The requirement for the free and
informed consent of both parties to a marriage is recognized in numerous
international instruments and conventions, which then condemn forced marriages
and child marriages as a result. However, as both the “Bringing Rights to Bear”
article and the International law Association (ILA) report below show, the
comments of treaty bodies are not legally binding on national courts and in
many countries, even ratified treaties often take a backseat in the face of
conflicting domestic legislation. More research is necessary to determine in
greater detail how specific treaty provisions in this area are interpreted and
applied in domestic courts.
- 1. Center
for Reproductive Law and Policy and University of Toronto International
Programme on Reproductive and Sexual Health Law. Bringing Rights to Bear: An Analysis of the Work of UN Treaty
Monitoring Bodies on Reproductive and Sexual Rights (2002).
-
This report
examines six UN treaties and their monitoring bodies, specifically studying how
each committee has incorporated reproductive and sexual health into its work. After
outlining how the treaty monitoring body system works, the report examines
different topics of reproductive and sexual health under each treaty and
assesses how effective the treaty has been and whether it has met its
obligations. Under the section “Marriage and the Private Life”
, the report
discusses how each treaty addresses topics such as forced marriage and child
marriage.
- 2. International Law Association. International Human Rights Law and Practice: Report from the Berlin Conference (Berlin, 2004).
-
This report
examines references to the relevance and utility of treaty body findings in
domestic and international courts. It concludes that, in general, courts have
stated that although treaty bodies are not courts, their findings are relevant
and useful in some contexts, although national courts have generally not been
prepared to accept that they are formally bound by committee interpretations of
treaty provisions. The report includes numerous examples of case law from
courts around the world.
4.1 International Treaties
Numerous
treaties recognize the right to free and full consent in a marriage. Thus, if a
country has signed and ratified one of the following treaties, it is
internationally bound to ensure that only marriages which are founded upon
mutual consent are recognized within its jurisdiction. In this regard, the four
most significant treaties ratified by Canada which address consent in marriage
are the Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), the International Covenant on Civil and
Political Rights (ICCPR), and the International
Covenant on Economic, Social and Cultural Rights (ICESCR).
Canada has not signed or ratified the Convention
on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages.
-
1. Convention on Consent to Marriage, Minimum
Age for Marriage and Registration of Marriages, 7 November 1962, 521
U.N.T.S. 231 (entered into force 9 December 1964, Canada has not signed or
ratified). Articles 1-3.
- Article 1:
- 1. No marriage shall be
legally entered into without the full and free consent of both
parties,such consent to be expressed by them in person after due
publicity and in the presence of the authority competent to solemnize
the marriage and of witnesses,
as prescribed by law.
- 2. Notwithstanding anything in paragraph 1 above, it shall not be
necessary for one of the parties to be present when the competent
authority is satisfied that the circumstances are exceptional and that
the party has, before a competent authority and in such manner as may
be prescribed by law, expressed and not withdrawn consent.
- Article 2: States Parties to the present Convention shall take
legislative action to specify a minimum age for marriage. No marriage shall
be legally entered into by any person under this age, except where a
competent authority has granted a dispensation as to age, for serious
reasons, in the interest of the intending spouses.
- Article 3: All marriages shall be registered
in an appropriate official register by the competent authority.
- 2. Convention on the
Elimination of All Forms of Discrimination against Women, 18 December
1979, 1249 U.N.T.S. 13 (entered into force 3 September 1981, ratification by
Canada 9 January 1982). Article 16 and General Recommendation 21 on Equality in
Marriage and Family Relations.
- Article 16:
- 1. States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and
family relations and in particular shall 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;
- 2. The betrothal and the marriage of a child shall have no legal
effect, and all necessary action, including legislation, shall be taken
to specify a minimum age for marriage and to make the registration of
marriages in an official registry compulsory.
- General Recommendation 21, Article 16:
16. A woman's right to choose a spouse and enter freely into
marriage
is central to her life and to her dignity and equality as a human
being. An examination of States parties' reports discloses that there
are countries which, on the basis of custom, religious beliefs or the
ethnic origins of particular groups of people, permit forced marriages
or remarriages. Other countries allow a woman's marriage to be
arranged for payment or preferment and in others women's poverty
forces them to marry foreign nationals for financial security. Subject
to reasonable restrictions based for example on woman's youth or
consanguinity with her partner, a woman's right to choose when, if, and
whom she will marry must be protected and enforced at law.
