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Obligations of the State under CEDAW and Other International Instruments on the Right to Decide If, When and Whom to Marry

Rea A. Chiongson, IWRAW Asia Pacific

Presented at the National Consultation on
Women's Right To Choose If, When and Whom to Marry
March 22-24, 2003, Lucknow, India
Organised by AALI with the support of IWRAW Asia Pacific and Interrights


I. Introduction

The determination of the scope and extent of State accountability and the combating of any perpetration of impunity must be the context within which discussions on State obligation under treaty law must operate.

This presentation will be highlighting the undertakings assumed by the State as embodied in the treaty provisions and elaborated upon by general comments or recommendations, concluding observations and jurisprudence of the different treaty bodies. Although the right to decide if, when and whom to marry is applicable to both men and women, this presentation will focus on women. It will also concentrate primarily on the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), however, State obligation under other human rights treaties will also be discussed.

It is hoped that this presentation will invite a sharing of expertise on how national mechanisms and interventions must be crafted in order to ensure compliance with treaty law. Furthermore, this paper also seeks to provide a foundation for identifying more responsive strategies and a plan of action at both national and international levels to hold the State accountable for violations of its obligations.


II. The International Human Rights Conventions and the Right to Decide If, When and Whom to Marry

Under international law, when a State signs a treaty, it signals its intention to become bound by its provisions and must refrain from acts that would defeat its object and purpose. However, when a State ratifies it, it becomes bound to the treaty and is then considered a State party. It is accountable and responsible for compliance with all treaty obligations, unless it communicates a reservation. The extent of a State's obligation though varies according to the treaty provisions.

The State obligation to guarantee the right to decide if, when and whom to marry is found in many human rights instruments. Art. 16 of the Universal Declaration of Human Rights states that "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". It also provides that they are entitled to equal rights as to marriage and that marriage shall be entered into only with the free and full consent of the intending spouses.

This is reiterated in the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962, 1964) in Article 1 which explicitly states that "No marriage shall be legally entered into without the full and free consent of both parties". Art. 2 expresses that "States parties …shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses."

These undertakings are further echoed explicitly in other human rights instruments:
Art. 23 of the International Covenant on Civil and Political Rights (ICCPR) with Art. 3;[1]
Art. 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) with Art. 3;[2]
Art. 5(d)(iv) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD;[3] and
Art. 16(1) and (2) of CEDAW.

All these instruments guarantee: (i) the right to enter into marriage after free and full consent; (ii) the right to freely choose a spouse; and (iii) the right not be discriminated in the enjoyment/exercise of these rights (hence the term equal right or same right as prefixes to the right to marry provisions in the conventions). The rights named in (i) and (ii) are often abbreviated as the right to decide if, when and whom to marry. The Convention the Rights of the Child (CRC) also afford protection of the right to decide if, when and whom to marry even though there is no explicit guarantee.

In the case of India, it has ratified CERD, ICCPR, ICESCR, CRC and CEDAW. CAT on the other hand has only been signed. The Convention on Consent to Marriage, Minimum Age and Registration to Marriage has not been signed nor ratified by the State.


III. CEDAW and The Right to Decide If, When and Whom to Marry

The specific State obligation on right to decide if, when and whom to marry is found in Art. 16(1)(a) and (b) and Art. 16(2) which provides:

Art. 16(1) The State shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
xxx
(2) The betrothal and marriage of a child shall have no legal effect and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory."

State Obligation and CEDAW: General Undertakings

The specific obligations in Art. 16(1) and (2) must be viewed not in isolation but in consideration of the general undertakings of the State as embodied in Arts. 2, 3, 4, 5 and 24. These articles embody the following principles:

(i) Obligation of Means and Results

In ratifying CEDAW, the State undertakes an obligation of means and an obligation of results. On obligation of means, the State party is obligated to take specific measures. The seven subsections of Art. 2 illustrates that the State is required to take specified means to ensure compliance with this Convention. The State's obligation however does not stop with the establishment or adoption of the measures/means. It must also ensure that the means chosen must actually result in the elimination of all forms of discrimination. This is the obligation of results.[4]

This two-folded obligation is therefore a guarantee not just of rights but also of their realisation. It guarantees that women are given not just equality of means and resources nor only equality of access; it further ensures that equality, both at the de jure and de facto level, results from State's interventions.

