Introduction

In November 2004, the former Directorate-General for Employment and Social Affairs became the Directorate-General for Employment, Social Affairs and Equal Opportunities. This change in nomenclature was accompanied by a refreshing of the Commission's Internet pages on anti-discrimination. In the transition to the new pages, the dedicated website on ‘anti-racism policy’ disappeared and was consigned to the archives section. This could be dismissed as a small matter of information presentation, but could it also be viewed as symptomatic of the current state of the Union's anti-racism policy?

The conventional view amongst many academic commentators is that race and ethnicity find themselves at the pinnacle of the so-called ‘hierarchy of equality’. The main reason for this perception is the relative strength of the Race Equality Directive when compared to other areas of EU anti-discrimination law. Notably, the prohibition of discrimination on grounds of racial or ethnic origin applies to a wider range of areas than equivalent legislation on discrimination on grounds of sex, religion or belief, disability, age and sexual orientation. Given such disparities within EU anti-discrimination legislation, there are good reasons to argue that a higher level of protection exists in respect of discrimination on grounds of racial or ethnic origin. Nevertheless, does this fully reflect the strength of the Union's commitment to combating racism? This chapter asks whether the picture painted by an exclusive focus on anti-discrimination legislation may be misleading.

History and context

The modern continent of Europe has been fashioned by religious conflict. The fifteenth to eighteenth centuries in Europe were characterised by wars of religion, primarily between Catholics and Protestants, although neither sect omitted to persecute the Jews, heretics within their own ranks and anyone else of a different persuasion. At the same time, Western Christendom engaged in an outward-facing war against the Islamic Ottoman Empire and some of what are seen as key moments in European history relate to this struggle. The re-conquest of Granada by the Spanish in 1492 ensured that the lands north of the Mediterranean remained part of the Holy Roman Empire, but in 1453 the Ottoman Turks conquered Constantinople and as late as 1653 they launched a massive operation to take Vienna, an attack ultimately repelled by the Habsburg army. Thus western Europe remained decisively Christian and mainly Roman Catholic. The Balkans remained a maelstrom in the nineteenth century and the collapse of Communism in Yugoslavia in the 1990s brought unspeakable atrocities committed by ethnic groups on each other, their ethnicity generally coextensive with their religious culture.

The European countries who drafted the European Convention on Human Rights and the smaller subset who formed the EEC in the 1950s had largely buried the differences between Catholics and Protestants and saw themselves as an essentially homogeneous community.

Despite the immense and historic gains since the Treaty of Amsterdam, European equality law has been beset by the rhetoric and reality of a hierarchy of protected grounds that predates the incorporation of Article 13 into the EC Treaty. The equality hierarchy has been reinforced by the three Directives adopted under Article 13 EC. However, the language of hierarchy conceals a number of underlying tensions. On the one hand there is the horizontal versus ground specific approach to non-discrimination and equality. On the other hand there is a combination of these two approaches, the idea that a common core of provisions should exist for all covered grounds with differentiation to adapt to the peculiarities of each ground. Another problem with the equality hierarchy is that it does not aid understanding of the differences between the grounds. This is so inter alia because no clear rationale has been given for the greater material and protective scope for sex and race. This volume has attempted to place the spotlight on the individual grounds against key contexts to see to what extent a greater understanding of the Article 13 Directives and their anti-discrimination grounds can be achieved. It has also attempted to move away from the equality hierarchy as the pre-eminent means of understanding the current state of equality law in the EU. Nonetheless some observations and conclusions on this paradigm are necessary to this process.

Introduction: dualism and monism

It is a customary practice to commence any discussion about the relationship between international and national law by reference to the theoretical debate known as the dualist-monist controversy. While there are a number of different aspects of both doctrines, they derive their appellations – dualism and monism – from their respective viewpoint on the question as to whether international law and national law belong to two separate legal orders or to the same legal order. Dualist doctrine points to differences between national and international law, such as: the subjects of the former are individuals while the subjects of the latter are states; or, while the source of the former is the will of a particular state, that of the latter is the common will of states; or, the fundamental principle that underpins the national system of law is that legislation is to be obeyed, while that of international law is the principle of pacta sunt servanda. For dualists these differences mean that international law and national law are two entirely distinct legal orders existing independently of one another.

