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:
(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:
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.
