A STEP TOO FAR? THE JOURNEY FROM “BIOLOGICAL” TO “SOCIETAL” FILIATION IN THE CHILD'S RIGHT TO NAME AND IDENTITY IN ISLAMIC AND INTERNATIONAL LAW

2019 ◽  
Vol 34 (3) ◽  
pp. 383-407 ◽  
Author(s):  
Shaheen Sardar Ali
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Legal Traditions ◽  
Rights Of The Child ◽  
State Practice ◽  
Legal Position ◽  
The Subject ◽  
Rights Discourse ◽  
Muslim Communities ◽  
Human Rights Discourse

AbstractThis socio-legal narrative investigates the journey from “biological” to “societal” filiation undertaken by Islamic and international law regimes in their endeavors to ensure a child's right to name and identity. Combining a discussion of filiation—a status-assigning process—with adoption and kafāla (fostering) as status-transferring mechanisms, it highlights a nuanced hierarchy relating to these processes within Muslim communities and Muslim state practices. It questions whether evolving conceptions of a child's rights to name and identity represent a paradigm shift from “no status” if born out of wedlock toward “full status” offered through national and international law and Muslim state and community practices. The article challenges the dominant (formal, legal) position within the Islamic legal traditions that nasab (filiation) is obtainable through marriage alone. Highlighting inherent plurality within the Islamic legal traditions, it demonstrates how Muslim state practice and actual practices of Muslim communities on the subject are neither uniform nor necessarily in accordance with stated doctrinal positions of the juristic schools to which they subscribe. Simultaneously, the paper challenges some exaggerated gaps between “Islamic” and “Western” conceptions of children's rights, arguing that child-centric resources in Islamic law tend to be suppressed by a “universalist” Western human-rights discourse. Tracing common threads through discourses within both legal traditions aimed at ensuring children a name and identity, it demonstrates that the rights values in the United Nations Convention on Rights of the Child resonate with preexisting values within the Islamic legal traditions.

Islamic Law and Human Rights

2015 ◽  
pp. 818-842
Author(s):  
Shannon Dunn
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Second World War ◽  
World War ◽  
Legal Traditions ◽  
Universal Human Rights ◽  
Rights Discourse ◽  
And Gender ◽  
Human Rights Discourse ◽  
Second World

This article explores the question of whether Islamic law and universal human rights are compatible. It begins with an overview of human rights discourse after the Second World War before discussing Islamic human rights declarations and the claims of Muslim apologists regarding human rights, along with challenges to Muslim apologetics in human rights discourse. It then considers the issues of gender and gender equality, feminism, and freedom of religion in relation to human rights. It also examines four basic scholarly orientations to the topic of Islam and human rights since the end of the Second World War: a model that privileges a secular (non-religious) paradigm for rights; a Muslim apologist model, which privileges a purely “Islamic” conception of rights over secular models; a Marxist/postcolonial critique of rights as a western imposition of power; and a Muslim reformist paradigm of rights that highlights points of continuity between western legal and Muslim legal traditions.

Humanitarian Intervention in International and Islamic Law

2003 ◽  
Vol 20 (1) ◽  
pp. 88-106
Author(s):  
Ermin Sinanovic
Keyword(s):  
Human Rights ◽  
International Law ◽  
Human Dignity ◽  
Islamic Law ◽  
Humanitarian Intervention ◽  
Fundamental Issue ◽  
Moral Foundation ◽  
Rights Discourse ◽  
Jus Cogens ◽  
Human Rights Discourse

In this paper, I look into the moral foundation of humanitarian intervention in international law and its Islamic counterpart. My objective is to identify the traits shared by both sets of laws, and to see if the same or similar justification can be used across cultures to reach the same goal. In other words, one goal is to assess the claims that the basis upon which humanitarian intervention is justified has a universal appeal. Both international and Islamic law justify humanitarian intervention on moral grounds. International law bases its justification upon the human rights discourse. Islamic law provides enough bases for legitimizing humanitarian intervention, and Qur’anic verses, scholarly opinions, and Islamic principles provide a sound background for it. Paramount in this task is the concept of human dignity (karamah al-insan). We found no disagreement on this fundamental issue between the Universal Declaration of Human Rights (UDHR) and Islamic law. Human dignity, as understood in international human rights and its Islamic counterpart, thus could form the jus cogens of international law, a common human heritage upon which everybody can agree.

