The International Protection of Family Members' Rights as the 21st Century Approaches

Introduction

In 1825, when Malthus was finishing his essay on population, approximately one billion people populated the globe. ¹ Although the increase has slowed in recent decades due to the declining overall fertility rates caused by industrialization and modern medicine, nonetheless, by 1990 more than 5.3 billion people inhabited the earth. By 2025, this figure is estimated to rise to around 8.5 billion people. ² These increases brought uneven changes. Different societies reacted differently to such transformations. In some industrialized states, such as Norway and the United Kingdom (which have per capita gross national products of $25,800 and $17,760, respectively), these changes are typified by a declining number of children and an aging population, with an increasing number of people living together in nontraditional, family-like structures. In others, such as Bangladesh, Cambodia, and Uganda, the per capita gross national product is less than $225 per year; in some cases, family sizes and structures have remained constant and have even increased driven by the necessity of survival. ³ Although demographers hope and predict that average family sizes will decline in the future as urbanization and other factors cause a demographic transition, ⁴ if international human rights law is to have any relevance or impact for the family, it must begin to explore the transformative nature of these demographic changes.

The impact of economic development on society undermined Malthus’ predictions. The greater the level of economic development, the smaller the size of the family, as demonstrated by Japan and Italy. Malthus based his predictions on the assumption that the family was essentially a reproductive unit. As the twenty-first century approaches, it is clear that the family has many other functions. This article addresses some of the major challenges that the international protection of family members’ rights must meet as the next century approaches. In order to fulfil the goal the UN International Year of the Family (1994), the United Nations adopted the slogan “Building the Smallest Democracy at the Heart of Society.” Such a slogan is useful, but only if it prompts a rich and deep dialogue about the rights and the manner in which the family protects these rights.

The Concept and Definition of Family

It is somewhat ironic that, even after the passing of the International Year of the Family, there still is some confusion as to precisely the nature of the institution that is being celebrated. Although international treaty law salutes the family as the basic unit upon which society is organized, ⁵ the family is still a concept in transition. An essential dichotomy surrounds the notion of “family:” it is conceptualized both as a cohesive association of autonomous people and as a group of individuals subject to a higher law that protects competing claims. International human rights law incorporates three overlapping notions: the family, the family life, and the family environment. ⁶ The concept of “family” occurs in most instruments, including the International Covenant on Civil and Political Rights (Civil and Political Covenant) and the International Covenant on Economic, Social and Cultural Rights (Economic, Social and Cultural Covenant); “family life” is enshrined in the European Convention on Human Rights (European Convention); and the newest term, “family environment,” is found in the Convention on the Rights of the Child (Children’s Convention) and the African Charter on the Rights and Welfare of the Child (African Children’s Charter). ⁷

Unlike the definition of child, international law lacks a treaty definition of family and it would be too simplistic to conclude that part of the problem is that there is no Convention on the Rights of the Family. ⁸ The fundamental definition issue would still have to be resolved, because the answer to the critical question for domestic lawyers: “What is the family?” becomes more complex when discussed on an international level. In addition to the major changes in family structures that have occurred as a result of the equality of women and the recognition of the growing autonomy of the child, the impact of different cultures is far more profound on...