Malala and the post-postcolonial child*

Sarah M. Field 

Article 1, Universal Declaration of Human Rights (Lithograph by Robert Motherwell).

Article 1, Universal Declaration of Human Rights (Lithograph by Robert Motherwell).

 

‘Malala is not alone’ said the deliverer of the 2014 Annual Grotius Lecture of the American Society of International Law — Radhika Coomaraswamy. Held within these four simple words are children’s indivisible worlds, where embodied vulnerability lives in continuous, dynamic juxtaposition with their evolving capacities. So too, are ‘the interrelations of subjugation and independence’ of the distinguished discussant’s response — Diane Marie Amann. Subjugated, Malala seized, shaped, and expressed her right to education. And for this act of subversion she was silenced; or at least the ultimate silencer was triggered and failed. Herein the depth of the connection between aspects of those interrelations (those of subjugation and self-determination) is held within the individual of Malala. However those four words (‘Malala is not alone’) also illumine their broader dimensions.

In her word-selection, Radhika, evokes both presence and absence (the presence of Malala and absence of others). And, in so doing, she provokes reflection, illumining the subjugation in presence and self-determination in absence. Of the two, the invocation of absence is perhaps the most powerful. In suggesting the unseen it conjures those intimate relations of subjugation: invisibility, exclusion and above all silencing. However this absence subsists also within the presence of Malala: less the individual and more her celebrated status. Viewed another way, the latter, lives, at least partially, because of absence: the perception of absence; the perceived exceptionality of Malala’s status as child, her gender identity and position as a child human rights defender. However the former Special Representative only evokes absence: she speaks of presence — the presence of other child-human rights defenders.

Undergirding this conjoined presence-absence is a paradox, evocative of still broader dimensions of those interrelations: though Malala’s human rights advocacy is and has been celebrated, how many states (including those of my own continent of citizenship) respect and ensure children’s evolving capacities to seize, shape and express their rights. Consider it this way: they may ensure their right ‘to’ education, but what about their rights ‘in’ and ‘through’ education? Here too those interrelations of subjugation and self-determination loom. The celebration of Malala’s acts of self-determination in defence of her human rights is countered by the subjugation of others closer to home (wherever home may be). And this may only partially be explained by Malala’s perceived exceptionality. It illumines deeper dimensions of those interrelations: specifically the underside of the interface between political and legal imperatives — the politicking that undergirds greater respect for human rights away from home. Here the focus is arguably less on the rights-holder and more the identity of, and our relationship with, the rights-violator (amongst other dynamics).

Still as the discussant affirms ‘we are all postcolonial now’. Herein the affirmation of the rights to self-determination of peoples and individuals represents the beginning of our present ‘postcolonial epoch’. And children were part of this; they too are postcolonial subjects of rights. (Indeed they are arguably the first postcolonials, as recognised by the League of Nations in the Declaration of the Rights the Child (the quasi-juristic forerunner to general and child-specific instruments of international human rights law).) Envisioned in this way, the legal expression of our position as postcolonial subjects of rights was born of the hurt and harm of the subjugation of peoples and individuals — and here is the crux, within the homelands of the colonised and the colonisers. Further as, the individual of Malala, illumines, these rights continue to be seized and shaped by continuing acts of injustice including the suffered injustice of children.

To an extent then, international human rights law is the juristic holder of our embodied vulnerability to hurt and harm of all forms. Thus viewed it has particular significance for children and their aforesaid indivisible worlds. In affirming children’s position as human rights-holders, international law acknowledges and accommodates their differences and disadvantage from adults. However, the applicability of selected rights to children is often underappreciated: specifically the rights transformers — children’s rights to legal remedies, take part in decision-making affecting them and freedom of expression, amongst others. So too is the hurt and harm of the non-fulfilment of these legal obligations. Of course, supporting children’s evolving capacities to seize, shape and express their rights is dignity affirming. However it is also vital to ensuring their other rights including their freedom from all forms of violence (and the rights-based development of international law).

Interwoven within the multilayers of presence and absence evoked here are the vestiges of subjugation; these subsist notwithstanding the identifiable momentum towards child rights infused decision-making and outcomes at all levels. De jure, children remain ‘equal in dignity and rights’. De facto, (with limited access to justice and decision-making affecting them) they are less subjects of rights and more objects of protection. Considered in this way ‘[w]e are thus in need of post-postcolonialism’. Perhaps the beginning is unlocking the abstraction (the child), reconnecting children’s indivisible worlds to their present rights-bearing selves  — perceiving and affirming the Malala in each and every child.

