Law of Peace(making) and Transforming Children’s Invisibility

Courtesy of the Blog of the Groningen Journal of International Law (August 22, 2017).

The law of international human rights came into being through an international peacemaking process, in particular the successive processes that gave birth to the Charter of the United Nations. The law as developed affirms children’s legal standing and agency as subjects of human rights. There is a concomitant international obligation to affirm the same in relation to the successive processes of peacemaking and give effect to those rights through the resultant agreements, as recalled by treaty and Charter bodies. Yet children are mostly invisible in such processes. Its extent is laid bare by a cursory review of collections of peace agreements. Of the close to eight hundred peace agreements in the United Nations database, for example, approximately ninety-five include a reference to children. The extremity of their invisibility raises a multiplicity of questions. Is it justified from the perspective of the law of peace(making)? May children’s human rights yield to the pursuance of peace?  And if not, why are children (mostly) invisible in peacemaking? These questions sparked and structured a probe of peace processes from a juristic, human rights and child rights perspective.

Assessing Whether Children’s Rights May Yield to the Pursuance of Peace

Assessed from a juristic perspective, the probe determined there was limited justification for the invisibility of children generally and as subjects of human rights specifically. Rather it argues as a sui generis form of lawmaking, peacemaking yields legal and political opportunities for applicable parties (state and non-state) to give effect to children’s rights in law and practice. First, its self-constituting form (who takes part, under what rules, about what is constituted by the process) offers an opening for acting to ensure such processes are constitutive of children’s rights. Second, the applicability of international human rights law to the context provides a legal basis for the same. Third, parties to peacemaking may for multifarious reasons — some legal, others political — commit to transforming ‘children’s rights as part of human rights’. Fourth, giving effect to children’s rights in peacemaking is (for the most part) determined to be interdependent with the pursuance of peace: it is exigent to the efficacy and legitimacy of the successive processes and resultant agreements. Seen in this way, the invisibility of children’s rights in peacemaking may be viewed as revealing of other challenges, in particular children’s broader rightlessness.

Theorising Why Children are (Mostly) Invisible in Peacemaking

The deprivation of their rights is subtle, however. As noted above, the law affirms children’s legal standing as subjects of human rights both their general rights (applicable to everyone) and their child-specific rights (applicable to them by virtue of their status as children). Yet the interdependence of those rights (civil, political, social, economic and cultural) is repeatedly understated. Selected rights, in particular, those associated with vulnerability to bodily harm, often eclipse others. This effect seems to escalate as vulnerability to bodily harm rises. And since the risk of bodily harm is frequently more significant in peacemaking, this escalating effect is particularly acute in such contexts. Prima facie this may seem irrefutable. Except the effective protection of those rights is contingent on the right to have rights, in particular rights that affirm legal standing and agency as subjects of human rights in the sui generis lawmaking process. For children this requires taking positive action to (a) recognise children’s dignity and worth and (b) acknowledge and accommodate their difference and disadvantage from adults. Or in other words, the development of structural foci or mechanisms to ensure children’s rights are minimally performative (i.e., seized, shaped and expressed) in the successive processes and more optimally given effect through the resultant agreements. If no action is taken to affirm children’s legal standing as subject of human rights in this way children remain effectively rightless. Of course this may be intended: the object may be subjugation, more specifically, benevolent subjugation; it may be supposed that the adult participants will raise the subject of children and their rights. Or this state of rightlessness may be unintended: knowledge of subtleties of the law may be limited, most particularly the interdependence of children’s civil and political rights. In either scenario, whether or not children’s rights are seized is contingent on the participants in the process acting on the children’s behalf. And this is a precarious process at any time, and more so, in the context of peacemaking: commitments to transforming ‘children’s rights as part of human rights’ may be subsumed by the politicking in the process or eclipsed by other priorities.

Giving Effect to Children’s Rights in and through Peacemaking

Yet latent in the transformation at the epicentre of peacemaking is an opportunity to seize its ‘radical progressive potential’ for children. This sparked the development of six principles for giving effect to children’s rights in peacemaking. The first recalls the sui generis legal form of peacemaking: a) the multiple stages which Christine Bell loosely classifies into pre-negotiation, framework and implementation, b) the plurality of legalities that regulate and constitute the process, and c) the evolving form of the successive agreements from sui generis to more established forms of legality. The second principle shifts to recalling one of these legalities: international human rights law. It notes the specificity of the law applicable may shift as the process evolves from halting violations of human rights (e.g., the rights to life, liberty and security of the person) to giving effect to rights in relation to the constitution of the process in the nascent stages and the transforming rule of law in the latter stages, and further identifies nine reasons why the law is performative in such processes. The third to sixth principle recall children’s international legal standing as subject of human rights and the concomitant obligation to give effect to those rights in and through peacemaking. Principles three and four specify the law applicable and principles five and six the multiplicity of imperatives for transforming children’s rightlessness including the dignifying, legal, rights-multiplying and protective effects.

At the heart of these principles is a call to parties to peacemaking to (a) affirm children’s legal standing as subjects of human rights and (b) constitute peacemaking processes with structural foci and mechanisms to ensure children’s rights are minimally performative in the same and more optimally given effect through the resultant agreements. It may demand particular legal and political imagination to do so. Yet peace processes are made of ‘such stuff’.

OHCHR Picture, Eiza Abid (15), Secondary Global Winner of the Children’s Poster Competition organised by the Office of High Commission for Human Rights to celebrate the fiftieth anniversary of the two Covenants.