(ii) Eliminate Discrimination In All Its Forms, By All Appropriate Means and Without Delay

The State has the obligation to eliminate discrimination in all its forms. This undertaking requires an understanding of discrimination and equality from the State. Art. 1 of CEDAW defines discrimination. It is evident, especially in the used of the phrase "effect or purpose" that it covers direct and indirect discrimination and envisions not formal equality but substantive equality. Gender neutral laws must be subject to reform if their effects discriminate against women.

Art. 2 further obligates States to pursue by all appropriate means a policy of eliminating discrimination against women. The State in identifying and implementing measures must guarantee that the measures are appropriate. The burden of proving the appropriateness of each intervention rests upon the State. States parties reports must therefore indicate not only the measures taken but also the basis on which they are considered the most "appropriate" under the circumstances.[5] The phrase "without delay" in Art. 2 highlights the immediate need to undertake the measures to ensure equality.

(iii) State Responsibility

When we speak of State obligation, which organ of the State are we holding accountable? The nature of the undertakings in CEDAW obviously envisions obligations to be carried out by all organs of State to work towards the fulfilment of women's rights. It encompasses executive, legislative and judicial organs as well every constituent unit of the State. In terms of accountability therefore, the State is liable for conduct consisting of an action or omission that is attributable to it.[6] Furthermore, a State cannot avoid its responsibility by claiming inconsistency of treaty provisions with domestic laws. Specifically, the Vienna Convention on the Law of Treaties provides that internal divisions of power cannot be invoked as a defense for non-compliance with treaty law. It also states that a State party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.[7]

It is obvious therefore that the State obligation in CEDAW applies to all State organs, even in cases of separation of powers or federalism. In a federal system, the State is responsible for the acts and omissions of its constituent units and their officials. Where there is separation of powers, the executive, legislative and judicial branches must all ensure compliance with the CEDAW Convention.

Consequently, a State is liable for judicial decisions which violate the provisions of the CEDAW Convention. In terms of domestic implementation, whether or not a treaty has been incorporated into domestic law is a matter of internal law and not a defense for non-compliance.

(iv) Positive and Negative Obligations

The State is required to fulfil both positive and negative obligations. It is required to ensure non-interference in the exercise of the rights in the CEDAW Convention (negative obligation); at the same time, it is mandated to adopt measures designed to achieved de facto equality as well as the full development and advancement of women.[8]

(v) Non-State or Private Actors

Generally, individuals and non-State actors are not individually accountable under international law for their acts or omissions. CEDAW holds them accountable through the State by requiring the State to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise.[9] In this regard, appropriate measures include to (a) prevent and deter private acts of discrimination; (b) investigate and negate their consequences; and (c) provide for remedies, redress, compensation or sanctions for the performance of such acts. Furthermore, a State may be held liable when the violation by private actors is of a pervasive or persistent character showing complicity or tolerance of such breach of the Convention. Thus, private action can lead to State accountability, not due to the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.[10]

(vi) Customs and Practices

Art. 2(f) and Art. 5(a) of the CEDAW Convention obligate the State to take appropriate measures to modify or abolish not only existing laws and regulations, but also customs and practices that constitute discrimination against women. It recognises that many forms of exploitation are linked to cultural, religious and family conditions and this linkage has intensified women's marginalisation and oppression. The two Articles are interrelated and it is interesting to note that some States' reservations, e.g. India's, relate only to Art. 5(a) and not Art. 2(f). This simply means though that they still have the obligation to modify and abolish discriminatory customs and practices. The implications of reservations on Art. 2 will be discussed later in this paper.

