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Many
pro-abortion and pro-gay/lesbian activists participated in the
World Family Summit, on the heels of Doha.
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On
November 30, 2004, the International Conference for the Family in
Doha, Qatar issued a declaration which has been considered by many
family protagonists to be a milestone in the evolution of important
international legal texts on the subject. It was the finale of a
number of international events and meetings that were organized
during 2004 to celebrate the decade of the Year of the Family
initially held in 19941
The more important of these
international conferences were held in Mexico City, Benin, Geneva,
and Kuala Lumpur.2
Some smaller meetings were also held
throughout the world, including in many cities of the United States
and in Stockholm, Sweden.
But
Doha must be seen in the light of the World Family Summit held in
Sanya, China, just one week later.
Doha
Declaration
The
Doha
Declaration
in its preamble asserts correctly that the Universal
Declaration of Human Rights,
Article 16, had included the family as worthy of protection by the
state and society and then goes on to acknowledge that the
celebration of the Year of the Family in 2004 had four main
objectives, namely, to
(a)
strengthen the capacity of national institutions to formulate,
implement and monitor policies in respect of the family; (b)
stimulate efforts to respond to problems affecting, and affected
by, the situation of the family; (c) undertake analytical reviews
at all levels and assessments of the situation and needs of the
family; (d) strengthen the effectiveness of efforts at all levels
to execute specific programs concerning the family; and (e)
improve collaboration among national and international
nongovernmental organizations in support of the family;
Liberal
and pro-gay/lesbian organizations and the “rights” of
children espoused in the Convention on the Rights of the Child
challenge the traditional man-woman marriage. |
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In
order to evaluate the extent to which the Doha Declaration has
positively affected the subsequent legal regime of international
awareness and recognition towards the family, the other major
operative parts of this instrument need to be noticed as well as
subsequent legal developments. The declaration contains a section
entitled “Reaffirmation of Commitments to the Family”
focusing on five issues. The two most important being that the clear
acceptance that marriage of the traditional family is between a man
and a woman and that the children have the opportunity of being
brought up within a family, which has an inherent and a natural
right to oversee their development and nourishing.
It
is easy to see that these two issues are crucial to the current
debate in this controversy on the concept of a family, as they are
challenged by those who have different perspectives on these topics.
The challenge to the traditional man-woman partnership in a marriage
has come from liberal and pro–gay/lesbian organizations and that
of the “rights” of the children themselves from certain
provisions of the Convention
on the Rights of the Child
(CRC).
In
its operative section entitled “Call for Action,” the Doha
Declaration has 18 paragraphs which are then sub-divided as follows:
1.
Cultural, Religious and Social Values, 3 paragraphs
2.
Human Dignity, 2 paragraphs
3.
Family, 6 paragraphs
4.
Marriage, 3 paragraphs
5.
Parents and Children, 4 paragraphs
Finally
through this text the signatories requested
the
host country of the Conference, the State of Qatar, to inform the
United Nations General Assembly of the proceedings of the
Conference, including the Doha Declaration, in particular during
the celebration of the 10th Anniversary of the International Year
of the Family to be held on 6 December 2004.
Pro-family
activists, however, can be satisfied to see that it is equally
important what is not in this GA resolution. |
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This
was done on December 6 when the General Assembly (GA) met in New
York to celebrate the end of the Year of the Family. In this crucial
meeting a resolution was eventually passed by consensus but with
significant adversary speeches coming from several key important and
leading industrialized states. Nevertheless it is on record that
well over a hundred nations wished to support the traditional family
as forcefully articulated in the Doha and the earlier Kuala Lumpur
and Mexico Declarations.
Pro-family
activists, however, can be satisfied to see that it is equally
important what is not in this declaration resolution rather
what is in it; namely there is no reference to “different forms of
family,” a key objective of the anti-family platform that
anti-traditional-family advocates wanted to retain or project in any
formal instrument emanating from the UNGA.3
What
the GA Resolution Lacks
However,
let us now objectively yet briefly analyze the GA Resolution. First
of all, the GA text does not refer to the Doha Declaration at
all but merely to the outcome of the Benin and Doha conferences.
Secondly, it does not endorse it as such but simply “notes” it.4
Lastly, the GA debate itself was not
on the Doha Conference but on the celebration of the anniversary of
the Year of the Family. As such, I find it very uncomfortable, being
myself of the school of adherents of the traditional family, to
agree unreservedly that through this GA Resolution, somehow the Doha
instrument has heightened the status of the family as it existed
prior to this conference.
I
do not think it is necessary to lay such an enormous emphasis on the
Doha Declaration by relying on weak or controversial legal
foundations. The legal international magna carta of family already
exists in the UDHR of 1948 in Article 16 (3). I think the Doha
document is a powerful echo of a large section of the world’s
community’s conscience and is of significance by itself, but its
legal advancement on the quality of the lex lata on the family is
insignificant, as will become clear hereinafter.