By contrast, monist doctrine regards all law – national or international – as part of one single legal structure. This doctrine is put forward either on formalistic logical grounds or from an ethical perspective to assert the supremacy of international law as the best way to protect human rights. From the former perspective it is argued that the same definition of law – as norms that lay down patterns of behavior that ought to be followed – is applicable to both national and international law, and accordingly they cannot but be part of a unified legal structure.

Introduction

As already noted in Chapter 1, compared to many contemporary international treaties, the WTO agreements make it much more common for international and national legal norms to have endless points of contact between them. While the reasons for this have been discussed before, it is worth emphasizing that, because the WTO treaty is a standard-setting regime (i.e. it sets out standards of treatment for goods, services and intellectual property rights and thus delineates the scope of lawful national conduct), most of the WTO obligations have implications for domestic laws of Members. While many other branches of international law are predominantly concerned with particular acts or conduct of states or non-state entities, WTO law is concerned not only with specific acts or conduct, but also – and even more – with Member countries' legislative or regulatory conduct.

For purposes of discussing the implications of WTO obligations for national laws of Members, it may be useful to distinguish between substantive obligations and systemic obligations regarding national law. Substantive obligations are those that set out the standard of treatment to be accorded by one WTO Member to the goods, services or intellectual property rights originating in another WTO Member. Systemic obligations, by contrast, are those that perform a systemic function in respect of the relationship between WTO law and national law. As explained later, from the perspective of the relation between WTO law and national law, some of the obligations in both categories can also be seen as “constitutional” in character.

Few terms in law and philosophy have had as long a life and as important a role in modern history as the idea of equality (SA Lakoff, Harvard University Press, 1964). This is visible in the history of equality in the European Union, which has striven to keep up with the diversity of its peoples, despite a slow start. Since the founding Treaties were signed in the 1950s, European equality law has become far more complex. Theories, themes and definitions of equality and discrimination have developed over time and have been greatly influenced by cases brought by ordinary people. Equality and anti-discrimination are areas of European law that directly serve the individual. They are therefore of interest to us all. Combating discrimination and promoting and achieving equality have become prominent, important and challenging issues in European life.

European enlargement into a Union of twenty-five diverse Member States in 2004, was a historic turning point of political, legal and social significance and a ‘reunification’ of such magnitude that perhaps it cannot be appreciated fully, except in retrospect. It contrasts dramatically with the original European (Economic) Community of six geographically close Member States. This most ambitious enlargement, which incorporated new regions, new peoples, new languages, new opportunities and new fears within the Union, has also influenced the recent dynamism in European equality law and simultaneously presents a variety of challenges for the European equality matrix.

INTRODUCTION

The ratification of an international human rights treaty by a State is meant to confer rights on people within that State. It also creates an obligation on successive governments to realize those rights within the country, and at the national level. The UN Convention on the Rights of the Child (CRC), as one of the most recent international treaties, introduces a different dimension by adopting some new approaches to the content of rights, as well as obligations created under it. This has posed both challenges and opportunities in regard to using the legal system to implement the rights guaranteed under the Convention.

The CRC sometimes uses language that is familiar to many legal systems by imposing the obligation to realize rights on different agencies of the State. For instance,Article 3 refers to the obligation of public social welfare institutions, courts of law, administrative authorities or legislative bodies to make the best interests of the child a primary consideration in their actions concerning children. Similarly, Article 4 requires States parties to undertake “legislative administrative and other measures” for the implementation of the rights of the child. The emphasis on the State and its agencies as the key duty bearers, as well as the role of legislation in realizing rights, conforms to the traditional view that adopting a law or legal reform is an isolated act of the State.

INTRODUCTION

The Convention on the Rights of the Child (CRC) was adopted by the United Nations in 1989 and entered into force in 1990. The aim of this chapter is to assess the impact of this treaty on law review and reform in selected countries of the Commonwealth Caribbean that apply the common law tradition, to compare the progress achieved to date and to identify ways to further encourage its implementation. To understand the meaning and significance of the CRC under common law, which is the basis of the legal systems in numerous Commonwealth countries, it is useful to review how the common law developed originally, its main characteristics and its virtues. In those countries with a history as British territories or former colonies, such as the ones of the Caribbean region, the common law tradition still prevails. Many statutes continue to reflect English common law or were enacted with the intention of restating the common law through codification.

Some of the finest legal minds in England, such as Sir William Blackstone, have written extensively about the many virtues of the common law. The scope of this chapter is more limited because it focuses primarily on those specific characteristics that influence directly or indirectly the implementation of the CRC, one of the most widely ratified international human rights treaties.

