Converging law, Security Council resolutions and (un)intended international legal effects

As opined elsewhere,* international human rights law may be viewed as the juristic holder of our ‘embodied vulnerability’ to hurt and harm. And, as such, it transcends time and space; it continues to be seized, shaped and expressed by those made vulnerable. However it is also in flux: its legal expression is partial and ‘embodied vulnerability’ itself is fluid. Consider treaty law: layered beneath the content and framing of substantive treaty provisions is the treaty making process; constructive ambiguity may be co-opted as a tool to promote agreement; notable absences may signify an agreement shortfall—or alternatively unexpressed or as yet unfelt/imagined vulnerability. Viewed in this way, the imperative of deepening the connection between ‘embodied vulnerability’ and its legal expression is ongoing. And this is evidenced by the adoption of multiple thematic human rights treaties in the past quarter of a century. However, two conflicting dynamics undergird the prima facie certainty of the law: the ever present forces of progression and regression. The Security Council is an extraordinary source of those forces; and the thematic resolutions on children a particular expression of their sometimes progressive, other times regressive effects.

This, the Council’s law effecting potentiality, is heightened by a confluence of legal dynamics flowing from its primary responsibility. These flow principally from the depths of the relations between that responsibility and egregious violations of international human rights and humanitarian law: the latter may, after all, if not provoke, exacerbate, threats to international peace and security. Thus the Council increasingly, if non-consistently, seizes its discretion to escalate conduced compliance with applicable international legal obligations, as exemplified by the aforementioned thematic resolutions. In so engaging, the Council necessarily interprets and expresses applicable international law ‘in’ and ‘through’ its resolutions including international law relating to children. However international legal equivocation frames the extent to which it is bound within its decision-making processes by broader international law, beyond the Charter of its birth. Yet these resolutions if not legal acts have legal effects: the resolutions (or selected provisions thereof) may inform subsequent practice (by guiding the interpretation and implementation of applicable treaty law) or be cited, themselves, as evidence of subsequent practice.

Thus the Council, through its resolutions on children, may effect applicable law including the Convention on the Rights of the Child (CRC), with no determinate obligation to systematically engage with that same law in its decision-making process. The provisions calling upon parties to conflict to ensure children’s rights in peace processes are illustrative. Prima facie they may be supposed as a progressive development—at least in so far as they may contribute to the transformation of practice of existing law. Indeed this potentiality is reinforced by their frequency: eight of the eleven resolutions include such provisions. However deconstructed from the perspective of the CRC, the provisions may be viewed as more regressive than progressive. Of the eight,  for example, only four refer to ‘rights’ (the first, fourth, sixth and eighth resolutions). Their connectedness to the Convention generally and selected rights specifically may be viewed as equivocal. Consider the provision below, most particularly the reference to ‘the involvement of children, where possible’.

[The Council] Requests parties to armed conflict to include, where appropriate, provisions for the protection of children [….] in peace negotiations and in peace agreements and the involvement of children, where possible, in these processes.

(S/RES/1314 (2000))

The reference is one of two which may be viewed as an ambiguous reference to the legal obligation to assure respect for children’s views, as expressed in the CRC, albeit integrating discretion. It is an obligation that has particular strength and determinacy in international law: the obligation is to assure the right of children (i) to freely express their views (ii) influence the decision-making process and (iii) impact on the outcomes commensurate with their age and maturity. And this, considered in conjunction with the broader rights in the CRC, has protective effects for ensuring an informed, safe, accessible and accountable process. Further the Committee on the Rights of the Child expressly states there is ‘no leeway’ for discretion.

Of course accommodated to the extraordinary context it is reasonable to suppose discretion is—a  pre-requisite.  However a probe of decision-making towards peace agreements from a child rights perspective illumined a vital dignifying subtlety: the question is not where possible—but when and how. And, this research positioned decision-making towards peace agreements as an extraordinary legal paradigm whereby the political imperative of advancing peace may override the legal obligation. The framing of these provisions, then, may contribute to a regressive interpretation and implementation of this legal obligation. And this may have legal effects into the future: the provisions (or implementing decrees) may be cited as evidence of an authoritative interpretation of applicable provision of the CRC. Of course this may be intended: the ambiguity may have been co-opted as a tool to promote agreement. Or perhaps more likely, it may be unintended: the subtleties of the law—including its protective effects— may have been unknown.

Either way, from the perspective of the Council’s primary responsibility, this disjuncture–between the CRC and the framing of these provisions—presents a challenge. Though understated, they are vital protection and security measures. The context—escalating political objectives through deliberation—is widely viewed as the optimal method for retracting vulnerability shift associated with conflict and insecurity, or other words securing the Council’s primary responsibility. So too, is ensuring the rights of often 30%-40% plus of the population ‘in’ and ‘through’ the staged process of peace trajectories as they fracture, stall and reconfigure. Indeed seizing the broader legal and political imagination associated with peace processes to develop creative structures to assure respect for children’s views within decision-making towards peace agreements may have protective effects.  Foremost, it may contribute to the legitimation of the process and therefore its advancement. Second it increases the possibility of rights-outcomes for children ‘in’ and ‘through’ the process including the later agreements of which often have constitutional status. The forces of regression, then, as expressed within the framing of these provisions, may, ‘in’ and ‘through’ their (un)intended international legal effects, have a cascade of vulnerability creating effects, of which may hold international peace and security risks for us all present—and future.

Threaded through this narrative is a broader—and more subtle—point: if, halting egregious violations of international law relating to children—as the Council itself infers—is an international peace and security imperative, then, surely safeguarding the law, of which its designated grave violations of children’s rights form apart, is too?**

*Paraphrasing Anna Grear in ‘Challenging Corporate ‘Humanity’: Legal Disembodiment, Embodiment and Human Rights’ ; see also ‘Malala and the post-postcolonial child’.

**The challenge as opined elsewhere is to seize the creativity latent in the Council’s discretion to optimise the vital dignifying protective effects of the resolutions whilst limiting the unintended international legal effects: integrate safeguards into the process to ensure the agreed outcomes are connected to, or qualified with regard to, applicable international law, preferably undergirded by an express reference to the obligation to interpret and implement the resolutions with regard to applicable law. See, Converging law, (un)intended vulnerability and international peace and security

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