When Culture Overrides the Law: Challenges to Child Marriage Laws around the World

October 11th, is the International Day of the Girl Child. The BJIL Blog is grateful to have esteemed scholar Rangita de Silva de Alwis  contribute a piece to mark the occasion and highlight some of the important work she is doing to further women’s rights throughout the world. Rangita de Silva Alwis is currently Associate Dean for International Programs at the University of Pennsylvania Law School. Recently, her report to UNICEF on Child Marriage and the Law has helped spearhead law-reform initiatives.

Rangita de Silva de Alwis

On International Women’s Day last March, the United Nations announced an initiative to end child marriage by 2030. If nothing is done to accelerate change, UNICEF Executive Director Anthony Lake warned that “women married as children will reach one billion by 2030.” While child marriage is well-documented as a heinous crime against girls, from a development perspective, addressing the causes of child marriage should be more expedient than addressing the consequences of child marriage: vulnerability to violence, maternal mortality, HIV/AIDS, and the feminization of poverty among others. A year after nations have committed to a new development agenda, the Sustainable Development Goals, ending early child marriage must be defined as both a women’s rights issue and a development imperative.

An interlocking reading of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC) call for full and free consent in marriage. The CEDAW Committee in General Recommendation 21 (Article 16.2) states unequivocally that “the minimum age for marriage should be 18 years for both man and woman…marriage should not be permitted before they have attained full maturity and capacity to act.”

Many countries and localities, including several states in the United States have no minimum age of marriage. Saudi Arabia and Yemen too lack a minimum age of marriage.

Laws on the books reveal the legal loopholes that legally permit child marriage. Even in countries that seem to ban child marriage, culturally sanctioned underage marriage, and legal authorization of child marriage by a father or guardians contradict these anti-child marriage laws.  The consent of the guardian or the court to grant permission for child marriage provides a legal loophole that clearly undermines any good faith effort to harmonize national laws with international conventions.

Despite the fact that international norms prohibiting child marriage are indigenized in regional treaties like the 2005 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which sets out the minimum age of marriage for women as 18 years of age, in several countries, customs and traditions can be interpreted to override the legal age of marriage. Below are several such laws:

Iran’s minimum age of marriage according to Section 1041 of the amended Civil Code is nine lunar years for girls and fifteen lunar years for boys. Further marriage below this age is also permissible by the permission of the Guardian and on condition of taking into consideration the ward’s interest is proper.

In the Ukraine, Article 23 of the Family Code specifies through the “application of a person that has attained 14 years, a court may grant him/her the right to marry if it is found that such a marriage satisfies his/her interests.”

Similarly, under Article 10 of the Family Code of the Republic of Azerbaijan, while the minimum age for men and women is now 18, this was only changed in November 2011. Prior to that time, women could be married as young as 17. However, the minimum marriage age can still be lowered by one year if granted permission by the local executive power.

Pakistan’s law too permits gender inequality in the age of marriage. The Child Marriage Restrain Act of 1929 defines a child as a male under the age of 18 and female as under the age of 16.

In Afghanistan, Article 70-71 of the Civil Code specifies that the legal age of marriage is 18 for males and 16 for females. However, an exception is allowed with the permission of the father or the court for females to marry as young as 15.

Although the Nigerian Child’s Right Act of 2003 prohibits child marriage, the CRC Committee has noted that contradictory laws set the age at 16 years and defines the child not by age but by “puberty.”

Similarly, Chad’s Article 144 of the Civil Code sets the minimum age of marriage as 15 years, while according to article 277 of the Criminal Code, customary law marriages of girls above 13 years are legal.

In Zambia, either party to a marriage, if below age 21, would need the written consent of the father, and at his death or if he is of unsound mind, the consent of the mother. However, the law allows for early marriage under customary law as “nothing in this Act contained shall affect the validity of any marriage contracted under or in accordance with any African customary law, or in any manner apply to marriages so contracted.”

What is seen here is that traditional practices, patriarchal power, and economic need are some of the push and pull factors that drive families to sacrifice their daughters to early marriage and erode and dilute the laws on the books. An understanding of the underlying reasons for child marriage must complement the actual enforcement of laws. Several countries like Bangladesh have adopted mandatory educational policies which provide financial and in-kind incentives to families to keep their daughters in school and delay marriage. Increasing women’s economic participation also supports the independence of women and helps to delay marriage.  Finally, it takes strong political will to change deep-seated traditions and social mores that undermine the personal security of women and impede social and economic development.  When rights are seen to collide with traditional practices, governments must be on the side of rights.

