LEGUSC LAWS

Empower your legal journey with our comprehensive legal resocurces

Origin and Development of Public International Law

international law , law
Introduction

The term “international law” was first used by the English philosopher Jeremy Bentham in 1780 in his treatise entitled “Introduction to the Principles of Morals and Legislation”. Since about 1840, this term replaced the older terminology “law of nations” which can be traced back to the Roman concept of “ius gentium”. 

International Law is divided into two branches: Private International Law (conflict of laws as it is called in the countries of the Common Law System), and Public International Law (usually just termed International Law). Private International Law deals with those cases, within a particular legal system, in which foreign elements involve, raising questions as to the application of foreign law or the role of foreign courts. Public International Law deals, in general, with the external relations of States. It is this latter branch of International Law is the subject of this present book. 
What is Public International Law? How is it originated and developed? What is the aim it is trying to achieve?

The answers to all these raised questions are dealt with in the following sections. 

I. Definition of Public International Law

Until the Second World War, legal scholars found no difficulty in defining “Public International Law”, in one formation or another, as the law that governs the relations between States. This traditional definition is a reflection of the prevailing doctrine of the nineteenth century and the first half of the twentieth century considering that only states could be persons (subjects) of Public International Law, in the sense of enjoying international legal personality, i.e., being capable of possessing international rights and duties. 

However, since the mid-twentieth century, the traditional definition has become controversial due to both the expansion of the scope of the Public International Law into new areas and the emergence of new actors, beside states, on the international scene, such as international organizations, multinational corporations, individuals and groups, including minorities and indigenous peoples. Some of these actors have acquired international legal personality, or, at least, certain rights under International Law.
In the light of this development, the traditional definition has become in-comprehensive description of this law, and the change of the definition of the Public International Law has become inevitable. Public International Law has been defined as a body of legal rules which regulates or governs relations between international persons (subjects). This contemporary definition of Public International Law goes beyond the traditional one which defines this law as a body of rules governing relations between states.

Thus, the contemporary Public International Law consists of the following:

(a) Legal rules of conduct which states feel themselves bound to observe in their relations with each other’s;

(b) Legal rules related to the functioning of international organizations, their relations with each other and their relations with States and individuals; and

(c) Legal rules related to individuals and non-state entities as far as the rights and duties of these subjects are the concern of the international community. 

Public International Law now covers vast and complex areas of international concern, including traditional topics, such as the State, peace and security, the laws of war, the laws of treaties, the law of the sea, the law of diplomatic and consular relations, as well as new topics, such as international organizations, economy and development, air law and outer space activities, communications, the environment, and last but not least, human rights.

The rules of Public International Law are general and universal in their nature, and are legally binding on all the persons of International Law. These rules must be distinguished from what is called international comity and what is known as international morality. A comity is a friendly gesture or courtesy exercised by one State toward another without constituting a legal obligation; an example of a comity is the flag salute at the sea. A comity helps in promoting and maintaining friendly relations among States. While not a legal rule, a comity can be widely observed and can evolve into a customary international rule or be codified as a law; an example of an international comity which was codified as a law is the exemption from customs duties of personal articles used by diplomats (codified in the Vienna Convention on Diplomatic Relations of 1961).

Rules of International Law may meet at certain points with principles of international morality since they cannot be divorced from their moral values. However, the former rules are legal in their contents and forms, while the principles of morality are part of the discipline of ethics which is not legally binding. 

II. Origin and Development of Public International Law

The foundations of Public International Law as it is understood today lie firmly in the development of political relations between the Western European States some 400 years ago. However, certain basic concepts of this Law can be traced back thousands of years ago, in relations between ancient political entities, such as of the Near East, Greece and Persia. 

The structure and development of Public International Law is connected with the era of sovereign national States dealing with each other as independent entities. In this sense, therefore, the history of this Law can be regarded as beginning in the 16th Century with the emergence of independent nation-states from the ruins of the medieval Holy Roman Empire which was based on the claims to universal authority of the Pope as the spiritual, and the Emperor as the temporal, head of Christian nations of Europe. As this Empire disintegrated, a growing number of independent and equal States filled the gap.

The Emergence of independent and equal States subject to no temporal superior authority led to new political theories. The most prominent among these theories was the theory of Sovereignty. This theory was explicitly formulated by Jean Bodin (1530-1596) in his treatise entitled Six Livres de Republique (Six Books on the Republic) of 1576. According to Bodin, in every State there exists in an individual monarch a power called sovereignty (majestas). Sovereignty is a Republic absolute and perpetual power. It is absolute because it is indivisible; however, it is not without any limits. While such a sovereign is not bound by the laws himself instituted, he remains bound by the divine law, the law of nature, and the law of nations. Sovereignty is perpetual because it does not disappear with its holder (the sovereign). The concept of sovereign as supreme legislator, as formulated by Bodin, was in the course of time evolved into the principle which gave the State supreme power vis-à-vis other States. 

The coexistence of independent sovereign States led to the development of the system of interstate relations. The need for rules regulating the intercourse between the newly emerging States in Europe stimulated these States to draw mainly upon the Roman Law and the Cannon Law (the Law of Roman-Catholic Church) for the sources of such rules. The significance of the Roman Law and the Cannon Law contribution to “the law of nations” lies not only in the development of a modern system of interstate legal relations, but also in the development of many principles of general equity and “natural law” some of which are similar to certain general principles of law recognized by civilized nations. 

