The extra-territorial obligation of member states of the Optional Protocol on the Involvement of Children in Armed Conflict to prevent the use of child soldiers

Abstract

Children have been documented fighting in armed conflicts around the world. The United Nations Secretary-General's 2015 report on children in armed conflict listed 57 parties that recruited or used children in armed conflict during 2014. The United Nations Children's Funds official statistics indicated that since 2005 more than 300 000 child soldiers have been documented fighting in armed conflicts in 41 countries around the world. The International community has recognised that children are a vulnerable group in society even more so during times of armed conflict. The International community has adopted a legal framework to ensure the prohibition on the recruitment of children during times of armed conflict, the most specific instrument in this regard being the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 25 May 2000. The objectives of this study were to establish whether the Optional Protocol creates an extra-territorial obligation for a member state to prevent the use of child soldiers and if such an obligation exists, to what extent a member state should comply with the extra-territorial obligations without abrogating state sovereignty and territorial integrity. The objective was accomplished by firstly establishing the existence of an extra-territorial obligation and secondly by discerning whether the principle that children should not be recruited into armed conflict has obtained customary international law status. The study has concluded that extra-territorial obligations can be distilled from the text of treaties. The study has further concluded the principle that children should not be recruited into armed conflict has obtained customary international law status as it has met the requirements of usus and opinio juris. It has been established that the Optional Protocol creates extra-territorial obligation for member states as they have to cooperate and prevent any activity that is contrary to the provisions of the Optional Protocol. Member states to the Optional Protocol, therefore, have an extra-territorial obligation to prevent the use of children in armed conflict and this obligation must be exercised by states within the realm of international politics to influence states to abide by the treaty.