Excerpt
Inhaltsverzeichnis
INTRODUCTION
Chapter I Framing the issue of child marriage
1. What constitutes the practice?
2. Why should we worry about child marriage?
2.1. The magnitude of the problem
2.2. Causes
2.3. Consequences
3. The theoretical challenge: Cultural relativism vs Universalism
4. Concluding remarks
Chapter II International legal framework on child marriage
1. Preliminary remarks
2. Consent to and minimum age for marriage
3. Child marriage within the concept of harmful traditional practices
4. Child marriage as a violation of human rights
4.1. The Best Interests of the Child Principle
4.2. Equality and non-discrimination
4.3. Right to life and to maximum survival and development
4.4. Right to health
4.5. Right to protection from violence and freedom from torture and other cruel, inhuman or degrading treatment or punishment
5. Concluding remarks
Chapter III Addressing child marriage at a sub-regional level: South Asia
1. Preliminary remarks
2. Human rights protection in South Asia
3. South Asian Association for Regional Cooperation [SAARC]
4. Review of legal and regulatory frameworks on child marriage in South Asia
4.1. Convention on Preventing and Combating Trafficking in Women and Children for Prostitution [CPCT] and Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia [CPCW]
4.2. SAARC Social Charter
4.3. Colombo Statement on Children of South Asia
4.4. South Asia Initiative for Ending Violence against Children
5. Concluding remarks
Chapter IV Addressing child marriage at the national level of India
1. International commitments and legal system
1.1. International commitments
1.2. The legal system of India
2. Personal laws
2.1. Hindu law of marriage: The 1955 Hindu Marriage Act [HMA]
2.2. Muslim law of marriage
2.3. Christian law of marriage
3. General laws and child marriage related policies
3.1. Legal framework
3.2. Policy Framework
4. National Human Rights Institutions
4.1. National and State Human Rights Commissions
4.2. National and State Commissions for Protection of Child Rights
4.3. National Commission for Women [NCW]
5. Adjudicating Child Marriage
5.1. Preliminary remarks
5.2. Selected cases
Compliance assessment of India’s policies and legislation with the international human rights standards on child marriage
1. Preliminary remarks
2. Minimum age for and consent to marriage
2.1. Minimum age for marriage
2.2. Consent to marriage
3. Child marriage as a harmful traditional practice
4. Related human rights and principles
5. Other concerns
6. Concluding remarks
CONCLUSION
Bibliography
Acknowledgments
First and foremost, I would like to express my sincere gratitude to dr. A.G. Hallo de Wolf and to Lucía Berro Pizzarossa for all the advice, guidance, and support. Special thanks to my family for their unconditional love and trust in me. Dr. A.J.J. de Hoogh, prof. dr. B.C.A. Toebes, prof. dr. C.I. Fournet, prof. dr. A.L. Smeulers, dr. V.M. Bex-Reimert, M.E.C. Gispen, it has been a great privilege to be your student
To my mother: because I owe it all to you.
List of abbreviations
illustration not visible in this excerpt
INTRODUCTION
Child marriage (hereinafter also referred to as CM) is a global concern that is neither a new phenomenon nor a sporadic event. Notwithstanding its recognition by the international community as a human rights violation, the large scale at which the practice is happening all over the world is more than merely disturbing. The issue is further complicated by the fact that, more often than not, child marriage is deeply entrenched in and justified by communities’ customs or religion.
The latter holds particularly true for India that harbours the highest number of child brides worldwide despite the practice prohibition under the Indian laws and irrespective of the state’s international commitments to the protection of children’s rights. This raises the question to what extent do the Indian policies and legislation comply with the international standards on child marriage. Reaching to an answer of the latter is the principle objective of the present research. The thesis sets out to achieve this goal by testing the whole chain of protection against CM: starting from its source at international level and eventually reaching to its local realisation, or lack thereof.
Given to the complex nature of the subject matter, the study is conducted by adopting an interdisciplinary socio-legal approach. The emphasis, however, is placed on the legal dimensions of the issue, rather than the sociological ones. The method applied in conducting the research is the one of situational analysis based on secondary data review. Beside relevant policies, case law, and legislation, the sources examined include papers and reports issued by various international, regional, and national governmental and non-governmental organisations, as well as relevant academic works. Where appropriate, statistical data are used as indicators for assessing human rights violations.
The thesis body is constructed in the following manner. Chapter I discusses the general patterns of child marriage, its underlying determinants, and consequences. It further introduces the debate on cultural relativism versus universalism of human rights. Chapter II attempts to trace the protection against child marriage at international level by placing the issue under the lens of first, the issue of consent to and minimum age for marriage, second, the concept of harmful traditional practices, and third, the human rights violated by the practice. The thesis then proceeds to an overview of the relevant regional framework at the level of South Asia (Chapter III). Through the case study of India, Chapter IV provides an overview of its national policies and legislation, as well as a brief discussion on selected child marriage-related cases. The compliance assessment of the latter with the international human rights standards on child marriage follows in the final Chapter V. It further indicates the main obstacles for the practice eradication and suggests possible ways for the latter to be surmounted.
The thesis aims at assessing the effectiveness of Indian framework on child marriage and providing an insight into the difficulties that the realisation of universal rights may face when placed in the settings of cultural diversity. It underlines that however comprehensive global and national safeguards against child marriage to exist, strong governmental will and meaningful dialogue between all the relevant stakeholders, including children themselves, are crucial for accelerating an actual change. Thus, reaffirming the role of international human rights standards in tackling the scourge of child marriage, the thesis further questions the efficiency of the manner those standards are being enforced at the national level of India.
Chapter I Framing the issue of child marriage
As a point of departure, the following chapter delineates the qualitative and quantitative dimensions of child marriage and introduces the long-standing debate about relativity versus universality of human rights in the context of the practice at hand. This background information serves as a foundation stone upon which the main thesis’ body is built and plays an essential role for grasping the scale of the problem.
1. What constitutes the practice?
There are two aspects of the notion of ‘child marriage’ that need clarification before proceeding to further analysis on the matter. First, in the case of child marriage, the concept of ‘marriage’ is usually understood broadly as encompassing not only formal but also informal unions such as customary or religious marriages and cohabitations[1] where a couple lives together as if married.[2] Second, ‘child marriage’ is often used interchangeably with ‘early marriage’ or ‘forced marriage’[3] which, although sharing common features, are also distinct from one another. With a view to avoiding a possible ambiguity, some light needs to be cast on any of these terms, before setting their employment for the purposes of the present research.
