THE CHILD AND MULTICULTURALISM
A Change in the International Point of View Operated from Childhood
When a child is unprotected within the jurisdiction of the State, isn’t that affectation of the public order? For example, if the passage of life of a child, from one country to another, does not find, due to absence or due to spatial conflict of laws, the due legal protection to his/her rights, is this a diagram of Conflict of Laws that has no solution? Alternatively, is it a problem of relational responsibility between States within the scope of International Public Law? If a State is a party in the Convention of the Child’s Rights and then does not notarise or executes anything related to it, that child’s problem is it unsolvable or, in short, relational work and responsibility of the States? It is a relational responsibility of the States, of the one that fails to fulfil and of those States which, being within the system of this Convention, do not require the small print in order to demand fulfilment. In addition, I say, what is owed to the person in the domestic public order, and owed in the international public order, and impracticable by absence or spatial conflict of laws, is of International Public and corresponds with the States’ responsibility to do so, without limiting to the reduced capacity of the individuals’ leading role. For example, International Case Law accepts that treaties produce rights and obligations for individuals if that was the purpose of the States-party (CPJI, Series B, No 15, Pages 17-18). This is the reason why what is suitable is to give priority and to execute what has been stated. All these circumstances seem to complicate the States in new relationships; nevertheless, they join and speed them up if they converge at the idea – which I have considered in a previous work – and which central thought is: from the development of a determined domestic policy, I believe, we can create a Secretariat of Childhood in the scope of the Ministry of Foreign Affairs, starting activities and plans by mutual agreement among the Nations.
Judge Carlos Antonio Romano
SHABAN – ARIAS URIBURU CASE
Gabriela Arias Uriburu, Argentine citizen, marries in Central America to Imad Shaban, from Jordan origin and Guatemalan citizen. Due to the parental abduction carried out by the father on 12/10/1997, there were many legal actions taken regarding Karim, Zahira and Sharif – born in Guatemala and unlawfully taken to Jordan – not only in the judicial field, but also in the field of international policy; nevertheless, the issue is unsolved.
The couple married under civil law in Guatemala, in 1991 and, in September of that same year, in Jordan, pursuant to the Islamic faith.
The first rifts of the couple commenced seven years later and separation proceedings were started.
In March 1998, the Guatemalan Justice grants custody to the mother and demands Jordan the immediate restitution of the kids but, due to the lack of legal cooperation spaces, Guatemala cannot demand fulfilment of said order.
In May 1998, due to a proceeding filed by the father in his home country, the Koranic courts – even in a determination out of jurisdictional guidelines – granted custody to the mother and condemned the father’s actions.
On 24 July, the Appellate Court of the Share’yah confirms the decision taken by the judge of First Instance and rejects the appellate reasons filed by Shaban. The Court acknowledges the mother’s rights as the true and legitimate depositary of the custody but it does not allow the children to leave Amman city. Said Court considers the children as Jordan as the father is Jordan and they are subject to his prerogative under the law.
Here, the East and the West show their differences in the field of Law and their inability to achieve a harmonious agreement, where childhood and family can benefit from, both so precious for the tradition of both cultures.
Once Gabriela returns to her home country, the issue is raised as a State issue. Four sporadic encounters were achieved between the children and their mother, but her children never left Jordan. She visited them fulfilling the father’s conditions, with very little time, in a restricted, controlled and almost like a prison scenario, with no intimacy or possibility of being spontaneous. The children faced their mother’s visit as if there was any kind of danger: just as in a controlled system of visitation rights, only recommended for beater parents or those under suspicion of abuse, and almost as a tacit acceptance of the abduction situation.
During the first five years, Gabriela Arias Uriburu, without being able to achieve the children’s return, could visit her children only four times. She did not know where they lived or had any news from them until she had the results of the strategy recommended for similar cases, looking forward to bilateral agreements between nations, by Family Judge Dr. Carlos Antonio Romano.
While focus was put on the particularities that Guatemala and Jordan had to face, we insist, in Argentina the situation fermented as a “State Issue” hand in hand with the different Presidents that presided over government.
The highest achievement by this jurist – appointed ad honorem ambassador for State issues regarding childhood – was, in a conference call with the King of Jordan, which His Majesty committed to send Karim, Zahira and Sharif for two weeks to their mother’s lap. Dr. Romano wrote a legal thesis that was internationally recognized, and which development could show before The Hague in the year 2002 as result of the strategy and ubiquity for the case.
Duhalde, Argentine President at that moment, sent a letter to King Abdulah II with projects created by this legal expert and, at the same time, invites Karim, Zahira and Sharif to visit their mother and their family in Argentina. This invitation was fostered by the King and, once more, frustrated by Shaban’s opposition for the children to leave Jordan.
