Religious legal traditions, Muslim states and the convention on the rights of the child: An essay on the relevant UN documentation

Human Rights Quarterly

Volumn 29, Issue 1, 2007, Pages 194-227

  Hashemi, Kamran ^a  

^a UNIVERSITY OF TEHRAN   (Iran)

Author keywords

[No Author keywords available]

Indexed keywords

CULTURAL INFLUENCE; CULTURAL TRADITION; HUMAN RIGHTS; INTERNATIONAL AGREEMENT; ISLAMISM; UNITED NATIONS;

EID: 34047225562     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2007.0007     Document Type: Article

References (226)

1. For the purpose of this study, when a reference to early (classical, historical, or traditional) Muslim public and family law is concerned the terms Shariah, Muslim law, Islamic law or Muslim legal traditions (MLT) all have similar meaning. Yet, the term MLT is preferred by the author, as "legal traditions" or "religious legal traditions" are more familiar terms for non-Muslim readers. Because other religions and civilizations have such traditions as well, for studying other legal traditions such as Catholic, Talmudic, civil law, common law and Hindu, see for example, H. Patrick Gleen, Legal Traditions of the World: Susutainable Diversity in Law (2000). On comparing the extent to which personal (family) MLT and public MLT are applied by Muslims, the differences are described as: In terms of subject matter the hold of Shariah was and is strongest in the area of personal status (marriage, divorce, maintenance, matters of minors such as custody and guardianship, and inheritance), and weakest or non-existent [in public aspects,] in areas such as penal law, taxation, and constitutional law.
2. Joseph Schacht, An Introduction to Islamic Law 76 (1964).
3. For example, on the issue of Islam and women's rights, a long list of articles at the Emory School of Law website, available at http://www.law.emory.edu/IHR/tp14.html.
4. Yet, the only article on Islam and children's rights is Safir Syed, The Impact of Islamic Law on the Implementation of the Convention on the Rights of the Child: The plight of Non-Marital Children under Shari'a, 6 Int'l J. Child. Rts. 359 (1998).
5. The reports of Muslim states to the Committee on the Rights of the Child (the Committee), documentation on consequent discussions of the reports in the Committee, and Concluding Observations of the Committee on states reports comprise the main sources of this article. Other relevant sources, especially with regards to other non-Muslim legal systems or practices of non-Muslim states, are mostly used in the footnotes. The Committee on the Rights of the Child is the body of independent experts that monitors implementation of the Convention on the Rights of the Child by its state parties. It also monitors implementation of two optional protocols to the Convention, on involvement of children in armed conflict and on the sale of children, child prostitution and child pornography. The Committee is comprised of ten members from different states and legal systems who are of "high moral standing" and experts in the field of human rights. See United Nations Committee on the Rights of the Child website, available at http://www.ohchr.org/ english/bodies/crc/.
6. States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially two years after acceding to the Convention and then every five years. The Committee examines each report and addresses its concerns and recommendations to the state party in the form of "concluding observations." See United Nations Treaty Body Database, available at http://www.unhchr.ch/tbs/doc.nsf/RepStatfrset?OpenFrameSet.
7. Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989), (entered into force, 2 Sept. 1990) [hereinafter Children's Convention].
8. The term Muslim states refers to fifty-seven member states of the Organization of Islamic Conference (OIC), plus Bosnia and Herzegovina, which is an observing state of that organization. For the list of OIC members see The Organization of the Islamic Conference website, available at http://www.oic-oci.org.
9. See UNICEF website available at http://www.unicef.org/crc/index.html.
10. On Islamic law see Schacht, supra note 1.
11. Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46 (1980) (entered into force 3 Sept. 1981), 1249 U.N.T.S. 13, reprinted in 19 I.L.M. 33 (1980) [hereinafter Convention on Discrimination against Women].
12. On Shariah see Schacht, supra note 1.
13. See id.
14. Regarding the Committee see United Nations Committee on the Rights of the Child website, available at http://www.ohchr.org/english/bodies/crc/.
15. Iran reiterates this principle in its report to the Committee: It is well known that the lofty Islamic Shariah, the unique Heavenly Book which has recommended pardon and forgiveness even in the heaviest and harshest of crimes, such as those calling for retribution, and the great and kind Prophet of the religion has recommended the giving of love to children and showing kindness to them. They cannot but look at children and their rights with kindness and generosity. Committee on the Rights of the Child: Consideration of Reports Submitted by States Parties Under Article 44 of the Convention, Second periodic reports of states parties due in 2001 (Iran), ¶ 204, U.N. Doc. CRC/C/104/Add.3. (1 Dec. 2003)[hereinafter Consideration of Reports, 2001].
16. On Orphans see the Qur'an 2:83, 177, 215, 220; 4:2, 3, 6, 8, 10, 36, 127; 6:152; 8:41; 17.34; 59:7; 76:8; 89:17-20; 90:14, 15; 93:6, 9, 10; 107:1-3.
17. See generally J. Nasir, The Islamic Law of Personal Status 56, 189-90 (Mark S.W. Hoyle ed., 2d ed. 1990).
18. For the reservations and declarations to the CRC see, Reservations, Declarations, and Objections Relating to the Convention on the Rights of the Child, Committee on the Rights of the Child, U.N. Doc. CRC/C/2/Rev.5 (1996).
19. It is not the purpose of this article to study the legality of these reservations. For an analysis of issues concerning legality of such reservations, the role of the Committee with respect to reservations, and the consequences of a determination that a reservation is illegal see William A. Schabas, Reservations to the Convention on the Rights of the Child, 18 Hum. Rts. Q. 472 (1996).
