Fulfilling children's rights in contexts of legal pluralism
Legal pluralism is the existence of multiple legal systems within a population or a geographical area. Historically, several countries had developed dual systems to address certain issues through colonial law while other issues, such as family and marriage, were being dealt with according to traditional law. There can also be a dual system where religious courts address issues related to religion.
Two main questions are being raised by legal pluralism include:
- The way the international human rights standards are applied by a State in its territory, in particular the principles of the United Nations Convention on the Rights of the Child.
- The second question relates to achieving a child-friendly legal system taking into account such legal pluralism.
The integration of indigenous and customary justice elements and the inclusion of customary norms into state laws can support the best interest of the child and safeguard the child’s cultural heritage and customs.[i] The complexity due to legal pluralism should be taken into account in order to provide children with equal protection in whatever branch of the system covers the issues that they face, such as violence, abuse, or inequality due to race, gender or sexual orientation.
[i] E.g., the Canadian Child welfare system developed a model that relies on indigenous and customary justice elements and includes customary norms into state laws. This system is characterized by a community-based approach that aims to help indigenous communities to overcome critical aspects such as poor housing and high rates of alcohol and substance abuse. Cf. Gagnon, Indigenous Justice and Restorative approach, American Preparatory Meeting, December 11, 2020.
Disclaimer: Authors are the Global Initiative on Justice with Children with pro-bono support from Baker McKenzie. This section represents one among other positions of some members of the World Congress Consortium and does not necessarily represent the view of all institutions and members involved.