(Part II) Converging law, equivocation and delimits on the supposed inviolability of spaces of learning

 

CAR Along Religious Lines

Picture Courtesy of Marcus Bleasdale.

 

As opined in the first part of this posting, an international humanitarian obligation to respect and ensure respect for the civilian character of spaces of learning may be inferred from existing treaty and customary law. However the precise point of delimitation remained unanswered: when, if at all, may the space be lawfully transformed by, for example, military use? Of course determining this, the scope, demands probing the equipoise—the interrelations between the principles of military necessity and limitation—more deeply.

Yet to an extent, this too may be determined from treaty and customary law. Indeed military necessity itself extends the inviolability (or protection) of the space, in so far as it prohibits military acts if not militarily necessary. Thus there is minimally an obligation to refrain, from transforming learning spaces from civilian objects to military objectives, unless required by military necessity. And, in light of the multiple sources of international humanitarian rules from which the obligation may be inferred, there is reason to argue, the obligation is particularly restrictive; that is, it forms a prohibition on such transformation ‘unless imperatively required by military necessity’, on a par with the customary rule limiting the use of cultural property for military purposes, if not the more restrictive treaty rule. To this, there is another delimiter: humanitarian rules limiting the (vulnerability creating) effects of non/international armed conflict, both those basic and specific express rules of treaty and customary law, and the principles of precaution and proportionality applied as general principles of international humanitarian law. Indeed, and here the opinion becomes more precarious, in light of the multidimensional hurt and harm that may follow the use of learning spaces by armed forces/groups, it may be opined, such use is (or should be) presumed to be unlawful—disproportionate or excessive in relation to the military contribution and advantage sought.

Either way, the precise point of delimitation remains context specific. To an extent, the vulnerability creating effects of this are mitigated by  the obligation to disclose the legal basis for such decisions. Seen in this way, each layer of rules may be inferred as extending the inviolability of spaces of learning, narrowing, if not closing, the fissure in international legal protection. And this interpretation is undergirded by two dignifying safeguards: international human rights law as both a complementary body of law and as an expression of the laws of humanity; and ‘the dictates of public conscience’, as determined by treaty and Charter bodies. Of these, the concurrent international human rights obligation to protect the space from acts of violence and as a space of learning may be opined as bridging the fissure in international legal protection, most particularly where the two bodies of law converge substantively. And even where the protection diverges substantively (i.e. when the human rights obligation is determined by more specific humanitarian rules) it may have legal effects: regard for the human rights obligation as a complementary international legal obligation may shift the juristic protection accorded under international humanitarian law, and even if not, it reinforces a vulnerability limiting interpretation and application of the law. However there, too, the law equivocates: the legal effects of the international human rights obligation are seldom determined with precision.

Rather the dictates recurrently resonate with constructive ambiguity. The Security Council in its aforementioned thematic resolutions on children, for example, expresses deep concern about the vulnerability creating effects of the military use of learning spaces—its impact on access to education and its potentiality to endanger children’s safety. Of course, those expressions of deep concern may be viewed as presupposing appreciable protection within existing international law. Yet this is juxtaposed with an absence of views about the delimits of the international legal protection generally and legal effects of the international human rights obligation specifically. The preamble to the resolution extending the Council’s monitoring and reporting mechanism to include recurrent attacks on schools and/or hospitals expressly invokes the right to education, citing article 28 of the Convention on the Rights of the Child. However, there is no express reference to international human rights law within the applicable substantive provisions; it has to be inferred as a constituent body of international law. Still those expressions of deep concern, and the reference to the right to education specifically, encourage (to co-opt the Council’s permissive language) a rights-infused interpretation and application of the law, of which is reinforced by the imperative to interpret and apply these provisions with regard to applicable international human rights obligations. The pressure of those dictates may therefore crystallise legal opinion, escalate conduced compliance with the law and create legal certainty over time. In the absence of determinacy, the Safe Schools Declaration and associated Guidelines are vital instruments for informing practice of the law; their legal embodiment at home—and supporting their embodiment away (through international assistance obligations) is an education, protection and security imperative, present and future.

 


 

Part I of this two part-mini series is available here. *See also ‘Converging law, four points of vulnerability and the supposed inviolability of spaces of learning’ Rights-Streams (13th January 2016); Centre for Criminal Justice and Human Rights, University College Cork, Ireland (29th January 2016).

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