20. Mauritania and Afghanistan had a similar reservation upon signature but their reservations were not confirmed on ratification. Pakistan also had a similar GSR upon ratification but withdrew from it later. Among non-Muslim states part of the reservation of the Holy See is similar to the GSR of Muslim states. It reads as follows: The Holy See declares that the application of the Convention be compatible in practice with the particular nature of the Vatican City State and of the sources of its objective law (Art. 1, Law of 7 June 1929, n. 11) and, in consideration of its limited extent, with its legislation in the matters of citizenship, access and residence.
21. Schabas, supra note 15.
22. Children's Convention, supra note 4, art. 1.
23. On state reports see Consideration of Reports, 2001, supra note 12.
24. Committee on the Rights of the Child: Consideration of Reports, Periodic reports of states parties due in 1997 (Sudan), ¶ 30, U.N. Doc. CRC/ C/65/Add.17 (6 Dec. 2001).
25. According to MLT "when a minor matures mentally and attains puberty he becomes an adult and all his dispositions become enforceable." M. J. Maghniyyah, The Five Schools of Islamic Law 584 (1995).
26. See also Nasir, supra note 14.
27. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, (entered into force 23 Mar. 1976). Article 6(5) of ICCPR reads as follows, "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women." Among fifty-seven Muslim member states of the CRC, forty-four are signatories to the ICCPR and therefore committed to the provisions of this treaty as well. Thirteen states that are not signatories to the ICCPR are including Bahrain, Brunei, Comoros, Guinea-Bissau, Kazakhstan, Indonesia, Malaysia, Maldives, Oman, Pakistan, Qatar, Saudi Arabia, and United Arab Emirates.
28. Children's Convention, supra note 4, art. 37(a).
29. This is mainly because the relevant MLT are influenced by traditions of the place of its emergence i.e., Saudi Arabia, where girls reach physical maturity earlier than boys.
30. Concerning marriage of child by his guardians under MLT see M. Mohaqeq Damad, The Fiqhi Study of Family Law, Marriage and Its Dissolve (Articles 1034-1157 of Iran Civil Code), 11th edition, in Persian, Markaz-e Nashr-e Olum-e Eslami, Theran, Iran 48-50 2005. In comparison with other legal traditions unlike Hindu law, in MLT practices of dowry and giving bride as a gift, that are current in India and other parts of Indian sub-continent, are not legitimized by scriptural sources.
31. See Savitri Goonesekere, The Best Interest of the Child: A South Asian Perspective, in The Best Interests of the Child, Reconciling Culture and Human Rights 122, 135 (Philip Alston ed., 1994).
32. Committee on the Rights of the Child: Consideration of Reports, Second periodic reports of States parties due in 1997 (Pakistan), ¶ 108, U.N. Doc. CRC/C/65/Add.21 (11 Apr. 2003).
33. See e.g, Committee on the Rights of the Child: Consideration of Reports, Initial reports of states parties due in 1993 (Pakistan), ¶ 20, U.N. Doc. CRC/C/3/Add.13 (28 May 1993);
34. Committee on the Rights of the Child: Consideration of Reports, 1997 (Indonesia), ¶ 50, U.N. Doc. CRC/C/65/Add.23 (7 July 2003);
35. Committee on the Rights of the Child: Consideration of Reports, 1997 (Syrian Arab Republic), ¶ 13, U.N. Doc. CRC/C/SR.361 (21 Mar. 1997).
36. See Consideration of Reports, 1997 (Syrian Arab Republic), ¶ supra note 26;
37. Committee on the Rights of the Child: Consideration of Reports, 2002 (Sudan), U.N. Doc. CRC/C/SR.817 (27 Sept. 2002);
38. Committee on the Rights of the Child: Consideration of Reports, 2005 (Iran), ¶ 68, U.N. Doc. CRC/C/SR.1016 (28 Jan. 2005);
39. Committee on the Rights of the Child: Consideration of Reports, 1994 (Pakistan), ¶ 5, U.N. Doc. CRC/C/SR.134 (11 Apr. 1994).
40. In comparison with other legal systems for example, in English common law, the minimum age at which a person could be convicted of a crime was seven. The current minimum age is ten. The position in a range of other European jurisdictions is currently as follows: seven in Cyprus, Ireland, Liechtenstein, and Switzerland; eight in Scotland and North Ireland; nine in Malta; twelve in Greece, Israel, Netherlands, San Marino, Turkey; thirteen in France; fourteen in Austria, Bulgaria, Germany, Hungary, Italy, Latvia, Lithuania, Romania, Slovenia; fifteen in Czech Republic, Denmark Estonia, Finland, Iceland, Norway, Slovakia, Sweden; sixteen in Andorra, Poland, Portugal, and Spain; eighteen in Belgium and Luxembourg. Gillian Douglas, The Child's Right to Make Mistakes: Criminal Responsibility and the Immature Minor in Children Rights and Traditional Values 265 (Gillian Douglas & Leslie Sebba eds., 1998).
41. Committee on the Rights of the Child: Consideration of Reports, Initial report of Saudi Arabia due in 1998 (Saudi Arabia), ¶ 30, U.N. Doc. CRC/C/61/Add.2 (29 Mar. 2000).
42. Committee on the Rights of the Child: Consideration of Reports, Initial reports of States parties due in 1999 (Oman), ¶ ¶ 12-14, U.N. Doc. CRC/C/78/Add.1 (18 July 2000).
43. On child marriage and relevance of provisions of the CRC to the issue see Ladan Askari, The Convention on the Right of The Child: The Necessity of Adding A Provision To Ban Child Marriages, 5 ILSA J. Int'l & Comp. L. 123, 124 (1998).
44. Convention on Discrimination against Women, supra note 8. Also preamble of Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages on prohibition of child marriage reaffirms that all states: Should take all appropriate measures with a view to abolishing such customs, ancient laws and practices by ensuring, inter alia, complete freedom in the choice of a spouse, eliminating completely child marriages and the betrothal of young girls before the age of puberty, establishing appropriate penalties where necessary and establishing a civil or other register in which all marriages will be recorded.