The Argentine State, according to the essential interpretation of the Convention on the Rights of the Child, sustained the same argument appointing President Duhalde and then, ratified by President Kirchner, takes advantage of Romano’s research who after a visit to the Middle East, reaches to an unusual and promising exchange of opinions regarding minors with Muslim experts.
The Presidential Emissary and ad honorem Ambassador for State issues regarding childhood – protocol appointment made for the first time in the world – started traveling to Jordan and held different meetings with political and religious authorities as well those from the field of Law trying to reach to a convention between states. While he carried on negotiations specifically destined to his own project of an international agreement, and as consequence of his presence in Jordan, was able to know where the children were and how they were; and their mother could visit them in a more open framework and with greater intimacy. Thanks to his mediation, not only the first guidelines for a first bilateral agreement but also the children’s father gave them permission to speak on the phone with their mother after two years.
The Presidential Emissary in his trip assures not only the claim and placed the sufficient pressure so as to put the Jordan authorities in motion, but also reaching to the Sharia’s own heart – so sought by him – who is the responsible for taking care and implementing Muhammad’s law. Izzedin Al- Khatib Al- Tamimi, Chief Justice and the King’s Spiritual Counsellor in whom the highest legal and religious position converge receive Romano.
Due to the debate regarding childhood, a great empathy starts. Romano surprises him for the cultural and religious knowledge he has and he tells so to Dr. Romano. They meet almost periodically and they become friends to such an extent that Tamimi starts regarding him as a “member of his own family” and, every official negotiation moves around this relationship. Finally, Jordan appoints a special commission to study the notes offered by the Argentine expert as to bilateral conventions regarding childhood.
Until then, there was no understanding between these two nations. Romano’s first strategy, when he returned, was to consider the possibility of observing that State before the Committee of the Convention on the Rights of the Child, trying to call their attention. Once he did it, he wanted to dive in the Islamic law. He arrived to the Middle East with his Bible in his luggage but he knew the Koran and he knew that, as the Torah and others, they are love religions beyond what any minority wants to impose, beyond the Western look around the religion with more adepts.
In a new alternative, because of the constant dialogue between the governments and the friendship between Tamimi and the Emissary, Gabriela travels to Jordan in February and September 2004 visiting and hugging her children from her heart. The contact among them are daily and more liberating, even though with the father’s presence. The bond is joyful and mature already and there is always a return and the waiting.
Judge Romano is no longer authorized to travel to procure the last details as to speed up the terms and conditions of the convention that the States would subscribe. Even though the issue was not a private one but a State issue; even though when the convention was encouraged to legislate as to afterwards foster the solution of those cases that are not legislated and are taken to Courts; and, even though when Judge Romano had made only three trips for a few days that kept him from his Court, some Ministers of the Supreme Court interpreted that this task was not compatible with his judge’s work.
The Presidential Emissary and ad honorem Ambassador, who had been requested in due time by the Guatemalan Republic as “children’s rights expert” by Governmental Agreement signed on September 18 2003. Pursuant to Resolution 244 of the Ministry of Justice, Security and Human Rights of Argentina, the issue regarding childhood had been considered of ministerial interest. His mission in the Middle East had been supported by a Declaration of the Rights and Guarantees Committee of the Nation’s Honorable Senate (01/20/04); but, on the brink of starting a new mission in terms of the bilateral agreement, the Supreme Court of Justice of the Province of Buenos Aires expresses that such mission is not compatible with his Judge’s work due to the reiteration and progression of his negotiations as well as an active participation in the search of a solution of a “particular case.” Therefore, with the majority of votes, on July 7, 2004 decides not to give him permission to travel abroad for this mission and started a judicial in-court summary investigation. Therefore, as to avoid a possible conflict, Dr. Carlos Antonio Romano submits his resignation to the President of the Nation and, until it was accepted, the agreement project between Jordan and Argentina remains officially inoperative from the protocol point of view.
The wording of the bilateral agreement, the negotiating ability and legal creativity of this incidental diplomat was not fully acknowledged; thus, after a long time internal debate, questionings, bureaucratic obstructions, and coming and goings in the Ministry of Foreign Affairs, Romano’s intellectual work consolidates in a Memorandum of Understanding formalized by Argentina and sent to Jordan in December 2004.
As the saying goes “if Mohammed does not go to the mountain…” Tamimi – Seventy-eight years old, son of a Palestinian Sheikh, a great broadcaster of the Islam, peace lover and of the multicultural encounter – knowing the situation ensures his friend that the dialogue will continue –, which in fact flows as the wind in several telephone conversations, they hold and which maintained the work already made in force. Thus, after having been invited to visit the country, he surprisingly accepts. On April 15 2005, Tamimi and his collaborators arrive to Argentina. He visits Romano at his home and emphasizes the idea that reaching to an agreement will be very positive for the Islamic culture.
