Annotated Bibliography on Comparative and International Law relating to Forced Marriage
Child marriage, sometimes referred to as early marriage, is usually considered to be forced marriage since minors are deemed incapable of giving consent due to lack of understanding. Even despite this question, however, many child marriages involve situations where the child's agreement is not sought. Although child marriage has attracted attention due to its associated health risks (such as early pregnancy, a leading cause of death worldwide for girls aged 15 to 19), it is largely overlooked as a human rights issue despite the fact that it is prohibited by many international conventions. Many of the domestic laws and international covenants which deal with child marriage are unsuccessful because of laws protecting traditional customary or religious marriages and lack of marriage registration, as well as exceptions where the victim is married to the sexual abuser. However, simply adopting a uniform minimum age for marriage as required by CEDAW (see General Recommendation 21 above at page 10) may overlook the complexity of both marriage and childhood, so a more contextual approach may be preferable. The key contributing factors to child marriage are poverty and the need to control female sexuality.
- 1. Black, Maggie.
“WANTED: the right to refuse”New Internationalist (August 2001) 20.
Black criticizes the fact that forced marriage is not recognized as a major human rights issue yet it is akin to slavery and has the effect of legalizing rape and forced pregnancy. Most arguments put forth against early pregnancy are related to health concerns and population growth, not slavery and forced marriage.
- 2. Bunting,
“Stages of Development: Marriage of Girls and Teens as an International Human Rights Issue”(2005), 14(1) Social & Legal Studies 17.
Bunting argues that the CEDAW strategy of creating a uniform marriageable age and the narrow rights-based analysis miss the complexity of both marriage and age. It is necessary to consider the cultural constructions of childhood when analyzing early marriage and a strategy based on a uniform age of 18 overlooks the diversity of childhoods. The approach must be grounded in the historical, cultural, social and economic conditions that impact the occurrence and consequences of early marriage.
- 3. Canada, Senate, Standing Committee on Human Rights.
This report discusses a study on Canada's international obligations in relation to the rights and freedoms of children and whether Canada's legislation meets the obligations under the Convention on the Rights of the Child. The study found that Canada had fallen behind other countries in meeting its expectations, so a new process is necessary. One concern was that Canada lacks uniform national standards in a number of key areas with direct impact on children's rights and the institutions established to protect children's rights in each province perform significantly different functions.
- 4. Council of Europe, Committee on Equal Opportunities for Women and Men. Forced marriages and child marriages, Documents, Doc. 10590 (2005) at II(B).
This document gives some background information on child marriage, the extent of the problem worldwide, and offers proposals for change. The rapporteur notes that states have a duty to enforce human rights in their countries, so national legislation should reflect this duty and the minimum legal age of marriage for men and women should be brought to 18 years. Forced marriages should not be recognized and preventative measures and protection for victims should be put in place.
- 5. UNICEF.
“Early Marriage: Child spouses”7Innocenti Dig. 1 (United Nations Children's Fund, Innocenti Research Centre, Italy, March 2001).
This digest focuses on early marriage—the marriage of children and young people under the age of 18—from a human rights perspective, a view which has not as often been addressed in the past. It examines the extent of early marriage, its context and causes, and its impact on society. The key contributing factors to child marriage are poverty and the need to
“protect”girls. The report encourages information and education programs for both adolescents and parents, increased emergency support for victims, governmental action to ensure customary and civil law abides by international human rights standards, and increased rights-based research into the problem.
- 6. Warner, Elizabeth.
“Behind the Wedding Veil: Child Marriage as a form of trafficking in girls”(2004) 12 Am. U. J. Gender Soc. Pol'y & L 233.
Warner discusses the failure of domestic laws and international covenants with respect to child marriage because of exceptions where the victim is married to the abuser and for laws protecting traditional customary or religious practices. Furthermore, the conventions do not have enforcement mechanisms and do not recognize the vulnerabilities of children whose consent may be coerced. Child marriage is usually encouraged either for financial reasons, since younger brides fetch a higher price, or due to a parental desire to control female sexuality. The end of the article sets out recommendations for legal and extra-legal measures to combat child marriage.
This website outlines the problem of early marriage as a human rights violation, relying heavily on the UNICEF report. It discusses the impact of early marriage and the reasons it occurs, as well as summarizing some preventative measures which have been introduced. UNICEF developed the Sara Adolescent Girl Communication Initiative in ten Eastern and Southern African countries to educate girls and their families. In Ethiopia, the Family Guidance Association runs 18 clinics and more than 500 community-based centres which promote safer sex practices and offer relationship advice.