45. Id. Similar to CEDAW, Article 2 of this convention fails in identifying a minimum age for marriage. The article reads as follows: States Parties to the present Convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.
46. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, adopted 7 Nov. 1962, G.A. Res. 1763 A, 17th Sess., 521 U.N.T.S. 231, (entered into force 9 Dec 1964).
47. Principle 11 of this Declaration reads as follows: Member States shall take legislative action to specify a minimum age for marriage, which in any case shall not be less than fifteen years of age; no marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses. General Assembly Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, G.A. Res. 2018 (XX), 20 U.N. GAOR Supp. (No. 14) at 36, U.N. Doc. A/60141 (1 Nov. 1965).
48. Consideration of Reports, 1997 (Sudan), supra note 19, ¶ ¶ 37, 54.
49. Consideration of Reports, 1998 (Saudi Arabia) supra note 28, ¶ 33.
50. Consideration of Reports, 1998 (Saudi Arabia) supra note 28, ¶ 33.
51. Consideration of Reports, 1997 (Pakistan), supra note 25, ¶ 108.
52. Consideration of Reports, 1999 (Oman), supra note 29, ¶ ¶ 12-14.
53. See Consideration of Reports, 2005 (Iran), supra note 27, ¶ 73.
54. Id.
55. See Consideration of Reports, 1997 (Indonesia), supra note 26, ¶ 50.
56. Consideration of Reports, 1997 (Syrian Arab Republic), supra note 26, ¶ 38.
57. See Consideration of Reports, 1997 (Pakistan), supra note 25, ¶ 6;
58. Consideration of Reports, 1997 (Sudan), supra note 19, ¶ 38.
59. The statement by Mrs. Santos Pais a member of the Committee elaborates on the result of application of this code in Pakistan as follows: The statement in paragraph 20 of the report (CRC/C/3/Add.13) that premarital/ extramarital sex was prohibited and therefore the question of sexual consent did not arise was particularly difficult to comprehend, since the difference between adultery and rape was determined by the question of consent [both are considered as offence.],. UNICEF, reporting on the situation of women and children in Pakistan, had found that girls of 12 and 13 years of age had been punished for adultery because rape could not be proved. Had the question of consent been used, deprivation of liberty might have been prevented in those cases. Depriving a child awaiting trial of his liberty was in any case contrary to the principle of presumption of innocence established in article 40 of the Convention. Consideration of Reports, 1997 (Pakistan) supra note 25, ¶ 6.
60. Id. ¶ 9.
61. See Committee on the Rights of the Child: Summary record of the 1016th meeting (Islamic Republic of Iran), U.N. Doc. CRC/C/SR.1016 (28 Jan. 2005);
62. Committee on the Rights of the Child: Summary record of the 617th meeting (Islamic Republic of Iran), U.N. Doc. CRC/C/SR.617 (14 July 2000);
63. Committee on the Rights of the Child: Concluding Observations (Islamic Republic of Iran), U.N. Doc. CRC/C/15/Add.123 (28 June 2000);
64. Committee on the Rights of the Child: Summary record of the 618th meeting (Islamic Republic of Iran), U.N. Doc. CRC/C/SR.618 (23 May 2000).
65. On differences of views between Shiite and Sunni schools of law on temporary marriage and the issue of witness see Nasir, supra note 14, ¶ 69-71.
66. See Considerations of Reports, 1997 (Iran), supra note 25, ¶ 70.
67. Id. ¶ 74.
68. On the principle of "Best interest of the child" Article 3(1) of the CRC reads as follows, "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." It should also be noted that along with Article 3(1), the principle is referred to in several other places within the convention itself as well as in a number of other important international human rights instruments. Within the Convention the phrase "the best interest of the child appears in relation the separation of the child from the family setting" (art.9); with reference to parental responsibility for the uprising and development of the child (art.18); in relation to the adoption and comparable practices (art. 20, 21); in the context of the child's involvement with the police and the justice system (arts. 37, 40).
69. See Goonesekere, supra note 24, at 3.
70. Consideration of Reports, 1999 (Oman), supra note 29, ¶ 56;
71. Also for Iran see Committee on the Rights of the Child: Summary Record of the 618th Meeting, Consideration of Reports of States Parties, Initial report (Iran), ¶ 37, U.N. Doc. CRC/C/SR.618 (23 May 2000).
72. Consideration of Reports, 1992 (Sudan), ¶ 166, U.N. Doc. CRC/C/3/ Add.3 (16 Dec. 1992).
73. Consideration of Reports, 1997 (Sudan), supra note 19, ¶ 41.
74. Id. ¶ 42.
75. Consideration of Reports, 1993 (Pakistan), supra note 26, ¶ 158. The report reads as follows: According to section 45(1) of the Punjab Youthful Offenders Ordinance, 1983 (and in similar laws in other provinces) no offender below the age of 15 years shall be sentenced to death or transportation or any imprisonment. However, a young person even below the age of 15 years who has reached puberty can be given the punishment prescribed by the hudood laws.
76. Committee on the Rights of the Child: Summary Record of the 901st Meeting, Consideration of Reports, Second Periodic report, U.N. Comm. on the Rights of the Child, 34th Sess.(Pakistan), ¶ ¶ 70, 73, U.N. Doc. CRC/C/SR.901 (30 Sept. 2003);
77. On relevant cases and legislation in Iran see article written in Persian by the Iranian winner of 2004 Nobel Peace Prize Shirin Ebadi, On the Occasion of Cancellation of Leyla Mafi's Death Sentence 2: Isn't Now the Time for Reviewing the Related Legislation (30 June 2005), available at www.roozonline.com/02article/008238.shtml;
78. Also, on other aspects of legislation of Iran regarding children Shirin Ebadi, The Rights of the Child: A Study on legal aspects of Children's rights in iran (trans. M. Zaimaran 1994).