According to the Convention on the Rights of the Child[4] [CRC], ‘child’ is a human being below the age of 18, unless under the applicable law, majority is attained earlier.[5] Consequently, a union would be considered as a child marriage where one or both parties fall within this definition. Such a formulation, however, risks a marriage of an adolescent as young as 16 or less to fall short of the ambit of child marriage if it is covered by the CRC’s exception. This potential shrink in the protection is avoided when using the term ‘early marriage’ which embraces also those cases where one or both spouses are aged below 18 irrespectively of whether the country’s domestic legislation provides that majority is attained earlier or upon marriage.[6] Finally, a union is considered as forced when there is an absence of free and full consent of one or both parties to enter into it[7] or where either of them is unable to dissolve the marriage owing to duress, intense social or family pressure or another factor.[8] It goes without saying that this latter concept emphasises the issue of consent rather than the age of the spouses. Its relevance for the present analysis, however, lies in the fact that while not every forced marriage involves a child, every child marriage involves an element of coercion as children, given their age, are inherently incapable of giving their free, prior and informed consent to it.[9]
This brief outline evidences that child, early, and forced marriage [CEFM] are interrelated concepts and such a terminological differentiation merely leads to fragmentation of the concerns that the three share in common. As this may weaken the advocacy efforts aiming to the practice eradication, handling these phenomena as a single unit is arguably a more effective approach. As such, it is increasingly applied by various governmental and non-governmental organisations concerned with the issue.[10] Without denying their distinctive elements, the thesis confines to the use of ‘child marriage’ only. In the light of the foregoing, however, the latter is to be read as denoting the inclusive definition of CEFM that embraces all the hypotheses of harmful marriages discussed above.
2. Why should we worry about child marriage?
2.1. The magnitude of the problem
All the statistics on child marriage, even if not strongly consistent in their findings, uniformly demonstrate the urgency of the issue. According to data published by the United Nations Children’s Fund [UNICEF]:
- ‘Worldwide, more than 700 million women alive today were married before their 18th birthday. More than one in three […] entered into union before age 15.’[11]
- ‘[...] 15 million girls under 18 are forced into marriage each year.’[12]
- ‘With no progress, almost 950 million women will have been married as children by 2030[...]’[13]
In reading these figures, one should bear in mind that developing a reliable and accurate estimate of the scale of child marriage around the globe has proved challenging. The lack of rigorous birth and marriage registration procedures is the most often cited impediment in this regard. While the former provides a proof of age based on which an underage marriage can be identified and halted,[14] due to the latter, surveys on child marriage often rely on self-reported data.[15] Yet, even in case of legal marriage and even when countries have enacted compulsory marriage registration, their credibility may be vitiated by use of forged documents as evidence for a fictitious age that would be in compliance with the law.[16] Accordingly and considering that data about phenomena hard to register are usually released in a conservative manner, it might be expected that the actual scale of child marriage even exceeds the numbers stated above.
2.2. Causes
Most available data illustrate that child marriage disproportionately affects girls.[17] It is, therefore, commonly regarded as an issue of gender inequality,[18] which is further supported by the fact that in the regions where such unions are most prevalent, i.e. Sub-Saharan Africa and South Asia, women have a subordinate status to men.[19]
Further, in poor societies, child marriage is often considered as a strategy for economic survival. Thus, families often consent to or force their young daughters into marriage in order to relieve themselves from the burden of one more mouth to feed.[20] According to information provided by the International Center for Research on Women [ICRW], ‘girls living in poor households are almost twice as likely to marry before 18 than girls in higher income households.’[21]
Lack of education is also frequently cited as crucial factor where child marriage is persistent. A research conducted by the United Nations Population Fund [UNFPA] in 78 developing countries over the period 2000–2011 demonstrates that there is a direct correlation between the lack of education and the probability of entering into a marriage at an early age.[22] According to its findings, girls with no education are three times more likely to marry or enter into a union before age 18 compared to those with a secondary or higher education.[23] However, the education of the girl’s parents is equally important. While girls’ illiteracy prevents them from becoming economically independent thus making marriage the only feasible alternative for securing their future,[24] parents’ illiteracy may result in unawareness about the inherent risks of the practice, thus increasing the possibility of forcing their children into marriage at an early age.
Finally, the roots the practice has in the traditional and religious values of different societies have also a large role to play for its persistence and constitute one of the main spokes in the wheel of its eradication. In certain cultures, the value attached to virginity and chastity, for instance, results into internalisation of the practice and hence, to its perpetuation through generations.[25] In the context of India, this could be exemplified with the so-called Akshaya Tritiya that is considered as an auspicious day by Hindus and is associated with a performance of mass marriages in the rural areas of many of the Indian states.[26] Another case in point is kanyādān (literally, ‘the gift of a virgin’): a Hindu wedding ritual still practised today, mainly in South Asia, in order girl’s parents to earn pious credits.[27]
2.3. Consequences
While the driving factors of child marriage may vary depending on the settings and the region it occurs, the consequences for the girl-child are virtually uniform. The following paragraph briefly outlines those of them that are most frequently highlighted by relevant empirical and theoretical studies.
First, child marriage makes young brides especially vulnerable to domestic violence, including sexual abuse, and places them at higher risk of child servitude and other slavery-like practices that, in certain cases, could constitute slavery.[28] This subsequently may result in a deprivation of educational and economic opportunities for the girls, thus, entrapping them and their families in an intergenerational cycle of poverty.[29]
Further, the practice negatively impacts girls’ health exposing them to a higher risk of contracting HIV and early pregnancies that often result in maternal death.[30] Child marriage, however, affects not merely the physical but also the psychological and emotional well-being of girls[31] and may have lifelong and irreversible implications on them. According to United Nations Watch’s observations regarding the children’s right situation in Yemen, ‘[…] 8 and 9 years old girls were forced by their parents to marry men many years their senior, consequently, some brides committed suicide.’[32]
Finally, it is important to underline that the harmful consequences of child marriage expand beyond the personal ambit of the girl-child. It further negatively affects the well-being of her family[33] and severely impedes development and poverty eradication efforts not only locally but globally as well.[34]
3. The theoretical challenge: Cultural relativism vs Universalism
As already mentioned, where child marriage is most prevalent, it is often justified by community members as entrenched in local cultural values. In the context of the issue at hand, the term ‘culture’ is utilised in a broad manner referring to ‘[t]hat complex whole which includes knowledge, belief, art, morals, law, custom, and any other capabilities and habits acquired by man [ sic ] as a member of society.’[35] As child marriage is often believed to be required or encouraged by religious texts and teachings,[36] the notion of culture is to be understood as encompassing religion as well, thus, recognising its influence on the cultural identity of societies.[37]
Whether driven by religious beliefs or not, once a practice is accepted as an integral part of the cultural identity of a particular community, its eradication becomes extremely difficult as the community’s members may not see it as something that is begging for change. All this makes child marriage one of the most flagrant illustrations of the conflict between culture and human rights. Thus, the very link between practice and tradition inevitably brings this issue into the centre of the cultural relativism versus universalism debate.
