by Shaheen Sadar Ali, Savitri Goonesekere, Emilio Garcia Mendez, Rebeca Rios-Kohn. Cambridge: Cambridge University Press, 2007. 286pp. Hardback. £40.00/$65.00. ISBN: 9780521875134. eBook format. $52.00. ISBN: 9780511353079.Reviewed by Sanghamitra Padhy, Department of Political Science, University of Southern California. Email: padhy [at] usc.edu.
pp.147-151
The tension between absolute and relativist positions on human rights is a longstanding debate in legal scholarship. The dominant disciplinary frameworks see the acceptance of human rights law as parallel adaptations to a set of shared rights or situate rights in culturally determined ways. This equivocal stance fails to grapple with the complexities and processes of implementation of human rights in different political and social contexts. PROTECTING THE WORLD’S CHILDREN: IMPACT OF THE CONVENTION ON THE RIGHTS OF CHILD IN DIVERSE LEGAL SYSTEMS is an extensive and engaging study of how different legal systems have implemented and integrated children’s human rights law. This study underscores that effective implementation of children’s human rights requires an understanding of the interconnectedness of rights of children guaranteed by the convention and also the country experiences to harmonize the Children’s Rights Convention (CRC) with legislative reform.
Taking a historical approach to the evolution of children’s rights in different legal contexts, this scholarship situates law in practice and presents how the particularities of the legal traditions and the political context mediate in the implementation of children’s human rights. It is a testimony to how legal reforms relating to children’s rights in domestic settings are stirred by international norms and yet the process of internalization is locally ordained, defined by the political, social and cultural context. This book revisits the central questions of human rights implementation – the universality and relativist debates, monist and dualist frameworks – and suggests exploring the practical realm of human rights application by understanding the contexts.
The applicability of human rights law is challenged by two issues. The first concerns acceptability of human rights dialogue across societies. While uniformity and harmonization of children’s human rights across nations is a desirable ideal, this is an unrealistic goal given the conflicting visions of law and justice in societies and the distinct political histories of each country. Literature in different fields of human rights has explored socio cultural diversity to demonstrate how local notions of justice influence the interaction with international norms. In a pathbreaking work in the 1990s, legal scholar Alison D. Renteln disputing the absolutist and strong relativist assumptions in scholarship argued that universal human rights standards [*148] develop through negotiation with socio cultural values (Renteln 1990). Sally Engle Merry, in her discussion about human rights and gender violence, has observed that there are discrepancies between human rights formulations and daily experiences of women in different local contexts (Merry 2005). Merry has contended that human rights law must be framed in local terms to be accepted and effective in altering social hierarchies.
In a similar vein, Shaheen Sardar Ali, Savitri Goonsekere, Emilio Garcia Mendez and Rebeca Rios-Kohn, in their study of the Convention of Children’s rights have discussed the variations in acceptance of children’s rights standards in diverse legal traditions. The authors make an exciting intervention to show how the child’s “best interest” concept, ingrained in common law and foundational to the CRC is interpreted diversely in different cultures. This essential core of children’s rights has been integrated in other legal systems through colonial codification of laws, interpretations of judges in common law and plural systems, and also in civil law states. Ali says it forms the core of Islamic law. Despite its almost universal presence, the best interest principle has been used to legitimize discriminatory practices by the state. In such instances, the authors contend that the promotion of children’s rights can be promoted by linking national laws to international standards and through active engagement with community and traditional leaders.
They argue that regional legitimization of human rights standards best promotes universal implementation, as it enhances local cultural values that are in harmony with CRC’s ideals. For instance, the Tehran and Islamabad declaration, Ali notes, are crucial to Islamic states’ acceptance of CEDAW and CRC. The local anchoring of human rights law is especially evident in the case of the CRC as it is one of the few treaties that received reservations by states based on cultural and regional arguments, despite universal acceptance by all states. It therefore posits many questions about its applicability in regional contexts. Moving beyond the relativist and absolutist arguments, the authors in this volume demonstrate that the acceptance of the CRC is challenged not just by different cultural positions about the status of children, but it has deep historical and political roots embedded in the colonial history.
The second question concerns the process of implementing human rights law. This work has been innovative in its questioning of the conventional categorization of state reception of human rights through monist and dualist approaches. The conventional wisdom is that the rules of implementation of human rights depend on municipal law. Where the monist theory is followed, international law and municipal law on the same subject act concurrently, and, in the event of a conflict, the former prevails. Where dualism is favored, international law and municipal law are mutually exclusive, and the former has no effect on the latter until it is incorporated through domestic legislation. However, as the case studies illustrate, this distinction is not strictly followed; in civil law countries that practice monism, international law is not accepted directly in courts, and in dualist countries international norms play an important persuasive role in interpreting [*149] treaties in municipal law in common law traditions.
Recent works such as those of Werner Menski (2006), have argued that law is not a neat category that could be packed into tool boxes for transportation, application and consumption. Rather, according to Menski, the application of international law is contingent on inter-legal interaction in a pluralistic global context. It is the national law making and policy formulating process that determines reception of human rights law. Apart from the legal processes of interaction, transnational networking and social activism also transform the human rights behavior of states through moral pressure. Acceptance of human rights law depends on how various laws interact and how the interaction is shaped by the social and political dynamics. This study discusses the various factors that influence the acceptance of rights, such as the level of democratization and its relationship with transnational involvement, linkage with colonial past and social networks, particularly of NGOs. The authors have illustrated that the distinctive nature of institutional capacity in different legal traditions influences state’s receptivity of international law. For instance, in common law and plural legal systems, judicial interpretation plays a dominant role as judicial actors build on jurisprudence emerging in other common law jurisdictions to formulate their legal opinions. Contrarily, in civil law systems, statues are important, and in Islamic states, the executive plays a domineering role.