79. Committee on the Rights of the Child: Summary Record of the 688th Meeting, Consideration of Reports, Initial Report 2001, (Saudi Arabia), ¶ 42, U.N. Doc. CRC/C/SR.688 (24 Jan. 2001).
80. Id. ¶ 83.
81. Children's Convention, supra note 4, art. 2 § 1. The wording of Article 2(1) of the CRC is taken from Articles 2 and 24 of the ICCPR. Article 2(1) of the ICCPR reads as follows: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
82. International Covenant on Civil and Political Rights, supra note 21, art. 2 § 1. Article 24 (1) of the ICCPR reads as follows: Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
83. Id art. 24 § 1.
84. For more information on the preparatory discussions see Sharon Detrick, The United Nations Convention on the Rights of the Child: A Guide to the "Travaux Préparatoires," 148-50 (Sharon Detrick ed., 1992).
85. Reservations, Declarations, and Objections Relating to the Convention on the Rights of the Child, supra note 15, Malaysia ¶ 1.
86. Id. Tunisia ¶ 1; Those state parties who objected in preparatory discussion to the inclusion of provisions for non-marital children in the article, such as Algeria, Morocco, and Iraq didn't enter reservations with respect to Article 2.
87. Nasir, supra note 14, at 157.
88. A. Fyzee, Outlines of Mohammedan Law 215 (1964);
89. I. Ghanem, Islamic Medical Jurisprudence, 21 Med., Sci. & L. 280 (1981);
90. Schacht, supra note 7, at 168;
91. Syed, supra note 2, at 376-77.
92. In a comparison with western legal systems Meeusen argues that it must be pointed out that by historical comparison with Western society, even as recent as the first half of this century, Islam was revolutionary as a force in reforming and elevating the status of the non-marital child. Constrained by the Christian doctrine of the sanctity of marriage, the non-marital child in common law jurisprudence, in contrast, was deemed filius nullius - a child of no one. See J. Meeusen, Judicial Disapproval of Discrimination Against Illegitimate Children: A Comparative Study of Development in Europe and the United States, 43 Am. J. Comp. L. 119-20 (1995);
93. see also Goonesekere, supra note 24. As another comparison with other legal systems, according to Jewish Legal Traditions a child born as a result of sexual relations between parents who are in the category of isurey orayot (forbidden relations) - such as relations between mother and son, brother and sister, other first-degree relatives, and a married woman with a man who is not her husband - is considered a mamzer. The personal status of a mamzer is highly problematic, since he cannot marry most Jews.
94. See Yehiel S. Kaplan, The Interpretation of the Concept Me Best Interest of the Child in Israel, in Children's Rights and Traditional Values, supra note 27, at 57.
95. Human Rights Committee, Committee on Economic, Social and Cultural Rights, Committee on the Elimination of Racial Discrimination, Committee on the Elimination of Discrimination against Women: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, Note by the Secretariat, ¶ 5, U.N. Doc. HRI/GEN/1/ Rev.1 (29 July 1994).
96. See Committee on the Rights of the Child. Consideration of Reports, 1993 (Egypt), ¶ 7, U.N. Doc. CRC/C/SR.68 (20 Dec. 1993);
97. Consideration of Reports, 1997 (Indonesia) supra note 26, ¶ 147;
98. Committee on the Rights of the Child: Consideration of Reports, 2000 (Syrian Arab Republic), ¶ 59, U.N. Doc. CRC/C/93/Add.2. (18 Oct. 2002);
99. Consideration of Reports, 2005 (Iran), supra note 27, ¶ 20;
100. Committee on the Rights of the Child: Consideration of Reports, 1999 (Tunisia), ¶ 36, U.N. Doc. CRC/C/83/Add.1 (30 Oct. 2001). For example Tunisia as a state with a specific reservation to Article 2 states: Proceeding from the same desire to remove obstacles concerning this category of child and any discrimination, Act No. 98-75 of 28 October 1998 relating to granting a patronymic family name to children of unknown parentage or abandoned children grants children born outside marriage the right to a complete identity; to seek their paternity and the right to maintenance. Indeed this law goes further. It facilitates the search for paternity through genetic imprinting tests and confers on the child whose paternity is thus established the right to maintenance.
101. See Committee on the Rights of the Child: Summary Record of the 728th Meeting, Consideration of Reports of States Parties, Initial Report (Oman), ¶ 48, U.N. Doc. CRC/C/SR.728 (5 Oct. 2001).
102. This situation is explained by a member of Omani delegation: In Oman, the Constitution was based on Islamic law, which did not tolerate adultery or fornication. Requiring the father of an illegitimate child to provide financial support, would thus run counter to the law. There were criminal provisions against both men and women who committed adultery or fornication. A woman who delivered an illegitimate child thus risked prosecution if she tried to prove paternity, because she would in effect be admitting that she had committed a crime. Id. ¶ 44.
103. See Consideration of Reports, 1999 (Tunisia), supra note 65, ¶ 166;
104. Consideration of Reports, 2001 (Saudi Arabia), supra note 56, ¶ 63;
105. Committee on the Rights of the Child: Consideration of Reports, Initial reports of States parties due in 1993, Addendum (Kuwait), ¶ 255, U.N. Doc. CRC/C/8/Add.35 (9 Dec. 1996).
106. The report reads as follows: The Constitution of the Federal Republic of Nigeria (S.39 (2)) of 1979 stipulates that no child shall be discriminated against due to the circumstances of his birth. Traditional and religious values, however, infringe on the full implementation of this part of the Constitution. For example, in the Muslim tradition, a child born out of wedlock has no right to inheritance.... There exist, however, very good foster laws in those States having such traditions. Committee on the Rights of the Child: Consideration of Reports, Initial reports of states parties due in 1993 (Nigeria), ¶ 38, U.N. Doc. CRC/C/8/Add.26 (21 Aug. 1995).
