Law Times

Page 8 June 16, 2014 • Law Times www.lawtimesnews.com Hague convention on child abduction Malta process seeks to bring more countries on board By arsHy mann Law Times ince the signing of the Hague Convention on the Civil Aspects of International Child Abductions in 1980, one of the biggest challenges it has faced is bringing Muslim- majority countries on board. Of the approximately 50 countries that have Muslim ma- jorities, only eight have ratified the convention, including Mo- rocco and, most recently, Iraq. Several Muslim countries are participating in the so-called Malta process, an attempt to bring non-signatories into the treaty, in order to determine whether the Shariah legal tra- dition is compatible with the Hague convention. Whether or not Sharia law and the Hague convention are compatible was a question raised by the Senate standing committee on human rights during recent hearings. Anver Emon, a law professor at the University of Toronto and a scholar of Islamic law, testified before the committee on the sub- ject. He tells Law Times that while officials from Muslim-majority countries often use Shari- ah as an excuse as to why they don't join the Hague convention, he wonders whether other factors are at play. "I'm not entirely cer- tain that Shariah really is the issue here," he says. "For me, the ques- tion becomes: Is there also a kind of domestic politics that's given the regalia of Shariah when in fact what we're deal- ing with are certain pol- itics between the global north and the global south or the post-colo- nial world that are being played out on the bodies of children?" According to Emon, many people misunder- stand the purpose and function of Shariah. "Shariah historically was a tradition of law, ranging from rules of traditional purity to contract law to personal injury, taxation, and so on. It also in- cludes laws on marriage, di- vorce, and child custody." He notes there are many legal schools of thought within Sha- riah that have developed over time and from which modern Muslim-majority countries pick and choose. "Imagine all of the provin- cial courts of appeals coming to different conclusions about the same point of law and imagine no Supreme Court to resolve the conf lict," says Emon. "Each of them are authoritative, valid, legitimate rules even though they're different." During the Senate hearings, Ahmed Fekry Ibrahim, assis- tant professor at the Institute of Islamic Studies at McGill Uni- versity, pointed out that when it comes to custody laws, they can vary between the different schools of Shariah. "The custody laws in Egypt are such that the child is sup- posed to reside with its mother until the age of 15 and then cus- tody is transferred to the father," he told the committee. "Sometimes, actually, the child is asked whether or not he wants to stay with the mother or to go with the father." Ibrahim noted the approach stems from the Maliki school, while in Hanafi law, the mother has custody only until age seven. However, if the mother becomes incapacitated before that time, custody doesn't automatically go to the father but often goes to the maternal grandmother instead. Emon, whom the Depart- ment of Foreign Affairs, Trade, and Development asked to pre- pare a memorandum on Islamic principles for Canadian nego- tiators dealing with the Malta process, says it's important for people working on the Hague convention with Muslim coun- tries to know these sorts of dif- ferences and understand that Shariah is diverse and f lexible. "One has to think about ex- actly who are we negotiating with. If we're negotiating with diplomats who are invoking Shariah as an obstacle, well are they really the authorities of Shariah? Who actually gets to speak on behalf of Shariah? It might be the diplomats are par- roting a notion of Shariah that's been handed to them," he says. Instead Emon believes that if Western countries want to bring more Mus- lim-majority countries into the Hague conven- tion, putting diplomatic pressure on states won't be enough. "Is there an opportu- nity to get religious lead- ers, who are non-state actors, to get behind the Hague process, to collec- tively petition for it, and in doing so, create a dif- ferent version or a differ- ent story about Shariah?" Emon also thinks cor- porations can play an im- portant role. He points to recent changes to family law in Qatar in 2006. The country overhauled it's family law code, creating a new family court system outside of the courts of general jurisdiction and inserting a provision that says judges should rule on cases based on the best interests of the child, something Emon says is unusual for Muslim countries. Emon believes the huge amount of foreign investment and masses of workers pouring into Qatar over the past decade helped in the push for the changes. "If I were a transnational corpo- ration looking to do business in Qatar and I knew I was going to relocate a lot of people to that country, I'd want to know what kinds of legal infrastructure can help support family well-being," he says. "And if Qatar does not sign on to the Hague abduction con- vention and families are torn apart, it doesn't work well for those corporations." According to Emon, if West- ern countries want to bring more Muslim countries into the Hague convention, they need to bring other institutions and players into the process. "Whether or not Muslim countries will ratify will need to be a multipronged endeavour. It can't just be about governments negotiating this. It has to be var- ious stakeholders across differ- ent sectors participating in this process," says Emon. "It needs to be the academy; it needs to be big business; it needs to be major market players; it needs to be not just a women's or a children's issue. It needs to be an issue for everyone who sees children at the centre of a con- troversy that has implications for labour migration, capital transfers, and diplomatic en- gagement." LT Corporations have a role to play in bringing countries into the Hague convention, says Anver Emon. Focus on Family Law Girones_LT_June16_14.indd 1 14-06-06 10:53 AM S

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