The CEDAW Committee emphasises the importance of Art. 2(f) and Art. 5(a) in its General Recommendation 21 by stating that while most countries report that their national constitutions and laws comply with the Convention, its customs, traditions and lack of implementation violate the Convention. Furthermore, it highlighted that CEDAW over other treaties and declarations "goes further by recognising the importance of culture and tradition in shaping the thinking and behavior of men and women and the significant part they play in restricting the exercise of basic rights of women."[11]

Elaborating on the Right to Decide If, When and Whom to Marry

Aside from the general undertakings, it is also important to consider statements made by the CEDAW Committee that constitutes further elucidation on the right to decide if, when and whom to marry through its concluding comments and general recommendations:

(i) Minimum Age

In relation to child and early marriages, the CEDAW Committee states that Art. 16(2) and the CRC preclude States parties from permitting or giving validity to a marriage between persons who have not yet attained the age of 18 for both man and woman. It further stated that marriage should not be permitted before they attain their full maturity and capacity to act. It rejected any marriage before the minimum age (i.e. 18), stating that early marriage not only affects health and impedes a girl's education; it also limits the development of their skills and independence and reduces access to employment.[12] This interpretation must be read into the State obligation under Art. 16(2).

(ii) Differential Ages for Marriage

The Committee calls for abolition of differential ages for marriage. The Committee requires States to provide de jure equality in terms of age of marriage.[13]

(iii) Betrothal of Girls

General Recommendation 21 explicitly states that the betrothal of girls or undertakings by family members on their behalf contravene a woman's right to freely choose her spouse. A minimum age though for betrothals has not been provided yet by the Committee. The Committee's action on this field would definitely impact heavily on the non-legal but socially binding arrangements of marriage done before the girl reaches the age of majority.

(iv) Registration of Marriage

The CEDAW Committee continuously reiterates that registration of marriage is important to ensure compliance with provisions of the Convention, especially on child and early marriage.[14] This includes the registration of all customary marriages.[15] In its Concluding Comments on India (2000), the Committee stated that a comprehensive and compulsory system of registration of births and marriages has not yet been established. This hinders the effective implementation of laws that protect women from forced or early marriage.

(v) Reservations to Art. 16 and Art. 2

The CEDAW Committee considers reservations to Art. 16 and Art. 2 as inconsistent with the object and purpose of the Convention. In General Recommendation 20, it stated that reservations to both articles perpetuate the myth of women's inferiority and reinforce the inequalities in the lives of millions of women. The Committee held the view that Art. 2 is central to the object and purpose of the CEDAW Convention. Neither traditional, religious or cultural practice nor incompatible domestic laws and policies can justify violations of the Convention. It also stated that reservations to Art. 16, whether lodged for national, traditional, religious or cultural reasons, are impermissible. It then proceeded to urge all States parties to gradually progress to a stage where each country will withdraw its reservations.

In its Report to the General Assembly, the CEDAW Committee stated the options available to States in cases of reservations to either articles. It may after examining the finding in good faith (a) maintain its reservations; (b) withdraw it; (c) regularise its situation by replacing its impermissible reservation with a permissible one; or (d) renounce being a party to the treaty.[16] It is hoped that CEDAW Committee's comments will urge States parties to assess the justifications for its reservations and modify or withdraw them as soon as possible.

Nevertheless, the Committee continues to monitor a State party's reserved articles, particularly Art. 16. In their State reports, States parties are obliged (a) to indicate the stage that has been reached in the country's progress in removing all reservations to the CEDAW Convention, in particular reservations of Art. 16; and (b) to set out whether their laws comply with the Art. 16 where by reason of religious or private law or custom, compliance with the law and with the Convention is impeded.[17]

(vi) Gender-based Violence

General Recommendation 19 defines gender-based violence as a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men, including rights under Art. 16. It is violence that is directed against a woman because she is a woman or that affects women disproportionately. Although General Recommendation 19 only explicitly identifies forced marriage as a form of gender based violence, violations of the right to decide if, when and whom to marry are obviously harmful traditional practices against women and is a form of gender-based violence.


IV. Consolidating Recommendations

A number of recommendations made in the context of violence against women are useful in providing guidelines for crafting specific strategies for the promotion, protection and fulfilment of the right to decide if, when and whom to marry. These recommendations are:

(i) General Recommendation 19 on gender-based violence, which also incorporated several suggestions from the Declaration on the Elimination of Violence Against Women[18] recommends, among others, the following:

  • States parties must take all legal and other measures that are necessary to provide adequate protection of women against gender-based violence. These include: (a) effective legal measures - e.g. penal sanctions, civil remedies, compensatory provisions to protect women against all kinds of violence; effective complaints procedures and remedies; (b) preventive measures - e.g. public information and education programmes to change attitudes concerning the roles and status of men and women; and (c) protective measures - including refuges, counselling, rehabilitation and support services for women who are victims of violence or at risk of violence, specially trained health workers.
  • Gender sensitivity training for judicial and law enforcement officers and other public officials is essential for the effective implementation of the CEDAW Convention.
  • Education and public information programmes to help eliminate prejudices which hinder women's equality must be introduced.