107. See Committee on the Rights of the Child. Consideration of Reports, Second periodic reports of states parties due in 1998 (Nigeria), ¶ 96, U.N. Doc. CRC/C/70/Add.24 (17 Sept. 2004).
108. Committee on the Rights of the Child: Summary Record of the 319th meeting (Morocco), ¶ 22, 13th Sess., U.N. Doc. CRC/C/SR.319 (30 Sept. 1996). The report reads as follows: The Islamic principle that a natural child or a child born out of wedlock could not inherit was precise and absolute; no possibility of derogation existed. Remedies would have to be sought by other means. A father was, for example, not precluded from leaving a legacy to a natural child. Although Islamic principles could not be modified, efforts were being made to introduce changes in a number of areas by making certain options available on a voluntary basis. That was the way in which conformity to the Convention could be achieved and equal opportunities in the social sphere ensured. A number of such measures had already been taken to soften the impact of classical Islamic law; others would follow.
109. Id Though it is not the purpose of this article to have a theoretical study in seeking these remedies a quoting from what Meeusen states might be helpful. He says: There are no positive provisions in the Shari'a that relegate the non-marital child to an inferior status, rather, the legal position of the non-marital child is arrived at by default. The Shari'a provisions merely state the facts.... Therefore, the rights of the non-marital [child] in relation to the father are not denied because they simply do not exist in Islam.
110. Meeusen, supra note 63, at 377.
111. Committee on the Rights of the Child: Consideration of Reports, 2001 (Tunisia), ¶ 5, U.N. Doc. CRC/C/15/Add.163 (6 Nov. 2001).
112. Id. ¶ 22.
113. Id.
114. Id. ¶ 23.
115. See Committee on the Rights of the Child: Consideration of Reports, Concluding Observations, 2000 (Djibouti), ¶ 9, U.N. Doc. CRC/C/15/ Add.131 (28 June 2000);
116. see also, Committee on the Rights of the Child: Consideration of Reports, Concluding Observations, 2000 (Oman), ¶ 24, U.N. Doc. CRC/ C/15/Add.161 (6 Nov. 2001);
117. Committee on the Rights of the Child: Consideration of Reports, Concluding Observations, 1995 (Tunisia), ¶ 7, U.N. Doc. CRC/C/15/ Add.39 (21 June 1995).
118. See Committee on the Rights of the Child: Consideration of Reports, Concluding observations of the Committee on the Rights of the Child, 2001 (Qatar), ¶ 30, U.N. Doc. CRC/C/15/Add.1 63 (6 Nov. 2001);
119. Committee on the Rights of the Child: Consideration of Reports, Concluding Observations, 2003 (Brunei Darussalam), ¶ 24, U.N Doc. CRC/C/SR.907(3 Oct. 2003).
120. Consideration of Reports, 1997 (Indonesia), supra note 26, ¶ 50;
121. Committee on the Rights of the Child: Consideration of Reports, Initial reports of States parties due in 1995 (Syrian Arab Republic), ¶ 37, U.N. Doc. CRC/C/28/Add.2 (14 Feb. 1996).
122. Consideration of Reports, 2005 (Iran), supra note 27.
123. Consideration of Reports, 1999 (Oman), supra note 29, ¶ ¶ 12-14.
124. Id.
125. On the principle of "best interest of the child" see Goonesekere, supra note 24, at 3.
126. In a comparison with other older legal systems, for example Old English Common Law did not create a forcible legal duty of maintenance for parents. See Gooneskere, supra note 24, at 121.
127. In a comparison with other older legal systems, for example the English law of 1980s concedes the superiors parental right of the father which will prevail unless he is "unfit" to be guardian. According to this system, the father's legal right of custody over a marital child was so absolute that he could claim the physical custody of a child who was being nursed at the mother's breast. Also Roman-Dutch law, which combined Roman Law with Germanic custom, recognized the husband's marital power over his wife and his natural guardianship over minor children. His protective authority over the wife and marital children was deeply entrenched in the system. See Goonesekere, supra note 24, at 125, 127.
128. Such distinction between the role of father and mother is not necessarily the result of religious traditions but mainly the consequent of social underdevelopment. For example, irrespective of the different religions and other considerations, and similar to other underdeveloped societies, the father's right to control religion appears to be given special significance in Indian Subcontinent, so as to determine the issue of guardianship and custody. See id. at 129.
129. For more information on Hizanat and Wilayat see Consideration of Reports, 2001 (Oman), supra note 66, ¶ 43;
130. Consideration of Reports, 1998 (Saudi Arabia), supra note 28, ¶ 143;
131. Committee on the Rights of the Child. Consideration of Reports, Initial reports of States parties due in 1996 (Iran), ¶ 71, U.N. Doc. CRC/C/ 41/Add.5 (23 July 1998).
132. Similarly in most Jewish legal traditions it is believed that until the child is six years old he needs his mother, especially emotionally. Therefore, when the mother is fit to meet her child's needs the right of custody of a child up to the age of six will be granted to her. Above the age of six a son should be in the custody of his father, who is obliged to teach him the religious principles of Jewish law and a profession. See Kaplan, supra note 63, at 50-51.
133. On the principle of "best interest of the child" see Goonesekere, supra note 24, at 3.
134. Consideration of Reports, 1996 (Iran), supra note 85, ¶ 71.
135. See Considerations of Reports, 2005 (Iran), supra note 27, ¶ 46.
136. Consideration of Reports, 1997 (Pakistan), supra note 25, ¶ 89; The report reads as follows: The courts have always given importance to the best interests and welfare of the child while deciding questions of custody in divorce and separation cases. Under the provisions of Islamic law, as applied in Pakistan, the general rule is that custody of a boy who has not attained the age of 7 and that of a girl who has not attained puberty is to remain with the mother. The male child up to this age, and the female child during most of her young age, is considered to be better off in the custody of the mother.