Methodologically, the book builds on a comparative case study approach linked to particular legal traditions, based on UNICEF study of law reform in developing countries. All the countries covered in this study are post colonial developing societies. The book is organized into four chapters, studying the impact of the Children’s Rights Convention in Civil Law, Common Law, Islamic and African states. The case studies consider important challenges to implementation of CRC in different country contexts in an effort to achieve children’s rights uniformly across widely divergent legal traditions. The authors have pointed out that, while there has been a pattern of law reform to introduce the CRC, this has not been accompanied by adequate reforms in social processes, and also the contradictions between colonial and human rights law restricts harmonization of children’s rights.
Rebeca Rios-Kohn in the first chapter, “A Comparative Study of the Impact of the Convention on the Rights of the Child: Law Reform in Selected Common Law Countries,” argues for incorporation of CRC into domestic law and for Constitutional status in the Caribbean commonwealth countries. She shows that, even though there are constitutional guarantees, such as in Barbados, to protect children’s rights, these are not comprehensive and do not include all the human rights contained in the CRC – civil, political, social economic and cultural rights of children. Examining legal developments regarding children’s rights in common law countries, she notes that courts, through judicial interpretation, and civil society can be effective resources for legitimizing children’s rights. For instance, the Inter-American Court’s ruling in the case of WINSTON CAESAR v. REPUBLIC OF TRINIDAD AND TOBAGO on corporal [*150] punishment can influence similar outcomes in Caribbean courts. This area of human rights jurisprudence and social engagement needs to be pushed further to study how socio-legal activism can promote acceptance of human rights law in different political and legal contexts.
The second chapter by Emilio Garcia Mendez, “A Comparative Study of the Impact of the Convention on the Rights of the Child: Law Reform in Selected Civil Law Countries,” provides an account of the processes through which national laws in civil law countries – Azerbaijan, Armenia, Burkina Faso and the Dominican Republic – are to be brought in line with the provisions of CRC. Mendez notes that the main obstacle to realization of children’s rights in these countries is the relationship established historically between adults, institutions, and children, because of which there is a lack of political prominence of children’s issues in the region. This chapter underlines the need for crucial law reform in the social sector along with advocacy and training of key players to encourage development of sustainable children’s rights social policies. The case of the civil law countries resonates well with leading literature that relates human rights to levels of democratization.
Shaheen Sardar Ali, in “A Comparative Perspective of the Convention on the Rights of the Child and the Principles of Islamic Law: Law Reform and Children’s Rights in Muslim Jurisdictions,” makes an important contribution to the discourse of children’s human rights in her analysis of the convergence of Islamic legal tradition and the CRC. While Islamic countries have made many reservations to both CEDAW and CRC, explaining the deep schisms between their culture and the west, Ali points out that equivalent human rights values are present in Islamic culture which should be mobilized to create an enabling environment for children’s rights in these and other jurisdictions. The concept of shared access to resources and social responsibility of children in customary law and Islamic law can be used to promote both accountability in governance and especially socio-economic rights of children. In the countries discussed, the King or the Sovereign head has wide powers, and parliament has an important voice in law reform. Even though these countries work within the Sharia framework, the judiciary plays an important role as interpreter of the laws. Jordan and Morocco have produced progressive law reform on children’s rights. It will be interesting to develop this aspect of Islamic jurisprudence. While one agrees with Ali that cultural tradition is an important means to promote the realization of human rights, a critical question that needs further exploration is the issue of delineating cultural norms. Traditional values such as family, community and social responsibility towards children are dynamic concepts; with the influx of colonialism and colonial interpretation of tradition and custom, the old value of convention has changed.
The final chapter by Savitri Goonesekere, “Law Reform and Children’s Rights in Plural Legal Systems: Some Experiences in Sub Saharan Africa,” contends that the plural basis of law in African countries is the major impediment to realization of children’s rights. The plural legal system [*151] study indicates that in the absence of Constitutional protection, there are legal ambiguities regarding protection of children’s rights as they are subject to various interpretations based on customary practices. This chapter is interesting from the perspective of legal pluralism and also from the perspective of post colonial legal engagement with human rights.
The rich analysis of engagement with children’s rights in diverse legal contexts is a significant step forward in understanding the receptivity of international law in domestic settings. This book takes us away from conventional approaches of studying human rights to a historical and contextual analysis of legal developments. This volume is a powerful advocacy tool for supporting the implementation of the CRC and CEDAW. From the human rights point of view, the authors show how children’s human rights are beyond recognition of certain basic rights of exploitation to include social and economic measures. This study demonstrates that local authorities and the community are equally important agents of implementation, and hence advocacy efforts should target these actors for harmonization of CRC within domestic systems. This is an excellent contribution to the scholarship on globalization and law, comparative jurisprudence, human rights, and international law, and will be extremely useful to both social scientists and legal practitioners alike.
REFERENCES:
Menski, Werner F. 2006. COMPARATIVE LAW IN A GLOBAL CONTEXT: THE LEGAL SYSTEMS OF ASIA AND AFRICA. Cambridge: Cambridge University Press.
Merry, Sally Engle. 2005. HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO LOCAL JUSTICE. Chicago: University of Chicago Press.
Renteln, Alison D. 1990. INTERNATIONAL HUMAN RIGHTS: UNIVERSALISM VERSUS RELATIVISM. London: Sage.
CASE REFERENCES:
WINSTON CAESAR v. REPUBLIC OF TRINIDAD AND TOBAGO. Inter-American Court of Human Rights. Case 12.147. Judgment of 11 March 2005, Series C. No. 123.
© Copyright 2008 by the author, Sanghamitra Padhy.