In a nutshell, behind the notion of ‘human rights’, stands the idea of ‘[r]ights of all human beings anywhere and anytime.’[38] With the creation of the United Nations in 1945, the promotion of ‘universal respect for and observance of, human rights and fundamental freedoms for all’[39] was developed as a major purpose. This was further reiterated and commonly articulated within the wording of other international human rights agreements. Ever since, the universality of human rights has been questioned from several perspectives, most notably from a cultural one.[40] For cultural relativists, the language of international human rights law is indifferent to the fact that each culture has its own indigenous concept of human rights and reflects Western values which cannot be translated into non-Western laws and perceptions.[41]
The contemporary debate on the character of human rights takes place somewhere in the middle of this continuum,[42] where traditional values consistent with the Universal Declaration of Human Rights [UDHR][43] can be seen as an instrument in service of international universalism.[44] It appears this to be also the current position of the Human Rights Council [HRC] since in several of its resolutions[45] the concept of ‘traditional values’ has been affirmed as instrumental in the promotion, protection, and implementation of international human rights in diverse social and cultural contexts.[46]
Within the academic discourse, such an approach is also increasingly considered as more efficient at promoting common recognition of the concept of human rights.[47] The notion of reconciliation of culture and human rights[48] has been also referred to as inclusive universality,[49] weak cultural relativism or relative universality.[50] Regardless of the term used, each of these perceptions upholds the view that neither relativism nor universalism, if taken separately, could bring to a factual realisation of the idea of human rights itself and that both are not necessarily incompatible with each other.
However, when resorting to cultural relativism to defend a particular practice, a robust justification is required if it is for the latter to overweight States’ human rights obligations. As Freeman observers:[51]
[O]nce relativists agree, as surely they must, that there are standards for judging justice that are independent of social consensus, they are forced to give up the distinctive premise of cultural relativism. The argument for any practice must be more than that the practice exists… [A]nd so a culture must be able to support practices like child marriage […] by a stronger argument, or set of arguments, than that there is— if, indeed, this is the case—social consensus.
Indeed, adopting culturally sensitive approach towards human rights does not mean compromising with gross violation of those rights. What is more, it should not lead to a subversion of the authority of the international human rights system to evaluate cultural practices and, if harmful, to designate them as a human rights violations.
4. Concluding remarks
Child marriage is a complex phenomenon that constitutes both development and human rights issue. Yet, its rationalisation as a cultural peculiarity has resulted into longstanding neglect of the detrimental effects it has not only on the well-being of the child but on the global development as well. However, in recent years, the international community becomes increasingly involved with the scourge of the practice and strongly contributes to raising public awareness and understanding of the issue. Thus, bringing child marriage within the international human rights agenda was the first tangible step towards catalysing a change of the status quo. How do the international human rights instruments address the issue of child marriage is discussed it the subsequent chapter.
Chapter II International legal framework on child marriage
As already discussed in Chapter I, the practice of child marriage has numerous detrimental implications on children’s well-being, including but not limited to their health, educational perspectives, and social status. The present section applies to those implications a human rights approach by linking them to the concrete human rights norms, principles, and standards stipulated within the existing international fora and violated by the practice. It further aims to identify what obligations states have regarding its eradication.
1. Preliminary remarks
So far, the UN Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW][52] is the only international agreement which directly addresses child marriage by recognising that such unions shall have no legal effect.[53] The question then arises, does this formulation suffice to ensure a meaningful protection of child brides’ interests? There is a longstanding debate surrounding the concept of void marriages. To declare a marriage as having no legal effect by rendering it null (void) means to reduce it to nothing; as though it had never existed.[54] Although the exact legal consequences of the fact of annulment depend on how the matter is regulated under the respective domestic legislation, more commonly the result is that neither of the parties would have at its disposal any of the benefits they could have had in case of a valid marriage, including to maintenance and succession rights. Further, children born in void marriage are regarded as children born outside marriage, hence, as illegitimate, which status deprives them of any inheritance and property rights as well. In the case of child marriage, the detrimental effect of these consequences is further exacerbated by the vulnerable position of the girl owing her young age. It is crucial, therefore, legislators, in constructing child marriage related framework, to provide for sufficient remedies in order to ensure that the rights of both the child bride and her offspring will be protected after the annulment.[55]
The fact that no other global instrument, including the CRC, explicitly provides for the practice prohibition undermines the capacity of the existing framework to deal with the issue efficiently.[56] As illustrated below, one of the problems this entails is the state of uncertainty caused by the fragmentation of the matter in various binding and non-binding instruments. Thus, for instance, there is a contradiction between the definition of a child as a person below 18 on the one hand and setting 15 as a recommended age for marriage, on the other.[57] Arguably, such inconsistencies allow state parties to interpret the relevant provisions in a manner that could be contrary to the interests of children without formally infringing the obligations they have under a particular treaty.[58] The latter is further facilitated by the lack of a single designation of what constitutes child marriage, as discussed in Chapter I.
Yet, all the above is not to say that protection in this regard is non-existent. On the contrary, since the safeguards against the practice are not limited to the ambit of a single treaty, there are three main avenues such protection to be deduced. The first one addresses the issue through the requirements of a minimum age for and consent to marriage. The second route uses the concept of harmful traditional practices. Finally, the third one looks into the whole host of human rights that child marriage violates.
2. Consent to and minimum age for marriage
Setting an appropriate age of consent to marriage is among the main guarantees that both parties are capable of entering into it voluntarily and after making ‘an informed and uncoerced decision.’[59]
The 1948 UDHR is the earliest agreement adopted by the international community that highlights the relevance of both age and consent in the establishment of marriage.[60] In article 16 (1), it stipulates that ‘[m]en and women of full age […] have the right to marry […]’ but does not provide any further explanation what ‘full age’ involves thus, leaving its determination to the discretion of states. Similar is the open-ended formulation of the 1966 International Covenant on Civil and Political Rights [ICCPR][61] that use the term ‘marriageable age’[62] without specifying when such age is attained. According to Eriksson, both ‘full age’ as formulated in UDHR and ‘marriageable age’ as is the wording used by ICCPR, can be read as the age of legal or physical majority.[63] In either case, despite the omission of setting a specific age, the UDHR drafters’ intention was the one of preventing children from entering into marriage, which is further supported by the use of the phrase ‘men and women.’[64]
Another instrument relevant to the issue at hand is the 1956 UN Supplementary Convention on the Abolition of Slavery.[65] The treaty calls for abandonment of such institutions and practices, whether or not covered by the definition of slavery contained in the 1926 Slavery Convention,[66] including whereby,
[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.[67]
It further makes a reference to the requirements of consent to and minimum age for marriage by calling state parties to [p]rescribe, where appropriate, suitable minimum ages of marriage, to encourage the use of facilities whereby the consent of both parties to a marriage may be freely expressed in the presence of a competent civil or religious authority, and to encourage the registration of marriages.[68]
Thus, even though article 1 does not strictly refer to child marriage, when read in conjunction with article 2, it could be suggested that such practices are considered by the UN as ‘similar to slavery’[69] and therefore must be prohibited. Here again, however, no specification of the minimum marriageable age is provided.
