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Evolving Conceptions of Children’s Rights: Some Reflections on Muslim States’ Engagement with the UN Convention on the Rights of the Child

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Parental Care and the Best Interests of the Child in Muslim Countries

Abstract

The present chapter explores evolving perceptions of children’s rights as reflected in Muslim state party practice in light of responses to the UN Convention on the Rights of the Child (CRC). The only human rights treaty making specific mention of Islam and ratified by all Muslim states, the CRC, also enjoys near-universal ratification by all UN member states (the only exception being the USA). But this unanimous ratification by Muslim states is accompanied by reservations, some of which have been entered in the name of Islamic law and sharia, raising questions of compatibility between the CRC and Muslims’ perceptions of children’s rights. Reservations to multilateral treaties such as the CRC are one of several indicators of Muslim state practice and of Islam’s plural legal traditions in international law; others include, but are not confined to, country reports submitted to the CRC Committee, as well as a range of ‘Islamic’ human rights instruments. Assessing the first two indicators—reservations and country reports—against the backdrop of Islamic legal traditions and international conceptions of human rights, this chapter bears the following questions in mind: Does membership of the CRC per se constitute active engagement with and ownership of its provisions on the part of Muslim states? If so, is there a discernible or potential paradigm shift in perspectives in this area as a result of this engagement with the CRC as evidenced through reservations, withdrawals of reservations, and country reports? And to what extent do children’s rights as set out in the CRC resonate with comparable conceptions within Islam’s plural legal traditions—especially in relation to freedom of religion, thought, conscience, and the adoption of children? The chapter will focus on two of the CRC articles most widely reserved by Muslim states—Articles 14 (freedom of thought, conscience, and religion and 21 (adoption). It argues that children’s rights are an evolving concept with changing content and connotations in classical Islamic law, in Muslim state practice, and in regional and international child rights instruments. Vague and fluid formulations of various aspects of children’s rights both in the CRC and in classical conceptions of the Islamic legal traditions make it a malleable concept that enables diverse cultures and traditions to implement it in their particular contexts.

Shaheen Sardar Ali is Professor of Law, University of Warwick, United Kingdom.

Sajila Sohail Khan is a freelance consultant in gender and development, formerly a gender advisor with the International Labour Organization in Geneva, Switzerland. Views expressed in this chapter represent the author’s personal views and do not express that of the organization.

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Notes

  1. 1.

    The CRC was adopted on 20 November 1989 and entered into force 2 September 1990, GA Res. 44/25 (1989), 1577 UNTS 3.

  2. 2.

    ‘Muslim state party’ indicates a UN member state which is either a member of the Organization of Islamic Cooperation (OIC) or whose majority profess the Islamic religion.

  3. 3.

    One of the earliest is the Universal Islamic Declaration on Human Rights, adopted by a group of Muslim scholars in 1981. This was followed by the 1990 OIC-sponsored Cairo Declaration on Human Rights in Islam. The 1994 Declaration on the Rights and Care of the Child in Islam and the 2005 Rabat Declaration on Child’s Issues focused specifically on children.

  4. 4.

    For a study of legislative reform in Muslim jurisdictions following CRC ratification, see Ali 2007, pp. 142–208.

  5. 5.

    Article 14 runs thus: ‘1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.’

  6. 6.

    Article 21 runs thus: ‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary; (b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin; (c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption; (d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it; (e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.’

  7. 7.

    For example, Article 1 states that ‘[f]or the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’.

  8. 8.

    The Sunna (the words and deeds of the Prophet Muhammad) is compiled from ahadith (singular hadith). A hadith is composed of the matn (text) and the isnād (the chain of transmitters).

  9. 9.

    As a source of law, qiyās comes into operation in matters that are neither expressly covered by the Quran or Sunna nor dealt with by ijmā c: it is the law deduced by application of what has already been laid down by these three.

  10. 10.

    Coulson 1994, p. 102.

  11. 11.

    Muhammad Ibrahim v. Gulam Ahmed (1864) 1 BHC 236.

  12. 12.

    At times controversial, this source of law and juristic technique plays an important role in the growth of the Islamic legal tradition, as it speaks to the commonly held beliefs and convictions of communities. Thus some communities of South Asia rely upon c urf to interpret Muslim laws of inheritance.

  13. 13.

    Kavanaugh 2010, p. 17. Also see Mutua 2002; Spivak 2005, pp. 131–89.

  14. 14.

    Twining 2009. On p. 1 he states that: ‘The dominant Western scholarly and activist discourse on human rights has developed largely without reference to these other standpoints and traditions. Claims about universality sit uneasily with ignorance of other traditions and parochial or ethnocentric tendencies.’

  15. 15.

    Donnelly 1989, p. 17.

  16. 16.

    Donnelly, cited in Afshari 2007, p. 6.

  17. 17.

    Lauren, cited in Afshari 2007, p. 6.

  18. 18.

    Afshari 2007, p. 6, citing Donnelly. Rhoda E Howard, B Lewis, and Daniel Pipes follow an almost similar trajectory of thoughts. See for instance Howard 1995, p. 67; Lewis 2005, p. 36; Pipes 2006; This view was earlier advanced by Pollis and Schwab 1979, pp. 1–18.

  19. 19.

    Mayer 2007, p. 57.

  20. 20.

