respect and ensure including within the extraordinary context of threats to international peace and security. However,  international legal equivocation frames the extent to which the Council, itself, is bound by the Convention: there is no determinate obligation to ensure the constituent elements of this legal obligation within its decision-making processes. The vulnerability creating effects, therefore, may be unintended: the subtleties of the law—including its protective effects—may be unknown. It is also possible they are intended: the law is known and they are viewed as a necessary accommodation to the extraordinary context—a trade off for the Council’s engagement and its escalated conducement potentiality vis-a-vis the designated violations of international law.

Intended or not, held within the Council is also possibility: it may seize the creativity latent within its discretion to optimise the protective effects whilst minimising the risks. Some of the vulnerability creating effects may be minimised by ensuring informed decision-making: integrating safeguards into the process to ensure (i) children’s position as international rights-holders as expressed in the CRC is asked and (ii) the law is known (specifically the intrinsic and instrumental import of children’s broader rights for halting serious violations of international law). And these may be further minimised by limiting the (un)intended international legal effects: ensuring the framing of the agreed outcomes is connected to applicable international law, preferably undergirded by an express reference to the obligation to interpret and implement the resolutions with regard to applicable law.

To an extent, this is more subtle than radical. It merely ensures an informed process: rights protecting outcomes and framing—or limiting the equivocal protective effects of the Council’s actions—remains subject to the vagaries of meta-bargaining.

*1. recruitment and use of children by parties to armed conflict (2005); 2. & 3. killing and maiming of children; rape and other sexual violence against children in situations of armed conflict (2009); 4. recurrent attacks on schools and hospitals and recurrent and attacks or threats of attacks against protected persons in relation to schools and/or hospitals (2011); and 5. abduction of children in situations of armed conflict (2015).