- Title
- Domestication of the international-law prohibition of child soldiering
- Creator
- Govender, Nikita
- Subject
- Child soldiers (International law)
- Subject
- International law
- Subject
- Humanitarian law
- Date Issued
- 2020
- Date
- 2020
- Type
- Thesis
- Type
- Masters
- Type
- LLM
- Identifier
- http://hdl.handle.net/10948/48982
- Identifier
- vital:41572
- Description
- Children and their participation in armed conflict or the ‘child soldiering phenomenon’ as referred to throughout this dissertation is a global crisis which has been inadequately regulated by international law. Customary international law and the three branches of public international law (international humanitarian law (IHL), international human rights law and international criminal law (ICL)) which purport to regulate this phenomenon are not lacking in their substance but rather in their coherency. Four core aspects of the existing international child soldiering norms are identified by this dissertation as being worthy of concern since they unduly prejudice children. These four core aspects being the definition of a child, the nature of child recruitment or enlistment, the nature of child participation in armed conflict and the nature of the obligation on States to prevent child soldiering. The norms established in terms of the abovementioned branches of law not only span across various international instruments within each branch of public international law, but the standards established conflict with one another to the detriment of the children to which it purports to extend protection. States which ratify these instruments therefore find themselves bound to conflicting international obligations insofar as child soldiering is concerned. The question thus becomes how these States, whether monist or dualist, ought to implement such fragmented and conflicting international obligations at national level. Following consideration of the existing State practice, it is evident that the way in which States choose to establish national law based on international obligations is pivotal. Notwithstanding their binding international obligations, States may adopt national legislation in such a way that the existing lacunae and the legal conundrums caused by those conflicting norms are circumvented. In order to assist States to establish national legislation in this way, the question becomes whether or not a model law on child soldiers could serve this purpose. This study determines that the quandary posed by model laws, specifically in relation to the broad interpretative leeway afforded to States, makes it an unsuitable solution to assist States to implement their international obligations in a less fragmented and less inconsistent way. As a model law proves to be an unfeasible solution, this dissertation seeks an alternative solution in the form of a manual on child soldiers. This study concludes that such a manual of which the substantive norms are based on binding treaty law and non-binding soft law, serves as a more appropriate solution. The manual, which shall be based on the notion of “the best interests of the child”, ought to adopt one uniform and consistent approach regarding the regulation of child soldiering, particularly insofar as it ought to extend an unfettered protection to all children. To ensure that such an unfettered protection is maintained throughout the manual, guidelines on the specific substantive norms of the manual are provided by this dissertation. Each guideline considers each of the four core aspects of the existing international child soldiering norms identified by this dissertation as unduly prejudicing children. Finally, this dissertation concludes that the lacunae in the existing international child soldiering norms contribute to the realities on the ground and the starting point in bridging this gap is at State level. It is therefore the overarching recommendation of this dissertation that a manual on child soldiers be established to assist States to implement and subsequently enforce their international child soldiering obligations in a less fragmented and less inconsistent manner.
- Format
- xv, 160 leaves
- Format
- Publisher
- Nelson Mandela University
- Publisher
- Faculty of Law
- Language
- English
- Rights
- Nelson Mandela University
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| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | Govender, N.pdf | 1 MB | Adobe Acrobat PDF | View Details Download |