    Morsink 1999; Weissbrodt 1988, p. 1; Vasak 1982, p. 672; Baderin 2005, p. 165. For a more detailed exposition of Baderin’s views on the subject see Baderin 2003; Laqueur and Rubin 1979, p. 1. They argue that: ‘Nor is it true that the idea of human rights is an invention alien to most non-western cultures and that it has been foisted on a more or less unwilling world. Even if there were no explicit covenants to that effect in traditional societies in Asia, Africa and Latin America, the idea of freedom was hardly alien to those civilizations.’

  21. 21.

    Strawson 1995, p. 2.

  22. 22.

    Baderin 2003, p. 167.

  23. 23.

    Ahmed and Gouda 2015.

  24. 24.

    Abiad 2008, p. 34; also Stanke and Blitt 2005.

  25. 25.

    An-Na’im 2001, p. 707.

  26. 26.

    Abiad 2008, p. 34.

  27. 27.

    Ahmed and Gouda 2015.

  28. 28.

    Ibid., p. 2.

  29. 29.

    Hamoudi 2012, p. 431, citing Feldman N and Martinez R, Constitutional Politics and Texts in the New Iraq: An Experiment in Islamic Democracy, Fordham L. Rev. 75:903.

  30. 30.

    Brown and Sherif 2004, p. 63.

  31. 31.

    For example, upon accession to CEDAW Libya stated that ‘[accession] is subject to the general reservation that such accession cannot conflict with the laws on personal status derived from the Islamic Shariah’; Iran, upon ratification of the CRC, entered the following reservation: ‘The Government of the Islamic Republic of Iran reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect.’

  32. 32.

    See Hashemi 2007, p. 194.

  33. 33.

    Steiner and Alston 2000, p. 513.

  34. 34.

    Paper Submitted by the permanent representative of Bangladesh, U.N. Doc. E/CN.4/1986/39, Annex IV, at 2, quoted in Detrick 1992, p. 244.

  35. 35.

    Hashemi 2007, pp. 215–216, observes that ‘in practice there has never been a single case where a child changed his/her religion or where a child was punished for such a conversion.’

  36. 36.

    See Quran 2:170; 5:104; 7:28; 10:78; 21:53 and 54; 26:74–76; 31:21; 43:22 and 23.

  37. 37.

    See Hashemi 2007, p. 215 footnote 98.

  38. 38.

    CRC/C/61/Add.2, dated 29 March 2000.

  39. 39.

    CRC/C/136/Add.1, dated 21 April 2005.

  40. 40.

    CRC/C/SAU/3-4, dated 8 April 2015.

  41. 41.

    ‘In its observations issued following consideration of the second periodic report of Saudi Arabia, the Committee on the Rights of the Child referred to the right of the child to freedom of thought, conscience and religion, and to religious and school speech about religious minorities. In para 41 of its concluding observations, the Committee recommends promoting religious tolerance and dialogue in society.’

  42. 42.

    CRC/C/3/Add.10, dated 14 January 1993.

  43. 43.

    CRC/C/65/Add.23, dated 7 July 2003.

  44. 44.

    CRC/C/IDN/3-4, dated 31 October 2012.

  45. 45.

    For detailed discussions on this aspect see Gallala-Arndt 2015, pp. 829–58; Hashemi 2007, pp. 194–227; Rajabi-Ardeshiri 2009, pp. 475–89; Ali and Azam 1998, pp. 143–61.

  46. 46.

    Yassari 2015.

  47. 47.

    First periodic report, CRC/C/61/Add. 2, dated 29 March 2000, pp. 43–44.

  48. 48.

    CRC/C/IDN/3-4, dated 31 October 2012.

  49. 49.

    CRC/C/65/Add.23, dated 7 July 2003.

  50. 50.

    CRC/C/IDN/3-4, dated 31 October 2012, p. 23.

  51. 51.

    CRC/C/MYS/1, dated 22 December 2006, p. 26.

  52. 52.

    CRC/C/3/Add.10, dated 14 January 1993.

  53. 53.

    CRC/C/PAK/3-4, dated 19 March 2009.

  54. 54.

    CRC/C/SYR/3-4, dated 2 June 2010.

  55. 55.

    CRC/C/28/Add. 2, dated 14 February 1996.

  56. 56.

    For an interesting analysis see Garcia Mendez 2007, p. 106.

  57. 57.

    It is common to hire the services of consultants who are adept at report writing, and having studied all the country reports for Saudi Arabia this is the conclusion I have arrived at.

  58. 58.

    CRC/C/136/Add.1, dated 21 April 2005.

  59. 59.

    Pakistan combined third and fourth reports, CRC/C/PAK/3-4, dated 19 March 2009, para 237.

  60. 60.

    CRC/C/IDN/3-4, dated 31 October 2012.

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  1. University of Warwick, Warwick, UK

    Shaheen Sardar Ali

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  1. Max Planck Research Group: Changes in God’s Law—An Inner Islamic Comparison of Family and Succession Laws, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany

    Nadjma Yassari

  2. Max Planck Research Group: Changes in God’s Law—An Inner Islamic Comparison of Family and Succession Laws, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany

    Lena-Maria Möller

  3. Max Planck Institute for Social Anthropology, Halle, Germany

    Imen Gallala-Arndt

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Ali, S.S., Khan, S.S. (2017). Evolving Conceptions of Children’s Rights: Some Reflections on Muslim States’ Engagement with the UN Convention on the Rights of the Child. In: Yassari, N., Möller, LM., Gallala-Arndt, I. (eds) Parental Care and the Best Interests of the Child in Muslim Countries. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-174-6_11

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