International Law concerning Child Civilians in Armed Conflict

By Jenny Kuper | Go to book overview

5 Customary Law

The three preceding chapters have considered international human rights and humanitarian law, as set out largely in treaty and in other legal instruments, that is relevant to the treatment of child civilians in situations of armed conflict. However, a summary of this body of law would be incomplete without at least a brief consideration of the possible customary law status of certain of its provisions.

The customary status of particular norms is, of course, important, as this generally renders them binding on all states, even states that are not party to treaties that may articulate such norms.1 Further, when they are enshrined in treaty, customary principles cannot, for example, be subject to derogation, reservation, or withdrawal.2 In addition, as one authority has emphasised, 'the invocation of a norm as both conventional and customary adds at least rhetorical strength to the moral claim for its observance and affects its interpretation'.3

This Chapter will discuss the possible customary law status of the principle that child civilians in armed conflict are entitled to special treatment. A definitive examination of this complex and controversial question is beyond the scope of this book and would be a fruitful area for further research.


5.1 GENERAL ISSUES

Customary law in general, and specifically in relation to human rights and humanitarian principles, has been described and analysed by many writers.4

____________________
1
See Meron ( 1989), 3. See also P. Sieghart, The International Law of Human Rights ( Oxford, 1984), 11. The only exception to the universal application of customary law is that it does not normally apply to states that have persistently objected to a particular norm ab initio.
2
See, for example, Meron ( 1989), 6 and 7. More generally, see 1969 Convention on the Law of Treaties ( 1969 Vienna Convention), UN Doc. A/Conf.39/27, 23 May 1969; 8 ILM 679 ( 1969), and I. Sinclair, The Vienna Convention on the Law of Treaties (2nd edn., Manchester, 1984).
3
Meron ( 1989), 9.
4
See particularly Gardam ( 1993), which deals with a subject of considerable relevance to the present book, namely the customary-law status of the norm of non-combatant immunity. On customary law in the context of humanitarian law, see, among others, Greenwood, in Delissen and Tanja (eds.) ( 1991), 93-114; Green ( 1993), 55-6; Meron 'The Geneva Conventions as Customary Law ' ( 1987), and Meron ( 1989) generally. In relation to customary law and human rights norms see, inter alia, L. Hannikainen, Peremptory Norms (Jus Cogens) inInternational Law: Historical Development, Criteria, Present Status

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