In 1962, the United Nations General Assembly [UNGA] adopted the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages[70] [CCM] where the issue is addressed in more comprehensive manner. Firstly, it expands the prerequisite of ‘full and free consent’ by requiring [s]uch consent to be expressed by both parties in person after due publicity and in the presence of the authority competent to solemnise the marriage and of witnesses, as prescribed by law.[71]
Secondly, it does not merely call upon states to adopt minimum age for marriage legislation but recognises as illegal those unions entered into before acquiring such age.[72] Finally, the Convention imposes upon state parties an obligation to ensure that marriages are registered in an official register and by the competent authority.[73] Notwithstanding these additional safeguards, the CCM capacity of providing an ample protection against child marriage is undermined on two grounds: lack of prescription of a minimum age for marriage and allowance of exceptions if this is provided for in domestic legislations.[74]
Finally, the 1979 CEDAW also recognises the right of women ‘freely to choose a spouse and to enter into marriage only with their free and full consent’[75] and explicitly outlaws the practice of child marriage.[76] However, the absence of a specification of a minimum marriageable age or a definition of a child within its provisions allows for differentiation in the interpretation of this text.
As apparent from the foregoing, the existing human rights treaty system neither specifies nor suggests an appropriate minimum marriageable age. This loophole, however, has been subsequently field by numerous authoritative, although non-binding instruments. Thus, for instance, in 1965, the UNGA adopted a resolution recommending that the minimum age of marriage shall be no less than fifteen years.[77] In 1994, referring to the CRC definition of a child, the Committee on the Elimination of Discrimination against Women [CEDAW] considered that ‘[t]he minimum age for marriage should be 18 years for both man and woman.’[78] One year later, the Beijing Declaration and Platform for Action[79] called upon governments to ‘enact and strictly enforce laws to ensure that marriage is only entered into with the free and full consent of the intending spouses […]’, including ‘laws concerning the minimum legal age of consent and the minimum age for marriage and raise the minimum age for marriage where necessary.’[80] In 2003, the Committee on the Rights of the Child [CRC] also recommended 18 as a minimum age for marriage for both parties with and without parental consent.[81] More recently, this view was endorsed once again by both CRC and CEDAW in a joint recommendation on the matter from 2014.[82]
Although the majority of countries worldwide have overhauled their laws and brought them in line with the above recommendations, the figures on child marriage remain steady in many places. Among the main obstacles to the actual implementation of marriageable age legislations are non-compliance with the respective provisions, allowance of exceptions such as parental permission, court or governmental approval, and parallel existence of conflicting customary or religious laws that permit marriage to be established at a younger age.
According to data provided by World Policy Analysis Center[83] (see summary table in Annex I), 168 countries worldwide have established 18 or older as a minimum marriageable age for girls. Out of this number, 81 provide for exceptions. Where parental consent is obtained, three countries’ legislations allow girls to get married as young as 12.[84] Another three do not set a minimum age at all,[85] whereas the rest (70 in total) permit marriage for girls between 14 and 17 years of age. Further, there are ten countries that recognise exceptions for customary and religious marriages, thus, enabling girls under the age of 13 to enter into such unions.[86] However, it worth noting that the comprehensiveness of this information may have been negatively affected by those countries which marriage laws are lacking a provision that either explicitly allows or explicitly prohibits exceptions. That holds particularly true where the matter is simultaneously regulated by a variety of laws some of which do allow for girls to marry before reaching 18. A good case in point is India where, according to the data under consideration, no deviation from the established 18 years of age for marriage of a girl is allowed. In fact, although the Indian civil laws do not explicitly provide for exceptions, the co-existence of religious laws that sanction marriages of girls at an earlier age and the lack of explicit provision regarding the hierarchy of those laws continue to maintain the practice’s performance. A more in-depth discussion on this particular issue follows in Chapter IV.
3. Child marriage within the concept of harmful traditional practices
The concerns of the international community regarding the adverse effect that certain culturally justified behaviours have on women’s well-being are not a new occurrence. The call against such practices has been gaining momentum since the middle of the last century when in 1952 the UN Economic and Social Council [ECOSOC], acting on a resolution of the Commission on the Status of Women, urged all member states [t]o take immediately all necessary measures with a view to abolishing progressively [...] all customs which violate the physical integrity of women, and which thereby violate the dignity and worth of the human person.[87]
Two years later, the General Assembly passed a resolution on the status of women in private law and called upon states to eliminate those customs, ancient laws and practices harmful to women and girls, including specifically child marriage.[88]
These resolutions have marked the beginning of a further debate on the matter that has eventually led to the development of the concept of harmful traditional practices [HTPs]. Without denying the existence of non-harmful traditions, it embodies the view that no cultural observance must be regarded as set in stone when results in a human rights violation. The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief adopted the same line of reasoning stipulating that [p]ractices of a religion or beliefs in which a child is brought up must not be injurious to his physical or mental health or to his full development.[89]
Thus, while recognising everyone’s right to a freedom of manifestation of religion or beliefs, it explicitly provides that the latter may be subject to restrictions with a view to protecting children from harm.[90]
Besides in ‘soft law’ documents, in the course of time, the concept of HTPs has been introduced by several treaties at both regional and global level.[91] Although the provisions differ in their formulation, in a nutshell, they require states to adopt legislation or other appropriate measures to uproot such practices, to abolish or modify discriminatory laws, and to eliminate gender-based prejudices and stereotypes.
In the aforementioned joint recommendation from 2014, the CRC and CEDAW define harmful practices as [...] persistent practices and forms of behaviour that are grounded in discrimination on the basis of, among other things, sex, gender and age, in addition to multiple and/or intersecting forms of discrimination that often involve violence and cause physical and/or psychological harm or suffering.[92]
In this document, child and forced marriages are explicitly designated as a manifestation of HTPs.[93] More recently, the commitment of the international community to eradicate child marriage was further consolidated through respective resolutions adopted by the UN HRC,[94] the UNGA[95] and through the inclusion of the issue within the goals of the 2030 Agenda for Sustainable Development.[96]
4. Child marriage as a violation of human rights
There is no explicitly formulated right to be free from child marriage or any other HTP. In all the relevant human rights treaties, the contours of the issue are given by means of a ‘State’s obligation to undertake measures rather than as an individual’s right to be claimed.’[97] In fact, many of the countries where the practice exists, including India, have undertaken such measures through adopting minimum age legislation or criminalisation of the practice. The fact that nonetheless child marriages persist necessitates constructing claims for violation through advancing an interpretation of correlated human rights.[98]
The list of human rights affected by the practice of child marriage goes beyond the ambit of the CRC, and those addressed bellow do not exhaust them. Rather, the focus is placed first, on the principle of best interests of the child, the right to equality and non-discrimination, and the right to life and to maximum survival and development identified by the CRC as general principles that should be primary consideration and fundament of any decision concerning children.[99] Then, the analysis proceeds with linking the harmful implications of child marriage on the girl’s right to health and the right to be free from all forms of violence, including torture and other cruel, inhuman or degrading treatment or punishment. As the practice violates virtually all of the rights enshrined in the CRC and beyond, due to the thesis’ length constraints and without underrating their relevance, other rights, such as the children’s right to express their views freely in all matters affecting them[100] and the right to education[101] are left out of the scope of the discussion.