Nothing
is gained, in my view, by an exaggerated and belabored construction
of its place now as a UN document or not. Such an effort may be
counter-productive by persuading the anti-family platform for a
renewed effort to hit the family on what I think would be a soft
target. “Noting,” like other similar terms as “recalling,”
is often used in the preambular paragraphs of UN and international
texts to signify the existence of diverse facts referred thereto.
They do not in and of themselves denote anything by way of taking on
of “obligations” or to demarcate a set of qualitative juridical
regime.
Over
the years the UN has shown disapproval of traditional respect
for motherhood and parental rights, and has generally accepted
the pro-gay-rights’ agenda. |
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To
achieve that legal status it is necessary to show formal
“approval” of the relevant states. By British state practice of
transnational transactions, it is nothing more than a memorandum of
some factual occurrence or event. Some well-wishers of the family
would like the GA Resolution of December 6, 2004, to be classified
as a UN document, further contending that it consequently achieved a
binding effect to what has been “noted” as such. I am afraid as
a lawyer I cannot say so. Many words or phrases or terms of art
appear in UN papers, howsoever labeled. To be technically binding on
sovereign member countries, such binding effect is only applicable
to obligations expressly assumed by formal acts of the countries.
This is clearly laid down in the Restatement of Law of the American
Law Institute, by the Vienna
Convention on the Law of Treaties, 1969
and by Second Restatement of the
Foreign Relations Law of the United States, 1965.
The
United Nations has over the years clearly followed in its worldwide
activities policies which appear to be, in part at least,
anti-family in some important respects. This is evidenced by its
disapproval of the traditional modalities of respecting motherhood
and parental rights, and by its generally accepting the
pro-gay-rights’ international agenda that is the antithesis of the
cultural and ethical values of most of the world’s religious
heritage. As such, it would be foolhardy in my respectful submission
to read those nuances or assertions in the UNGA text on the Doha
instrument which are not warranted by any reasonable legal modality
of perspectives or juridical interpretation.
The
Sanya Declaration
In
this context another matter of tremendous international significance
needs our close notice. This is important since this point is not
noticed at all by the activists of traditional family in the
literature thus far in relevant publications. It is the passing of a
leading international text on the family, known as the Sanya
Declaration,
approved on December 8 in the World
Family Summit in
China, two days after the UNGA met and immediately following the
Doha Conference. I was present at the Doha Conference and did not
hear a word from any speaker about the almost simultaneous holding
of a very large international conference on family hosted by the
government of China. This is most surprising since the ostensible
theme and purpose of both the conferences was the same, namely to
celebrate the 10th Anniversary of the Year of the Family.
In
the contemporary Western world there is a visible tendency to
have the rights of the family give up some of their historical
and inherent hierarchal position to newly developed
“rules.” |
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Since
this event is barely weeks old at this writing, it may be useful to
recall some basic facts about this matter. The Sanya Declaration
emanated from the World Family Summit organized and sponsored by the
Government of China, the UN through UNDESA (Department of Economic
and Social Affairs) and UNFPA (Population Fund), and the official
civic institutions of Brazil headed by the wife of a municipal
governor and an NGO, the World Family Organization. Besides that,
there was the official presence of government or semi-governmental
institutions from many countries. Prominent among those present in
this category were Austria, Mauritius, Pakistan, Saudi Arabia,
Jordan, Tanzania, Mali, Belgium, India, Uganda, United States,
Maldives, United Arab Emirates, Portugal, Guatemala, Nicaragua, and
Canada. Among the leading international institutions was UNESCO.5
In addition, the United Nations was directly represented by the
senior International Advisor of the Secretary General’s Office,
who personally, manifestly, publicly participated in the writing of
the final draft of the Sanya Declaration.6
The
expressed declared objective of this conference was to:
1.
Observe the 10th Anniversary of the Year of the Family
2.
Review and evaluate the achievements of this subject since 1994
3.
Exchange experiences in implementing the ICPD
Program of Action,
the Platform
of Action of the Fourth World Conference on Women
(Beijing) and the UN
Millennium Development Goals
(MDGs)
4.
Discuss the common challenges and the concrete issues facing the
family
5.
Accelerate efforts in realizing the MDGs by mobilizing families on a
worldwide basis
Among
the two points of concern to the adherents of the traditional
family, as formidably presented in the Doha document, is the
acceptance of the concept of the “different forms of family” and
the “rights of the children” vis-à-vis the family itself.
However, broadly the Sanya Declaration has the positive aspects of
acknowledging among other objectives the basic recognition of the
family as the fundamental unit of society. The large presence of the
pro-gay/lesbian groups in this conference, however, is indicative
that what in reality occurred at Sanya was against the Doha process.
