“State Accountability for the Elimination of Child Marriage”

Shanthi Dairiam, IWRAW Asia Pacific

Presented at the expert group meeting on
Developing Universal Indicators for the Prevention of Child Marriage
12-14 November 2003, New York, USA
Organised by UNICEF

I. Introduction

For the purposes of this presentation I will present information to establish State accountability under international human rights law. Member states of the United Nations have ratified many human rights treaties and by doing so have voluntarily undertaken certain specific obligations to respect, protect and fulfill the human rights of their citizens. An international human rights treaty creates obligations on States parties to the treaty that are legally binding. They are obliged to implement the provisions of the treaty according to its spirit. Article 26 of the Vienna Convention on the Law of Treaties (1969) states:
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

And article 27 states:
“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

Therefore under the treaties, the dynamics of relationship between the State and its citizens is no longer one of the dependency of women on the good will or vagaries of the State, but one in which the State has responsibilities to its citizens from which it cannot withdraw. There is also a monitoring mechanism. All States Parties have to submit periodic reports to the Committee or treaty body that monitors their compliance with the demands of the treaty concerned.

A State has to ratify the treaty concerned in order for it to have legal obligations to implement the treaty.

So we go to the text of these treaties, as well as to the jurisprudence of the treaty body concerned on the meaning and scope of the rights embodied in a treaty, which it produces through the crafting of general recommendations and to its concluding comments that it issues to individual States parties upon reviewing their report, to have clarity on what we should hold the State accountable for. For example, in relation to the issue of “Child Marriage” we can refer to the following human rights instruments:

All the above instruments provide for (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 the right to enter freely into marriage.

II. Obligations of the State under CEDAW to Eliminate Early Marriage

This paper will now focus on CEDAW and discuss State obligation and accountability under this treaty to guarantee women the right of choice in marriage and to eliminate child marriage.

The Text of the Treaty and General Recommendation 21

Article 16 of CEDAW spells out the rights of women in marriage. The obligation of the State to eliminate child marriage is provided for in article 16(1)a and b and article 16(2).

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

Article 16(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.

The committee also crafted General Recommendation 21 Doc. No. A/49/38 to elaborate on the meaning and scope of the rights under Article 16. The need to eliminate child marriage has been interpreted by the Committee as the right to choose when, if, and whom to marry.

In General Recommendation 21, under Article 16(1) a and b, paragraph 16 states,

A woman’s right to choose a spouse and enter freely into marriage is central to her life and to her dignity and equality as a human being. An examination of States parties' reports discloses that there are countries, which, on the basis of custom, religious beliefs or the ethnic origins of particular groups of people, permit forced marriages or remarriages. Other countries allow a woman's marriage to be arranged for payment or preferment and in others, women’s poverty forces them to marry foreign nationals for financial security. Subject to reasonable restrictions based for example on a woman's youth or consanguinity with her partner, a woman’s right to choose when, if, and whom she will marry must be protected and enforced at law. (Emphasis added)

In the same General Recommendation under Article 16(2), paragraph 36 to 39 state,

In the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights, held at Vienna from 14 to 25 June 1993, States are urged to repeal existing laws and regulations and to remove customs and practices, which discriminate against and cause harm to the girl child. Article 16(2) and the provisions of the Convention on the Rights of the Child preclude States parties from permitting or giving validity to a marriage between persons who have not attained their majority. In the context of the Convention on the Rights of the Child, “a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier”. Notwithstanding this definition, and bearing in mind the provisions of the Vienna Declaration, the Committee considers that the minimum age for marriage should be 18 years for both man and woman. (Emphasis added) When men and women marry, they assume important responsibilities. Consequently, marriage should not be permitted before they have attained full maturity and capacity to act. According to the World Health Organization, when minors, particularly girls, marry and have children, their health can be adversely affected and their education is impeded. As a result their economic autonomy is restricted.

This not only affects women personally but also limits the development of their skills and independence and reduces access to employment, thereby detrimentally affecting their families and communities.