In the few centuries that preceded the Thirty Years War (1618-1648), the intensification of international trade, and the improvements in navigation and military techniques, and the discovery of many distant lands by the European States stimulated further development of international practices and the emergence of new conceptions of the law of nations. The intensification of trade led to the conclusion of many commercial treaties and the emergence of new practices and principles related to the law of merchant and the maritime law. Notably, the growth of international trade had from the 8th Century onwards led to the development of international law of merchant and, in particular, to various compilations of maritime law which gained increasing international recognition. The international customs and principles related to the law of merchant and maritime constituted part of the practices and principles of “the law of nations.”

The discovery and subjugation of distant lands and peoples by European States produced numerous conflicting claims of sovereignty, jurisdiction, rights of trade and rights of navigation as well as problems of relations. All these developments urged the Europeans to resort to the Roman Law for helpful norms or analogies, and consequently led to new practices and principles.

By the 17th Century, the growing complexity of international principles, customs and treaties had given rise to their compilation and to the development of further rules governing the conduct of States in time of war and peace. The most important treatise, dealing with States’ relations in time of war and peace, of this period was “De Jure Belli Ac Pacis” (On the Law of War and Peace), published in 1625 by the Dutch jurist and diplomat Hugo Grotius (1583-1645). Hugo Grotius is recognized as the “Father of International Law”, and his treatise is generally regarded as providing the foundation of the Public International Law. 

Beside Grotius, there are many jurists who contributed extensively to “the law of nations” during the 17th and the 18th centuries. Among these jurists are Francisco de Vitoria (1480-1546), Suarez (1548-1617), Alberico Gentili (1552-1608), Samuel von Pufendorf (1632-1694), Richard Zouche (1590-1660), Johann Jakob Moser (1701-1785), Christian Wolff (1676-1754), and Emerich de Vattel (1714-1769). 

The International Law (the law of nations) further expanded in the 19th Century. This expansion was due to major events such as the expansion of the European empires, the rise of powerful States both within and outside Europe, the spread of the thought of democracy and nationalism, the Industrial Revolution, the modernization of world transport, and the influence of new inventions. All these events urged the international community to develop the International Law in order to accommodate such events. Consequently, International Law as a law regulating diplomatic and commercial relations between States, and the conduct of war, multiplied and intensified during the 19th Century. 
The establishment of the League of Nations in 1919, following the First World War, and the establishment of the United Nations in 1945, following the Second World War, represented two significant turning points in the development of the International Law. The development was characterized by a new departure in the evolution of this Law. International Law began its evolution from being primarily a system of regulating relations between States towards becoming also a system of international cooperation.

The League of Nations was the first international organization established primarily for the purpose of maintaining international peace and security. The establishment of the International Labour Organization (ILO), affiliated with the League of Nations, in 1919 signalled the end of an era in which International Law was, with few exceptions, confined to the regulation of relations between States. The ILO was the first permanent international organization concerned with the improvement of labour conditions and social welfare at the international level. In 1921, the Permanent Court of International Justice (PCIJ) was established as the first permanent international judicial organ with an international judicial jurisdiction.

The establishment of the United Nations in 1945 led to a progressive development of International Law. During the post-United Nations’ era, the development of International Law has been influenced by two major events effected the international community. The first major event has been the expansion in the membership of the international community. New States, mostly representing non-western civilization, have joined the club of family of nations, which was previously exclusively limited to States belonging to Western Civilization. The concerns and priorities of these States have been different from those of other States; they have been occupied with the development of their political, economic and social systems. The second major event has been the massive expansion of international organizations for cooperation. Numerous specialized agencies of the United Nations and other international organizations, universal as well as regional, have been established. This event has confirmed the evolution International Law from its traditional nature to its contemporary nature of being a system of organized collective efforts for cooperation.

Since the establishment of the United Nations, a great number of international treaties covering all aspects of international affairs have been concluded. Law-making treaties have been contributing extensively to the rapid development of Public International Law. They have led to may important new developments in Public International Law, and greatly increased both its scope. Apart of the law-making treaties, international courts, the present International Court of Justice (ICJ), its forerunner the Permanent Court of International Justice (PCIJ), and others, have been also contributing to the development of Public International Law. Moreover, the International Law Commission created in 1947, the organs of the United Nations and its specialized agencies have been playing a significant role in developing and expanding Public International Law.


In conclusion, Public International Law has evolved from being primarily a law of coexistence, which characterized it from its birth in the early 16th century to the mid-20th century, to a law of international organization and cooperation. Moreover, the most important characteristic of Contemporary Public International Law is the steady expansion of its scope through the inclusion of new subject matters formerly outside its sphere, and the inclusion of new participants and subjects such as international organizations and individuals. 

Read more »
Tags: ,

Relationship between the state and family

constitution , family law

THE STATE AND FAMILY

 Introduction

In this post today we will try to evaluate the relationship between the state and family. We do this by conceptualizing the state and family as partners but also the state as a watchdog, ready to intervene in the family to protect weaker family members. We consider the extent to which the state meets its obligations to the family. The question of what is meant by family is considered especially in the light of changing family forms and family relationships. The lecture examines the growth of non-conventional family forms and family relationships. It wonders whether and to what extent our family law has coped well with these transformations. The question of changing family relationships is considered in terms of the development in science and technology and its impact on family law.