- 3. Convention on the
Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3 (entered into force
2 September 1990, accession by Canada 12 January 1992). Articles 11, 12, 19, 35, 36;
- Article 11: 1. States Parties shall take
measures to combat the illicit transfer and non-return of children abroad.
- Article 12: 1. States Parties shallassure to the child who is
capable of forming his or her own views the right to
express those views freely in all matters affecting the child, the views of
the child being given due weight in accordance with the age and maturity of
the child.
- Article 19:
- 1. States Parties shall take all appropriate legislative,
administrative, social and educational
measures to protect the child from all forms of physical or menta
violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse, while in
the care of parent(s), legal guardian(s) or any other person who
has the care of the child.
- 2. Such protective measures should, as appropriate, include
effective procedures
for the establishment of social programmes to provide necessary support for the
child and for those who have the care of the child, as well as for other forms
of prevention and for identification, reporting, referral, investigation,
treatment and follow-up of instances of child maltreatment described
heretofore, and, as appropriate, for judicial involvement.
- Article 35: States Parties shall take
all appropriate national, bilateral and multilateral measures to prevent the
abduction of, the sale of or traffic in children for any purpose or in any
form.
- Article 36: States Parties shall
protect the child against all other forms of exploitation prejudicial to any
aspects of the child's welfare.
- 4. Hague Conference on Private International Law, Hague Convention on Celebration and
Recognition of the Validity of Marriages, 14 March 1978 (entered into force
1 May 1991, Canada has not signed or ratified but is a member state to the
conference).
- Article 11: A Contracting State may refuse to recognize the validity of a marriage only where, at the time of
the marriage, under the law of that State—
- (3) one of the spouses had not attained the minimum age required for marriage,
nor had obtained the necessary dispensation; or
- (4) one of the spouses did not have the mental capacity to consent; or
- (5) one of the spouses did not freely consent to the marriage.
- 5. International
Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171,
arts. 9-14, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 March
1976, accession by Canada 19 May 1976). Article 8, 23, General Comment No. 19 on protection of the
family, the right to marriage and equality of the spouses, General Comment No.
28 on the equality of rights between men and women.
- Article 8:
- 1. No one shall be held in slavery; slavery and the slave-trade in all their
forms shall be prohibited.
- 2. No one shall be held in servitude.
- 3. (a) No one shall be required to perform forced or compulsory labour;
- Article 23:
- 3. No marriage shall be entered into without the free and full consent of the intending spouses.
- 4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.
- General Comment No. 19, Article 4:
4. Article 23, paragraph 2, of the Covenant reaffirms the right of men and
women of marriageable age to marry and to found a family. Paragraph 3 of the same
article provides that no marriage shall be entered into without the free and
full consent of the intending spouses. States parties' reports should indicate
whether there are restrictions or impediments to the exercise of the right to
marry based on special factors such as degree of kinship or mental incapacity.
The Covenant does not establish a specific marriageable age either for men or
for women, but that age should be such as to enable each of the intending
spouses to give his or her free and full personal consent in a form and under
conditions prescribed by law[…]
- General Comment No. 28, Article 23 & 24:
- 23. States are required to treat men and women equally in regard to
marriage in accordance with article 23, which has been elaborated further by
General Comment No. 19 (1990). Men and women have the right to enter into
marriage only with their free and full consent, and States have an obligation
to protect the enjoyment of this right on an equal basis. Many factors may
prevent women from being able to make the decision to marry freely. One factor
relates to the minimum age for marriage. That age should be set by the State on
the basis of equal criteria for men and women. These criteria should ensure
women's capacity to make an informed and uncoerced decision. A second factor in
some States may be that either by statutory or customary law a guardian, who is
generally male, consents to the marriage instead of the woman herself, thereby
preventing women from exercising a free choice.
- 24. Another factor that may affect women's right to marry only when they have
given free and full consent is the existence of social attitudes which tend to
marginalize women victims of rape and put pressure on them to agree to
marriage. A woman's free and full consent to marriage may also be undermined by
laws which allow the rapist to have his criminal responsibility extinguished or
mitigated if he marries the victim. States parties should indicate whether
marrying the victim extinguishes or mitigates criminal responsibility and, in
the case in which the victim is a minor, whether the rape reduces the
marriageable age of the victim, particularly in societies where rape victims
have to endure marginalization from society[…]
- 6. International
Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, GA Res.