7. Contemporary Critiques of Human Rights

2016 ◽  
Author(s):  
David Chandler
Keyword(s):  
Human Rights ◽  
International Law ◽  
Military Intervention ◽  
Legal Subject ◽  
The Subject ◽  
The Creation ◽  
Rights Discourse ◽  
Kosovo War ◽  
Human Rights Discourse ◽  
The Relationship

This chapter examines contemporary critiques of human rights, focusing on the downside of human rights claims — what is commonly understood by advocates of human rights to be the ‘misuse’ or ‘abuse’ of human rights. It first considers how human rights claims conflate ethical and legal claims because the subject of rights is not a socially constituted legal subject. It then discusses the rise of human rights as well as the relationship between human rights claims and international interventions such as humanitarianism, international law, and military intervention. In particular, it analyses the ethical, legal, and political questions raised by the Kosovo war. The chapter shows that there is a paradox at the heart of the human rights discourse, which enables claims made on behalf of victims, the marginalized, and excluded to become a mechanism for the creation of new frameworks for the exercise of power.

Humanitarian Intervention in International and Islamic Law

2003 ◽  
Vol 20 (1) ◽  
pp. 88-106
Author(s):  
Ermin Sinanovic
Keyword(s):  
Human Rights ◽  
International Law ◽  
Human Dignity ◽  
Islamic Law ◽  
Humanitarian Intervention ◽  
Fundamental Issue ◽  
Moral Foundation ◽  
Rights Discourse ◽  
Jus Cogens ◽  
Human Rights Discourse

In this paper, I look into the moral foundation of humanitarian intervention in international law and its Islamic counterpart. My objective is to identify the traits shared by both sets of laws, and to see if the same or similar justification can be used across cultures to reach the same goal. In other words, one goal is to assess the claims that the basis upon which humanitarian intervention is justified has a universal appeal. Both international and Islamic law justify humanitarian intervention on moral grounds. International law bases its justification upon the human rights discourse. Islamic law provides enough bases for legitimizing humanitarian intervention, and Qur’anic verses, scholarly opinions, and Islamic principles provide a sound background for it. Paramount in this task is the concept of human dignity (karamah al-insan). We found no disagreement on this fundamental issue between the Universal Declaration of Human Rights (UDHR) and Islamic law. Human dignity, as understood in international human rights and its Islamic counterpart, thus could form the jus cogens of international law, a common human heritage upon which everybody can agree.

International Law and Colombian Constitutionalism: A Note on Monism

1942 ◽  
Vol 36 (4) ◽  
pp. 614-620
Author(s):  
William Marion Gibson
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Subject Matter ◽  
The Other ◽  
Legal Philosophy ◽  
State Practice ◽  
The Subject ◽  
National Constitution ◽  
Relationship Of ◽  
The Relationship

In explaining the nature of international law, each of the two major schools of thought draws upon legal philosophy and practice for evidence in support of its interpretation. It is not the purpose of this note to offer any conclusions or proofs as to the validity of the reasoning of one or the other of the two schools. It would require more than the subject-matter here considered to prove the “Monist” position, or to detract from that of the “Dualist.” However, inasmuch as state practice is one of the guides to the resolution of the debate on the nature of international law, it is hoped that an explanation of the attitude of the Colombian Supreme Court concerning the relationship of pacta to the national constitution and legislation of that state may merit mention.

Islamic Law and International Law

2019 ◽  
pp. 86-124
Author(s):  
Emilia Justyna Powell
Keyword(s):  
International Law ◽  
Analogical Reasoning ◽  
Islamic Law ◽  
Religious Affiliation ◽  
Customary Law ◽  
Legal Tradition ◽  
Legal Traditions ◽  
And Gender ◽  
Role Of Religion

This chapter explores in considerable detail differences and similarities between the Islamic legal tradition and international law. It discusses in detail the historical interaction between these legal traditions, their co-evolution, and the academic conversations on this topic. The chapter also addresses the Islamic milieu’s contributions to international law, and sources of Islamic law including the Quran, sunna, judicial consensus, and analogical reasoning. It talks about the role of religion in international law. Mapping the specific characteristics of Islamic law and international law offers a glimpse of the contrasting and similar paradigms, spirit, and operation of law. This chapter identifies three points of convergence: law of scholars, customary law, and rule of law; as well as three points of departure: relation between law and religion, sources of law, and religious features in the courtroom (religious affiliation and gender of judges, holy oaths).

Expanding the Competence to Issue Provisional Measures— Strengthening the International Judicial Function

2011 ◽  
Vol 12 (5) ◽  
pp. 1279-1294
Author(s):  
Karin Oellers-Frahm
Keyword(s):  
International Law ◽  
National Level ◽  
Organizational Status ◽  
International Courts ◽  
State Practice ◽  
Normative Expectations ◽  
The Subject ◽  
Judicial Procedures ◽  
Settlement Of Disputes ◽  
Holistic Vision