Functions of Family law: Reflections

We began in this course with an analysis of the four functions of family law noting thatthe idea of conceptualizing family law in terms of what it does, rather than merely what it is, enables the student to think more clearly about the subject and to develop an analytical framework that seeks to evaluate the extent to which the law does or fails to perform those functions. We do this with the understanding that law does not work alone. The law works in partnership with other non-state bodies which at times may hinder or enable it to perform its functions. We return to the four functions of family law with the benefit of hindsight to consider briefly whether the analytical framework suggested at the beginning of the course has enabled us to capture the essence of family law as a subject of study.

We ask ourselves the extent to which family law plays a constitutive role and whether it shares this function with religious bodies and non-state institutions including customary law.  Looking at the constitutive function, studies have shown that a large number of marriages are contracted under customary law and many are not registered with the State. Similarly, the law of adoption is also rarely utilized by Tanzanians. The number of children being looked after by relatives is far greater than those who have been formally adopted. Indeed, as noted above, even the LCA has sanctioned the practice of taking care of children in accordance with “any traditional arrangement” s 9(4) LCA. This means the law recognizes the continuation of the old child care practices. The fact that the 1942 law of child adoption had never been popular with many African communities is widely known (Rwezaura & Wanitzek 1988). Hence, the introduction of open adoption by the LCA seeks to encourage Tanzanian relatives to create a formal relationship between them and the children of their relatives. The idea of having both open adoption and traditional forms of child care may appear flexible and convenient but it seems to defeat the whole object of state regulation of alternative family care and child protection.

Turning to the regulatory role of family law we should note that extra-judicial divorces are common in Tanzania. Parties see the need to approach state courts when a former husband wishes to claim refund of marriage payment (bridewealth) or to claim children taken away by the mother or those born during the couple’s separation. In parts of Tanzania where marriage does not involve substantial property transfers, there are many couples living apart in the false belief that they are legally divorced. Indeed, some women do “remarry” on the assumption they are free to do so when in law they are still married to their “former” husbands. In this context the law fails to oversee the termination of marriage and to effectively regulate post-divorce issues such as division of matrimonial assets and allocation of custody of children. Needless to add, the provisions of the law relating to judicial separation are not utilized by such couples.

The protective role of the law is also weakened by parties who do not seek the assistance of state courts when they face matrimonial disputes. Research has revealed several factors that deter married couples, especially the wives, from using state courts to resolve their family disputes (Rwezaura 1999 UCT).These include lack of knowledge of available remedies; the high cost of litigation; social pressure against taking family disputes into the public arena. Thus no matter how well drafted a piece of legislation may be, it will not perform its job if parties cannot pursue their remedies in appropriate state organs.

It needs to be pointed out also that there are significant gaps in the protective framework of family law. For example, we noted in Post Eight that despite the high rates of domestic violence, Tanzania does not have a special legislation on domestic violence. In many jurisdictions, domestic violence is viewed as a human rights issue because of its gendered nature.  Again we noted that the LMA lacks provisions governing the property rights of co-wives at the time of divorce. [1]The protective role of family law is also weak in relation to children of the family.  As noted in Post Eleven upon separation or divorce the court has power to order child custody and maintenance. But very few, usually fathers, ever pay child support.[2] This has sometimes discouraged mothers from seeking custody of their minor children because they do not want their children to starve or fail to complete their education due to financial difficulties. Unlike other jurisdictions, Tanzania does not have special mechanism for the enforcement of child support obligations.[3]

Tanzania also faces the problem of child marriages. Although section 13 of LMA provides a minimum age for marriage at 18 years for males, the minimum age for girls is set at 15 years. In a sense the LMA unknowingly encourages child marriages thus violating several human rights of the child. The lower age of marriage is favoured by many parents, especially in the rural areas where it is customary for girls to marry at a young age. This is why female children are withdrawn from school to get married to men chosen by their parents or guardians (see Elizabeth Saya, Haki za Watoto na Utata wa Sheria ya Ndoa 1971, Nipashe, 11 March 2014 p 8).[4]

Family and the State as Partners

The Universal Declaration of Human Rights (UDHR, 1948) states that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State (Art 16). The International Covenant on Civil and Political Rights (Art 23 ICCPR, 1966) makes the same point. Tanzania is a party to the ICCPR and subscribes to the values contained in the UDHR (Art 9(f) URT Const 1997).[5] Hence, the protection of the family is an international treaty obligation which Tanzania is required to honour. The question is what makes a family so important as to deserve protection? This is primarily because the family performs the task of bearing and nurturing the next generation. This function is so important to the state such that without the family the state would be expected to bring up all its children. But as we all recognise the state is ill-fitted to perform these important tasks alone and hence it has to form a partnership with the family.

The vision of the Tanzania Child Development Policy (CDP 2ndEd, 2008) is to have a nation of healthy, educated and well behaved children who have the capacity to play an effective role in nation building. It spells out the responsibilities of the child, the parents, the community, the government and its institutions, in the planning, co-ordinating and implementation of all child related programmes (para 41(vii) p 19). The CDP further stresses that both parents have joint responsibility in bringing up and ensuring the growth and development of their children.

