Protection of the Right of the Child to Lineage and Application of Alternative Care Mechanisms by the Members of the Organisation of Islamic Cooperation

INTRODUCTION. According to the 1993 Vienna Declaration and Programme of Action, during the international cooperation in the field of protection and promotion of human rights, national and regional particularities and various historical, cultural and religious backgrounds of States should be taken into account. The international law acts adopted under the auspices of the Organisation of Islamic Cooperation (OIC, Organisation) enshrine the connection between protection and promotion of the rights of the child and the preservation of social systems of the Members of the Organisation. The present article aims to discover the effect of historical, cultural and religious backgrounds of OIC Members underlying “the right of the child to lineage”, as enshrined in the decisions of the Organisation, on the international protection of the rights of the child and application of mechanisms of alternative care for children deprived of family environment by these States.

MATERIALS AND METHODS. The article applies the system and comparative method to universal international legal acts, decisions of the OIC and national legislation of its Members. It focuses on legal measures taken by OIC Members aiming at protection of the right of the child to lineage and providing alternative care to children deprived of family environment. The research traces the impact of these measures on interpretation and application of the universal human rights norms.

RESEARCH RESULTS. Islamic law provides for protection of lineage which is defined as a permanent legal relationship between the child and his or her biological parents. The general doctrinal concept of “lineage” is applied in national legislation of OIC Members using the normative terms “ ” and “ ” which are commonly translated as “lineage”, “descent”, “filiation” or “parentage”. OIC Members refer to protection of lineage in their international legal positions but lack coordination in assertion of their arguments in international organisations and organs of the UN system. The term “right to lineage”, as enshrined in the 1994 Declaration on the Rights and Care of the Child in Islam and the 2020 Draft Jeddah OIC Convention on the Rights of the Child, indicates the right of the child to a permanent legal relationship of lineage towards his or her biological father. The right to lineage is unknown to the 1989 Convention on the Rights of the Child and differs in its scope from any right enshrined in the Convention.

DISCUSSION AND CONCLUSIONS. Protection of lineage should be regarded as a national and regional particularity of certain, but not all, OIC Members. No uniform approach to its implementation exists among OIC Members. Their standpoints with regard to the protection of lineage affect the legal regulation of the mechanisms of alternative care for children deprived of family environment. One should distinguish States allowing full adoption, States allowing simple adoption, States allowing several forms of adoption and States prohibiting adoption. OIC Members assert different international legal positions concerning interpretation and application of universal treaty norms governing the right of the child, as far as possible, to know and be cared for by parents, as well as the right of a child temporarily or permanently deprived of the family environment to special protection and assistance. Given that the approach to interpretation and application of the provisions of universal treaties on the rights of the child concerning adoption differs from State to State, their implementation should be considered a matter within domestic jurisdiction of States.

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