United Nations:
A number of international instruments guarantee equality for women and prohibit discrimination.
- The Convention on the Elimination of All Forms of Discrimination against Women (hereinafter CEDAW) requires states to grant women equality before the law, including equal legal capacity and ability to exercise that capacity in civil matters (Art. 15).
- The International Covenant on Civil and Political Rights (Article 26) requires states to provide legal protection for women’s rights on an equal basis with men and to guarantee the effective protection of women against discrimination through competent national courts (Art. 2(c)).
- With regard to marriage, Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women requires States Parties to specify a minimum age for marriage, take all appropriate measures to eliminate discrimination against women in all related matters and to ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
Importantly, the betrothal and the marriage of a child have no legal effect.
- The U.N. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage states that consent is to be expressed in person by the parties and in the presence of an authority competent to formalize the marriage and of witnesses (Art. 1(1)). With regard to international marriage brokering, CEDAW notes in its General Recommendation 21 that “women's poverty forces them to marry foreign nationals for financial security” and stresses that the law must protect a woman’s right to choose when, if and who she marries (Para. 16).
International law requires the registration of marriages and births. The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages requires a competent authority to register all marriages in official records (Art. 3); see also African Women’s Protocol, Art. 6(d). Also, the Convention on the Rights of the Child states that all children should be registered upon birth (Art. 7(1)); see also Art. 6(2), African Charter on the Rights and Welfare of the Child. The CEDAW Committee’s General Comment No. 29 (2013) specifies that “States parties should establish a legal requirement of marriage registration and conduct effective awareness-raising activities to that effect. They must provide for implementation through education about the requirements and provide infrastructure to make registration accessible to all persons within their jurisdiction. States parties should provide for establishing proof of marriage by means other than registration where circumstances warrant. The State must protect the rights of women in such marriages, regardless of their registration status” (Para. 26).
- The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery prohibits “[a]ny institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person.” The element unique to slavery but not necessarily found in a forced marriage is the right of ownership that is exercised over the victim. Slavery Convention of 1926, Art. 1(1)). International law also addresses slavery practices involving children. The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery prohibits delivering a child or young person under the age of 18 years by either or both of his parents or guardian to another person, whether for compensation or not, for purposes of exploitation or for the child’s labor (Article 1(d)). The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography prohibits the sale of children, where “a child is transferred by any person or group of persons to another for remuneration or any other consideration” (Art. 2(a)) for purposes of forced labor, sexual exploitation or child prostitution (Art. 3(a)(i)(a), (c), 3(b)).
- Under CEDAW, states must take appropriate measures to modify social and cultural patterns that discriminate against women (Art. 5(a)), but in practice the implementation of these laws can be challenging. The Committee on the Elimination of All Forms of Discrimination against Women General Recommendation 19 states that “[t]raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms.” CEDAW has also expressed concern over practices that uphold culture over eliminating discrimination. Also, the Human Rights Committee has drawn attention to minority rights that infringe upon the rights of women. In General Comment 28, it stated that those “rights which persons belonging to minorities enjoy under article 27 of the Covenant in respect of their language, culture and religion do not authorize any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law” (Para. 32).
Africa:
- The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, known as the Maputo Protocol, dictates that States Parties take appropriate measures to:
o ELIMINATE all forms of discrimination against women (Article 2);
o ENACT and effectively implement appropriate legislative or regulatory measures, including those prohibiting and curbing all forms of discrimination particularly those harmful practices which endanger the health and general well-being of women (Article 2(1)(b));
o PROHIBIT “all forms of harmful practices which negatively affect the human rights of women” and take all necessary legal and other measures to protect women from harmful practices and all other forms violence, abuse and intolerance (Article 5);
o GUARANTEE women and men equal rights in marriage, require the free and full consent of both parties in marriage, establish a minimum age of 18 for women to marry, and encourage monogamy as the preferred form of marriage (Article 6);
o ENSURE that women and men enjoy the same rights in case of separation, divorce or annulment of marriage (Article 7).
Article 20 of the protocol requires States Parties to take appropriate legal measures to ensure that widows enjoy all human rights, which includes ensuring that:
o Widows are not subjected to inhuman, humiliating or degrading treatment;
o A widow automatically becomes the guardian and custodian of her children after the death of her husband, unless this is not in the children’s best interests; and
o A widow has the right to remarry and to marry the person of her choice.