In this light, the CEDAW Committee through its Concluding Comments has expressed its concern at the persistence of traditional customs and practices and urged the government to work with NGOs and the media in changing attitudes through information and awareness-raising campaigns, the teaching of the Convention in schools and the translation of the Convention into local languages so as to accelerate women's enjoyment of their human rights.[19]

The Committee even suggested that an action plan be developed, especially on a public awareness campaign targeted at both women and men, with the support of civil society and social partners, to eliminate the gap between statutory law and social customs and practices, especially with regard to family law.[20]

  • States parties should take appropriate and effective measures to overcome all forms of gender based violence whether committed by public or private acts.
  • States parties should encourage the compilation of statistics and research on the extent, causes and effects of violence and on the effectiveness of measures to prevent and deal with violence. It should also identify the nature and extent of attitudes, customs and practices that perpetuate violence against women and the kinds of violence they result.

In this regard, it is quite interesting to draw parallelisms with initiatives concerning gross violations of human rights in relations to torture, disappearances, extrajudicial killings and mass killings that have been perpetrated by the military in authoritarian regimes. In cases where prosecution is difficult because of a very fragile democracy, the creation of truth commissions saw the need to collect stories and compile them for future criminal procedures and to provide remedies to victims. It also establishes the practice of violations, thus victims need not prove the political context at that certain point in time as references can be made by courts and international tribunals to the truth commissions reports. What the truth commissions have undeniably established is the importance of data gathering and its future uses to combat impunity.

(ii) The foregoing recommendations can be considered with the Plan of Action for the Elimination of Harmful Traditional Practices Affecting the Health of Women and Children. The Plan of Action recommends among others:

  • A survey and review of school curricula and textbooks should be undertaken with a view to eliminating prejudices against women.
  • Courses on the ill effects of traditional practices should be included in training programmes for medical and paramedical personnel.
  • Instructions on harmful effects of such practices should be included in health and sex education programmes.
  • Topics relating to traditional practices should be introduced in literacy campaigns.
  • The media should be mobilised to raise public awareness to cultivate a social attitude and climate against such practices. On the other hand, the State should to regulate depiction of any form of violence against women in media.
  • The State should make provisions to increase vocational training, retraining and apprenticeship programs for young women to empower them economically, including reservations for women in existing training institutions.
  • Cooperation with religious institutions and their leaders is required to eliminate the practice.
  • The minimum age for marriage must be 18 years of age.
  • Governments should promote and set up independent, autonomous and vigilant institutions to monitor and inquire into violations of women's rights.
  • NGOs must be active in mobilising all efforts including bringing all available information on systematic and massive violence against women and children to the attention of the UN and awareness raising.

(iii) The UN Special Rapporteur on Violence Against Women, Ms. Radhika Coomaraswamy, in her report on Violence against Women, its Causes and Consequences (Cultural Practices in the Family that are Violent Towards Women)[21] also listed recommendations to take note of. These include the following:

  • States should refer to the Declaration on the Elimination of Violence against Women to provide effective guidelines for eradicating violence against women.
  • States should exercise due diligence to prevent, investigate and punish acts of violence against women by the State or private actors.
  • States should develop strong and effective penal, civil and administrative sanctions in domestic legislation to punish violence in the family and to provide redress to women victims.
  • National plans of action must be developed to eradicate violence in the family, especially those related to cultural practices through health and education programmes at the grass roots level.
  • Developing social services and shelters; training of public officials; data collection and statistics on the pervasiveness of cultural practices that are violent towards women; and measures in the field of education to modify these social and cultural practices must be a priority.
  • States must also recognise the role of women's groups and give them necessary support.

(iv) In addition to the recommendations enumerated, a General Recommendation on Art. 5(a) or Art. 2(f) in relation to Art. 16 will also be very helpful in creating conceptual clarity and in forming a united front on the right to decide if, when and whom to marry.