2200 (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (entered into force
3 January 1976, accession by Canada 19 May 1976). Article 10; General Comment 14 on the right to the highest
attainable standard of health, Article 22. General Comment 16 on Equality of
Rights between Men and Women, Article 27.
- Article 10.1:
The States Parties to the present Covenant recognize that the widest possible
protection and assistance should be accorded to the family, which is the natural
and fundamental group unit of society, particularly for its establishment and
while it is responsible for the care and education of dependent children. Marriage
must be entered into with the free consent of the intending spouses.
- General Comment 14, Article 22:
22. There is a need to adopt effective and appropriate measures to abolish
harmful traditional practices affecting the health of children, particularly
girls, including early marriage, female genital mutilation, preferential
feeding and care of male children.
- General Comment 16, Article 27:
27. Article 10, paragraph 1, of the Covenant requires that States parties
recognize that the widest possible protection and assistance should be accorded
to the family, and that marriage must be entered into with the free consent of
the intending spouses. Implementing article 3, in relation to article 10,
requires States parties, inter alia,[…]to ensure that men and women have an
equal right to choose if, whom and when to marry—in particular, the legal age
of marriage for men and women should be the same, and boys and girls should be
protected equally from practices that promote child marriage, marriage by
proxy, or coercion.
- 7. Optional Protocol
to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography, 25 May 2000, GA Res. A/RES/54/263 (entered
into force 18 January 2002, ratification by Canada 14 September 2005).
Articles 3, 8, 10.
- Article 3: 1. Each State Party shall
ensure that, as a minimum, the following acts and activities are fully covered
under its criminal or penal law, whether such offences are committed
domestically or transnationally or on an individual or organized basis:
- (a) In the context of sale of children as defined in article 2:
(i) Offering, delivering
or accepting,
by whatever
means, a child
for the purpose of:
a. Sexual exploitation of
the child; […]
c. Engagement of the child
in forced labour; […]
- (b) Offering, obtaining, procuring or providing a child for child prostitution,
as defined in article 2;
2. Subject to the provisions of the national law of a State Party, the same
shall apply to an attempt to commit any of the said acts and to complicity or
participation in any of the said acts.
- Article 8: 1. States Parties shall
adopt appropriate measures to protect the rights and interests of child victims
of the practices prohibited under the present Protocol at all stages of the
criminal justice process, in particular by:
- (a) Recognizing the vulnerability of child victims and adapting procedures to
recognize their special needs, including their special needs as witnesses;
- (d) Providing appropriate support services to child victims throughout the
legal process;
- (e) Protecting, as appropriate, the privacy and identity of child victims and taking
measures in accordance with national law to avoid the inappropriate
dissemination of information that could lead to the identification of child
victims;
- (f) Providing, in appropriate cases, for the safety of child victims, as well
as that of their families and witnesses on their behalf, from intimidation and
retaliation;
- Article 10:
- 1. States Parties shall
take all necessary steps to strengthen international cooperation by
multilateral, regional and bilateral arrangements for the prevention, detection,
investigation, prosecution and punishment of those responsible for acts
involving the sale of children, child prostitution, child pornography and child
sex tourism. States Parties shall also promote international cooperation and
coordination between their authorities, national and international
non-governmental organizations and international organizations.
- 2. States Parties shall promote international cooperation to assist child
victims in their physical and psychological recovery, social reintegration and
repatriation.
- 3. States Parties shall promote the strengthening of international cooperation
in order to address the root causes, such as poverty and underdevelopment,
contributing to the vulnerability of children to the sale of children, child
prostitution, child pornography and child sex tourism.
- 8. Supplementary
Convention on the Abolition of Slavery, and the Slave Trade, and Institutions
and Practices Similar to Slavery, art 1(c)(i), 7 September 1956, 266
U.N.T.S. 3 (entered into force 30 April 1957, ratification by Canada 10 January
1963). Article 1.
- Article 1:
Each of the States Parties to this Convention shall take all practicable and
necessary legislative and other measures to bring about progressively and as
soon as possible the complete abolition or abandonment of the following
institutions and practices, where they still exist and whether or not they are
covered by the definition of slavery contained in article 1 of the Slavery…
- (c) Any 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;
- (d) Any institution or practice whereby a child or young person under the age
of 18 years, is delivered by either or both of his natural parents or by his
guardian to another person, whether for reward or not, with a view to the
exploitation of the child or young person or of his labour.