INTRODUCTION

The main objective of this study is to provide all those involved in the promotion and defence of the rights of the child with arguments and instruments that will help them understand the value and importance of the processes aimed at bringing norms and policies at the national level into line with the spirit and terms of the United Nations Convention on the Rights of the Child (CRC). The approach adopted in this chapter is to synthesize specific examples, obtained through direct and indirect experience, coupled with the discussion and conceptual analysis of a number of key problems. This will help readers understand the different kinds of impediments and main obstacles that lie in the path of these reform processes. Particular effort is made to explain the strategic and inevitable characteristics required of legal reform processes in order to achieve extensive and sustainable development of social policies in favour of children. Avoiding the regulatory fallacy whereby legal reform is conceived as an end in itself, the aim of this chapter is to show the complex nature of such types of reform, as an essential condition yet one that is, at the same time, insufficient for the realization of children's rights because the latter goes beyond the horizon of programmes of limited scope and leads to the formulation of policies for all children.

INTRODUCTION

This chapter evaluates the impact of the United Nations Convention on Rights of the Child (CRC) in a selection of Muslim States parties. It will comment on legislative reform initiatives (in addition to existing legal frameworks, statutory provisions and institutional mechanisms) undertaken in Jordan, Mauritania and Morocco affecting child rights, highlighting compatibility or otherwise with substantive provisions of the CRC. Arguing from a socio-legal and law-in-context approach, the chapter will propose a framework for enhanced convergence of the Islamic legal tradition and the CRC to create an enabling environment for child rights in these jurisdictions.

THE CONTEXT FOR LEGAL REFORM ON CHILD RIGHTS IN MUSLIM JURISDICTIONS: PAST AND PRESENT

An overview of the status of human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the CRC, presents an interesting pattern of ratification and reservations. Although many countries have ratified with reservations, Muslim countries are unique in the fact that they have specifically identified the Islamic religion and Islamic law as justification for many of these reservations. It is therefore pertinent to initiate the discussion of implementation of the CRC in Muslim jurisdictions by presenting an overview of the conceptual foundations of human rights and child rights in Islam, which to a large extent informs the legal system in Muslim countries.

In 2000, with the adoption of the Millennium Declaration, nearly 200 nations pledged to promote respect for human rights and to endeavour to protect and promote the full spectrum of rights in their territories.

As then Secretary-General Kofi Annan notes in a foreword to UNICEF's State of the World's Children Report 2005, “Only as we move closer to realizing the rights of all children will countries move closer to their goals of development and peace.”

The Millennium Development Goals (MDGs) – which include eradicating extreme poverty and hunger, achieving universal primary education, promoting gender equality and reducing child mortality – provide a solid foundation upon which countries can build an environment that stimulates social justice, equity, liberty, development and good governance. Among those committed to advancing the best interests of children in the context of the MDGs, legislative reforms have been of particular interest.

Legislative reform not only advances progress toward the MDGs, but it is also needed to support their achievement. Both the adoption and the effective implementation of laws and policies to protect children; promote their survival, education and development; eliminate inequalities and promote gender equality and the empowerment of women are critical to help meet the MDGs.

Indeed, there are clear signs in many parts of the world that governments are paying serious attention to the structural and legal barriers that threaten children's well-being. Laws and regulations are being reviewed and amended; constitutions are being changed.

The Convention on the Rights of the Child (CRC) was adopted by the United Nations in 1989. It was the only international human rights Convention that came into force (on 2 September 1990) just one year after adoption. It is also the only Convention whose entry into force was accompanied by a major world conference that focused on implementation of the rights guaranteed by the treaty. A World Summit for Children of Heads of State gathered in New York at the end of September 1990, and adopted a Summit Declaration with specific goals and targets on implementation. Children, up to then the most invisible segment of society in the area of international human rights law, now had a Convention that was actually combined with a ‘World Plan of Action’, with goals and targets on implementation to be achieved within the next decade. One commitment in the Summit Declaration was universal ratification of the Convention by the beginning of a new millennium in 2000.

The United Nations Children's Fund (UNICEF) played a major role in the Summit meeting, and initiated a process that helped to ensure that the CRC was ratified by all countries, except Somalia and the United States of America, by 2000. Both Somalia and the United States have signed the treaty and thus indicated their intention to ratify. However, to date Somalia does not have an established government, and the United States has, up to now, failed to ratify the Convention.