4.1. The Best Interests of the Child Principle
The notion of ‘best interests of the child’ as provided for in CRC[102] has a threefold nature. Besides its role as a fundamental interpretative legal principle and a rule of procedure, it further constitutes a substantive right of children to have their best interests assessed and taken into account as a primary consideration in all actions or decisions that concern them, both in the public and private sphere.[103] Moreover, it is recognised as a self-executing right that obliges States to ensure its enjoyment.[104] In the context of child marriage, it is important to note that, in its general recommendation on the matter, the CRC directly refers to the conflict that often arises between child’s best interest and those religious and cultural values and traditions which may be considered as a part of the child’s identity. The committee explicitly states that the perpetuation of the latter by decision-makers and authorities cannot be justified if this would be contrary to the child's best interests or other rights protected by the Convention.[105]
4.2. Equality and non-discrimination
As already discussed, child marriage is a clear manifestation of gender inequality and discrimination on the ground of age and gender. The two general human rights instruments – the ICCPR and the International Covenant on Economic, Social and Cultural Rights [ICESCR],[106] proclaim the principle of equality between men and women[107] and contain a general non-discrimination clause[108] regarding the enjoyment of all the rights protected by both Covenants. The ICCPR further establishes a free-standing right to equality which application is not limited to the rights enshrined in the Covenant and thereby affords a scope of protection that extends even beyond them.[109] In addition, ICCPR and ICESCR contain provisions prohibiting discrimination on specific grounds. The most relevant in the context of child marriage are article 23(4) ICCPR that requires states to take adequate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution and article 24 ICCPR that prohibits any discrimination against children based on, inter alia, sex and religion. The Human Rights Committee [CCPR] has stressed that the principle of equality may require ‘states parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination’[110] in both public and the private sector.[111]
When married as children girls undergo discrimination on account of both their gender and age. Thus, besides ICCPR and ICESCR, the most relevant international human rights instruments in this context are the CRC and the CEDAW. Both impose upon States positive obligations ‘to take all appropriate measures’ towards ensuring protection from and the elimination of all form of discrimination.[112] The CEDAW further stresses the importance of introducing such measures, particularly where religious or private law or custom conflict with the principles of the convention.[113] Those may include enactment and effective enforcement of a legal prohibition on marriage of girls under the age of 18 regardless of parental consent as well as elimination of gender disparities in minimum age legislation.[114] In addition to legislative reform, educational measures tailored towards a positive shift in attitudes may be required.[115] [116]
4.3. Right to life and to maximum survival and development
The CRC’s article 6 calls upon governments to provide children with an opportunity to survival and to development of their potential ‘to the maximum extent possible’. States are therefore required to give the highest priority to the actions undertaken with the view to securing this goal achievement by promoting life compatible with the human dignity of the child.[117] However, the detrimental implications on girl’s health that early marriage is associated with threaten the realisation of this right. As noted during the Fourth World Conference on Women, held in Beijing in 1995,[118]
[M]otherhood at a very young age entails complications during pregnancy and delivery and a risk of maternal death that is much greater than average. The children of young mothers have higher levels of morbidity and mortality [...]
Thus, if a marriage results in early pregnancy, as it is often the case, the enjoyment of this very right by the girl’s offspring would also be impeded. Therefore, the implementation of article 6 of the Convention may require from states to undertake measures ‘of a positive nature designed to protect life, including increasing life expectancy and diminishing infant and child mortality.[119]
4.4. Right to health
Closely linked to the right to life and to maximum survival and development is the right to the enjoyment of the highest attainable standard of physical and mental health.[120] The relationship between health, development, and child marriage has been highlighted by the CRC in its general comment No. 4[121] where the Committee listed the protection from HTPs, including child marriage, among the obligations states have regarding adolescents’ health and development.[122] The right to health is explicitly stipulated by numerous international human rights treaties,[123] including article 24 of the CRC. By virtue of the latter, state parties to the Convention commit to uphold children’s right to health by, inter alia, taking ‘all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.’[124] Although not explicitly referring to child marriage, it has been agreed upon during the drafting process that the term traditional practices, as used in article 24, includes the practice of early marriage as well.[125]
4.5. Right to protection from violence and freedom from torture and other cruel, inhuman or degrading treatment or punishment
The CRC recognises the right of the child to be protected from ‘all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse […]’[126] and sexual exploitation.[127] Since child marriage has been referred to by the Committee as a manifestation of such violence,[128] a failure to protect children from the practice brings States in violation of the rights at hand. This obligation is further backed up by the CEDAW’s article 2 that requires States to condemn violence against women and to ensure that neither laws nor customs prevent women from the enjoyment of this right.[129]
Finally, it is increasingly recognised that child marriage may amount to torture or ill-treatment in violation of the prohibition contained in both, the CRC[130] and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [CAT].[131] This would be the case where governments fail to comply with the obligations arising from the respective human rights treaties they have ratified. Those obligations may include amendment of laws allowing child marriage and establishment of a minimum age for marriage in compliance with international standards or criminalisation of the practice, investigation, prosecution and punishment of perpetrators.[132]
5. Concluding remarks
The preceding discussion illustrates that despite CRC does not explicitly prohibit child marriage, there are various safeguards within this and other treaties’ provisions that afford an enabling framework for protection against the practice. These include but are not limited to
- the requirements of free and full consent, minimum age and registration of marriage
- the principle of best interest of the child
- the right to equality and non-discrimination
- the right to life and to maximum survival and development
- the right to health
- the right to be protected from harmful practices, abuse, and exploitation
- the right to be free from slavery, from torture and from other cruel, inhuman or degrading treatment or punishment.
The treaties encapsulating these human rights and standards impose upon States obligation to undertake positive measures towards their realisation. Thus, where the practice exists, it contravenes the international framework and places countries in violation of their commitments under those treaties they are parties to.
By looking at both the regional level of South Asia and the national level of India, the following chapters aim at assessing whether, how, and to what extent those international human rights standards are mirrored where the practice is still commonly prevalent.[133]
Chapter III Addressing child marriage at a sub-regional level: South Asia
1. Preliminary remarks
The available data indicate South Asia as the region with the second highest rate of child marriage in the world after West and Sub-Saharan Africa. However, owing to its population density, the largest number of child brides worldwide is harboured by the former.[134] In this region, poverty and cultural norms based on patriarchal values are among the most frequently reported causes of the practice.[135] Correspondingly, economic considerations and prevalence of customary laws become the main obstacles to an effective implementation of national and international policies and legislation.[136]
Most of the South Asian countries have ratified international human rights instruments relevant to the issue of child marriage.[137] Accordingly, they have responsibilities towards the eradication of child marriage as a form of HTPs and ensuring the enjoyment of the whole gambit of human rights violated by the practice as discussed in chapter II. Nonetheless, data suggest that the practice continues to persist across the region showing small patterns of change.