V. Other Human Rights Treaties and the Right to Decide If, When and Whom to Marry

Other treaty bodies have also elaborated on the right if, when and whom to marry. Their interpretations of the relevant treaty provisions are important, especially in line with pursuing parallel or alternative strategies to CEDAW.

(i) ICCPR

The guarantee on the right to decide if, when and whom to marry is found in Art. 23 which provides for the right of men and women of marriageable age to marry and found a family. It also states that no marriage shall be entered into without free and full consent of the intending spouses. In addition, Art. 3 ensures equality in the enjoyment of Art. 23.

The right is further complemented by Art. 2 of the ICCPR which mandates that State parties must respect and ensure to all individuals within its territory and subject to its jurisdiction all the rights in the Convention. The obligation to ensure requires that State parties must take all necessary steps to enable every person to enjoy Convention rights. State parties must not only adopt measures of protection but also positive measures in all areas so as to achieve the effective and equal empowerment of women, these include removal of obstacles, education of the population, adjustment of domestic legislation.[22].

The Human Rights Committee's General Comment 28 elaborates on the obligation of the State in terms of equality of rights between men and women. Provisions relevant to the right to decide if, when and whom to marry are the following:

Inequality in the enjoyment of rights by women is deeply embedded in tradition, history, and culture including religious attitudes. States parties should ensure that traditional, historical, religious and cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights.

It identified violations to free and full consent to marriage, namely: (a) laws which allow the rapist to have his criminal responsibility extinguish or mitigated if he marries the victim, (b) restrictions on remarriage as compared to men, (c) restrictions by law or practice that prevent the marriage of a woman of a particular religion with a man who professes no/different religion. A minimum age should be set by the State on basis of equal criteria with men. It also mentioned that polygamy violates dignity of women.

It further states that discrimination against women is often intertwined with discrimination on other grounds such as race, color, religion, political or other opinion, national or social origin, property, birth or other status. The State should address the ways in which any instances of discrimination on other grounds affect women in a particular way and include information on measures taken to counter these effects.

The rights that persons belonging to minorities enjoy under Art. 27[23] of the Covenant in respect of their language, culture and religion do not authorise any violations to the right to equal enjoyment by women of any Covenant rights, including the right to equal protection.

General Comment 28 signals that equality is a priority for the ICCPR. Thus overturning the disquiet brought about by its focus on minority rights over gender discrimination in the 1981 case of Lovelace.[24] Furthermore, General Comment 28's statement on balancing Art. 27 with other right is also important especially in the light of the debates on how women's rights to equality must be balanced with minority rights.[25]

In its Concluding Comments, the Human Rights Committee reaffirms its concerns and recommendations in relation to the right to decide if, when and whom to marry which includes:

  • The enforcement of personal laws based on religion violates the right of women to equality before the law and non-discrimination. Efforts should be strengthened towards ensuring the enjoyment of rights by women without discrimination and personal laws should be enacted which are fully compatible with the Covenant.[26]
  • Early marriage and the statutory difference in the minimum age of girls and boys for marriage should be prohibited by legislation. The government is urged to adopt measures to prevent and eliminate prevailing social attitudes and cultural and religious practices hampering the realisation of human rights by women.[27]
  • Legal provision exempting a rapist from any penalty if he marries the victim is violative of State obligation.[28]
  • The practice of having a women's consent mediated by a guardian and recourse has to be made to the courts to override any prohibition within the family on a woman's choice of a husband is violative of Covenant rights. All legal provisions hindering women's free choice of spouse and rules differentiating between a man and a woman's right to marry must be repealed.[29]
  • Steps should be taken particularly through education to overcome certain traditions and customs, such as forced marriages which are incompatible with the equal rights of women.[30]
  • Although there are measures to outlaw child marriages, legislative measures are not sufficient and that measures designed to change attitudes which allow such practices should be taken. The Committee further expressed the need for national legislation to outlaw the practice of devadasi.[31]

(ii) ICESCR

ICESCR provides in Art. 10 that marriage must be entered into with the free consent of the intending spouses while Art. 3 mandates that States parties must ensure the equal enjoyments of the Covenant rights.