4.2 International Consensus Documents
Although not
internationally binding, international documents can provide insight into world
opinions—including that on forced marriage. The Universal Declaration of Human Rights (UDHR) is a declaration
adopted by the United Nations General Assembly, and although the declaration
does not form part of international law[1], it is a powerful tool in applying
diplomatic and moral pressure to governments that violate any of its articles. It
is important, therefore, to note that article 16 of the UDHR states that “[m]arriage
shall be entered into only with the free and full consent of the intending
spouses.”
Similarly, the texts of the Council of Europe allow an examination of
the commitments of its member countries in areas such as forced marriages and
child marriages. The Universal Islamic
Declaration of Human Rights clarifies that there is no justification in
Islam for forced marriage.
- 1. Council
of Europe, P.A., 13th Sitting, Traffic
in women and forced prostitution in Council of Europe member states, Texts
Adopted, Rec. 1325 (1997).
- 1. The Assembly
is alarmed by the dramatic increase in recent years in the traffic in women and
forced prostitution in Council of Europe member states[…]The Assembly is also
concerned about the deterioration of the treatment of trafficked women,
bordering on slavery, which has resulted from this development.
- 2. The Assembly defines traffic in women and forced prostitution as any legal
or illegal transporting of women and/or trade in them, with or without their
initial consent, for economic gain, with the purpose of subsequent forced
prostitution, forced marriage, or other forms of forced sexual exploitation.
The use of force may be physical, sexual and/or psychological, and includes
intimidation, rape, abuse of authority or a situation of dependence.
- 3. Considering traffic in women and forced prostitution thus defined to be a
form of inhuman and degrading treatment and a flagrant violation of human
rights, the Assembly feels the need for urgent and concerted action on the part
of the Council of Europe, its individual member states and other international
organisations.
- 4. The Assembly recommends that the Committee of Ministers elaborate a
convention on traffic in women and forced prostitution, which would also be
open for signature by states not members of the Council of Europe.
- 2. Council of Europe, P.A., 29th Sitting, Forced
marriages and child marriages, Texts Adopted, Res. 1468 (2005).
- 1. The
Parliamentary Assembly is deeply concerned about the serious and recurrent
violations of human rights and the rights of the child which are constituted by
forced marriages and child marriages.
- 2. The Assembly observes that the problem arises chiefly in migrant communities
and primarily affects young women and girls.
- 3. It is outraged by the fact that, under the cloak of respect for the culture
and traditions of migrant communities, there are authorities which tolerate
forced marriages and child marriages although they violate the fundamental
rights of each and every victim.
- 4. The Assembly defines forced marriage as the union of two persons at least
one of whom has not given their full and free consent to the marriage.
- 5. Since it
infringes the fundamental human rights of the individual, forced marriage can
in no way be justified.
- 7. The Assembly defines child marriage as the union of two persons at least one
of whom is under 18 years of age.
- 8. The Assembly deplores the drastic effects of marriage on married children.
Child marriage in itself infringes their rights as children. It is prejudicial
to their physical and psychological welfare. Often an obstacle to school
attendance, child marriages may be prejudicial to children's access to
education and their intellectual and social development, in that they restrict
their horizon to the family circle.
- 9. The Assembly is appalled to find that some national legislation permits the
marriage of minors, sometimes in a discriminatory fashion with gender-based
differences in minimum ages.
- 10. Such marriages should, in fact, no longer take place in our societies,
which uphold human rights and the rights of the child. In that respect, the
Assembly concurs with the considerations set out in the 1962 United Nations
Convention on Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages[…]
- 12. It therefore stresses the need to take the requisite legislative measures
to prohibit child marriage by making 18 years the minimum marriageable age.
Thus, persons not having reached this age would not be able to lawfully
contract marriage.
- 3. Council of Europe, P.A., 29th Sitting, Forced
marriages and child marriages, Texts Adopted, Rec. 1723 (2005).
- 1. The
Parliamentary Assembly refers to its Resolution 1468 (2005) on forced marriages
and child marriages and asks the Committee of Ministers to ensure its
application by member states.
