The Universal Declaration of Human Rights and the Challenge of Religion by Johannes Morsink

Author:Johannes Morsink [Morsink, Johannes]
Language: eng
Format: epub
Tags: Political Science, General, Human Rights, Religion, Religion; Politics & State
ISBN: 9780826273611
Google: nwMxDwAAQBAJ
Publisher: University of Missouri Press
Published: 2017-08-03T05:08:51+00:00

UDHR Articles 16 and 25: Protection of the Family, Motherhood, and Childhood

There are two strands to the adoption history of UDHR Article 16. One, together with Article 25, concerns the state’s interest in the protection of the family and of children, no matter how the family is constituted or defined. The other concerns matters of divorce and equal spousal marriage rights.

The first concern is stated in Article 16(3): “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” This phraseology originated with the Lebanese delegation, which engaged in an aggressive campaign to retain this language against attempts by Egypt and Uruguay to have the term “natural” deleted. The intent of the Lebanese delegation is clear from the phrases I emphasize here in its submission to the Second Session: “The family deriving from marriage is the natural and fundamental group unit of society. It is endowed by the Creator with inalienable rights antecedent to all positive law and as such shall be protected by the state and society.”99 In the Third Session, Uruguay’s representative Roberto Fontaina noted that he “agreed with the Egyptian representative” and “also proposed the deletion of the word ‘natural’ since the essential point was to state that the family was the fundamental group unit of society and that it was the cell around which the state was formed; the way in which the family was constituted was of secondary importance.”100

Critics of this Lebanese proposal saw it as an attempt to let a religious tradition determine how a state defines what constitutes a family, whether it requires a man and a women, whether the spouses have equal rights as to marriage, and why protection is called for. Some Muslim-majority states today still have constitutions that echo this Lebanese proposal to link the concept of the family to a nation’s religious commitment. Article 5 of the Constitution of Bahrain states that “the family derives its strength from religion”; Article 9 of the Kuwait Constitution that the family “is founded on religion, morality and patriotism”; Qatar’s Article 21 that “religion is a pillar of the family”; Libya’s Article 3 that “the family, based on religion, morality and patriotism, is the foundation of society”; and Egypt’s Article 9 that “the family is the basis of society founded on religion, morality and patriotism.”101 The family law systems of Muslim countries that I am questioning in this section reveal this kind of religious conception of the family. Just as institutional religion sees the early teenage years as the period in which to teach its young people the doctrines and lifestyles of the faith, so many Muslim-majority states think that if they are to be serious about having a nationally proclaimed religion, the place to start is with the family. It is therefore significant that the drafters of the Declaration rejected this kind of approach to what a family is or should be.

Alexandre Bogomolov, the representative of the USSR, said he opposed the

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