In the ICESCR Concluding Comments the following points, among others, were raised:

  • Difference in marriageable age is violative of Art. 10.[32]
  • The practice of early marriage has a negative impact on the right to health, education and work.[33] The Committee like other treaty bodies recommend that the legal minimum age for marriage for boys and girls be raised to 18.[34]
  • The State is urged to prohibit customary practices which violate the rights of women and to take active measures to combat such practices and beliefs by all means, including educational programmes. Government action should focus on forced marriages, among others.[35]

(iii) CERD

The guarantee on the right to decide if, when and whom to marry is found in Art. 5(d)(iv) of CERD. It mandates that State parties undertake to eliminate racial discrimination and to guarantee without distinction as to race, color, national or ethnic origin the right to marriage and choice of spouse.

(iv) CRC

The CRC has numerous provisions that can be used to guarantee the protection of the child from violations on the right to decide if, when and whom to marry as well as to ensure the development of the child. It is important to highlight (a) Art. 2 which provides that the State shall take all appropriate measures to ensure that child is protected from discrimination or punishment on the basis of the status, activities, expressed opinions or beliefs of the child's parents, legal guardians or family members (b) Art. 3 which emphasises that in all actions concerning children, the best interest of the child shall be the primary consideration; and (c) Art. 24 which states that the State shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.

The CRC Committee's Concluding Comments shows specific interpretation of the Convention's mandate:

  • It stated that differential age of marriage violate the Convention.[36] The State Party must ensure that boys and girls are treated equally and recommends that legal age for marriage be fixed at 18 for both.[37]
  • It listed harmful practices such as early marriages and betrothals of children and stated that campaigns should be developed and pursued with a view to changing attitudes to non-acceptance of harmful practices.[38]
  • On early marriages, it urged that all appropriate measures including legal measures, awareness raising campaigns with a view to changing attitudes, counselling and reproductive health education should be taken to prevent and combat this traditional practice which is harmful to the health and well-being of girls and the development of the family.[39]
  • It called upon the State Party to ensure that marriages are registered.[40]
  • On India, the Committee noted the persistence of discriminatory social attitudes and harmful traditional practices towards girls, including early and forced marriages and religion-based laws which perpetuate gender inequality. It urged the need for the continuation of comprehensive public education campaigns to prevent and combat gender discrimination. It also called upon the mobilisation of political, religious and community leaders to support efforts to eradicate traditional practices and attitudes which discriminate against girls.[41]


VI. Conclusions

The presentation had shown that there are various treaties and pronouncements on the right to decide if, when and whom to marry. Standards do exist at the international level. The question that perpetually comes to our minds is that of impunity, i.e., why despite these standards do violations exist and why do the perpetrators go unpunished. A review of State obligation gives us a first step in our search for accountability. Hopefully, this consultation will be able to utilise the aforementioned norms to draft concrete and more responsive strategies to enable women and girls to enjoy their right to decide if, when and whom to marry.