- 2. It recommends that the Committee of Ministers of the Council of Europe
instruct the appropriate intergovernmental committee to make a thorough
analysis of forced marriages and child marriages and devise a strategy
encouraging member states to take the following specific action: [recommendations,
including prevention, punishment, and support programs, are omitted]
- 4. UN Fourth World Conference on Women, Report of the Fourth World Conference on
Women (Beijing), UN Doc. A/CONF.177/20 (Beijing: 4-15 September 1995).
- Part B: Education and training of women:
71. Discrimination in girls' access to education persists in many areas, owing
to customary attitudes, early marriages and pregnancies, inadequate and gender-biased
teaching and educational materials, sexual harassment and lack of adequate and
physically and otherwise accessible schooling facilities[…
-
Part C: Women and health:
96. The human rights of women include their right to have control over and decide
freely and responsibly on matters related to their sexuality, including sexual
and reproductive health, free of coercion, discrimination and violence.
Equal relationships between women and men in matters of sexual relations and reproduction,
including full respect for the integrity of the person, require mutual respect,
consent and shared responsibility for sexual behaviour and its consequences.
-
Part D: Violence Against Women:
- 112. Violence against women is an obstacle to the achievement of the objectives
of equality, development and peace. Violence against women both violates and
impairs or nullifies the enjoyment by women of their human rights and
fundamental freedoms[…]
- 113. The term
“violence against women”
means any act of gender-based violence
that results in, or is likely to result in, physical, sexual or psychological
harm or suffering to women, including threats of such acts, coercion or
arbitrary deprivation of liberty, whether occurring in public or private life.
Accordingly, violence against women encompasses but is not limited to the
following:
a. Physical, sexual and psychological violence occurring in the family,
including battering, sexual abuse of female children in the household,
dowry-related violence, marital rape, female genital mutilation and other traditional
practices harmful to women, non- spousal violence and violence related to
exploitation;
b. Physical, sexual and psychological violence occurring within the general community,
including…trafficking in women and forced prostitution;
- 115. Acts of violence against women also include forced sterilization and
forced abortion, coercive/forced use of contraceptives, female infanticide and
prenatal sex selection.
- 117. […]In many cases, violence against women and girls occurs in the family or
within the home, where violence is often tolerated. The neglect, physical and
sexual abuse, and rape of girl children and women by family members and other
members of the household, as well as incidences of spousal and non-spousal
abuse, often go unreported and are thus difficult to detect. Even when such
violence is reported, there is often a failure to protect victims or punish
perpetrators.
-
Part L: The girl child:
259. […]in many countries available indicators show that the girl child is
discriminated against from the earliest stages of life, through her childhood
and into adulthood[…]The reasons for the discrepancy include, among other
things, harmful attitudes and practices, such as female genital mutilation, son
preference—which results in female infanticide and prenatal sex selection—early
marriage, including child marriage, violence against women, sexual
exploitation, sexual abuse, discrimination against girls in food allocation and
other practices related to health and well-being. As a result, fewer girls than
boys survive into adulthood.
[suggestions for actions to be taken by governments and organizations follow
each section]
- 5. Universal
Declaration of Human Rights, GA Res. 217 (III), UN GAOR, 3d Sess., Supp.
No. 13, UN Doc. A/810 (1948). Article 16.
- Article 16:
- 1. Men and women of full age, without any limitation due to race, nationality
or religion, have the right to marry and to found a family. They are entitled
to equal rights as to marriage, during marriage and at its dissolution.
- 2. Marriage shall be entered into only with the free and full consent of the
intending spouses.
- 3. The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.
- 6. Universal Islamic Declaration of Human Rights, 19 September 1981 (adopted by the Islamic
Council, proclaimed at UNESCO).
Article 19.
- Article 19: Right to Found a Family and
Related Matters:
- a) Every person is entitled to marry, to found a family and to bring up
children in conformity with his religion, traditions and culture. Every spouse
is entitled to such rights and privileges and carries such obligations as are
stipulated by the Law.
- b) Each of the partners in a marriage is entitled to respect and consideration
from the other. […]
- d) Every child has the right to be maintained and properly brought up by its
parents, it being forbidden that children are made to work at an early age or
that any burden is put on them which would arrest or harm their natural
development.
- i) No person may be married against his or her will, or lose or suffer
dimunition of legal personality on account of marriage.