- The African Charter on the Rights and Welfare of the Child states that States Parties shall take “all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child,” including customs and practices that discriminate based on sex. The charter prohibits the marriage and betrothal of children and calls for States Parties to adopt laws setting the minimum age for marriage at 18 years and requiring registration of all marriages in an official registry (Article 21). Furthermore, every child is entitled to enjoy parental care and protection and has the right to reside with his or her parents. Protocol to the African Charter on the Rights and Welfare of the Child, Art. 19(1); Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, Art. 20(b). Laws should bar separation of a child from his or her parent against the child’s will save in circumstances where a judicial authority has determined such separation is in the child’s best interests. Protocol to the African Charter on the Rights and Welfare of the Child, Art. 19(1); Convention on the Rights of the Child, Art. 9(1).
Europe:
- The Charter of Fundamental Rights of the European Union specifically enshrines the right to non-discrimination on the basis of sex, and Article 23 obligates states to ensure equality between men and women in all areas. The EU guidelines on violence against women and girls and combating all forms of discrimination against them state that violence against women and girls includes forced marriage and child marriage whether perpetrated or condoned by the state or not (Annex, p. 14).
- The Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 prohibits discrimination in the enjoyment of all rights and freedoms set forth in the treaty on the basis of sex (Article 14). The Council of Europe’s Social Charter calls on States Parties to take all appropriate measures, including through institutions and services, to protect the right of children and young persons to social and economic protection (Article 17). The European Parliamentary Assembly Resolution 1468 “Forced Marriages and Child Marriages” (2005) recommends that all of the Council of Europe member states enact legislation that requires the registration of all marriages and authorizes a registrar to interview a bride and a groom prior to marriage, in order to potentially address situations where there are doubts about free and full consent to such marriage (Articles 14.2.2, 14.2.3). Recommendation 1723 “Forced Marriages and Child Marriages” (2005) recommends that the Committee of Ministers direct the appropriate committee to investigate the issue of forced marriages and child marriages and develop a strategy for Member States to take action on the matter.
- The Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention), adopted by the Council of Europe and opened for signature in May 2011, obliges states to reform laws, implement practical measures to aid victims, and, importantly, allocate adequate resources for an effective response to violence against women and domestic violence. In addition states must involve all relevant actors in the implementation of the Istanbul Convention, including national parliaments and institutions and non-governmental and civil society organizations.
Article 37 of the Convention obligates states parties to “take the necessary legislative or other measures to ensure that the intentional conduct of forcing an adult or a child to enter into a marriage is criminalized” and “to ensure that the intentional conduct of luring an adult or a child to the territory of a Party or State other than the one she or he resides in with the purpose of forcing this adult or child to enter into a marriage is criminalised.”
The Convention will enter into force once ten countries have ratified it. Eight of the ten ratifying countries must be Council of Europe member states, but any nation can become a state party. An ongoing list of signatures and ratifications can be found here. The Convention is available here in 28 languages. Watch a video here about the Istanbul Convention as an important complement to the international legal framework on violence against women.
Tool:
Americas:
- The Organization of American States has promulgated the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belem do Para”), which prohibits violence against women in the public and private spheres. It requires States Parties to take a number of measures, including legal measures and progressively specific measures to modify legal or customary practices which perpetuate violence against women or are based on inferiority, superiority or stereotyped roles of either of the sexes that condone or exacerbate violence against women (Articles 7(e) and 8(b)).Article 17(3) also provides that “No marriage shall be entered into without the free and full consent of the intending spouses” and Article 21(2) provides that “No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.”
Asia:
- The 2004 Declaration on the Elimination of Violence against Women in the ASEAN Region provides eight measures for regional collaboration in eliminating violence against women, including development of legislation that prevents violence and promotes recovery and reintegration of victims. The Declaration encourages states to:
- enact and, where necessary, reinforce or amend domestic legislation to prevent violence against women
- to enhance the protection, healing, recovery and reintegration of victims/survivors, including measures to investigate, prosecute, punish and where appropriate rehabilitate perpetrators, and prevent re-victimisation of women and girls subjected to any form of violence, whether in the home, the workplace, the community or society.
- The South Asian Association on Regional Cooperation (SAARC) Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia, 2002, requires States Parties to:
- ensure that their national laws protect the child from any form of discrimination, abuse, neglect, exploitation, torture or degrading treatment, trafficking and violence (article 4 (3)(a); and to
- make civil registration of births, marriages and deaths, in an official registry, compulsory in order to facilitate the effective enforcement of national laws, including the minimum age for employment and marriage (article 4 (3)(d)).