 

* Inspired by the 16th Annual Grotius Lecture of the American Society of International Law‘Women and children: the cutting edge of international law’ delivered by Radikha Coomaraswamy (Global Professor of International Law at New York University School of Law and former U.N. Special Representative of the Secretary General on Children and Armed Conflict and U.N. Special Rapporteur on Violence against Women) and the response ‘The post-postcolonial woman or child’ by Diane Marie Amann (Emily and Ernest Woodruff Chair in International Law at the University of Georgia School of Law and Special Advisor to the Prosecutor of the International Criminal Court). Please note, the views expressed here are my own.

 

Dignifying the most vulnerable ‘in’ and ‘through’ Security Council Resolution 2139

Sarah M. Field

(19th March 2014, Oxford Human Rights Hub)

Conflict — perhaps like no other happening — illuminates our shared vulnerability to hurt and harm of unimaginable form and depth.  The legal protection of rights was born of such suffered injustice. To an extent then, it may be viewed as a juristic response to our embodied vulnerability.  Therein lies one of the enduring paradoxes of international human rights law; the most vulnerable frequently have the least access to justice. Consider the hundreds of thousands of besieged in Syria: over a thousand days since the conflict began rights violations cascade; violations of the rights to life, freedom from hunger and of movement layer upon violations of the rights transformers beneath — the rights to legal remedies, take part in public affairs, freedom of expression and association, amongst others. And, the sole possibility of redress is conditional on one of the most precarious of all political processes — decision-making towards peace agreements.

Geneva II presented hope: the Communiqués of Geneva I and the London 11 both required ensuring the right to humanitarian assistance as a part of more substantive negotiations. As the two-staged process stalled to a fracturing halt on the 15th February, the hope transferred to the Security Council. The decision to adopt Resolution 2139demanding the parties to the conflict respect and ensure respect for applicable international law — presented a breakthrough. However, the imperative for, the process of its adoption, and the substance of the resolution including the missing (negotiated-out) provisions illumines, under harsh light, the inadequacies of international law. Of course, the multifarious instruments of international human rights and humanitarian law include vital — dignity affirming — devices. If, the Syrian State had implemented the past recommendations of the Human Rights Committee, might the conflict have been averted? And if the parties to the conflict had heeded the guidance of the guardian of international humanitarian law, might the hurt and harm have been lessened? Of course, the operative word here is — if.

Into the breach, steps the international community ‘in’ and ‘through’ the Charter bodies. For the people living under siege, these are also vital spaces for their rights to be seized, shaped and expressed: general and Syria-specific recommendations and decisions provide a basis for advocacy and redress now and into the future, for example, the decision by the Human Rights Council to establish an Independent International Commission of Inquiry.  However the form and process of decision-making (including rules) also may be viewed as concurrently creating vulnerability. The State-centric form by exclusion: for example, whereas the Syrian State was represented within the Security Council, those made vulnerable by the forces of the State were unrepresented; they were dependent on the international community seizing, shaping and expressing their rights. And the process by (in)action: whether or not their rights are secured is dependent on political agreement about the facts and the response — specifically between the five veto-wielding members.

The vulnerability effects of the latter are obvious and graphically illustrated by the resolution: the demands on the parties to the conflict to respect and ensure respect for international law are not matched by decisions to secure the right to humanitarian assistance of the people of Syria. However the form and process also creates vulnerability in a more subtle way, by subverting the position of the right-holder — reframing bearers of rights to objects of international protection.  De jure, the people under siege remain ‘equal in dignity and rights’. De facto, (without representation and effective remedies) they are dependent on a precarious collision of legal, political and principled imperatives for redress. Viewed in this way, neither the process nor the outcomes dignify the people of Syria.

Though deeply inadequate, the resolution is nonetheless a vital dignity-affirming agreement. First, it states that international law matters, rights matter. Second, it illumines the potentialities of law into the future: connecting violations to international crimes, establishing a monitoring and reporting mechanism and expressing an intention for further action upon non-compliance. Third, it re-affirms the import of a rights-based political solution: the full participation of the people of Syria ‘in’ and ‘through’ the peace trajectory.  Countering the inaction, then, is the fact of agreement by a divided Security Council. Geneva II stalled, the right to veto looming over future Security Council decisions with foreboding bleakness, the question of how to secure the rights of the most vulnerable remains — reducing us all.

With thanks to the Oxford Human Rights Hub for their generosity in permitting the re-posting of this blog entry of 19th March 2014. See also, the original posting, accessible here

Sarah M. Field is a Human Rights Practitioner with global experience supporting the rights-based development of the rule of law, a Post-Doctoral Researcher at the Faculty of Law, University College Cork, Ireland and the founder of a developing legal advocacy project asking the child question.