[...]
[1] See, e.g.: UN Human Rights Council, ‘Preventing and Eliminating Child, Early and Forced Marriage’ Report of the Office of the United Nations High Commissioner for Human Rights, 2 April 2014, A/HRC/26/22, para 3; ECPAT International and Plan International, ‘Thematic Report: Unrecognised Sexual Abuse and Exploitation of Children In Child, Early And Forced Marriage’ (2015) 8 <http://www.ecpat.org/news/new-thematic-report-unrecognised-sexual-abuse-and-exploitation-children-child-early-and-forced/> accessed 28 June 2017; Plan International, ‘A Girl’s Right to Say No to Marriage: Working to End Child Marriage and Keep Girls in School’ (Plan Limited 2013) 15 <https://plan-international.org/publications/girls-right-say-no-marriage> accessed 28 June 2017.
[2] The United Nations Children’s Fund [UNICEF], ‘Early Marriage: A Harmful Traditional Practice. A Statistical Exploration’ (2005) 1 <https://www.unicef.org/publications/index_26024.html> accessed 28 June 2017.
[3] Plan International, ‘A Girl’s Right to Say No to Marriage’ (n 1) 15; ECPAT International, ‘Thematic Report’ (n 1) 6-8.
[4] Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3.
[5] Ibid., article 1.
[6] A/HRC/26/22 (n 1) para 5; The Sexual Rights Initiative [SRI], ‘Analysis Of The Language Of Child, Early, And Forced Marriages’ (2013) 2 <http://www.sexualrightsinitiative.com/2013/hrc/hrc-24-session/sri-analysis-of-the-language-of-child-early-and-forced-marriage/> accessed 28 June 2017.
[7] Council of Europe: Parliamentary Assembly, Resolution 1468 (2005) on Forced Marriages and Child Marriages, 5 October 2005.
[8] A/HRC/26/22 (n 1) para 6.
[9] United Nations Population Fund [UNFPA], ‘Marrying Too Young: End Child Marriage’ (2012) 11 <http://www.unfpa.org/end-child-marriage> accessed 28 June 2017.
[10] United Nations Committee on the Elimination of Discrimination Against Women and United Nations Committee on the Rights of the Child, Joint General Recommendation/General Comment No. 31 of the Committee on the Elimination of Discrimination against Women and No. 18 of the Committee on the Rights of the Child on Harmful Practices (2014) UN Doc. CEDAW/C/GC/31-CRC/C/GC/18, para 20; Inter-Parliamentary Union [IPU], World Health Organization [WHO], ‘Child, Early And Forced Marriage Legislation In 37 Asia-Pacific Countries’ (2016) <http://www.who.int/reproductivehealth/publications/gender_rights/cefm-asia-pacific/en/> accessed 28 June 2017.
[11] United Nations Children’s Fund [UNICEF], ‘Ending Child Marriage: Progress And Prospects’ (2014) 2 <https://data.unicef.org/resources/ending-child-marriage-progress-and-prospects/> accessed 28 June 2017.
[12] United Nations Children’s Fund [UNICEF], ‘The State Of The World’s Children 2016: A Fair Chance For Every Child’ (2016) 86 <https://www.unicef.org/publications/index_91711.html> accessed 28 June 2017.
[13] Ibid 38.
[14] International Center for Research on Women [ICRW], United Nations Population Fund [UNFPA], Australian Agency for International Development [AusAID], Asian Forum of Parliamentarians on Population and Development [AFPPD], ‘Child Marriage In Southern Asia Context, Policy Options For Action’ (2012) 7 <http://www.icrw.org/publications/child-marriage-in-southern-asia/> accessed 28 June 2017.
[15] Padmavathi Srinivasan and others, ‘District-Level Study on Child Marriage in India: What Do We Know About The Prevalence, Trends And Patterns?’ (International Center for Research on Women 2015) 39 <https://www.icrw.org/publications/district-level-study-on-child-marriage-in-india/> accessed 28 June 2017.
[16] Plan International and Coram International, ‘Getting The Evidence: Asia Child Marriage Initiative, Summary Report’ (2015) 25 <https://plan-international.org/publications/getting-evidence-asia-child-marriage-initiative> accessed 28 June 2017.
[17] UNICEF, ‘Ending Child Marriage: Progress and Prospects’ (n 11) 2.
[18] UN Committee on the Elimination of Discrimination against Women [CEDAW], General Recommendation No. 19: Violence against women, para 11.
[19] Belinda Maswikwa and others, ‘Minimum Marriage Age Laws And The Prevalence Of Child Marriage And Adolescent Birth: Evidence From Sub-Saharan Africa’ (2015) 41, International Perspectives on Sexual and Reproductive Health 59 <https://www.ncbi.nlm.nih.gov/pubmed/26308258> accessed 28 June 2017; Center for Reproductive Rights [CRR], ‘Child Marriage In South Asia: International And Constitutional Legal Standards And Jurisprudence For Promoting Accountability And Change’ (2013) 17 <https://www.reproductiverights.org/document/child-marriage-in-south-asia> accessed 28 June 2017.
[20] United Nations Children’s Fund [UNICEF], ‘Early Marriage: Child Spouses’ (2001) 6 <https://www.unicef-irc.org/publications/291> accessed 28 June 2017.
[21] Source: <http://www.icrw.org/child-marriage-facts-and-figures/>.
[22] UNFPA, ‘Marrying Too Young, End Child Marriage’ (n 9) 34; see also Jennifer McCleary-Sills and others, ‘Child Marriage: A Critical Barrier To Girls’ Schooling And Gender Equality In Education’ (2015) 13 The Review of Faith & International Affairs <http://dx.doi.org/10.1080/15570274.2015.1075755> accessed 28 June 2017.
[23] Compare: Srinivasan and others, ‘District-Level Study On Child Marriage In India’ (n 15) 39. In the context of child marriage in India, the study argues that ‘[t]he positive correlation between female schooling and age at marriage […] does not imply causation; nor does it suggest that schooling stalls marriage for females until they reach the age of 18 years.’
[24] UNICEF ‘The State Of The World’s Children 2016’ (n 12) 39.
[25] ECPAT International, ‘Thematic Report’ (n 1) 30.
[26] Aarti Dhar, ‘Prevent Child Marriages On Akshaya Tritiya’ The Hindu (2012) <http://www.thehindu.com/news/national/prevent-child-marriages-on-akshaya-tritiya-states-told/article3340183.ece> accessed 28 June 2017.
[27] ECPAT International, ‘Thematic Report’ (n 1), 31.
[28] UN Human Rights Council, ‘Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences’ 22 July 2014, A/HRC/27/53, para 28.