137. Id.
138. Consideration of Reports, 1997 (Indonesia), supra note 26, ¶ 146.
139. Considerations of Reports, 2000 (Oman), supra note 76, ¶ 41.
140. For example, see Committee on the Rights of the Child: Consideration of Reports, Concluding Observations, 2003 (Pakistan), ¶ 44, U.N. Doc. CRC/C/15/Add.217 (27 Oct. 2003);
141. Committee on the Rights of the Child: Consideration of Reports, Concluding Observations, 2001 (Egypt), ¶ 33, U.N. Doc. CRC/C/15/ Add.145 (21 Feb. 2001);
142. Committee on the Rights of the Child: Consideration of Reports, Concluding Observations, 2001 (Saudi Arabia), ¶ 25, U.N. Doc. CRC/C/ 15/Add.148 (22 Feb. 2001).
143. Article 18(1) of the ICCPR reads as follows: Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. ICCPR, supra note 21, art. 18 § 1. Article 18(2) of ICCPR reads as follows: "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice."
144. ICCPR, supra note 21, art. 18 § 1. Article 18(2) of ICCPR reads as follows: "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice."
145. Id, art. 2 § 1. According to the Qur'an every human being is free to choose his/her religion or belief on his/her own will: "Duress is not permissible in religion, as the path has become clear from falsehood." Qur'an 2:256.
146. See Qur'an, 2:170; 5:104, 7:28; 10:78; 21:53, 54; 26:74-76; 31:21; 43:22, 23.
147. It is the view of all the grand Shiite jurists (Mujtahids), as proclaimed in the first article of their main jurisprudential treatise called al-risalatul- amaliyyah or Resalah Tawdhih-al-Masael, that "Taghlid (following others) in principles of religion is not permissible, and a Muslim should be certain about principles of the religion [by his/her own findings]." See for example the view of Ayatollah Fazel Lankarani in English, available at http://www.lankarani.org.
148. To briefly elaborate on the reasoning for this contradiction, it seems that despite the early Koranic principle of freedom to choose religion, in practice early Muslim jurisprudence had to consider aspects to protect this newly emerged Muslim community. While early Muslims were in a state of war with surrounding unbeliever enemies, conversion of any member of their community to the religion of enemies could be suspected as his/her joining the enemy camp. Even today the concern of protection of community is more serious in multi religious communities, where each community intends to protect its identity and existence from the treats of other communities.
149. For more information see Detrick, supra note 59, at 238;
150. David Johnson, Cultural and Regional Pluralism in Drafting of the UN Convention on the Rights of the Child, in The Ideologies of Children's Rights 95, 99-103 (Michael Freeman & Philip Veerman, eds., 1992).
151. Paper Submitted by the permanent representative of Bangladesh, U.N. Doc. E/CN.4/1986/39, Annex IV, at 2,
152. quoted in Detrick, supra note 59, at 244.
153. Children's Convention, supra note 4, art. 14.
154. However, similar to Article 18(3) of the ICCPR, according to Article 14(3) of the CRC, not freedom to have or choose a religion, but freedom to manifest a religion can be subject to limitations by states. Article 18(3) of the ICCPR reads as follows: 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. 4. The states parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. ICCPR, supra note 21, art. 18 § 3.
155. Similarly some non-Muslim states such as Poland and the Holy Sea have entered declarations to the effect that a child's right to freedom of religion, as defined in Article 14, shall be exercised with respect for parental authority.
156. Reservations, Declarations, and Objections Relating to the Convention on the Rights of the Child, supra note 15.
157. See text accompanying note 21 for the name of Muslim states that are not signatories of the ICCPR. Among reserving states to Article 14 of the CRC seven states: Maldives, United Arab Emirates, Brunei, Malaysia, Oman, Qatar, and Saudi Arabia are not member of the ICCPR. The six other reserving states i.e., Bangladesh, Morocco, Syria, Jordan, Iraq, and Iran, despite their reservations to the CRC, are members of ICCPR and therefore committed to Article 18.
158. The report reads as follows: The freedom of individuals to choose or abandon their religion is incompatible with the provisions of the divinely revealed laws. In Jordan there are two divinely revealed religions, Islam and Christianity, neither of which permit an individual to abandon his religion or choose another religion. Committee on the Rights of the Child: Consideration of Reports, Periodic Reports of States Parties due in 1998 (Jordan) at 55, ¶ 9(33), U.N. Doc. CRC/C/ 70/Add.4 (17 Sept. 1999).
159. Id.
160. On the issue of conflicts of religious family laws in Muslim countries see Kamran Hashemi, The Right of Minorities to Identity and the Challenge of Non-discrimination: A Study on the Effects of Traditional Muslims' Dhimmah on Current States Practices, 13 Int'l J.on Minorities & Group Rts. 22, 1-25(2006).
161. Committee on the Rights of the Child: Consideration of Reports, Initial Reports of States parties due in 1995 (Syrian Arab Republic), ¶ 82, U.N. Doc. CRC/C/28/Add.2 (14 Feb. 1996).
162. Consideration of Reports, 1997 (Indonesia), supra note 26, ¶ 207;
163. In comparison to other traditional legal system, for example according to Hindu religious traditions "men who have attained the age of discretion (15 years) may adopt boys only. A Hindu woman may adopt a boy only with the Rights of the Child: Consideration of Reports, Second periodic reports of States parties due in 1997 (Bangladesh), ¶ 137, U.N. Doc. CRC/C/65/Add.22 (14 Mar. 2003).