The State has specific obligations towards the family and these fall primarily in the sphere of social welfare, family health, education and economic support to the family. For example, in respect of formal education, Tanzania has made primary school education free and compulsory. The state subsidises secondary school education and vocational training. No doubt many of these functions fall outside the scope of family law.  It is clear from the content of the CDP that it anticipates, and is indeed built on the assumption, that the state and the family will work in partnership to achieve the vision stated above
It must be stressed however, that when we speak of family we do not necessarily mean the conventional family of husband, wife (or wives) and children. We have to bear in mind the fact that the family is changing and new family forms are emerging. Moreover, we have to recognise that there are children who have no families to belong to. In such cases the state has to take the place of parents to these children. Within the context of alternative family care, the state is expected to oversee the process and to ensure that these children are assigned to suitable families. Thus in cases where a child has no family to act as the ultimate parent, i.e. parens patriae.

The provisions of Part III of the LCA are intended to ensure that children who are in need of care are given protection by the State. The definition of a child in need of care is found in s 16 LCA. It includes, a child who is an orphan or is abandoned, has been neglected or ill-treated parents, is destitute or under the care of a destitute parent, is wandering, begging, or having no home or settled place to live. Also a child exposed to immoral or criminal conduct or influence including prostitution or being a victim of human trafficking falls in the above category. Sadly, the gap between section 16 LCA and actual practice is very wide indeed. We have in our cities a large population of children living on the streets or begging alongside their destitute parents. Children in need of care and protection are supposed to receive various forms of assistance from the State so that they may lead a decent and productive life.  Unfortunately, many of these children do not get the expected assistance from the state and this poses a huge challenge, not only for the State but the entire nation.

State as Watchdog and Family Protector

Although the State and family are correctly viewed as partners in the care and upbringing of children, the State also plays the role of a watchdog and protector of family members during times of crisis. In its role as watchdog, the state has power and responsibility, for example, to intervene in the family to ensure that children are not abused by parents. For example, s 95 LCA states that it shall be the duty any member of the community who has evidence or information that a child’s rights are being infringed to report this to a local .government authority of the area. Upon such a report being made, the social welfare officer has power to summon the child’s parent to discuss the matter and to make appropriate decisions. Where the parent refuses to comply with the decision of the Social Welfare Officer, the matter shall be referred to a court of law which shall hear and adjudicate upon the matter. In any case according to s 95 (5) LCA, any person who infringes the rights of the child as provided under sections 95(1) and 14 LCA commits a criminal offence and is liable upon conviction to serious punishment.

In cases of domestic violence, the State intervenes to stop spouses from hurting one another. This may be done by the use of criminal law, but also the LMA. We have noted in Post Eight the shortcomings of our law against domestic violence,(as gender based violence), has become a human rights issue. In cases of separation or divorce, the state has to determine whether or not the parties’ marriage has broken down irreparably and to terminate it. Before terminating the marriage, the state attempts to mediate, and where mediation fails, the marriage has to be dissolved. In this connection the state oversees the entire process of division of assets and custody of minor children. These post-divorce matters are often contentious and if not properly handled can lead to acrimony and bitterness between the couple. Such bitterness has the effect of weakening the couple’s ability to co-operate in the upbringing of their minor children. Thus the state has to ensure there is fairness in the division of matrimonial assets and to protect the weaker family members. It has also to decide issues of child custody bearing in mind the best interest of the child as a paramount consideration.

Changing Family Forms and Family Relationships

Before embarking on this discussion we need to consider the meaning of the terms family and family forms. The conventional term ‘family’ when qualified by the word ‘nuclear’ refers to a small unit consisting of a man and his wife and their minor children. And when the term ‘family’ is qualified by the words ‘extended’ it includes a larger group of individuals consisting of relatives of different generations including, not only husband, wife (or co-wives) and children (minors and adults) but also grandparents, cousins, nephews and their children. Thus the common understanding of the term family among African people is that it includes members who share a common descent including their spouses.[6]

The term family form on the other hand relates to the structure and composition of the family. For example, we are familiar with the extended family and the nuclear family as types of family forms. But there are also single parent families, arising from divorce, separation or death of one spouse. There are also child headed families and families headed by relatives such as grandparents. There are families where the couple is not legally married but simply cohabiting as in de facto unions. All these non-conventional family forms have implications for family law. Hence, students should be aware of their existence and the extent to which they operate within or outside the framework of family law. Moreover, students should recall our discussion regarding the effect of social change on family law. Here again we note that the rise of some of these family forms is to a large extent connected with economic and social transformation. It is also a result of demographic changes and the effect of HIV/AIDS which has caused unprecedented loss of lives and left many children without parents to care for them. Students need to evaluate the extent to which our family law has coped well with these transformations.

Finally, the development of science and technology has also significantly impacted on family law and thus given rise to changes in the relationship between family members. For example, the legal provision regarding proof of parentage by DNA testing is a recent thing in Tanzania. Its implications are yet to be fully appreciated. For example, s36 (1)LCA provides for compulsory medical examination of a man who is alleged to be the biological father of a child. And where a court makes an order for medical tests and the alleged father refuses to comply, such refusal is an offence punishable by fine or imprisonment. It is arguable that this provision would be challenged in due course as a human rights violation.[7]

Another development in science and technology which has not been legally provided for in our law is the legal status of children born as a result of scientifically assisted reproduction. There are four known forms of scientifically assisted conception The first is artificial insemination by donor (AID); second, is in vitro fertilization (including embryo transfer) using a donor’s egg or sperm; and third, is surrogacy where a woman other than a wife agrees to have another couple’s embryo implanted into her womb to be carried to full term with the intention of handing over the baby to the couple. In all the three forms of scientifically assisted birth, there are questions of parentage which Tanzania law does not address. This is unlike other jurisdictions  where the law has provided answers to these questions. Such silence is not in the child’s best interests given that scientifically assisted birth takes place in Tanzania and there are children born as a result of such procedure. 

