Annotated Bibliography on Comparative and International Law relating to Forced Marriage
This annotated bibliography is intended to provide a foundation for any future research or policy development in the area of forced marriage. The purpose of this bibliography was to identify the relevant literature and case law relating to Canada's international obligations concerning forced marriages and to provide an overview of what other nations have done to address this issue. The bibliography outlines the initiatives of other nations and provides a brief overview of the topic; however, further research could provide added clarity to the extent of Canada's obligations under the various international treaties which address forced marriage through an examination of case law dealing with these treaties. In addition, obtaining more information and details about the scale of the problem within Canada before proceeding with discussions about policy development would be useful.
- Forced marriage is recognized in many United Nations treaties as an abuse of human rights. Child marriage is also recognized as an abuse of human rights in numerous treaties, and overlaps with forced marriage because minors are deemed incapable of giving consent. As a party to many of these treaties, Canada has an international obligation to address the issue, and to ensure that a prerequisite for marriages within its jurisdiction is the free and informed consent of both parties.
- Common law courts have established that duress in forced marriage cases does not have to be confined to physical coercion, and can also include emotional pressure. However, parental pressure will not always necessarily amount to duress because consent can be “reluctant” or “resentful”. What matters is whether the will of the individual has been overborne by the pressure. If this is the case, the marriage is not founded on the free and informed consent of both parties.
- Canada could more closely examine the
initiatives from all of the countries included in this paper in order to
identify possible policy approaches. The UK initiatives may be particularly
useful because of the amount of resources which they have put into
investigating and tackling the issue. The British government has created a team
to address the issue of forced marriage which has conducted research and
consultations, proposed legislation, compiled statistics, and provided support
and rescue operations for victims. Some of the measures implemented by other
- introducing legislation to criminalize the practice (Norway, Belgium);
- revising existing offences to criminalize activities associated with forced marriage (Australia, Denmark, Germany);
- raising the minimum age of marriage (France, Gabon, Indonesia, UK); and
- tightening immigration laws (Denmark).
There are also a wide variety of support and awareness programs in place for victims. By studying the public response to these initiatives, as well as their success rates, Canada can make more informed choices about its preferred action plan.
- There is very little information about the extent of the problem in Canada. The only evidence of forced marriage at this time is through court cases dealing with nullification of marriage or refugee asylum, although some anecdotal reports exist.
Since there is very little information regarding forced marriage in Canada, it is difficult to recommend specific steps the government should take to address the issue. As a first step, it would be beneficial to compile further information—statistics, testimonies, and other information from educators, non-governmental organizations, women's groups, and victims—in order to assess the extent of the situation in Canada.
Using the UK's initiatives as a template, a
group” or some similar body could be established in order to gauge how the
practice is affecting Canadian citizens, and to weigh the various policy
options to determine which ones could be most effective. We believe that
suggesting a particular course of action at this point in time would be
premature, as it could not take into account the particulars of Canada's
situation, since they are largely unknown and undocumented. It is only after a
more thorough investigation which looks at the frequency, location, and extent
of the problem that specific policy recommendations could be put forth.
While more information is needed, looking at initiatives which have been introduced in other countries can provide a starting point for discussion and may also help determine where further research is needed. These initiatives include:
- Creating a specific criminal offence of forcing someone to marry;
- Creating guidelines for Foreign Affairs about how to address cases of forced marriage and setting out the country's position if the case involves someone who has been removed from the country;
- Providing guidance for professionals, including educators, about forced marriage, including its causes and symptoms, and methods for handling cases;
- Providing a framework and funding for support programs and shelters for victims; and
- Reviewing the manner in which cases of asylum based on gender-based persecution, such as forced marriage, are handled and decided.
In addition to obtaining more detailed information on forced marriage in Canada, as outlined above, further research could be done to expand upon what has been covered in this bibliography. Suggested research areas include:
- Child marriage;
- Trafficking in women and children;
- Marriages of convenience and limited purpose marriages;
- An examination of consent in marriage under the laws of the countries where forced marriage is prevalent;
- A study of case law to determine how courts have interpreted obligations under the treaties and covenants which address consent in marriage;
- A thorough study of all case law relating to forced marriage including nullification of marriage;
- Refugee claims resulting from fears about being forced into marriage;
- The degree to which marriages performed abroad are recognized and conflict of laws issues relating to recognition of marriages performed abroad; and
- Further research into the initiatives of nations which are neither English-speaking nor French-speaking, to be performed in one of the official languages of those nations.
The research for this project was not exhaustive, but is perhaps sufficient for understanding the primary areas of concern on the topic. Since this is a topic which is constantly evolving, newspapers proved most useful for determining what initiatives had been introduced, and gave insight into the public response to those initiatives. Government documents were also valuable in determining how the policies were implemented. Although some of the countries and topics had numerous sources confirming the information, it is important to note that for some countries only one or two isolated sources were found, and as such the authors of this report had to at times rely on a single author for their facts. Furthermore, since the research was only conducted in English (apart from the list of relevant French-language sources), some government websites and other secondary sources were not included due to language barriers.
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