Dual nationality becomes important when determining a
country's response to a citizen who has been forced into a marriage, especially
when the marriage involves an overseas dimension. There is still ongoing debate
about the extent of power that a country can exercise in aiding a citizen who
is a dual national and within their other country of nationality. Although the
Nationality Convention established that
“a state may not afford diplomatic
protection to one of its nationals against a state whose nationality such
person also possesses,” many now argue that the rule of dominant and effective
nationality should prevail (Symington, 2001; Hossain and Turner, 2001). The
primary reason for intervention by the UK in cases of forced marriage is
breach of international human rights norms, which creates an obligation to act.
The Home Office Working Group report criticizes that dual nationals are not
guaranteed assistance, but as Hossain (2005) notes, dual nationality is now to
be considered irrelevant in the UK and the government has decided to treat all
persons in the same situation who are facing forced marriage alike, taking all
appropriate action and making representations on their behalf.
- 1. Symington, Alison.
“Dual Citizenship and Forced Marriages”(2001), 10 Dalhousie J. Legal Stud. 1.
Symington provides background information on both dual nationality and forced marriage, particularly from a British-Asian perspective. The interaction of domestic laws prevent dual nationals who are abducted and forced into marriage from receiving protection. The author argues that the Convention on Nationality should be abandoned and the rule of dominant and effective nationality should prevail.
- 2. INTERIGHTS,
Ain O Salish Kendra (ASK) & Shirkat Gah.
“Home Office Working Group—Information Gathering Exercise on Forced Marriages”(Submission to the Home Office Working Group, March 2000).
This paper includes a section on dual nationals and their position under both international law and UK law, criticizing that assistance cannot be guaranteed.
- 3. Hossain,
“Women's Rights to Choice in Marriage: From Recognition to Realisation…and denial?”(Paper delivered at Catalyst 2005: Global Perspectives on Successful Implementation of Human Rights of Women Conference, University of Essex, 6 May 2005) [unpublished].
Hossain tells of many cases of women who were forced to marry, including instances where the women were successfully returned to the UK. She summarizes the measures that the UK has introduced since 2000 including a change with respect to dual nationals: the government stated that dual nationality was irrelevant and all persons in the same situation who are facing forced marriage will be treated alike and appropriate action will be taken. Many problems still exist because courts in other nations are unwilling to address the issue.
- 4. Hossain, Sara and Suzanne Turner,
“Abduction for Forced Marriage—Rights and Remedies in Bangladesh and Pakistan”(2001), 1-64 I.F.L. 15.
This article focuses on abduction from Britain to Bangladesh and Pakistan of individuals who are dual nationals. Protection is available for dual nationals, but there is no binding obligation to act unless there has been a breach of international human rights norms. The authors argue that the Convention on Nationality should be abandoned and the dominant nationality rule should prevail.
is closely related to trafficking in women, and in some instances there may be
an overlap, for example if women are trafficked to be sold as wives. Governments
have international legal duties to take steps to prevent trafficking and
related abuses, but these duties are often disregarded where a marriage is
involved due to the perceived private nature of these cases. Case studies show
that in Iraq, rape of unwilling
brides is encouraged because a marriage must be consummated to be legal, and
“mass marriages” occurs frequently in Japan. In China, forced marriages are legal
and some 30-90% of marriages may be forced.
- 1. Human Rights Watch.
Thousands of women each year are sold or lured into forced marriage or prostitution, a situation which they can rarely escape. Often government officials and police officers profit from the trade, so there are no means of redress. Both forced prostitution and coerced marriage have largely been dismissed as crimes perpetrated by private individuals for which states have no responsibility under international human rights law, but governments do in fact have specific international legal duties to take steps to eliminate trafficking and related abuses.
- 2. Wijers, Marjan and Lin Lap-Chew. Trafficking in Women. Forced Labour and Slavery-Live Practices in Marriage, Domestic Labour and Prostitution (Utrecht: Foundation Against Trafficking in Women (STV), 1997), at 64-65, 194-195.
This book reveals the results of an international investigation on trafficking in women, with the primary focus on prostitution practices. The short section on forced marriage focuses on servile marriage relationships, which stem from a woman's inferior position in society with respect to property and legal rights. It examines cases from Iraq, where rape of unwilling brides is encouraged because a marriage must be consummated to be legal, and Japan, a country which sees many
“mass marriages”. In China, forced marriages are legal and 30-90% of marriages may be forced depending on local customs.
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