Sources of International Law

Last Update May, 2010

United Nations:

 

A number of international instruments guarantee equality for women and prohibit discrimination. The Convention on the Elimination of All Forms of Discrimination against Women (hereinafter CEDAW) requires states to grant women equality before the law, including equal legal capacity and ability to exercise that capacity in civil matters (Art. 15). The International Covenant on Civil and Political Rights (Article 26) requires states to provide legal protection for women’s rights on an equal basis with men and to guarantee the effective protection of women against discrimination through competent national courts (Art. 2(c)).

 

With regard to marriage, both the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages requires the full and free consent of both parties to a marriage. Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women requires States Parties to ensure women and men the same rights and responsibilities during marriage and at its dissolution; the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children as well as to guardianship, wardship, and trusteeship of children, or similar institutions; the same rights regarding ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

 

The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery prohibits “[a]ny institution or practice whereby: (i) 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; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on the death of her husband is liable to be inherited by another person.” The element unique to slavery but not necessarily found in a forced marriage is the right of ownership that is exercised over the victim. Slavery Convention of 1926, Art. 1(1)).

 

International law requires the registration of marriages. The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages requires a competent authority to register all marriages in official records (Art. 3); see also African Women’s Protocol, Art. 6(d).

On inheritance and property, the Committee on the Elimination of All Forms of Discrimination against Women General Recommendation 19 affirms that men and women in the same degree of relationship to a deceased are entitled to equal shares in the estate and to equal rank in the order of succession (see also: Economic and Social Council resolution 884 D (XXXIV)). The committee also states that governments must abolish laws and practices that: grant women a smaller inheritance of their husband or father’s property than a widower or son; restrict the rights of women to a deceased’s property, and; fail to promote equal ownership of property acquired during marriage for women (¶¶ 34, 35).CEDAW states that government must guarantee women equality with men to exercise in civil matters, which includes granting women equal rights to conclude contracts and to administer property (Article 15).

Under CEDAW, states are obligated to take appropriate measures to modify social and cultural patterns that discriminate against women (Art. 5(a)). The Committee on the Elimination of All Forms of Discrimination against Women General Recommendation 19 states that “[t]raditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms.” CEDAW has also expressed concern over practices that uphold culture over eliminating discrimination. In its 1999 Concluding Observations on Nepal’s periodic report, CEDAW expressed its concern over the Supreme Court prioritizing the preservation of culture and tradition when interpreting discriminatory laws. Also, the Human Rights Committee has drawn attention to minority rights that infringe upon the rights of women. In General Comment 28, it stated that those “rights which persons belonging to minorities enjoy under article 27 of the Covenant in respect of their language, culture and religion do not authorize any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law” (¶ 32). In addition, UN Resolution 2003/22 “Women's equal ownership, access to and control over land and the

equal rights to own property and to adequate housing” “[e]ncourages Governments to support the transformation of customs and traditions that discriminate against women and deny women security of tenure and equal ownership of, access to and control over land and equal rights to own property and to adequate housing, to ensure the right of women to equal treatment in land and agrarian reform as well as in land resettlement schemes and in ownership of property and in adequate housing, and to take other measures to increase access to land and housing for women living in poverty, particularly female heads of household.”

 

Africa:

 

The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa dictates that States Parties take appropriate measures to:

  • ELIMINATE all forms of discrimination against women (Article 2);
  • ENACT and effectively implement appropriate legislative or regulatory measures, including those prohibiting and curbing all forms of discrimination particularly those harmful practices which endanger the health and general well-being of women (Article 2(1)(b));
  • PROHIBIT “all forms of harmful practices which negatively affect the human rights of women” and take all necessary legal and other measures to protect women from harmful practices and all other forms violence, abuse and intolerance (Article 5);
  • GUARANTEE women and men equal rights in marriage, require the free and full consent of both parties in marriage, establish a minimum age of 18 for women to marry, and encourage monogamy as the preferred form of marriage (Article 6);
  • ENSURE that women and men enjoy the same rights in case of separation, divorce or annulment of marriage (Article 7).

 

Article 6 guarantees to women the right to acquire, administer and freely manage her own property during marriage. Article 20 of the protocol requires States Parties to take appropriate legal measures to ensure that widows enjoy all human rights, which includes ensuring that:

  • WIDOWS are not subjected to inhuman, humiliating or degrading treatment;
  • A WIDOW automatically becomes the guardian and custodian of her children, after the death of her husband, unless this is not in the children’s best interests; and
  • A WIDOW has the right to remarry and to marry the person of her choice.

Article 21 states that women and men shall have the “right to inherit, in equitable shares, their parents’ properties.” States are to ensure that widows have the right to “an equitable share in the inheritance of the property of her husband. A widow shall have the right to continue to live in the matrimonial house. In case of remarriage, she shall retain this right if the house belongs to her or she has inherited it.”

 

Europe:

 

The Charter of Fundamental Rights of the European Union specifically enshrines the right to non-discrimination on the basis of sex, and Article 23 obligates states to ensure equality between men and women in all areas. Article 17 guarantees to everyone the right to own, use, dispose of and bequeath his or her lawfully acquired possessions and prohibits deprivation of one’s possessions excepting in conditions as provided by law. The EU guidelines on violence against women and girls and combating all forms of discrimination against them states that violence against women and girls includes forced marriage whether perpetrated or condoned by the state or not (Annex, p. 14). 

 

The Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 prohibits discrimination in the enjoyment of all rights and freedoms set forth in the treaty (Article 14). The Council of Europe’s Social Charter calls on States Parties to take all appropriate measures, including through institutions and services, to protect the right of mothers and children to social and economic protection (Article 17). The European Parliamentary Assembly Resolution 1468 “Forced Marriages and Child Marriages” (2005) addresses situations where there are doubts about free and full consent by authorizing a registrar to interview both parties prior to the marriage. Recommendation 1723 “Forced Marriages and Child Marriages” (2005) recommends that the Committee of Ministers direct the appropriate committee to investigate the issue of forced marriages and develop a strategy for Member States to take action on the matter.

 

Americas:

 

The Organization of American States has promulgated the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belem do Para”), which prohibits violence against women in the public and private spheres. It requires States Parties to take a number of measures, including legal measures and progressively specific measures to modify legal or customary practices which perpetuate violence against women or are based on inferiority, superiority or stereotyped roles of either of the sexes that condone or exacerbate violence against women (Articles 7(e) and 8(b)). Article 17(4) of the American Convention on Human Rights states that States Parties are to “take appropriate steps to ensure the equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution. In case of dissolution, provision shall be made for the necessary protection of any children solely on the basis of their own best interests.”