During his stay, he tells Romano that if some delays regarding the Bilateral Convention exist, such are because of the will of some more nations to subscribe to said convention. These nations are USA, France, Germany and Ukraine. Jordan wants to reach an agreement with all of them and then invite their sister countries of the region to sign as well. However, he is also worried for the Western point of view of Islam and he asks: “If you were a Sharia Court Judge, how would you solve the Arias Uriburu-Shaban case?” “Obviously, being a Judge in the Middle East, I would fully fulfill Mohammed law, Sheikh” was Romano’s answer, but he continued: “Although I would accept jurisdiction over the children, who are Jordan for being children of a Jordan citizen married under the Muslim religion, in Jordan territory and pursuant to the Sharia law – which is above the Constitution and any international treaty, to which the father is subject to and cannot leave the country, would be more important. The Prophet said that it is not good to take away the children from their mother, and even about their custody, the maternal family is preferred. Therefore, even fulfilling what the Sharia provides, we are far from the law. In this case, the father should be obligated to take the children to visit her and her family in her home country; I would ensure that it constitutes a diplomatic visit and would force the states to subscribe an agreement as the one we mentioned hereinabove. I would obligate the father to pay the mother’s trip expenses to Jordan as many times as necessary. This Western mother did not choose nor made a promise that she was going to live in Jordan, nor she assumed to depend from or being subject to the husband who abducted her children. This mother should receive kindness from the bond and Mohammed mentioned it saying that it does not matter the circumstance, which the history, frontiers and legal gaps brought between nations. Dear friend, Mercy belongs to any mother, no matter her culture. I would order that the Sharia be fulfilled, completely! On the contrary, with the partial implementation of it, there exists a possibility that the crime is covered under its shade. I would add the Sharia Law, totally. Allah is Merciful and Compassionate and loves children. These children of Shaban, have the right to have their mother. The Sheikh kept a profound silence before telling his collaborators “Romano could be a great Jordan Judge” and he returned to his homeland with the brightest smile, the land of the Prophets.”
The governments of Argentina have carried out the correct proceedings keeping the Arias Uriburu case as a State issue before the Jordan and Guatemalan governments, trying to reach to an understanding searching for the best solution for the children.
The quest lies in the respect of their freedom and the family integrity beyond any critical issue between people.
This Presidential Special Emissary – a knowledgeable Emissary of the culture and the Sharia Law – debates with the highest hierarchy of the Islamic Courts and is able to convince them and to find commonalities. While he asks about the particular case, origin and case law of the conventions, he spreads the rights of the children which Magna Carta both countries have subscribed. He does not mention the Arias Uriburu-Shaban case; on the contrary, he refers to childhood opening the necessary channel for a bilateral convention. This is feasible no matter diversity as regards Law and, for sure, it would prevent and solve similar cases of those numerous children that are abducted, Gabriela’s children, and the world’s children.
Tamimi and Romano transcend the legal plane, deepen the religious plane and in the expectation of a convention. As the Islamic interlocutor asks, they speak about the particular case – as destiny awakes in an origin – and the solution of it through a convention, a cultural bridge.
Gabriela Arias Uriburu – considered by the Sheikh as “a spiritual daughter waiting for a final conclusion of the work carried out by the experts – assumes her children’s situation as a “leading case” imposing perseverance and universality to her request. They represent a problem of multicultural childhood abducted in history in the whole world and with no solution by men, hoping to be the end of a story that will remain in history.
In June 2005, Romano spoke on the telephone with his friend and mentioned the need to speed up the agreement between Jordan and Argentina, recommending that, after said countries subscribe it, other countries subscribe it as well. Tamimi promises Romano to study the recommendation and tells him that he called Shaban to urge him to pay and materialize a new trip of Gabriela to visit her children.
We will – with everything explained above –, arrive to a successful and rapprochement end, where there are no antecedents, a new road with no counter-abductions or parental losses.
When the Law or the judicialization structures are not enough due to cultural divergences and according to non-related sovereignties, it arises from sections nine, eleven and thirty five of the Convention of the Rights of the Child, an imperative in the States governments that subscribe said Convention to solve the abduction situations respecting the superior interest of minors, who are now seen as rights holders. This is the reason why, what it could be a family issue between individuals in an environment protected by the law, is, nevertheless, a state issue when the law has no answer. The lack of spaces for legal cooperation on human rights that the States would have had as purpose, when subscribing, obligates them to be responsible in the negotiation. Thus, the strategy is to consider the child as a person within the family and not confining ourselves to the mere definition. When the Law is not enough, the obligation of the States is born. It is necessary to generate – as “rests in a musical pentagram” – asepsis places for childhood in neutral land and a legislated Law in a world that is turning more and more dangerous for their psychophysical and spiritual integrity. Perhaps, in the ending of the Arias Uriburu’s case behind this memorandum, the beginning of a new story starts, a story of hope for childhood and that is that children relate themselves with individuals through the obligations that said individuals assume and with the States as they are the right holders that said States declare and shall fulfil.