[29] R. Prakash and others, ‘Early Marriage, Poor Reproductive Health Status Of Mother And Child Well-Being In India’ (2011) 37 Journal of Family Planning and Reproductive Health Care 8.
[30] Plan International, ‘A Girl’s Right to Say No to Marriage’ (n 1) 40-43.
[31] Ibid.
[32] Report of the Human Rights Council on its twenty-sixth session [advance unedited version], 11 December 2014, A/HRC/26/2, para 566.
[33] Girls Not Brides, ‘Ending Child Marriage: What Will It Take?’ (2013) 11 <http://www.girlsnotbrides.org/ending-child-marriage-what-will-it-take/> accessed 28 June 2017 and UNICEF, ‘Early Marriage: Child Spouses’ (n 20) 9.
[34] Kasuzi Mbaluko, Interview with Howard Mlozi, ‘Child Marriages Are Ravaging The Economy’ (14 January 2017) The Nation, Nation Publications Limited <http://mwnation.com/child-marriages-are-ravaging-the-economy/> accessed 28 June 2017.
[35] Edward B Tylor, Primitive Culture: Researches Into The Development Of Mythology, Philosophy, Religion, Art, And Custom, cited by Bronwyn Winter, Denise Thompson and Sheila Jeffreys, ‘The UN Approach To Harmful Traditional Practices’ (2002) 4 International Feminist Journal of Politics, 77.
[36] International NGO Council on Violence Against Children, ‘Violating Children’s Rights: Harmful Practices Based On Tradition, Culture, Religion Or Superstition’ (2012) 7 <http://srsg.violenceagainstchildren.org/document/_844> accessed 28 June 2017.
[37] Thus, for instance, most of the countries, where the Muslim population has an overwhelming majority, are reluctant to introduce a ban on child marriage as it would be contrary to Sharia law and the Quran. The latter, however, is largely interpreted as indicating as marriageable the age of puberty ‘with the proviso that the minimum age is twelve for a boy and none for a girl, and that puberty may be presumed when either boys or girls reach the age of fifteen.’ (Anderson, Norman. Law Reform in the Muslim World. London: The Athlone Press, 1976, cited by Jeremiah J. Bowden, ‘Marriageable Age In Islam: A Study On Marriageable Age Laws And Reforms In Islamic Law’ (2013) 2 LUX, 4).
[38] L. Henkin, ‘The Universality Of The Concept Of Human Rights’ (1989) 506, The Annals of the American Academy of Political and Social Science 11, 10-16.
[39] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, article 55 (c).
[40] Henkin, op. cit. (n 38) 12.
[41] Corinne A. A Packer, Using Human Rights To Change Tradition, School of Human Rights Research series, vol. 13 (Intersentia 2002) 88.
[42] Debra L DeLaet, The Global Struggle For Human Rights: Universal Principles In World Politics (2nd edn, [sn] 2015) 45.
[43] Universal Declaration of Human Rights, 10 Dec. 1948, GA Resolution 217A (III), U.N. GAOR, 3d Sess, A/RES/3/217A (1948).
[44] Christopher McCrudden, ‘Human Rights and Traditional Values’ in Upendra Baxi, Christopher McCrudden and Abdul Paliwala (eds), Law’s Ethical, Global and Theoretical Contexts: Essays in Honour of William Twining, Cambridge University Press 2015 (38-72) 58.
[45] UN Human Rights Council, Resolutions on ‘Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind’, A/HRC/RES/12/21, 12 October 2009; A/HRC/RES/16/3, 8 April 2011; A/HRC/RES/21/3, 9 October 2012.
[46] UN Human Rights Council, Study of the Human Rights Council Advisory Committee on promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind, 6 December 2012, A/HRC/22/71, para 77.
[47] Packer, op. cit., (n 41) 96.
[48] Philip Alston, ‘The Best Interests Principle: Towards A Reconciliation Of Culture And Human Rights’ (1994) 2 International Journal of Law, Policy and the Family.
[49] Eva Brems, ‘Human rights: Universality and diversity’ International studies in human rights, vol. 66. The Hague etc.: Nijhoff (2001).
[50] Jack Donnelly, Universal Human Rights In Theory And Practice (3rd edn, Cornell University Press 2013). (2013). Jack Donnelly, ‘The Relative Universality Of Human Rights’ (2007) 29 (2): 281-306 Human Rights Quarterly.
[51] Michael Freeman, ‘Culture, Childhood And Rights’ (2011) 5 Family in Law Review. 15-33.
[52] UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13.
[53] CEDAW, art. 16 (2).
[54] M. N. Hartman, ‘Annulment Of Marriage’ (1969) 383 The Annals of the American Academy of Political and Social Science, 93-4.
[55] Nahid Ferdousi, ‘Children Silent Victims in Child Marriage in Bangladesh: Significance of Legal Protection for Their Wellbeing’ (2013) 3 Developing Country Studies 23 <http://www.iiste.org/Journals/index.php/DCS/article/view/9423> accessed 28 June 2017.
[56] Ruth Gaffney-Rhys, ‘International Law as an Instrument to Combat Child Marriage’ (2011) 15:3 The International Journal of Human Rights, 368 <http://www.tandfonline.com/doi/abs/10.1080/13642980903315398> accessed 28 June 2017.
[57] Ibid.
[58] Ibid.
[59] UN Human Rights Committee [CCPR] General Comment No. 28: Article 3 (The Equality of Rights Between Men and Women), 29 March 2000, CCPR/C/21/Rev.1/Add.10.
[60] UDHR, art. 16(1): “Men and women of full age […] have the right to marry and found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” and art. 16(2): “Marriage shall be entered into only with the free and full consent of the intending parties.”
[61] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.
[62] ICCPR, art. 23.
[63] Maja K Eriksson, ‘Article 16 in The Universal Declaration of Human Rights: A Commentary’, ed. Aide Eide (Oxford: Scandinavian University Press 1992) 246.
[64] Ibid, 244.
[65] UN Economic and Social Council [ECOSOC], Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 7 September 1956.
[66] League of Nations, Convention to Suppress the Slave Trade and Slavery, 25 September 1926, 60 LNTS 253, Registered No. 1414.
[67] The 1956 Supplementary Convention on the Abolition of Slavery, Art. 1 (c)(i).
[68] Ibid, art. 2
[69] Gaffney-Rhys, op. cit., (n 56) 364.
[70] Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 7 November 1962, GA Res. 1763 A (XVII).
[71] Ibid, art. 1(1).
[72] Ibid, art. 2.
[73] Ibid, art. 3.
[74] Ibid, art. 2.
[75] CEDAW, art. 16(1)(b).
[76] CEDAW, art. 16(2).
[77] United Nations General Assembly Resolution 2018 (XX), 20 UN GAOR Supp. (No. 14) at 36, UN Doc. A/60141 (1965), principle II.
