The introduction sets out the scope and objectives of the study, locating it within the relevant literature and diplomatic context of State Party negotiations over parental child abduction.

Chapter 5 examines the traditional Islamic rules on jurisdiction. Modern rules on the jurisdiction of domestic courts exist in the context of the system of States, whereas the historic Islamic rules on jurisdiction and the assumptions upon which they were based relate to a system which was premised upon an imperial ideal that approached core concepts of modern Private International Law from different vantage points. The manner and extent to which pre-modern substantive rules, coupled with an imperial imagination, have permeated into the modern domestic law of Muslim Family Law States differs between such states, but nonetheless reveals a shared problem that we suggest animates the ongoing debates around the 1980 Hague Abduction Convention. Policies of ‘Islamisation’ pursued in certain Muslim Family Law States have at various times sought to reintroduce selected interpretations of Islam into the areas of domestic law pertinent to the study. Thus, the process is not necessarily a linear one over time where the historic rules have become marginalised, but rather one where there is an ebb and flow over time – the extent of which differs between Muslim Family Law States.

Chapter 4 examines the historic Islamic Law rules and assumptions which underpin issues relating to the custody of children. These historic rules have over time evolved into the modern Family Law of many, if not all, Muslim Family Law States on matters pertaining to child custody. The assumptions about, amongst others, what is in the ‘best interests’ of the child, the role of the mother and the obligations and duties of fathers are unpacked through a close reading and analysis of these rules, from both the pre-modern legal tradition and through two extended case studies (Qatar and Pakistan). Only once the assumptions underlying these rules on jurisdiction and custody, now adopted in Muslim Family Law States, are duly understood can we appreciate the obstacles that need to be tackled on parental child abduction matters. Examining how courts in Pakistan and Qatar approach the issue at hand, we identify how the historical rules have manifested themselves in practice in modern nation states.

Chapter 2 examines the background, history and assumptions which underlie the 1980 Hague Abduction Convention. The chapter considers what the Convention was intended to achieve, as well as its evolution in different jurisdictions. The relationship between the 1996 Hague Convention on Jurisdiction and Measures for the Protection of Children and the 1980 Hague Abduction Convention is also addressed as the two Conventions complement each other. Examining the two Conventions side by side illuminates how Morocco, a Muslim Family Law State, adapted its domestic laws to be more in accordance with the Convention when it comes to the interests of children. The chapter also examines fully the question of whether the 1980 Hague Abduction Convention is suited to being a universal instrument. Even if more Muslim Family Law States become party to the Convention, we show why this will not lead to the Convention functioning as envisaged between, on the one hand, Muslim Family Law States and, on the other hand, European, North American, and Australasian states.

Chapter 6 examines the Muslim Family Laws of the United Arab Emirates, Tunisia, and Malaysia in light of their jurisprudence on jurisdiction. The selection of these states represents a geographically, culturally, and legally diverse sample, across which Islamic Law remains legally relevant. The chapter examines how differing approaches to jurisdiction or child custody have been adopted and what the implications of these are or may be in the context of seeking to address international parental child abduction. The selected case studies highlight different approaches that lend themselves to finding solutions to addressing international parental child abductions. One matter that traverses all three case studies concerns the capacity of domestic judges, with subject matter jurisdiction on family law, to think jurisdictionally. As the case studies show, a key concern for policy-makers in Muslim Family Law States has been to consider a whole-of-law approach to jurisprudence. For others, the challenge lies in recognising the Muslim Family Law States as disaggregated institutionally, and to strategise approaches that are institution-specific.

An introduction to the history that made the book possible, the diplomatic context from which it arose, and the authors’ acknowledgements to those who have supported this study.

Chapter 3 examines which states are parties to the 1980 Hague Abduction Convention and why most Muslim Family Law States are not. Second, we use the law and practice of Muslim Family Law States with regard to reservations under human rights treaties to illustrate the dilemmas and issues they are dealing with in this area of law, but we also seek to better understand the policy and approach of these States. We further examine how certain States that are party to the 1980 Hague Abduction Convention deal with children abducted to or from those Muslim Family Law States that are not party to the Convention. Ad hoc methods such as bilateral memoranda of understanding, for example, have been adopted vis-�is certain States in an attempt to replicate in practice the assumptions of the 1980 Hague Abduction Convention without the Convention’s requisite institutional machinery incumbent on its parties. Through this analysis of both the Hague Conference conventions and human rights treaties, the chapter illustrates how both European and Islamic exceptionalisms operate in International Law and animate the international debate on how best to redress parental child abduction cases.

Chapter 7 lays out our conclusions and further sets out our proposals, which may allow more easily the return of abducted children. This relates not only to abductions between Muslim-majority States, on the one hand, and, on the other, Hague Conference States, but also those abductions between Muslim-majority States. Indeed, one matter which has not been alluded to anywhere – that we are aware of – is the fact that it is inconceivable that international parental child abduction is not endemic between Muslim Family Law States. Notwithstanding the absence of any reliable statistics, it cannot be the case otherwise. The analysis in the above chapters, read in conjunction with the country case studies selected, lends itself to not only allowing us to map a route forward with regard to the abductions of children between Muslim Family Law States, on the one hand, and, on the other, Hague Conference States, but also parental child abductions between Muslim Family Law States.

This chapter will introduce the basic, theoretical architecture of competing Islamic natural law theories from the pre-modern period (ninth to fourteenth centuries). Specifically, it will outline juristic debates in the usul al-fiqh genre on reason as a source of law, where revelation is silent. Thereafter it will reflect on a range of doctrinal debates in which many of those same pre-modern jurists came to a legal determination without reference to scriptural (or any other) texts. Drawing on a curious heuristic they labelled huquq Allah and huquq al-ʿibad (the claims of God and the claims of individuals), I will show that despite not invoking (expressly or otherwise) any natural law account of Islamic law, jurists nonetheless developed law based on a mode of rationality that could be called anything from ‘rational’ to ‘common-sense’ to ‘pragmatic’.