To
conclude, it is clear to me that the Doha Declaration, while
evincing large moral support for the family (which fortunately
already exists), has failed to generate a legal process which would
indicate that we are now on a higher regimen of juridical normative
acceptance of the fabric of our inherited legacy of what constitutes
conceptually a genuine family. It was not formally endorsed at the
United Nations nor even mentioned in the Sanya Declaration, which
was adopted a week later. In a schematic examination of the salient
issues that needed evaluation, it did not substantively achieve
much. This is for the simple reason that the topics and addresses of
various speakers largely were essentially rhetorical in nature. I
cannot say whether the selection of topics and speakers was
intentionally or by some oversight such that it missed totally to
focus on a number of contentious issues that direly needed the
intellectual participation of so many learned people in Qatar for
the Doha Conference. The real debate and tussles that lie ahead are
in the legal and international juridical fora. Nothing much was said
about these matters or issues, thus losing a great opportunity to be
of long-lasting service to the cause of the family.7
(See Limitations
of the Doha Conference)
It
is ironic that even the Islamic contribution to the cause of the
family was not considered a worthwhile subject to be debated,
despite the fact that the conference was in an Islamic milieu and
that without the international support of Muslim nations, the norms
fundamental to the integrity of the family would have been whittled
down at the international level. (See Islam’s
Contributions in Support of the Family.)8
Related
Links:
(All
external links last accessed January 22, 2005.)
*
DPhil.; BA Juris, MA MLitt, (Oxon), DCL
(Columbia), DIA (Harvard), Of Lincoln’s Inn, Barrister at Law,
UK; Attorney at Law, US; Senior Advocate Supreme Court (QC) of
Pakistan; Special UN Ambassador for Family for the World Family
Alliance; Advisor to four prime ministers of Pakistan on Law &
Foreign Affairs; Delegate to the UN, NY, & to the Human Rights
Commission on Human Rights & to the Sub-Commission on Human
Rights, Geneva; Leader of Pakistan’s Delegation to the
International Criminal Court Prep Coms., NY & Delegate to UN
GA Sessions. Also, inter alia, on the Faculties of Foreign Affairs
& Law, Harvard University; the Secretary General, American
Asian Institute of Strategic Studies, Boston; international legal
counsel before transnational tribunals & US Congress; David M.
Kennedy Scholar of International Studies, Kennedy Center, BYU
2003-4; President, Pakistan Family Forum; member International
Advisory Board, United Families International.
You
may write to Dr. Hassan in care of family_under_attack@islam-online.net
1-
Noting that 2004 marks the 10th Anniversary of the United Nations
1994 International Year of the Family and that the Doha
International Conference for the Family was welcomed by UN General
Assembly Resolution A/RES/58/15 (December 15, 2003).
2-
Three of these meetings, in Mexico City, Geneva, and Kuala Lumpur,
were organized with high level local government and NGO assistance
under the guidance and main sponsorship of World Family Policy
Center, Utah, under the leadership of Professor Richard Wilkins.
3-
Two other important matters of significance for pro-family partisans
in this GA Resolution was that it was by “consensus” rather than
a “vote” and no reference to earlier treaties or texts is found
in it, which might have opened up numerous channels of controversy
and debate.
4-
The operative paragraph in the GA Resolution “takes notes of”
the outcome of the two important conferences held in 2004. It says
“4. Welcomes the hosting of the Regional Conference on the Family
in Africa from 27 to 28 July 2004 by the Government of Benin and
also welcomes the hosting of the Doha International Conference for
the Family from 29 to 30 November 2004 by the State of Qatar and
takes note of their outcomes” [emphasis added]. This wording
cannot be pressed into service for the purpose of giving the Doha Declaration
any international legal status beyond arguably that of “soft
law.”
5-
Comparatively speaking this list is much wider and apparently of
“heavier quality” than the one assembled at Doha.
6-
This is again a point of legal significance when compared to the
drafting procedure of the Doha Declaration. The Committee drafting
Doha document was manifestly lacking in transparency and apparently
set up without any formal approval of the House at any initial
stage; only a manifestly prepared draft was presented at 1 p.m. on
November 30 for public participation which was to terminate at 3
p.m.—hardly a meaningful process for such a historic milestone!
Many activists, such as this author, were thus prevented from giving
their considered input in this vital process. In other words, it was
simply a bureaucratic product of the organizers of the conference in
its manufacturing modalities.
7-
For this author’s view on this topic see my various writings
contemporaneously produced on the Internet, particularly by
IslamOnline.net.
8-
For this author’s views on this topic see my script presented to
Doha conference “Islam’s
Contributions in Support of the Family.” This paper
was not read in the conference on the ground of “shortage of
time” by the Secretariat of the conference. I did nevertheless
raise many of these points in my opening public intervention in the
initial Plenary Session (as advised by the Secretary General of the
conference). The Chairman of this session, Dr. Mohatir Mohammad,
though not an expert of this field, seemed to endorse my views that
the real international legal issues were not really before the
conference. The script of my article is, however, available on the
net.
