Annotated Bibliography on Comparative and International Law relating to Forced Marriage

4.0 International Documents

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.

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.

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