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.

TTIP and ISDS, Are We Asking the Right Questions?

TTIP and ISDS, Are We Asking the Right Questions?

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By: Gabriel Simões

The System and Its Critiques

The Transatlantic Trade Investment Partnership (TTIP) is an international treaty that is being negotiated between the United States and the European Union (E.U.) to facilitate the trade of goods, services and investment. TTIP involves two of the biggest economic forces in the world, but the Treaty has been in the spotlight of international law primarily because of the Investment-State Dispute Settlement (ISDS) system.

ISDS refers to a mechanism through which an investor can initiate a claim against a given State for breach of a substantive legal protection. These protections include, but are not limited to, prohibitions on expropriation without compensation, and fair and equitable treatment. Backed by a multitude of Bilateral (BITs) or Multilateral Investment Treaties, arbitration has been the typical means of solving these kinds of disputes.

However, during recent years, the use of arbitration for solving these disputes has been severely criticized. News organizations, civil society groups, and academics have directed a wide range of indictments against investor-state arbitration. These critiques include lack of transparency, disproportionate power to investors, expansion of frivolous claims, freezing of State regulatory power, lack of arbitrator impartiality and independence and inconsistency of arbitral awards.

The E.U. Alternative

Due to these concerns, the European Commission made a proposal to change the ISDS mechanism to an Investment Court (IC). The proposed IC would be a permanent body comprised of a two instance tribunal. The first instance would be composed of five judges from the U.S., five judges from the E.U. and five judges from various other countries. The second instance, an appeals court, would be composed of two judges from the U.S., two from the E.U. and two from third-party countries. The judges would be elected amongst jurists of recognized competence, and would have to be proficient in international law.

Similar courts have already been established, such as a court between the E.U. and Canada, in the E.U. Canada Comprehensive Economic and Trade Agreement (CETA), as well as between the E.U. and Vietnam, in their Free Trade Agreement (FTA).

E.U. agreements in the CETA and FTA, as well as its proposal in the TTIP negotiation, show its commitment to enacting this new type of ISDS in its future trade agreements. Given the global significance of the E.U. market, this push for adopting an IC system begs the question whether this new form of ISDS would become the rule.

The preliminary factor in making this determination is examining whether the model is actually adopted in the TTIP. Although the E.U. itself is making a strong push for an IC system, other major economic forces have so far refused to do so.

The recent Transpacific Trade Partnership (TTP) concluded by the U.S. and several other states indicates that the American position would be contrary to that proposed by the European Commission. The TTP maintained a revamped version of investor-state arbitration as the elected mechanism for dispute settlement. It addressed some of the critiques to investor-state arbitration, for example, by providing for enhanced transparency, creating stricter ethical rules on arbitrators and numerous exceptions preserving State regulatory powers.

Another aspect to this negotiation is the historical reluctance of the U.S. to be bound by the judgements of international courts. Although the E.U. has a unique system that it could put in place to enforce the IC decisions on member States (despite some critiques as to its incompatibility with the E.U. rules), the U.S. has, in the past, accepted an agreement to form an international judicial body only to repudiate its jurisdiction later on.

The Problems With the Alternative

But the crucial matter is whether the IC system solves the problems attributed to investor-state arbitration. Although a court system can ameliorate the problem of lack of transparency, current arbitration institutions have already come a long way to address this issue. The International Center for Settlement of Investment Disputes (ICSID) keeps an extensive online database of its cases. The TTP model also demonstrates that transparency rules can be used in conjunction with arbitration mechanisms.

The matters regarding disproportionate power to investors, expansion of frivolous claims and freezing of State regulatory power, are all related to the substantial protections provided for the investors. These protections are not inherent to one dispute resolution mechanism, but can be addressed by including provisions allowing for prima facie dismissal of claims, counterclaims by the State and reservations for claims arising from State power to regulate.

The only critiques that are inherent to the current model of investor-state dispute resolution are the lack of arbitrator impartiality or independence and the inconsistency of arbitral awards. However, the fact that each treaty in the new IC model creates its own courts indicates that overall consistency of decisions would be a dubious achievement at best. And, impartiality and independence of the judges will depend entirely on the means of appointment as well as remuneration. Allowing states to nominate all judges is a way to guarantee a pro state tribunal. Having remuneration based on a case-by-case basis would enact incentives for judges to be friendlier to plaintiffs, as receiving more cases would generate higher compensation.

Nonetheless, these arguments do not begin to address the inherent problems of this IC system.

The Question

It seems, therefore, that IC and investor-state arbitration mechanisms, and especially their shortcomings, are not completely distinct. Corroborating this assumption is the fact that, ultimately, the critiques seem to remain the same for both instruments, and the ISDS system in general.

Having these facts in mind, it seems that whether a court system or an arbitration system is preferable is a subsidiary question. Maybe a better question would be if ISDS, in general, is the best way to solve international trade disputes between investors and states.

Gabriel Simões is an LL.M Candidate at Berkeley Law. He is a Student Contributor for Travaux.