在战争期间和战后恢复儿童受教育的权利

Hilly Moodrick-Even Khen
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引用次数: 1

摘要

在武装冲突中保护儿童的需要已变得紧迫,特别是自1990年代以来,这在乌克兰战争中尤为突出。联合国秘书长在2005年查明的侵害乌克兰儿童的行为包括袭击学校和医院。本文讨论了如何纠正武装冲突期间侵犯受教育权的问题,并提出了这样做的机制。它以俄乌战争(2022年)为例进行研究。国际法的三个分支促进了对武装冲突中儿童权利的法律保护:国际人道主义法(或武装冲突法);国际人权法;以及国际刑法。本文将讨论前两个问题,并以更有限的方式讨论难民法。文章论述了儿童受教育权的重要意义。报告提供了关于这项权利在武装冲突期间如何受到损害的经验数据,并就国际社会在武装冲突期间以及冲突后如何尽可能保障这项权利提出了建议。文章建议建立一种机制,包括《儿童权利公约》缔约国、儿童权利公约委员会,并建立一个信托基金,以补偿遭受武装冲突的国家,并利用赔偿来纠正受教育权。这种安排可由《儿童权利公约》的附加议定书加以规范。批准附加议定书的《儿童权利公约》缔约国将被要求向基金捐款(根据社会经济指数)。根据儿童权利委员会的结论性意见,受武装冲突影响的缔约国将被允许使用信托基金,但前提是它们证明自己(在冲突爆发之前)遵守了确保受教育权的条约义务。根据每个案件的具体情况,也可能有例外。这一机制将是有利的,因为它将利用现有的《儿童权利公约》委员会及其成员的专门知识和经验,并将加强《儿童权利公约》缔约国对其条约义务的问责制。通过这种方式,它还将解决一个更大的问题:在人权法条约规定的义务下,很难让各国承担责任。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Restoring Children’s Right to Education during and after War
The need to protect children in armed conflicts has become urgent, especially since the 1990s, and is now outstanding in the war in Ukraine. Among the violations against children in Ukraine that were identified by the UN Secretary General in 2005, were attacks on schools and hospitals. This article discusses the question of how the violation of the right to education during armed conflict can be redressed and suggests a mechanism for doing so. It uses the Russia-Ukraine war (2022) as a case study. The legal protection of children’s rights in armed conflict is facilitated by three branches of international law: international humanitarian law (or the laws of armed conflict); international human rights law; and international criminal law. This article will address the first two as well as, in a more limited way, the law of refugees. The article discusses the significance of the child’s right to education. It provides empirical data on how this right is jeopardised during armed conflicts and offers recommendations regarding what the international community can do to secure this right as far as possible during, as well as directly after, armed conflict. The article suggests a mechanism that would involve states parties to the crc, the crc Committee, and the establishment of a trust fund to compensate states that have suffered an armed conflict, and to use the compensation to redress the right to education. This arrangement could be regulated by an additional protocol to the crc. States parties to the crc that ratified the additional protocol would be required to contribute to the fund (according to a socio-economic index). States parties subjected to armed conflicts would be permitted to use the trust funds primarily if they proved they were compliant (before the eruption of the conflict) with their treaty obligations to secure the right to education according to the Concluding Observations of the crc Committee. There could also be exceptions, depending on the specific circumstances of each case. This mechanism would be advantageous in that it would use the already-existing crc Committee and the expertise and experience of its members and would also increase the accountability of states parties to the crc for their treaty obligations. In this way, it would also tackle a larger problem: the difficulty of imposing states’ accountability for their obligations under human rights law treaties.
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