Attorney Carlos Antonio Romano.
A CHANGE IN THE INTERNATIONAL POINT OF VIEW OPERATED FROM CHILDHOOD
In Human Rights matters, man’s definition needed to diversify in relation to status, role or condition. Hence, announced from a different point of view, we have “worker man”, “astronaut man”, “child man”, “official man”, “man in family”: these are all titles to ensure protection plans, even though when it would had been enough to say and apply: “the human person’s dignity is to Justice just as its very reason.” Therefore, from the concern for man’s rights, we also speak of woman’s rights as another title to those rights. In addition, necessarily, with the spirit of upgrading them, we speak of the child’s rights, too; which could be a synonym that struggles mainly compromise with the right that is affected individually, i.e., something that hurts for being present in one’s own integrity. Please remark, the most important of human rights nowadays, comes together under a new point of view: that by which a child is subject of rights even though when we only want to protect him/her. The child has already ceased being the “animated” protection object. In relation to the States’ activity (I refer to “State” without forgetting that its nature is not immutable but contingent with the ideological positions and responds to times) changes in its interference and efficiency levels keeping balance, when possible, under that strain that exists between order and liberty. The State, by action or omission, positively or negatively, ends conditioning Human Rights. But, with no world government or enforcement capacity, how complicated it is for States to carry on interrelation policies concerning Human Rights, to reach to an agreement without offending each other or not being afraid of offending each other and claiming each other! Specially, when we refer to Childhood, where the greatest concern of domestic public order may exist, and now established, this new disjunctive: maybe, are not States ready to assume this? It seems that it is “too much law with special conception”; too much declaration for a State that is in constant movement, which abandons the god or police officer position and, when trying to become aware of a new and self-physical body, realizes that is walking while carrying a child in its arms. Therefore, I want to refer to the child’s right as a necessary, vital and priority title of Human Rights and to speak of Childhood as mankind’s concern, not only the concern of the particular relatives but also a community obligation. I want to state myself in a concept of active community, to enunciate in such concept a new definition of “State”, different from the traditional one, with such a position in Law that puts the child as guest of the world. Let us consider this issue: By International Public Law, the States can claim each other bordering structures for the sake of agreements, so should they claim each other in the same way what refers to treaties that matter reciprocal obligations and which purpose is the person’s right? The States agree distances from the continent in relation to the territorial sea; they can demand each other, claim each other, deny each other, and arrive to a conflict due to this. Therefore, when they agree in relation to the human person’s rights, to the woman’s treatment, to the child’s superior interest, should the States channel the claim? When a child is unprotected within the jurisdiction of the State, is not affectation of the public order? For example, if the passage of life of a child, from one country to another, does not find, due to absence or due to spatial conflict of laws, the due legal protection to his/her rights, is this a diagram of Conflict of Laws that has no solution? Alternatively, is it a problem of relational responsibility between States within the scope of International Public Law? If a State is a party in the Convention of the Child’s Rights and then does not notarise or executes anything related to it, that child’s problem is it unsolvable or, in short, relational work and responsibility of the States? It is a relational responsibility of the States, of the one that fails to fulfil and of those States which, being within the system of this Convention, do not require the small print in order to demand fulfilment. Moreover, I say, what is owed to the person in the domestic public order, and owed in the international public order, and impracticable by absence or spatial conflict of laws, is of International Public and corresponds with the States’ responsibility to do so, without limiting to the reduced capacity of the individuals’ leading role. For example, International Case Law accepts that treaties produce rights and obligations for individuals if that was the purpose of the States-party (CPJI, Series B, No 15, Pages 17-18). This is the reason why, the suitable act is to give priority, to execute what has been stated. All these circumstances seem to complicate the States in new relationships. Nevertheless, they join and speed them up if they converge at the idea – which I have considered in a previous work – and which central thought is: from the development of a determined domestic policy, I believe, we can create a Secretariat of Childhood in the scope of the Ministry of Foreign Affairs, starting activities and plans by mutual agreement among the Nations.
Judge Carlos Antonio Romano
- Virginia Mathieu – Attorney
- Silvia Sejas Pardo – Attorney
- Isabel Hope – English-Spanish Certified Translator