Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under General Human Rights Law – The Case of the Optional Protocol to the Convention on the Rights of the Child

Journal of International Humanitarian Legal Studies 5, no. 1-2 (2014): 213-257

42 Pages Posted: 30 Jan 2015

See all articles by Seira Yun

Seira Yun

Graduate Institute of International and Development Studies (IHEID)

Date Written: 2014

Abstract

This paper seeks to clarify the confusions regarding the relationships between international human rights law and international humanitarian law, the principle of equality of belligerents, and the use of the term “should” in treaties. For this purpose, it examines, as a case study, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, on which doctrine is divided whether Article 4(1) thereof is binding on armed non-State actors. First, this paper reconceptualizes international humanitarian law as a subset of international human rights law, which share the same purpose, mutually reinforce, and depend on each other. Second, drawing on the customary rules of treaty interpretation under the Vienna Convention on the Law of Treaties and through a comprehensive analysis of the authentic texts in other languages and the travaux préparatoires, it argues that the term “should” in the operative part of treaties always creates legally binding obligations and that the equality principle does not strictly apply to norms applicable during peacetime. As such, despite its use of “should” and differential treatment between States and armed non-State actors, Article 4(1) of the Protocol creates a direct human rights obligation on armed non-State actors.

Keywords: Optional Protocol, Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, international human rights law, international humanitarian law, relationship between IHRL and IHL, child soldiers, non-State actors, armed rebel groups, treaty interpretation, VCLT

Suggested Citation

Yun, Seira, Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under General Human Rights Law – The Case of the Optional Protocol to the Convention on the Rights of the Child (2014). Journal of International Humanitarian Legal Studies 5, no. 1-2 (2014): 213-257. Available at SSRN: https://ssrn.com/abstract=2556825

Seira Yun (Contact Author)

Graduate Institute of International and Development Studies (IHEID) ( email )

PO Box 136
Geneva, CH-1211
Switzerland

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