164. Paper Submitted by the permanent representative of Bangladesh, supra note 100,
165. quoted in Detrick, supra note 59, at 312.
166. Children's Convention, supra note 4, art. 20.
167. Reservations, Declarations, and Objections Relating to the Convention on the Rights of the Child, supra note 15.
168. For an example among those specific reservations to Articles 20 and 21, the reservation of Egypt reads as follows: Since the Islamic Shariah is one of the fundamental sources of legislation in Egyptian positive law and because the Shariah, in enjoining the provision of every means of protection and care for children by numerous ways and means, does not include among those ways and means the system of adoption existing in certain other bodies of positive law. The Government of the Arab Republic of Egypt expresses its reservation with respect to all the clauses and provisions relating to adoption in the said Convention, and in particular with respect to the provisions governing adoption in Articles 20 and 21 of the Convention. Id.
169. Consideration of Reports, 1997 (Qatar) ¶ 76, U.N. Doc. CRC/C/51/ Add.5 (11 Jan. 2001);
170. Consideration of Reports, 1995 (Syrian Arab Republic), supra note 108, ¶ 124;
171. Committee on the Rights of the Child. Summary Record of the 67th Meeting, Consideration of Reports, Initial Report, U.N. Comm. on the Rights of the Child, 3d Sess. (Egypt), ¶ 16, U.N. Doc. CRC/C/SR.67 (17 Aug. 1993);
172. Committee on the Rights of the Child: Consideration of Reports, Periodic reports of States parties due in 1998 (Jordan), ¶ 63, U.N. Doc. CRC/ C/70/Add.4 (13 Sept. 1999).
173. The report reads as follows, [A]doption is not legally permissible in Islam, being clearly prohibited in the fourth and fifth verses of the chapter of the Holy Koran entitled "The Confederate Tribes" which read as follows: ..." and He does not regard your adopted sons as your own sons. These are mere words which you utter with your mouths, but god declares the truth and guides to the right path. Name your adopted sons after their fathers; that is more just in the God." [sic] With these words, God abolished the system of adoption and prohibited the use of such patronymics, it being more just and proper for people to be known by their true lineages. This was confirmed by the words of the Prophet (upon whom be peace): "Paradise shall be closed to anyone who claims to be the son of a person other than his true father" and "Anyone who knowingly claims to be the son of a person other than his true father commits an act of unbelief." [sic] Consideration of Reports, 1998 (Jordan), supra note 114, ¶ 63.
174. See Consideration of Reports, 1996 (Iran), supra note 85, ¶ 90-91.
175. Consideration of Reports, 1997 (Pakistan), supra note 25, ¶ ¶ 203, 204;
176. Committee on the Rights of the Child: Consideration of Reports, Initial Reports of States Parties Due in 1992, (Bangladesh), U.N. Doc. CRC/C/3/ Add.38, ¶ 101 (7 Dec. 1995).
177. Consideration of Reports, 1997 (Pakistan), supra note 25, ¶ 205.
178. Consideration of Reports, 1995 (Syrian Arab Republic), supra note 108, ¶ 124.
179. The report reads as follows: Islam prohibits adoption and, in accordance with the provisions of the Islamic Shariah, foster children cannot inherit. They may, however, be saved from destitution on the death of their foster carer by means of such bequests, a subject which is covered under articles 315 and 316 of the Personal Status for Muslims Act. This type of bequest is defined in article 315 as "a bequest enabling a person who is not entitled to inherit to acquire a specific share of the estate of the testator," which is unquestionably in the interests of the foster child. Consideration of Reports, 1997 (Sudan) supra note 19, ¶ 71.
180. Committee on the Rights of the Child. Consideration of Reports of States Parties, Summary record of the 621st meeting: (Jordan), ¶ 29, U.N. Doc. CRC/C/SR.621 (11 July 2000).
181. Consideration of Reports, 1997 (Indonesia), supra note 26, ¶207.
182. Goonesekere, supra note 24, at 121.
183. Committee on the Rights of the Child: Summary Record of the 133d Meeting (Pakistan), ¶ 31, U.N. Doc. CRC/C/SR.133 (21 Nov. 1995).
184. See Committee on the Rights of the Child: Summary Record of the 380th Meeting (Bangladesh), ¶ 21, U.N. Doc. CRC/C/SR.380 (29 May 1997);
185. Committee on the Rights of the Child: Consideration of Reports of States Parties (Bangladesh), ¶ 47, U.N. Doc. CRC/C/15/Add.221 (27 Oct. 2003);
186. Committee on the Rights of the Child: Consideration of Reports of States Parties (Maldives), 59, U.N. Doc. CRC/C/8/Add.33 (5 Aug. 1996);
187. Interestingly both states despite their reservations have been urged by the Committee to become a party to "the Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoptions." See Committee on the Rights of the Child: Consideration of Reports of State Parties (Bangladesh), ¶ 36, U.N. Doc. 30 CRC/C/ SR.382 (30 May 1997);
188. Committee on the Rights of the Child: Consideration of Reports of State Parties (Bangladesh), ¶ 40, U.N. Doc. CRC/C/15/Add.74 (18 June 1997);
189. Committee on the Rights of the Child: Consideration of Reports of State Parties (Maldives), ¶ 31, U.N. Doc. CRC/C/SR.468 (4 June 1998).
190. Considerations of Reports, 2001 (Egypt), supra note 93, ¶ 33.
191. For example the member of Egyptian delegation stated: The reservation filed by Egypt related exclusively to the use of the word "adoption." Adoption was not permitted under Islamic law, for reasons relating inter alia to inheritance practices. However, the Government of Egypt had no objection to the content of articles 21 and 22 of the Convention. Committee on the Rights of the Child: Summary Record of the 680th Meeting, Consideration of Reports of States Parties, Second periodic report (Egypt), ¶ 60, U.N. Doc. CRC/C/SR.680 (22 Jan. 2001).