Perhaps more controversial is the question of legal recognition of same sex partnerships and whether family forms arising from such relationships would be legally recognized in Tanzania in the near future. Basing on available evidence there are no indications that same-sex partnerships or family forms would gain legal recognition any time soon.[8]

Summary and Conclusions

This final Lecture has tried to wrap up the entire module using four major themes. Each of the themes seeks to draw together its various parts while also underlining the connections in the topics covered. It is hoped that the approach will enable students to see the module as a whole and therefore to enhance their understanding of this course. The first theme relates to the functions of family law. As noted in Lecture One, by asking ourselves what family law does, we are in good position not only to understand family law itself but also to evaluate its effectiveness in performing what it purports to do. Some of the weaknesses of Tanzania family law have been noted in the final lecture. However, room has also been left open for further evaluation of its effectiveness and students are encouraged to maintain a culture of assessment and evaluation.

The second theme is the operational relationship between the State and the Family. This lecture has put forward an argument that the state and family are partners. Indeed the work of the state and that of the family are inter-linked.  The state enacts laws to promote family welfare and to regulate family relations.  It enacts minimum standards for child care and upbringing, including compulsory vaccination and school attendance. It builds schools and hospitals including day-care centers and kindergartens. The state sets up entire ministries, departments and directorates and district councils dedicated to the welfare of families.  The family, for its part, needs to work together with the state in order to achieve the various developmental goals set for the family. 

The third theme is the role of the State as watchdog and protector of weaker family members. Whereas it is widely recognized that the family is autonomous and that state intervention should be slow and measured, it is nonetheless unavoidable for the state not to intervene.  The state intervenes primarily to protect the weaker family members from various forms of harm. The most common forms of intervention, as noted above, relates to prevention of abuse of wives and children. As we have noted, in the context of Tanzania family law the state’s role as protector of weaker family members fall below the required standards.

The fourth and final theme concerns the changing family forms and family relationships and the extent to which the law is able to maintain regulatory and leadership role. Here again, as noted in the final lecture, it seems the speed of change in our societies is far greater than the law’s capacity to lead by directing such change and by regulating social relations. The result is that a number of areas of social life are left out of the law’s empire, so to speak. For example, the absence of the rules relating to the status of children born as a result of medically assisted conception does not mean that such medical practice will cease. It is to be hoped that rather than lagging behind social change the law will lead the way and show leadership in various spheres of family law.






[1]See Bart Rwezaura,  ‘Tanzania: Building a New Family Law out of a plural legal system’  University of Louisville Journal of Family Law (1995)  523, 530. See also Rachel Howland  & Ashley Koenen, Divorce and Polygamy in Tanzania (Social Justice Paper 15 http: ecommons. Iuce.edu/social_justice 15)
[2]As noted by Sisya J in Ahmed Ismail v Juma Rajab 1985 TLR 204 (HC), “The tendency among young men of today to ignore their offspring living with their mothers, and away from themselves, is a fact too notorious to escape judicial notice of this Court.”
[3]See for example the Child Support Act 1991 (England and Wales) and subsequent amendments.
[4]The Ministry of Community Development Gender and Children recommended (in CDP 2nd Ed 2008) that the Law of Marriage Act be amended to raise the minimum age of marriage for girls to 18 years but this recommendation has not been acted upon (Sera ya Maendeeo ya Mtoto Tanzania  2ndEd  para 49 pp 25-26). Indeed the opportunity to amend the law was lost ten years later in 2009 when the Law of the Child Act  was enacted clearly providing under s 4  that “ a person below the age of eighteen years shall be known as a child.”
[5] See also CRC Art 19 and 24.
[6]See Armstrong A et al “Uncovering Reality: Excavating Women’s Rights in the African Family (1993) 7 International Journal of Law, Policy and the Family 314, at
[7]See Probert 2003 at p 195 and Re (A Minor) (Paternity: Refusal of Blood Test) [1994]2 FLR 463 and the Family Law Act s 21(1)
[8]  For an overview of the global gay rights movement, see B Rwezaura, “To be or Not to be :Recognition of  same-sex Partnerships I Hong Kong” Hong Kong Law Journal Vol 34, No 3, 557, (2004).

Read more »
Tags: , , ,

Controversial Aspects of Alternative Care of children - family law

family law , law

 ALTERNATIVE CARE FOR THE CHILD 

Introduction
The preamble to the United Nations Convention on the Rights of the Child states that the family is the natural environment for the growth and well-being of all its members and particularly children. We have also noted that the existence of the family is the foundation on which the entire structure for the care and upbringing of the child is based. Without the family, much of the law designed for the care and support of the child will collapse. And, indeed, as we will note in the final lecture, there is an essential partnership between the state and the family in relation to the whole enterprise of child care and upbringing. It is in this context that we must locate this lecture which discusses existing options for the care and upbringing of a child who does not have a conventional family to belong to.



