CONVERGING LAW, FOUR POINTS OF VULNERABILITY AND THE SUPPOSED INVIOLABLE SPACES OF LEARNING

We are delighted to welcome this guest post from Sarah M. Field. Sarah has a blend of academic and applied experience supporting the fulfillment of international human rights law through international research and legal advocacy projects. She is presently a National Project Coordinator of the cross-European GENOVATE Project at University College Cork, Ireland and blogs occasionally at rights-streams.com. This is the first of a four part series; the second part ‘Converging law, equivocation and delimits on the supposed inviolability of spaces of learning’ is accessible here; the others are forthcoming and will be cross-posted here

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Image courtesy of Marcus Bleasdale

 

Chibok. Rafah. Peshawar. Garassa. Donetsk. Aleppo. Sana’a.

Disparate places, among others, bound by attacks—acts of violence—on the supposed inviolable spaces of lower and higher learning, schools and universities, among others. The attacks and their impact—the hurt and harm—on children and adults’ embodied selves resonate far beyond their geographical axis. Or, to invoke the Martens Clause, they may be supposed as violating ‘[…] the laws of humanity and the dictates of public conscience.’ And, in doing so, they undergird the continuing juristic shift of the past century towards the international legal protection of our ‘embodied vulnerability’ to hurt and harm of all forms.* Like other serious violations of international law, then, the attacks transcend the—sometime—distance between us.  But is the clarity of our collective sense of justice reflected in the law?

To an extent, the answer lies in the space: the spark to condemnation relates less to the violated spaces of learning and more to violated bodies within—the incursions of bodily and inner inviolability or violations of the rights to life, bodily integrity and security of the person, among others.  Thus viewed, the spaces of learning are less the object and more the holders of the object of protection: they are holders for embodied subjects of rights, principally learners, and their multidimensional right to education. There lies one source of international legal protection: international human rights law. Or viewed another way, there is a duo dimensional obligation to protect the embodied rights holder within the space from acts of violence and the space as a safe space of learning. And these continue within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflicts. Indeed the latter triggers a second source: international humanitarian law. There is thus an international humanitarian obligation to respect and ensure respect for the principles of distinction between civilians and combatants and civilian objects and military objectives—or in other words to refrain from attacking learning spaces as civilian objects, and embodied persons in relation to the space, as civilians (persons not directly participating in hostilities). Indeed transgressions of these humanitarian rules may, infamously, be subject to domestic or international criminal investigations as war crimes.

The legal protection, then, may be viewed as doubling itself: the human rights obligation to protect the space from acts of violence and humanitarian obligation to refrain from attacking the space are complementary and mutually reinforcing. Considered in this way, there is legal and substantive convergence: the legal obligations to protect the space converge legally through the concurrent application of the two bodies of law, and substantively through the protection of ‘embodied vulnerability’ in relation to space within the context of non/international armed conflict. Of course probe more deeply and the convergence is partial. Though bound by embodiment, they are positioned on oppositional axes: in one body of law the embodied persons are subjects of rights; in the other they are more objects of protection—humanitarian rules limiting (the vulnerability creating effects of) violence in armed conflict. The framing of the respective obligations, therefore, diverge in form, content and scope. Held within the principle of distinction, for example, is international legal protection—and also its limits. Therein lies divergence in substantive protection. Learning spaces may lose their protection from attack; they may be transformed from a civilian object to a military objective including both a military contribution and advantage (whether by nature, location, purpose or use) and consequently be lawfully attacked.

Still this difference in scope may be viewed as a necessary accommodation to the extraordinary context of non/international armed conflict. Prima facie, if learning spaces are former learning spaces, there is minimal impact on learners and their teachers, among others, embodied selves. However viewed through a vulnerability lens* this potentiality may create, at least, four points of potential extraordinary embodied vulnerability to hurt and harm: (i) misinformed attacks on learning spaces of which remain civilian objects/retain their civilian character; (ii) proximate extraordinary embodied vulnerability in attack due to the likely close proximity of other aspects of civilian life (for example, learners’ homes); (iii) partial transformation of the space from a civilian object to a military objective by armed forces/groups; and (iv) broader multidimensional hurt and harm (or violations of the right to education and ipso facto violations of the rights in and through education) as a consequence of closure of learning spaces due to the potentiality of (i)-(iii).

Yet the narrative of the law, itself, is reflective of these four points of vulnerability in so far as it includes rules to limit the vulnerability creating effects of the principle of distinction. Of course in treaty law the determinacy differs between non and international armed conflict. However, three of the four points of vulnerability have determinate legal protection within customary law (see indicative overview), for example, the potentiality of misinformed attacks is limited by the obligation to do everything feasible to verify that targets are military objectives, among other rules. The fourth is more equivocal: there is no express obligation, for example, to respect the civilian character of learning spaces. Still it may be inferred from existing treaty and customary law: basic rules according protection to the civilian population and civilian objects, more specific rules informing their content and others. To these rules, there is a vital dignifying safeguard: the concurrent application of international human rights law generally—and the human right obligations to protect embodied rights holders in relation to the space specifically. As complementary international legal obligations, they continue at points of convergence and divergence in substantive protection, reinforcing the vulnerability limiting effects of applicable humanitarian rules (express or implied).

And, in doing so, they may have protective effects: law determining effects—or in others words, guide and inform the content of the humanitarian rules. Thus where the two bodies of law converge substantively, the applicable humanitarian rule may be determined with regard to (or interpreted in light of) the more specific human rights obligations, most particularly where it is less determinate or more equivocal than its human rights complement. And even where the protection diverges substantively (i.e. when the human rights obligation is determined by more specific humanitarian rules) the human rights obligation, as  a complementary international legal obligation, may be viewed as undergirding those rules, complementing and reinforcing their vulnerability limiting effects. Overall it creates a meta-juridical imperative to protect the inviolability of spaces of learning from attack and as spaces of learning. And this may have compliance conducing effects: domestic legal embodiment of the human rights obligations within the context of non/international armed conflict including knowledge and practice of law may (over time) effect practice of complementary humanitarian rules.

Considered in this way, rights-infused humanitarian law may be viewed as more reflective of our collective sense of justice. Yet the law is less converged and more converging. The protective effects are undercut by the undercurrent of oppositional legal argumentation vis-a-vis the concurrent application of the two bodies of law. And also by legal equivocation about its legal effects—specifically the content and scope of the multi-dimensional right to education. There remains a dual imperative to refute the former and contribute determinacy to the latter, most particularly at the point of divergence.

*On vulnerability and the law, see scholarship of Martha Albertson Fineman and Anna Grear, among others.

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