Migrant Women Caught between Islamic Family Law and Women's Rights. The Search for the Appropriate ‘Connecting Factor’ in International Family Law

DOI10.1177/1023263X0000700102
Date01 March 2000
Published date01 March 2000
Subject MatterArticle
Marie-Claire Foblets
Migrant Women caught between Islamic Family Law and
Women's Rights. The Search for the Appropriate
'Connecting Factor' in International Family Law
Summary
In recent decades 'conflicts justice' in the realm
of
international family law has
undoubtedly gained momentum in most European immigration countries. This is largely
due to an increase in the number of cases relating to family disputes among migrants
submitted to the courts. In the first part
of
this contribution 2: 'The legal techniques
at hand. The dramatic lack of adaptation of century-old techniques') I briefly describe
how 'conflicts justice,' in the domain of cross-cultural family relations, is facing the
impact
of
an unprecedented cross-boundary mobility
of
people from
allover
the world.
This cross-border mobility has engendered a new type of social and cultural pluralism
in most European host countries. In the second part 3: 'The case of Moroccan
women claiming protection under Belgian secular law') I illustrate the discussion on
possible legal solutions for handling the 'conflicts justice' consequence of this cross-
border mobility by referring to the very problematic position of Moroccan women who
have immigrated to Belgium.
§ 1. Introduction
My paper builds upon one particular aspect of a vast issue that is very much at the core
of
the debate in Europe today: how to conceive the future
of
our (multicultural) societies
in terms
of
peaceful cohabitation with the many newly-immigrated communities from
*M.-Cl. Foblets,
LL.M.,
Lie. Phil., Dr. Anthropology, Professor of Law and Anthropology at the
Universities of Leuven, Brussels and Antwerp in Belgium, Associate Professor at the Universite Paris
I1Sorbonne, Honorary Advocate of the Bar
of
Brussels, and Head
of
the Department
of
Social and
Cultural Anthropology at the University
of
Leuven.
7 MJ 1 (2000) 11
IMigrant Women caught between Islamic Family Law and Women's Rights
allover
the world. I will focus on the position
of
Muslim (migrant) women in that
debate.
Conflicts of civilization(s) are a fascinating topic of research. However, in practice,
these conflicts are probably among the most difficult to settle. It is one thing to speak
of
clashing cultures as a subject
of
academic interest;
it
is yet another to deal with them
on a day-to-day basis.
The subject which I propose to discuss here is
of
necessity but a very small part
of
a
vast field, namely the question which arises when the judge in a family court in Europe
today is obliged to consider what degree
of
recognition he - or she 1 - will give to
family laws that apply to migrant communities of foreign origin but that clash with the
domestic legal culture. As a consequence
of
the massive migration movements from the
former colonies of the Western powers, the question is becoming increasingly important
in almost all European countries, particularly in the realm of family law. In barely
twenty years (i.e. since the sixties and the seventies) these migration movements have
caused major changes in the area of international family law.
On average, up to 10% of the population in most of what have until recently been called
'Western-European' countries today are of non-Western, i.e, non-European, origin.
Many people immigrated from the former colonies in the sixties and seventies primarily
because of labour immigration facilities. Since the late eighties, mainly people seeking
asylum under the 1951 UN Convention Relating to the Status
of
Refugees have been
drawn to Europe. 2
Post World-War II immigrationto Europe is characterizedby two main features that are
very much a challenge, and often an obstacle, to those lawyers who are looking for
appropriate techniques to allow for the peaceful management
of
clashes between the
basic values of the host-society (expressed, for example, by the 1950 European
Convention on Human Rights
3)
and those cultural values imported by newly
immigrated populations. The first feature is the cultural and demographic diversity of
the many groups who have immigrated from
allover
the world: statistics demonstrate
1.
For
purposes of facility, in this contribution I will henceforth use only the masculine gender of nouns
that may equally refer to male and female judges.
2. J.-Y. Carlier, D. Vanheule (eds.), Europe and Refugees: A Challenge?, (Kluwer Law International,
1997); H. Crawley, Women as Asylum Seekers. A Legal Handbook, (ILPA, 1997); E. Guild, The
Developing Immigration and Asylum Policies
of
the European Union. Adopted Conventions,
Resolutions, Recommendations, Decisions and Conclusions, (Kluwer Law International, 1996).
3. European Treaty Series [ETS), N° 5.
Text
amended according to the provisions of Protocol 3 (ETS
N°45),
which entered into force on 21 September 1971,
of
Protocol N° 5 (ETS N° 55) which entered
into force on 20 December 1971, and of Protocol 8 ETS N" 118), which entered into force on 1
January 1990 and comprising also the text
of
Protocol N° 2 (ETS 44) which, in accordance with
article 5, par. 3 thereof, has been an integral part of the Convention since its entry into force on 21
September 1970.
12 7 MJ 1 (2000)

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