The historic UN Resolution on Child, Early and Forced Marriage co-sponsored by 116 countries and adopted in 2014, marked the first time that UN member states recognized that child, early and forced marriage violates girls’ human rights and is a cause and a consequence of extreme poverty, gender inequalities, and harmful practices. The Resolution provides a road map to address harmful cultural practices through education. Under the Resolution, countries have agreed to not only enact, enforce, and uphold laws and policies to end the practice of child, early, and forced marriage, but recognize that education is one of the most powerful tools to prevent and end such practices.

What Happened at the Refugee Summits?

By Sarah Hunter

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Photo: photos_mweber

Last week, there were two summits headed by world leaders to address the increasing global refugee and migrant crisis. Though historic in their initiation and lofty in their goals, whether the ideals advanced in these Summits will come to fruition remains to be seen.

UN Summit for Refugees and Migrants 

On Monday, September 19th, the UN General Assembly gathered for the inaugural Summit for Refugees and Migrants. The 193 member-states adopted The New York Declaration, which focuses on improving the social, political, and legal status of the increasing number of refugees and migrants. While the UN itself has advocated for a “soft law” approach to the crisis, which is very much what the New York Declaration is given that it does not bind countries to any particularized course of action but only encourages general concepts, many feel that this Declaration is toothless.

There are estimated to be 65.3 million forcibly displaced people worldwide, 21.3 million of whom are refugees. Nearly half of the refugees in the world are children. Given this historic rise in displaced population, the international response should be vigorous, not just symbolic. But world politics move slowly and world consensus even slower, so while the results of the Summit may not satisfy all involved, and certainly will not have an immediate effect on the lives of the many displaced, it is arguably a step forward. But with the more robust Global Compact on Refugees proposed by UN Secretary-General Ban Ki-moon postponed until 2018, organizations like Amnesty International have gone so far as to call the Summit an abject failure.

 

Leaders’ Summit on Refugees

On the heels of the UN Summit, 48 countries along with the World Bank and European Union, met for the Leader’s Summit on Refugees co-hosted by the US, the UN Secretary General, Ethiopia, Canada, Mexico, Germany, Sweden and Jordan to discuss the possibility of increasing global commitments to humanitarian efforts. The Leader’s Summit also focused on how international organizations could address the refugee crisis. Although this summit was more narrowly tailored in scope, as it only addressed refugees and not migrants or internally-displaced populations, it was still similar to the UN summit in its soft response to the problem. The Summit called for increasing education and work opportunities for refugees while creating more long-term solutions for refugees that address issues such as changing broken asylum systems.

Though still disappointing, the Summit did call for participants to pledge to resettle 360,000 refugees into third-party countries and increase funding to efforts by $4.5 billion. This includes efforts from the private sector as 51 companies have committed $650 million to finance efforts.

Some groups like the International Rescue Committee praise these efforts as well as the World Bank’s increased involvement in refugee response. But other groups including Human Rights First thinks that both of these Summits fail to adequately address this global humanitarian crisis by ignoring causes of the crisis and offering piecemeal solutions. After all, the UN has said that 10% of refugees globally, or over 2 million, are in need of permanent resettlement, and these commitments only chip away at that number. As far as actual commitments, neither Summit makes any binding promises and with the U.S. appropriations for 2017 currently showing cuts to the refugee resettlement program, it is hard to say what will actually come out of these well-intentioned, but ultimately unenforceable promises.

Dignity Denied to Refugee Women in Detention Centers

Dignity Denied to Refugee Women in Detention Centers

By Jenna Klein

With Famine Crisis Thousands of Somalis Flee to Ethiopia Refugee Camps

Photo credit: United Nations Photo

Only four months ago, in October 2015, the Australian government secretly flew a pregnant Somali refugee back to one of its immigration detention centers on the island of Nauru, preventing her from terminating her pregnancy. The woman, known by the pseudonym Abyan, was raped at the detention center in July, but because of the restrictive Nauruan abortion laws she requested to be flown to Australia in order to terminate her pregnancy. While her request was granted and she was brought to Australia, there was a “miscommunication” that led to her abrupt removal back to Nauru. The Australian government claims that Abyan refused treatment by declining to attend a medical consultation, but Abyan and her lawyers deny this allegation and protest that she only wanted further counseling.

After receiving international pressure to resolve the situation and advice from the UN High Commissioner for Human Rights to find a “decent” healthcare outcome for Abyan, the Australian government agreed to fly her back for further counseling and treatment. While Abyan’s particular story is troubling for many reasons, her case highlights broader international human rights violations in the treatment of female refugees and asylum-seekers, not only in Australia but worldwide. This story draws attention to the high rate of unprosecuted sexual violence and assault taking place within refugee camps and is indicative of the lack of reproductive rights and justice for refugees and asylum-seekers around the world.