Some countries provide for different ages for marriage for men and women. As such provisions assume incorrectly that women have a different rate of intellectual development from men, or that their stage of physical and intellectual development at marriage is immaterial, these provisions should be abolished. In other countries, the betrothal of girls or undertakings by family members on their behalf is permitted. Such measures contravene not only the Convention, but also a women's right freely to choose her partner.

States parties should also require the registration of all marriages whether contracted civilly or according to custom or religious law. The State can thereby ensure compliance with the Convention and establish equality between partners, a minimum age for marriage, prohibition of bigamy and polygamy and the protection of the rights of children.

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

The obligation of the State to:

These principles are reflected in more specific obligations in articles 1-5 of CEDAW. They can be seen to be the goal of the treaty and the means of its achievements.

Goal

Means

III. A Framework for Developing Indicators for State Accountability

While it is essential to understand the obligations of the State, it is equally essential to develop indicators to ensure the State fulfils its obligations.

This section will attempt to provide a framework that will enable the development of indicators of state accountability. This framework comprises the following elements:[1]

A Framework for Developing Indicators for State Accountability

Elements	Indicators of the fulfilment of State Obligation
Recognition of the Right Are there legal guarantees for equality? [2]	There are constitutional guarantees for equality and non discrimination These guarantees are based on the concept of substantive equality and a definition of discrimination as found in article 1 of CEDAW (intended and unintended discrimination and what are the standards) There are provisions for temporary special measures These laws law bind both the public and private sector All discriminatory laws been repealed
Is there recognition of the right for women to enter freely into marriage?	There is a law restricting child marriage Minimum age for marriage of at least 18 is prescribed Minimum age of marriage is the same for boys and girls No exceptions made on the basis of culture, religion, ethnicity The law provide sanctions No other conflicting laws which provide loop holes
Exercising of the Right Is there infrastructure and means to exercise rights and provided by whom?	There is provision of quality information about the right to freely chose a marriage partner, to all sectors of the community on a constant basis gender sensitive, culturally appropriate , information that motivates (men and women) There are provisions of infrastructure for birth and marriage registration: available through wide coverage and accessible. There are inter sectoral linkages There is provision of information about women’s rights to all state agencies vertically and horizontally: How much information do state agents (including judges) have on the obligation of the State under the treaties. Relevant state agents have been trained as appropriate Statistics showing registration of births and marriages. Statistics showing decreasing prevalence of child marriage. (results)
Are there measures to identify obstacles (internal) and resolving them?	Levels of capacity, safe conditions and freedoms to access the means There are programmes to resolve society/community resistance, creating community awareness, changing culture, conducted in partnership with community based organizations There are appropriate community based women’s rights organizations working on the issue. There is a conducive climate for these organizations to function: There are no restrictions on registration of organizations and mobilising of funds. Long Term There are measures to promote women’s ability to exercise inter-related rights such as education, employment, asset ownership, mobility, safety There are provision of enabling conditions, affirmative action (temporary special measures) There are plans for the progressive realisation of women’s rights in all fields and in particular for the elimination of child marriage, through National Plans of Action for the Advancement of Women with indicators and benchmarks.
Sustaining Gains Made and Catering for the Evolution of Rights Identifying obstacles (external) and resolving them Is there sustained exercise of rights? Is there sustained protection of rights?	There are budgetary analysis to identify state priority for spending Additional resources are mobilised. There are accountability systems for monitoring, developing indicators, data gathering and utilization Identifying emerging issues There are programmes for raising awareness of the people on entitlements and state obligations There are community level consultations to ensure people’s participation in identifying needs and evolving rights Statistics show that there is no regression in incidence of child marriages. (results)
Claiming Rights and Redressal of Violations Knowledge of people (rights, entitlements, duty holders) Are there measures and mechanisms to ensure, protect and redress based on international standards?	There is research and documentation of violations, perpetrators (state or non state actors) impact, contributory factors There are support services, legal aid to make demands, claim redress and demand justice, regardless of whether the perpetrator is a state or non-state actor. There are complaints procedures and competent tribunals, commissions, courts Cases are filed against perpetrators and with positive verdicts. This includes cases against police and other agents of the State who collude with the family when a child is married off. There is protection, support services and capacity building for the survivors