14.2   Child Adoption: Meaning
Child adoption is a legal procedure which has the effect of extinguishing existing legal relationship between a child and his or her parents while simultaneously creating another legal relationship between that child and the adoptive parent or parents. According to section 64 of the LCA, when an adoption order is made, the rights, duties, obligations and liabilities including those under customary law of the parents of the child or of the other parent connected with the child of any nature whatsoever shall cease; and the adoptive parent of the child shall assume the parental rights, duties, obligations and liabilities of the child with respect to custody, maintenance and education as if the child was born to the adoptive parent in a lawful wedlock and was not the child of any other person.  
Before ending this discussion, a comment must be made on a new form of child adoption introduced by the LCA 2009. Besides the conventional model of child adoption there is now an additional model called open adoption. Section 55 (3) of the LCA states that the term “open adoption” as used in this Act means adoption of a child by a relative. Although it has the same legal effects, open adoption, as will be noted below, has less stringent requirements given that it an adoption by a child’s relatives.[1]

Who May Adopt and Be Adopted?

An application for child adoption may be made jointly by a husband and his wife or by a father or mother of the child either alone or jointly with his or her spouse. Where the application is by the mother or father alone, the other spouse must consent to the adoption. Although the law of adoption does not favour single applicants, there are specific cases where a single applicant is permitted to adopt a child. For example, a single woman who is not a relative of the child may adopt a child if she is a citizen of Tanzania (s 56(1)(d). Also a single male may adopt his son; and with leave of the court, he may also adopt a child, whether male or female, if special circumstances exist to warrant the order (s 56(2) LCA). (give an example of special circumstances)

In the case of an open adoption, an application for an adoption order may be made by a relative of the child, whether married or single and whether male or female. An adoption order shall not be made to authorize more than one person to adopt a child unless the applicants are husband and wife (s56 (4) LCA). It is a requirement that an applicant for child adoption must be 25 years old and at least 21 years older than the child. In the case of open adoption the relative must be at least 25 years old.

It is also provided under s 56(3)(b)  that an adoption order shall not be made for a child unless the child has been continuously in the care applicant for at least six consecutive months immediately preceding the date of the application . Section 59(5) further provides that the child must have been continuously in the care and custody of the applicant for at least three continuous months immediately preceding the date of the adoption order. The applicant must also inform the Commissioner of Social Welfare of his or her intention to apply for adoption at least three months before the date of the order. The latter requirement is intended to enable a social welfare officer or local government authority to prepare a social investigation report under s 59(2)LCA.

Provisions relating the residency and citizenship of the applicant are contained in section 56(3) LCA which states that an adoption order shall not be granted unless the applicant and the child reside in Tanzania. However, the residence requirement does not apply where the applicant is a Tanzanian citizen residing abroad and seeking to adopt a child resident in Tanzania.

 Adoption by Non-Tanzanians

Section 74 LCA now permits non-citizens to adopt a Tanzanian child if certain conditions are met. They are as follows: i) it must be shown that the child cannot be placed in a foster home or adoptive family or be cared for in a manner suitable for the child’s best interest while the child is in Tanzania, ii) must have resided in Tanzania for at least three consecutive years; iii) has fostered the child for at least three months; iv) does not have any criminal record in his country in his country of origin or any other country; v) has been recommended by his country’s social welfare officer or any other competent authority in his country of permanent residence as being suitable to adopt a child; vi) has satisfied the Tanzania court that his country of origin would recognize and respect the adoption order vii) the Tanzania social welfare officer has undertaken a background investigation and has submitted a report in support of the application; and vii) the court is of the view that it is in the best interest of the child to make the adoption order.
The above conditions aim at ensuring that adoption by non-Tanzanian is a measure of last resort. Hence, only children who cannot find a home or family in Tanzania may be put up for adoption by non-citizens. Furthermore, these conditions are also designed to ensure that the children are in competent and safe hands and are also protected by the legal system of the adoptive parent. It should be noted that Tanzania did not have legal provisions for adoption by non-citizens until 2009 when the LCA was enacted. The establishment of these safeguards was seen as an important protection measure especially in the light of debates and controversies surrounding international child adoption.

Consenting to Adoption

Before the court makes an adoption order, it must be satisfied that consent to adoption has been given by all those who are entitled to consent. There are two categories of persons who must consent. The first category includes persons who have parental responsibilities over a child and the second is by the child, the prospective adoptee. Section 57 LCA states that an adoption order shall only be made with the consent of the parents or guardian of the child. But the court may dispense with such consent if it is proved that the person supposed to consent has neglected or persistently ill treated the child. The court may also dispense with parental consent if the person who is to consent cannot be found, is incapable of giving consent or such consent has been unreasonably withheld.

In addition to the requirement for parental consent the court must be satisfied that the parent or guardian who consents to the adoption fully understands that the effect of the adoption order is to deprive that parent of all rights and obligations over that child (s 59(1)(a)LCA). It is further stated under s 57(3) LCA that where parental consent has been given and the child taken into the care of the applicant, such child shall not be removed from the care of the applicant except with the permission of the court. In granting such removal the court shall have regard to the best interest of the child.

The court may also require the consent of any person if it considers that such person has certain rights or obligations in respect of the child under an agreement or court order. (possibly targeting unmarried fathers see s 43 LCA). Furthermore, where a married person is a sole applicant the court shall require his or her spouse to consent to the adoption before making the adoption order.

The second category of persons who must consent to the adoption is the child if he or she has attained at least fourteen years of age (See s 59(1)(c) LCA). And where the child is less than fourteen years but is capable of forming an opinion about the matter of his or her adoption, the court is required to consider the wishes of that child. Thus the new adoption law recognizes that a child has rights and one of the rights is to participate in key decisions affecting the child (s 11 LCA). Moreover, as noted below, in making an adoption order the court must have regard to the best interest of the child (s59(1)(b), 74(2), (3)(a) LCA).


