Annotated Bibliography on Comparative and International Law relating to Forced Marriage
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.
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.
- 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.
- 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.
- 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:
- 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.
- 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;
- (a) In the context of sale of children 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.
- 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…
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, 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.
- 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.
- Article 19: Right to Found a Family and
- 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.
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