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.

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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.

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Somalia becomes 196th state to ratify Convention on Rights of the Child

On 1 October 2015, Somalia became the 196th state to ratify the UN Convention on the Rights of the Child (UN press release here). South Sudan ratified it back in January 2015.

The United States now stands alone as the only state not to have ratified this treaty.

The US was actively involved – during the Reagan and Bush I administrations – in drafting the Convention on the Rights of the Child.  Rep. Chris Smith (R-NJ), representing the US in the Third Committee of the UN General Assembly as the text was being concluded, stated: “We believe that it represents a notable step forward in the needed promotion and protection of the rights of children.”

In 1995, Ambassador Madeleine Albright signed the treaty on behalf of President Clinton, but he did not send it to the Senate, and in the face of GOP opposition to ratification, President Obama has not done so either.  Click here for a summary of the US history with the Convention on the Rights of the Child and an overview of the arguments that have been raised for and against ratification.

Child Marriage in India: Loopholes in the Law

By sheer numbers, child marriage in India dwarfs the rest of the world; India has the highest number of child brides of any country.  Although the rate of child marriage is decreasing for children under the age of 15, the rate of marriage for girls aged 15-18 has increased from 26.7% in 1998-99 to 29.2% in 2005-06.  Child marriage is clearly not ending despite laws in place, and is perpetuated in India due to a range of factors, most prominently dowry, poverty and lack of educational opportunity for girls, concerns about the safety and honor of girls, and prevalent gender and social norms.

Child marriage violates international human rights laws and standards, including Article 16(2) of the Universal Declaration of Human Rights, which requires the “free and full consent” of spouses to marriage. It also violates Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires women and girls to have the “right freely to choose a spouse” and to “enter into marriage only with their free and full consent.” CEDAW also states that the “betrothal and the marriage of a child shall have no legal effect.” India is also signatory to the Convention on the Rights of the Child (CRC), and child marriage violates a range of CRC provisions, including the right of children not to be separated from their parents against their will and the right of children to freely express their views on matters that affect them. Further, under the CRC, the state is obligated to take measures to abolish traditional practices prejudicial to the health of children, including marriage.

The social forces at play perpetuating child marriage are difficult to combat, deep-seated and intertwined as they are. But perhaps what is lesser known is that laws in India prohibiting child marriage are flawed, contributing to the problem.

First, the Prohibition of Child Marriage Act, 2006 repealed the Child Marriage Restraint Act, 1929 and attempted to address the previous Act’s shortcomings. This Act defined child marriage as the marriage of boys under age 21 and girls under 18. The Act also made positive changes, including extending the maximum length of punishment to two years of imprisonment and/or a fine of up to one lakh rupees. If the marriage is nullified, the Act requires the return of money, valuables, gifts, and ornaments given by each party to the other, and also allows an order of maintenance for the former wife.  The Act also provides for government-appointed Child Marriage Prohibition Officers to work to prevent child marriages; while good in theory, it is unclear whether they are actually in operation and to what extent.

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Complaint Mechanism of Child Rights Treaty Enters Into Force

The treaty establishing a complaint mechanism for the Convention on the Rights of the Child (“OP3”) entered into force on 14 April 2014. Costa Rica brought the number of ratifications of this Optional Protocol to the required ten, with all but Costa Rica also entering declarations accepting the Article 13 inquiry procedure.  An additional 37 states have signed the protocol but not yet completed the ratification process. States parties to the Optional Protocol thus far:

Albania, Bolivia, Gabon, Germany, Montenegro, Portugal, Spain, Thailand, Slovakia and Costa Rica

Under the treaty, the Committee on the Rights of the Child may hear complaints from individual children, groups of children, or their representatives against a state party to OP3 for a violation of the Convention on the Rights of the Child, and for a violation of the Convention’s other two protocols if ratified by that state.

Domestic remedies must have been exhausted or shown to be “unreasonably prolonged or unlikely to bring effective relief.”  The complaint must be submitted within one year of the exhaustion of domestic remedies unless it is shown it was not possible to bring the complaint within that time limit.  The treaty also contains a follow-up procedure, an opt-out inquiry procedure for “grave or systematic violations,” and an opt-in inter-state complaint procedure.

The treaty specifies that in developing its rules of procedure the Committee on the Rights of the Child is to “guarantee child-sensitive procedures” and include “safeguards to prevent the manipulation of the child by those acting on his or her behalf.” In addition, the committee “may decline to examine any communication that it considers not to be in the child’s best interests.”  OP3 Rules of Procedure  here.

For a comparison of this OP with the complaint procedures of the other UN human rights treaties, see this comparison chart developed by the Child Rights International Network (CRIN). For additional resources on OP3, see this toolkit and annotated guide.