 The Best Interest Principle
The principle of best interest of the child, as noted above in Lecture 11, underpins the entire law of the child. This Lecture however examines the best interest principle and its application to the law relating to child adoption. Reference to this principle is made nine times in various sections relating to child adoption. The references relate, for example, to the fact that an adoption order shall not be made unless it is in the best interest of the child (ss 56(1), 59(1)(b), 74(2), 74(3)(b) LCA). Reference to the best interest is also made in relation to the fact that a parent or guardian who has consented to the adoption may not change his or her mind and withdraw the child from the care and custody of the prospective adoptive parent without permission of the court.  And the court’s sanction is to be granted if it is in the best interest of the child. An adopted child may be informed of his family origins when he or she attains the age of 14 years but only if it is in that child’s best interest (s61(1)LCA). The best interest principle is also mentioned in relation to child adoption by non-citizens (s74(2), 74(3)(a),(b) & (d) LCA).

The UN Convention on the Rights of the Child (CRC) states that States Parties to the Convention that permit child adoption “shall ensure that the best interest of the child shall be the paramount consideration” (Art 21). What appears to be missing in the LCA is the extent to which the best interest principle rules over or governs child adoption decisions. The fact that the principle is not given any weighting implies that best interest is one of the factors the court to consider. On the other hand, the repeated reference to the principle when read together with a number of safeguards that have to be observed in the adoption process, suggests that best interest principle is at least a primary consideration in line with Article 3 of the CRC.

The safeguards include the fact that child participation in the adoption process is given weight suggesting that the views of mature children are respected.


Legal Consequences of Adoption

The most important legal consequence of adoption is that, in the first instance, the law dissolves exiting relationship between the child and the child’s natural parents. Then the law creates new relationship of parent and child between the child and the adoptive parents. As stated by s 64 LCA when an adoption order is made, the rights and obligations of the parents (including those under customary law) and those of any other person connected with the child shall cease. Then the adoptive parent shall assume all the parental rights and obligations over the adopted child as if that child had been born in lawful wedlock of the adoptive parents.

Thus the law of adoption plays what in First post was described as the constitutive function whereby new family relationships are created by law between individuals who were previously unrelated. The law of adoption also plays role of legally strengthening existing relationships. For example, a pre-marital child born to one of the parties to a marriage may be adopted in order to strengthen the child’s ties with the natural parent. Where both the natural parent and his or her spouse (who is not the biological parent of the child) decide to adopt such a child jointly, then the child will be legally regarded as the child of the couple as if such child had been born in wedlock (see ss 55(1)(b), 56(2), 56(4)).

Another example of the law seeking to strengthen existing ties between the child and the adoptive parent is child adoption by a relative. The Law of the Child Act 2009 provides for a new category of child adoption called “open adoption” which it defines as “adoption of a child by a relative” (s 54(3) LCA. Under s 55(2) an application to adopt a child may be made by a relative of a child. A relative is defined as a grandparent, brother, sister, cousin, uncle, aunt or any or any other member of the extended family. Where child adoption involves a child who is a relative of the adoptive parent, the primary objective is to focus legal responsibility more specifically upon one family of existing relatives. Hence, although the other relatives of the child continue to relate to the child as if the child had not been adopted, the adoptive family now are legally responsible for that child and no one else.

 Adoption Law and Policy

The current law of adoption in Tanzania contains at least three models, reflecting the history and policy of the law. First, there is the closed adoption model dating back to 1942 when the first child adoption law was introduced into British colonial Tanganyika. The closed adoption model was primarily designed for childless couples to secure adoptable children. It has been described as the family centered adoption law. (see BR and UW 1988). It stresses secrecy in the adoption process; makes no provision for the child to know his or her family background nor for the child to consent to the adoption.
The second is the child-centered model introduced in 2009 by the LCA. It seeks to find a family for a needy child. It stresses the best interest of the child principle as the paramount consideration and the child’s right to consent to the adoption is recognized. It requires that the child express an opinion on all decisions affecting him or her. It permits child adoption by non-citizens if the child cannot be locally adopted or placed. It makes provisions for a child to know his or her family background when he or she attains the age of reason provided such disclosure is in that child’s best interest (s 61 LCA). By permitting the child to know his or her family of origin, the law has to a certain extent moved away from closed adoption to a controlled form of open adoption.

The third model is child adoption by relatives, referred to by the LCA as “open adoption” (s 54 (3)LCA). This is the form of child adoption which is fully open in the sense that there is no attempt to hide the child’s family background. Indeed, it is the child’s family background that provides the incentive and rationale for the adoption. Once again, the third model encourages the child’s participation in the adoption process and is clearly a child-centered. Jurisdiction to make orders in the case of open adoption is granted to the Resident Magistrate and District Court. This is intended to facilitate and speed up the process of adoption for this category of applicants and to cut down the legal costs involved. In the case of the first two models, jurisdiction is confined to the High Court. It is hoped that more relatives will use this model to create an additional legal bond to the children of their deceased or living relatives.

All the three models are contained in the Law of the Child Act 2009 showing, as noted above, the evolution and policy of the law of adoption. There are also additional safeguards for the child which did not exist under the old law. They include provision for interim adoption orders (s 60LCA) and a more thorough system of evaluation of applicants whether local or foreign. Indeed, the new law prohibits child adoption by any person who “practices or is of the civil relationship or marriage as the case may be” (s58(3)). Although the latter provision is somewhat vaguely worded, it appears to prohibit child adoption by persons who are in same sex relationships whether these are called civil relationships or marriage.