IV. Some Key Questions

(i) What if we are faced with a situation in which the State is non-compliant with treaty obligation? There are many reasons for this. It could be a lack of capacity, lack of political will or both. Women’s rights are often contested and depending on the socio economic and political environment, the State can become repressive, redistributive or selectively supportive of demands made by various elements such as capital, labour, private patriarchy, sometimes leading to conflicting contradictions of state policies. Or the State may just be blatantly corrupt or its individual agents may be so steeped in a patriarchal culture that they may collude with patriarchal and class interests leading to gross violations of the human rights of women. Ratification of a treaty may have no effect under these circumstances. But the international human rights system gives the citizens spaces to draw accountability from the State. The more the State is non compliant, the more its citizens need to draw attention to this fact first by participating in the treaty reporting process. Repeated allegations of non-compliance in the international level will eventually have some effect.

Secondly women can seek domestic remedies for non-compliance. While there are certain legal conditions for this, never the less, some advances have been made. In Asia women are beginning to draw accountability from the State for fulfilment of its obligations through domestic litigation. This has been done in particular in interpreting constitutional guarantees. I would like to refer to some cases. The first is Dhungana and another v Government of Nepal, Supreme court of Nepal. Writ No. 3392 of 1993, 2 August 1995. In this case a challenge was made to the validity of the inheritance law of Nepal which discriminated against women on the grounds that it violated the guarantee of equality in the Constitution and citing state obligation as stipulated in the Convention to guarantee women equality before the law and to eliminate discrimination. The second is Vishaka and others v State of Rajasthan, Supreme Court of India. 1995. The case rose out of an alleged gang rape of a woman who was a state employee and the failure of the state to investigate the complaint of rape. A writ was lodged with the Supreme Court requesting it to frame guidelines for the prevention of sexual harassment. The terms proposed for the guidelines were taken in part from CEDAW’s General Recommendation 19. Thirdly an ambiguous phrase in the Hindu Guardianship Act in India was re interpreted to favour women as guardians.

But such activism requires democratic spaces and freedoms such as right to information, freedom of expression, a free press, an independent judiciary etc. So these too are political indicators that one should identify.

(ii) Another question is the effect of the polices of international financial and trade institutions, which are seen to restrict the capacity of governments of developing countries to fulfil the human rights of their citizens, by forcing them to reduce public expenditure or through unfair trade policies. Treaty bodies are cognizant of this problem and are making attempts to speak to the international institutions concerned. They are also questioning individual governments on the board of these institutions as to their obligations not to contribute to the violations of rights in other countries through the global economic, financial and trade policies that they are endorsing. There is a gradual awareness globally of the need to facilitate the capacity of government to fulfil their obligations to protect and fulfil the human rights of their citizens.

But in the financial analysis it is the governments themselves that have an obligation to fulfil the human rights of their citizens and to this end must put up a resistance to conditionalities that are detrimental to the well being of their citizens. While conditionalities do pose a problem, it is also true that State capacity to fulfil the human rights of its people is also restricted by the prevalence of corruption and wrong priorities for spending. The State has to take responsibility for this.

(iii) And finally, women must see themselves as a separate constituency. Women must not be seen only as persons in intimate relationships. To ensure this, there needs to be an understanding of the processes by which a community and society maintain, reinforce and reproduce social relationships between women and men as an element of group identity and the assertion of the right to self determination. Therefore a final indicator is the existence of independent women’s groups, the mobilising of women most affected and the emergence of their voice.

ENDNOTES

[1] These elements were developed as a result of a consultation on “The Rights Based Approach”, facilitated by IWRAW Asia Pacific in India, under the aegis of FORD Foundation on 8-12 October 2002. The consultation brought together the grantees of FORD Foundation implementing projects on Reproductive and Sexual Health. I am proposing a set of indicators for the elimination of child marriage based on these elements. These indicators are not comprehensive and exhaustive but only meant to be illustrative. While there could be some core indicators common to all contexts, many of the indicators will have to be developed in situ.
[2] Inequality in marriage is a manifestation of discrimination against women. This condition cannot be addressed without broad measures that will promote equality

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