192. Consideration of Reports, 2000 (Oman), supra note 76, ¶ 8-9.
193. Committee on the Rights of the Child: Summary Record of the 380th Meeting, Consideration of Reports, Initial Report (Bangladesh), ¶ 47, U.N. Doc. CRC/C/SR.380 (29 May 1997).
194. Consideration of Reports, 1997 (Indonesia), supra note 26, ¶ 16.
195. In this regard the Vienna Declaration and Program of Action states: The World Conference on Human Rights encourages states to consider limiting the extent of any reservations they lodge to international human rights instruments, formulate any reservations as precisely and narrowly as possible, ensure that none is incompatible with the object and purpose of the relevant treaty and regularly review any reservations with a view to withdrawing them. The Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. On Hum. Rts., 48th Sess., 22d plen. mtg., pt. 1, ¶ 5, U.N. Doc. A/CONF.157/24 (12 July 1993), reprinted in 32 I.L.M. 1661 (1993).
196. Id. 46 "urges States to withdraw reservations to the Convention on the Rights of the Child contrary to the object and purpose of the Convention or otherwise contrary to international treaty law."
197. Consideration of Reports, 1995 (Tunisia), supra note 76, ¶ 6.
198. Id. at ¶ 10.
199. See Committee on the Rights of the Child: Consideration of Reports, Initial periodic report of states parties due in 1993 (Jordan), ¶ 1, U.N. Doc. CRC/C/8/Add.4 (26 Nov. 1993);
200. Consideration of Reports, 2003 (Brunei Darussalam), supra note 77, ¶ 73-76;
201. Consideration of Reports, 2001 (Saudi Arabia), supra note 93, ¶ 7-8;
202. Consideration of Reports, 2000 (Djibouti), supra note 76, ¶ 9-10.
203. Consideration of Reports, 2001 (Egypt), supra note 93, ¶ 6;
204. see also, Consideration of Reports, 2001 (Qatar), supra note 77, ¶ 9.
205. Also there is similar wording in the report regarding Saudi Arabia; see Consideration of Reports, 2001 (Saudi Arabia), supra note 93, ¶ 6.
206. Consideration of Reports, 2001 (Egypt), supra note 93, ¶ 56.
207. Id. at ¶ 30;
208. Consideration of the Reports, 2001 (Saudi Arabia), supra note 93, ¶ 24.
209. It reads as follows, [T]he law relating to children born out of wedlock appeared to be in conflict with many principles of the Convention. The Islamic principle involved was apparently clear and not open to a different interpretation, but, provided that no categorical prohibition was involved, some legislative means could perhaps be found to allow it to be waived and so permit the gap between the Code on Personal Status and the Convention to be closed. Moroccan lawmakers had, for example, managed to find a way to avoid confrontation with the religious principle that permitted a man summarily to divorce his wife. Summary Record of the 319th Meeting, 1996 (Morocco), supra note 71, 15.
210. Committee on the Rights of the Child: Summary Record of the 618th Meeting, Consideration of Reports of States Parties, Initial report (Iran), ¶ 25, U.N. Doc. CRC/C/SR.618 (23 May 2000).
211. In response to the Committee a member of the Iranian delegation has made a reference to these meetings, "Iranian representatives held meetings with those of other Muslim countries periodically to discuss such matters. In 1998 a conference of Islamic scholars and the United Nations High Commissioner for Human Rights had been held at the United Nations Office at Geneva to discuss Islamic commentary on the Universal Declaration of Human Rights." Id. ¶ 26.
212. Consideration of Reports, 2001 (Qatar), supra note 77, ¶ 31;
213. Consideration of Reports, 1999 (Oman), supra note 29, ¶ 25;
214. Also there is similar advice for Egypt, Consideration of Reports, 2001 (Saudi Arabia), supra note 93, ¶ 24.
215. Consideration of the Reports, 2001 (Tunisia), supra note 68, ¶ 26.
216. Committee on the Rights of the Child: Summary Record of the 66th Meeting (Egypt), ¶ 40, U.N. Doc. CRC/C/SR.66 (28 Jan. 1993).
217. Geraldine Van Bueren, The Best Interests of the Child: International Co-Operation on Child Abduction, Program on the International Rights of the Child 51 (1993).
218. See Anver Giladi, Concepts of Childhood and Attitudes Towards Children in Medieval Islam, 32 J. Econ. & Soc. Hist. Orient 121 (1989).
219. Heiner Bielefeldt, Muslim Voices in the Human Rights Debate, 17 Hum. Rts. Q. 4 (1995).
220. Consideration of Reports, 1997 (Syrian Arab Republic), supra note 26, ¶ 10.
221. See Consideration of Reports, 1994 (Pakistan), supra note 27, ¶ 31.
222. Some other GSRs are under reviewing by state parties. Oman has been re-examining its reservations to Articles 7, 9, 21 and 30 of the Convention. Yet, its reservation on Article 14 is not included in this re-examination. Similarly Committee has welcomed information that Qatar is re-examining its reservation to the Convention with a view to amending or withdrawing it. See Consideration of Reports of State Parties (Oman), ¶ 8, U.N. Doc. CRC/C/15/Add.161 (6 Nov. 2001);
223. See Consideration of Reports, 2001 (Qatar), supra note 77, ¶ 10;
224. Consideration of Reports, 1999 (Oman), supra note 29, ¶ 25.
225. Also, there is similar advice for Egypt. Committee on the Rights of the Child: Concluding Observations (Egypt), ¶ 30, U.N. Doc. CRC/C/15/ Add.145 (21 Feb. 2001).
226. See Consideration of Reports, 1999 (Jordan), supra note 105, 173.