A Note on Indefinite Detention

As fellow student contributor Sarah Hunter wrote last October, before the story about Abyan was even reported, human rights groups have condemned Australia’s policy of indefinite detention centers as a violation of international refugee laws. Prolonged detention can have grave physical and psychological consequences. These types of detention facilities have been denounced for their inhumane conditions and use of unnecessary violence. Moreover, refugees and asylum-seekers are inherently a more vulnerable population due to the conditions which forced them to leave their country of origin in the first place as well as their attenuated status in a given host country. And within this highly susceptible group, there are particularly vulnerable sub-categories of detained individuals who require heightened attention and care. While Amnesty International identified four of these sub-groups in their report (Stateless persons, Children, Family Groups and ‘Pacific Solution’ detainees), I believe that there is a larger group that deserves special consideration: Women.

Sexual Violence in Refugee Camps

Refugee women are entitled to and require far greater protection against sexual assault than they are currently afforded. Women often are forced to flee their homes due to extreme sexual violence, only to experience further assault and abuse as refugees. The United Nations High Commissioner for Refugees (UNHCR) issued guidelines in 1995 for the prevention and response to sexual violence issues for refugees. However, the prevalence in recent years of stories like Abyan’s is alarming. Even more troubling is the fact that many women, including Abyan, are too afraid of retaliation to report the crimes. This means that in addition to the number of reported cases, there are many more women suffering silently under violent attack as they try to gain access to safety in a new home.

Women are subjected to sexual violence and abuse not just from other refugee men in the camp but also at the hands of government and humanitarian officials. This obviously creates serious issues relating to execution of effective protection and prosecution policies. So while numerous international treaties and conventions work to provide protection for the rights of refugee women, continued international attention and support is required to adequately attend to the problems with their implementation and to provide uninhibited access to justice for these women. In December, in response to the consistent allegations of human rights abuses and sexual assault, concerned citizens circulated a petition urging Australia to ratify the UN’s protocol against torture, which would allow UN inspection of immigration detention centers. Countries like Australia with large populations of refugee and asylum-seekers need to address the human rights abuses taking place in their offshore refugee camps and the international community must hold them accountable.

Reproductive Rights and Justice for Refugees

International law clearly establishes reproductive rights for refugees. Again, UNHCR issued guidelines for the specific protection of refugee women. Moreover, reproductive rights for all human beings, including refugees and internally displaced individuals, were firmly recognized in the International Conference on Population and Development in 1994. However, just because the international community has acknowledged the right and identified a population in need of extra protection does not mean that countries have ensured effective care or protection for the sexual and reproductive health of these women. The truth is that many crucial reproductive health interventions for refugees, such as emergency contraception and access to safe abortion services, are surrounded with such ideological controversy that providing proper care becomes extremely difficult, if not practically impossible.

Without adequate services available, the acknowledgment of reproductive rights as fundamental international human rights is without force. Abyan’s story provides one example of the severe and disturbing consequences this lack of care can have. Another example emerged from the same refugee camp only weeks after Abyan’s story was released. Medical authorities on Nauru refused to send a refugee to Australia for a complex birth procedure, despite insistence that her and her baby’s health were both in extreme danger. While Australia cited its policy that refugee women must give birth on Nauru, doctors at the Nauru Hospital desperately scoured the Internet (specifically, LinkedIn) for a specialist who would fly to the island to provide the care that was required to save the lives of the woman and her child. The fact that medical professionals were forced to resort to such extreme measures demands closer international scrutiny of the quality of reproductive care that is offered to refugee women. Women who have already suffered unbelievable trauma, women whose precarious immigration status affords them little to no control over their reproductive choices, and women whose rights we have committed to protecting as an international community.

 Conclusion

Abyan’s experiences serve an important purpose as they prompt the international community to examine the severe human rights violations associated with the treatment of refugees in indefinite detention, sexual assault in refugee camps and reproductive rights for refugee women. These are issues of equality and human dignity. Non-citizens should have access to the same quality of fundamental health and justice services as citizens. And women deserve to retain control over their reproductive choices and bodily integrity, despite their immigration status. Refugee women represent one of the most vulnerable populations in the world and the international community has an affirmative duty to protect their rights and bodies from systematic, institutionalized abuse.

Jenna Klein is a J.D. candidate at Berkeley Law. She is a student contributor for Travaux.