Foster Care
The term foster parent means a person who is not the parent of a child but is willing and capable to undertake the care, welfare, and maintenance of a child (s 52(2) LCA). Any person above the age of twenty one years may be appointed a foster parent if he or she is of high moral character and proven integrity (s 52(1) LCA). Where a child has been committed to an approved residential home or institution under a care order or supervision order, the social welfare officer in conjunction with the patron or manager of the residential home or institution may make a recommendation to the Commissioner for Social Welfare to place a child with a person who is willing to be a foster parent (s32 (1) LCA). A person who intends to foster a child may apply to be so appointed by the Commissioner for Social Welfare upon the recommendation of a social welfare officer, patron or manager of an approved residential home (s 32LCA).

The foster parents shall have the same responsibility in respect of the child’s maintenance as if he or she were the parent of the child and shall be under a duty to ensure the development of the foster child particularly the child’s health and education. The foster parent is required to maintain contact with the child’s family to inform them of the child’s progress and to work closely with the social welfare officer so that the child may be reunited with his or her original family.

It is clear from the above provisions that a foster parent offers a child a temporary family to belong to when the child is in need of care and protection. Section 16 LCA enumerates 17 grounds when care and protection orders may be issued. Students must note, however, that there is a link between foster care, which is short term, and child adoption which is intended to be permanent. It is provided, for example, in section 24 LCA that a child under a care order or supervision order whose parent, guardian or relative does not show an interest in the welfare of the child within a period stipulated by the court, may be put up for adoption, either with foster parents or place a child in the care of the patron of an approved residential home.


 Informal Foster Care

The LCA provides that where a child’s biological parents are deceased, parental responsibility may be passed on to a relative of either parent or custodian by way of a court or any traditional arrangement (s9(4)LCA). Although the problem of children without a family to belong to is increasing in Tanzania, as in other parts of the third-world, it is not in the best interest of a child for the law to sanction, and thus indirectly encourage, the passing on of parental responsibility over a child to a relative by way of traditional arrangement. The reason against such a practice is that such arrangements are informal and do not have the force of law. With such arrangements the child remains unprotected throughout his or her childhood and stands to suffer further losses if the relative entrusted with his or her care dies intestate or leaves nothing for that child upon his death. Research in parts of Tanzania has shown that the ethical foundation upon which kinsmen felt obliged to look after the children of their deceased relatives has greatly weakened (Rwezaura 2002 Value of Child).

It is argued that child adoption by relatives under the system of open adoption is the best way to deal with the care of children left behind by deceased relatives. I am aware that there are a large number of children being cared for by relatives and their best interests are well protected. But the point I am making is that a person looking after a relative’s child does not have parental responsibilities under the LCA but only under “traditional arrangement”. And, as noted above, the traditional ethic has lost its force and for that reason the law must enter to protect the vulnerable children. The best interest of the child is too important to be left hanging on the thin thread of tradition.

 Controversial Aspects of Alternative Care

It is widely agreed that the family is the best place for the growth and development of the child. Basing on this premise the law has developed a system of alternative care for children without a family to belong to. As noted above, the child adoption model has proved to be the most popular form of alternative care especially in western societies. But the popularity of child adoption since the end of World War II, together with the falling birthrates in the west, has created a demand for inter-country adoption. There are cultural and economic differences between western societies and non-western societies where prospective babies are sought. The idea of an adoptive parent taking a child out of the country has generated apprehension regarding a number of matters. Questions whether enough is known about the applicants, whether the country to which the child is taken recognizes adoption and will accord the child adequate protection. There is also suspicion connected with child abduction for sale and trafficking. The debate within the child rights community and others over these issues has remained unresolved. In 1995 an international treaty on the Protection of Children and Co-operation in Respect of Inter-country Adoption came into force. Its main objective is to establish safeguards and to ensure that inter-country adoptions take place in the best interest of the child and are consistent with the child’s fundamental human rights. The treaty recognizes that inter-country should only apply to a child who cannot find suitable family in his or her country of origin.
Tanzania has only recently permitted adoption by non-citizens under s 74 LCA. As noted above, a child may be adopted by a non-citizen only if that child cannot be placed in a foster or adoptive family or be cared for in a manner suitable for the child’s best interest while the child is in Tanzania. Moreover, to qualify for adoption, the non-citizen applicant must have resided in Tanzania for at least three consecutive years and must have fostered the child for at least three months under the supervision of a social welfare officer. For some, residence for three consecutive years is viewed as too long. For others, the time is necessary for the applicants to acquaint themselves with the country and its people and for the social welfare department to evaluate the applicant effectively.

[1]  Open adoption as opposed to closed adoption is a form of child adoption where contact is permitted (and in some 
cases encouraged) between the birth family (including the extended family) and the adoptive family subject to the best  interest of the child test. In other words, the decision whether and to what extent contact is to be permitted between the child and his or her birth family is determined by the extent to which such contact will promote the child’s best interest. In principle, therefore, the conventional model which is presumed to be a closed form of child adoption, can be open adoption to the extent that it permits some form of contact between the child and the birth family. In order to understand the new open adoption model under s 54(3) LCA it is essential to go back to its legislative history which is discussed elsewhere.

Read more »
Tags: ,