NOTES

[1] Art. 23 (2): The right of men and women of marriageable age to marry and found a family shall be recognised. Art 23 (3): No marriage shall be entered into without the free and full consent of the intending spouses. Art. 3: The States parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.
[2] Art. 10 expresses that "…Marriage must be entered into with the free consent of the intending spouses". Art. 3 states that "States parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant".
[3] Art. 5: "In compliance with the fundamental obligations laid down in article 2 of this Convention, States parties undertake to prohibit and eliminate racial discrimination in all its forms and guarantee the right of everyone without distinction as to race, colour, national or ethnic origin to equality before the law notably in the following rights: (d) Other civil rights, in particular: (iv) right to marriage and choice of spouse."
[4] For more discussion on CEDAW and Obligation of Means and Result, see Rebecca J. Cook, "State Accountability Under the Convention on the Elimination of All Forms of Discrimination Against Women", Human Rights of Women: National and International Perspectives (1994) at 231-232 [Hereinafter, Cook].
[5] Ibid. at 231.
[6] Art. 3 of the Draft Articles on State Responsibility state that: "There is an internationally wrongful act when: (a) conduct consisting of an action or omission is attributable to the State under international law, and (b) conduct constitutes a breach of an international obligation of the State."
[7] Art. 27 of the Vienna Convention on the Law of Treaties. Note also Art. 46 which states that: "States parties cannot invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent, unless that violation was manifest and concerned a rule of its internal law of fundamental importance".
[8] Art. 3.
[9] Art. 2(e).
[10] See Cook, supra note 4, at 236-239.
[11] CEDAW General Recommendation 21 (1994)
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] CEDAW Concluding Comments, Namibia, A/52/38/Rev.1 (1997) par. 125.
[16] Report of the CEDAW Committee, 18th and 19th sessions to the General Assembly, 53rd session (1998).
[17] CEDAW General Recommendation 21 (1994)
[18] A/RES/48/104 (December 20, 1993)
[19] CEDAW Concluding Comments, Democratic Republic of Congo, A/55/38 (2000) par. 216.
[20] CEDAW Concluding Comments, Guinea, A/56/38 (2001) par. 123.
[21] E/CN.4/2002/83 (Jan 31, 2002).
[22] Human Rights Committee General Comment 28.
[23] Art 27 states: "In states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right…to enjoy their own culture, to profess and practice their own religion and to use their own language".
[24] Lovelace v. Canada, ICCPR, A/36/40 (July 30, 1981).
[25] Several suggestions where made on how to resolve the culture/religion and equality debate. This was because regardless of the international legal status of the right to decide if, when and whom to marry, the practical realities are different. These suggestions include: (1) In reference to children, as the CRC is the most popular treaty in terms of ratification and acceptance, targeting interventions through it may be useful. Note that Art. 24(3) of the CRC obligates States to take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. However, the CRC cannot cover instances where women are past the age of majority. (2) The second suggestion is to follow the example of the ICESCR on having a minimum core obligation, that is, a number of rights which immediately be granted while work is being done towards progressive realisation of other rights. Thus, strategically, severe forms of violations will be identified and prioritised without losing sight of the greater framework, e.g. Identification of hazardous forms of child labor in the campaign against child labor. (3) Opening up more options/choices was also identified as a way of resolving the debate. Under this suggestion, one may choose whether she prefers to be covered by international standards or by their personal laws. In all these suggestions, there are many pros and cons. For more discussions, see Radhika Coomaraswamy, "Identity Within: Cultural Relativism, Minority Rights and the Empowerment of Women, 34 Geo.Wash. Int'l L. Rev. 483-513.
[26] ICCPR Concluding Comments , India, A/52/40 (1997) par. 432.
[27] See e.g. ICCPR Concluding Comments, Zimbabwe, A/53/40 (1998) par. 214; Israel, A/53/40 (1998) par. 325; Venezuela, A/56/40 (2001) par. 77(18).
[28] See e.g. ICCPR Concluding Comments, Guatemala, A/56/40 (2001) par. 85(24).
[29] ICCPR Concluding Comments, Sudan, A/53/40 (1998) par. 122.
[30] ICCPR Concluding Comments, Nigeria, A/51/40 (1996) par. 296.
[31] ICCPR Concluding Comments, India, (1997) pars. 32 and 16.
[32] ICESCR Concluding Comments, Suriname, E/1996/22 (1995) par. 159
[33] ICESCR Concluding Comments, Sri Lanka, E/1999/22 (1999) par. 73.
[34] ICESCR Concluding Comments, France, E/2002/22 (2001) par. 876.
[35] ICESCR Concluding Comments, Cameroon, E/2000/22 (1999) par. 347; Benin, E/C.12/1/Add.78. par. 32.
[36] See e.g. CRC Concluding Comments, Micronesia, CRC/C/73 (1998) par. 118; Dominican Republic, CRC/C/103 (2001) par. 501;Guinea-Bissau, CRC/C/15/Add. 177 (2002) par. 19(a).
[37] See e.g. CRC Concluding Comments, Monaco, CRC/C/108 (2001) par. 506; Gambia, CRC/C/111 (2001) par. 422(b).
[38] See e.g. CRC Concluding Comments, Nigeria, CRC/C/57 (1996) par. 89.
[39] See e.g. CRC Concluding Comments, Kuwait, CRC/C/80 (1998) par. 146
[40] See e.g. CRC Concluding Comments, Congo, CRC/C/108 (2001) par. 190.
[41] CRC Concluding Comments, India (2000) pars. 32 and 33.

 

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