In international law, jurisdiction serves the same principal aim as in national law, namely the settlement of disputes in order to maintain (legal) peace and security. In international law, as in national law, judicial procedures take time, sometimes a lot of time, during which the rights at stake may be negatively affected by acts of one of the parties potentially resulting in an ineffective judgment. A remedy against such an occurrence has been developed through an instrument of interim protection by which the court directs the parties to leave the rights as they stand and not to interfere with the situation. Such an instrument appears indispensable in order to ensure that a court or tribunal is able to effectively exercise its function. At the national level, interim protection is usually unproblematic since the competence of the tribunals is mostly comprehensive. In international law, in contrast, the competence of judicial organs is one of the most discussed problems because it depends on the consent of states. Any expansion of competence without an explicit agreement of the states concerned is therefore of utmost significance for the role and the acceptance of international courts and reflects the organizational status of international society. Thus, in the context of the project “Beyond Dispute: Lawmaking by International Judicial Institutions,” the subject-matter of this contribution mostly relates to the role and self-understanding of international judicial organs; it is less concerned with the creation of substantive normative expectations between international subjects. Yet, the expansion of judicial competences fits into the conceptual apparatus of this research as it innovates the legal order and reaches beyond the case at hand. The case of provisional measures provides a particularly fine example of incremental judicial law making through progressive interpretation, supported by a holistic vision of the international judiciary, reciprocal strengthening and later state practice, as well as its functional legitimation and its limits.

scholarly journals Peacekeeping Forces, Jurisdiction and Immunity: A Tribute to George Barton

2012 ◽  
Vol 43 (1) ◽  
pp. 77 ◽  
Author(s):  
Roger S Clark
Keyword(s):  
New York ◽  
United Nations ◽  
International Law ◽  
Security Council ◽  
Armed Forces ◽  
State Practice ◽  
Peacekeeping Forces ◽  
The Subject ◽  
The United Nations ◽  
Phd Thesis

George Barton wrote his PhD thesis at Cambridge on "Jurisdiction over Visiting Forces". He published three spinoffs from the thesis in the British Yearbook of International Law.  In all of these – each a tour de force in examining elusive and arcane State practice – he was at great pains to deny various supposed customary rules recognising immunity of foreign armed forces in the courts of a State in which they were visiting by consent. He worked in the United Nations Secretariat in New York just as the practice of United Nations peacekeeping began to develop. In this tribute, I try to imagine that he returned to the subject some 60 years later. Affecting, as best I can, the style of Dr Barton circa 1950, I offer some guesses as to how he might assess six decades of developments in law and practice in the multilateral context in which the United Nations, and especially the Secretariat and the Security Council, have been major actors.

Re-examining States’ External Obligations to Implement Economic and Social Rights of Children

2009 ◽  
Vol 22 (2) ◽  
pp. 407-449 ◽  
Author(s):  
Michael Wabwile
Keyword(s):  
International Law ◽  
General Assembly ◽  
Social Rights ◽  
Human Beings ◽  
Legal Basis ◽  
Economic Rights ◽  
Rights Of The Child ◽  
State Practice ◽  
Un General Assembly ◽  
Social And Economic Rights

International law on the protection and promotion of social and economic rights of the child binds states parties to respect, protect and secure these rights both in their own territories as well as to contribute to the programmes for such fulfilment in other countries in a strategy aiming at global implementation of these rights. This paper explores the legal basis for states‘ external obligations to support fulfilment of social and economic rights. It surveys inter alia the relevant treaty texts, explanatory resolutions of the UN General Assembly and statements in reports submitted by states parties to the UN monitoring committees, and argues that recent state practice and interpretation of human rights obligations confirms the extraterritorial obligations to support fulfilment of these rights. Since these are obligations to fulfil the rights of human beings in other countries rather than obligations to third states, they can be referred to as ‘diagonal obligations‘ to distinguish them from inter-state horizontal responsibility.

Group Identities and Human Rights: How Do We Square the Circle in International Law?

2018 ◽  
Vol 75 (3-4) ◽  
pp. 94-106
Author(s):  
Gaetano Pentassuglia
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Status ◽  
Human Rights Practice ◽  
Group Identities ◽  
Rights Discourse ◽  
Group Diversity ◽  
Human Rights Discourse ◽  
The Relationship

The identity of groups of an ethno-cultural variety has long fallen within the remit of internati­onal human rights law. In this context, discussions have been largely concerned with the legal status of groups and/or the nature of the legal right(s) in question. While acknowledging the importance of these dimensions, in this article I seek to provide an alternative account by dis­cussing the continuities and discontinuities in articulating the very concept of group identity. I first examine the potential, limitations and eventual hybridity of human rights practice across the spectrum of minority/indigenous identities. Then, I critique a range of instabilities in human rights discourse relating to the idea of group identities, their personal scope and the role of international law. I argue that such instabilities do not merely mirror the ambivalent outlook of the relationship between human rights and group identities; they raise the broader question of whether there is a relatively more coherent way to capture the legitimacy of group claims. I conclude by pointing to the outer limits of identity claims, the understated interplay of sove­reignty and inter-group diversity, and the need to unpack the reasons why certain groups merit protection in the way they do.

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