[78] UN Committee on the Elimination of Discrimination Against Women [CEDAW] General Recommendation No. 21: Equality in Marriage and Family Relations, 1994.
[79] United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, 27 October 1995, A/CONF.177/20/Rev.1
[80] Ibid, para 274(e).
[81] UN Committee on the Rights of the Child [CRC], General comment No. 4 (2003): Adolescent Health and Development in the Context of the Convention on the Rights of the Child, 1 July 2003, CRC/GC/2003/4, para 16.
[82] CEDAW/C/GC/31-CRC/C/GC/18 (n 10), para 55(f).
[83] ‘WORLD Policy Analysis Center’ <https://www.worldpolicycenter.org/> accessed 28 June 2017.
[84] i.e. Colombia, Ecuador, and Uruguay.
[85] i.e. Djibouti, Sri Lanka, Trinidad and Tobago.
[86] In Nigeria, Trinidad and Tobago, and Zambia, attainment of puberty is required in order to get into a customary and/or religious marriage. The minimum age for such marriages is 12 in Sri Lanka and none in Eritrea, Malaysia, Palau, Sierra Leone, Uganda, and Zimbabwe.
[87] UN Economic and Social Council [ECOSOC], Resolution E/RES/445 C(XIV), 28 May 1952 cited by Winter, B., Thompson, D., & Jeffreys, S. (2002). The UN Approach to Harmful Traditional Practices. International Feminist Journal Of Politics, 4(1), 72-94, page 74;
[88] UN General Assembly, Status of women in private law: customs, ancient laws and practices affecting the human dignity of women, 17 December 1954, A/RES/843.
[89] UN General Assembly, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981, A/RES/36/55, art. 5(5).
[90] Ibid., art. 5(1) in conjunction with art. 3(1).
[91] Annex II.
[92] CEDAW/C/GC/31-CRC/C/GC/18, (n 10), para 15.
[93] Ibid, paras 19 to 30.
[94] UN Human Rights Council, Strengthening efforts to prevent and eliminate child, early and forced marriage : challenges, achievements, best practices and implementation gaps: resolution/adopted by the Human Rights Council, 1 July 2015, A/HRC/29/L.15.
[95] UN General Assembly, Child, early and forced marriage: resolution/adopted by the General Assembly, 19 December 2016, A/RES/71/175.
[96] UN General Assembly, Transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1, Goal 5.3 (18).
[97] Packer (n 41) 57.
[98] Ibid.
[99] UN Committee on the Rights of the Child [CRC], General comment no. 5 (2003): General measures of implementation of the Convention on the Rights of the Child, 27 November 2003, CRC/GC/2003/5, para 12.
[100] CRC, art. 12.
[101] Ibid, art. 28.
[102] Ibid, art. 3(1).
[103] UN Committee on the Rights of the Child [CRC], General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14, para 6.
[104] Ibid, para 6(c).
[105] Ibid, para 57.
[106] UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3
[107] ICCPR, art. 3; ICESCR, art. 3.
[108] ICCPR, art. 2; ICESCR, art. 2(2).
[109] ICCPR, article 26; UN Human Rights Committee [CCPR] General Comment No. 18: Non-discrimination, 10 November 1989, paras 11,12.
[110] Ibid, para 10
[111] CCPR/C/21/Rev.1/Add.10 (n 59) para 4.
[112] CRC, art. 2(2); CEDAW, art. 2(e).
[113] UN Committee on the Elimination of Discrimination Against Women [CEDAW], General Recommendation No. 21: Equality in Marriage and Family Relations, 1994, para 50.
[114] UN Committee on the Rights of the Child [CRC], General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24), 17 April 2013, CRC/C/GC/15, para 9
[115] CRC/GC/2003/5 (n 99), para 212 on art. 2.
[116] CRC, art. 6.
[117] UN Office of the High Commissioner for Human Rights [OHCHR], Manual on Human Rights Reporting Under Six Major International Human Rights Instruments, 1997, HR/PUB/91/1 (Rev.1) 425.
[118] Beijing Declaration (n 79), para 268.
[119] HR/PUB/91/1 (Rev.1) (n 117).
[120] As formulated in UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, art. 12(1).
[121] CRC/GC/2003/4 (n 81).
[122] Ibid, para 35(g).
[123] UDHR art. 25(1); ICESCR art. 12(1); CERD art. 5 (e) (iv); CEDAW art. 11(1)(f) and 12; CRC art. 24.
[124] CRC, art. 24(3). This was subsequently reaffirmed and emphasised by the CEDAW Committee as an immediate obligation for the state parties. See UN Committee on Economic, Social and Cultural Rights [CESCR], General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4, para 22 read in conjunction with para 30.
[125] Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child (3rd edn, UNICEF 2017) 371.
[126] CRC, art. 19.
[127] CRC, art. 34.
[128] UN Committee on the Rights of the Child [CRC], General comment No. 13 (2011): The right of the child to freedom from all forms of violence, 18 April 2011, CRC/C/GC/13, paras 16 and 25.
[129] CEDAW, art. 2 and 2(f).
[130] CRC, art. 37.
[131] UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85.
[132] UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 5 January 2016, A/HRC/31/57, para 63.
[133] i.e. Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, Sri Lanka.
[134] See, for example, UNICEF (2014), ‘Ending Child Marriage: Progress and Prospects’ (n 11) 2; Rachel B. Vogelstein, ‘Ending Child Marriage: How Elevating the Status of Girls Advances U.S. Foreign Policy Objectives’ (Council on Foreign Relations 2013) 3 <http://www.cfr.org/children/ending-child-marriage/p30734> accessed 28 June 2017; Anju Malhotra and others, ‘Solutions to End Child Marriage: What the Evidence Shows?’ (International Center for Research on Women 2011) 3 <http://www.girlsnotbrides.org/region/south-asia/>; <https://www.icrw.org/child-marriage-facts-and-figures/>.
[135] See, e.g.: Elisa Scolaro and others, ‘Child Marriage Legislation in the Asia-Pacific Region’ (2015) 13 The Review of Faith & International Affairs, 24 <http://www.tandfonline.com/doi/abs/10.1080/15570274.2015.1075759> accessed 28 June 2017; ‘Child Marriage in Southern Asia Context’ ICRW 2012, (n 14) 2; The Asian Forum of Parliamentarians on Population and Development [AFPPD], ‘Review of National Legislations and Policies on Child Marriage in South Asia’ 7 <https://www.afppd.org/resources.php> accessed 28 June 2017; Center for Reproductive Rights, ‘Child Marriage in South Asia: International and Constitutional Legal Standards and Jurisprudence for Promoting Accountability and Change’ (2013) <https://www.reproductiverights.org/document/child-marriage-in-south-asia> accessed 28 June 2017; Plan International, ‘A Girl’s Right To Say No To Marriage’(n 1) 27.
[136] ‘Child Marriage In Southern Asia Context’ ICRW 2012 (n 14) 2.
[137] Annex III.