A/HRC/26/22
6.
A forced marriage is any marriage which occurs without the full and free consent of
one or both of the parties and/or where one or both of the parties is/are unable to end or
leave the marriage, including as a result of duress or intense social or family pressure.
III. International legal framework
A.
Right to enter into marriage with free and full consent
7.
International human rights treaties guarantee the right of all individuals to enter into
marriage with the free and full consent of both parties. The International Covenant on Civil
and Political Rights in its article 23, paragraph 3, provides for this right, as does the
International Covenant on Economic, Social and Cultural Rights in its article 10,
paragraph 1. The Convention on Consent to Marriage, Minimum Age for Marriage and
Registration for Marriages in its article 1 provides that this consent must be expressed by
both parties in person and in the presence of a competent authority.7 Article 16 of the
Convention on the Elimination of All Forms of Discrimination against Women obligates
States to ensure, on a basis of equality of men and women, inter alia, the same right freely
to choose a spouse and to enter into marriage only with their free and full consent. The
Committee on the Elimination of Discrimination against Women and the Committee on the
Rights of the Child have both stressed the importance of additional legal safeguards to
protect the right of all individuals to freely enter into marriage, even in plural legal systems
which include both customary and statutory laws. A number of regional instruments also
stipulate that marriage may only be entered into with the free and full consent of both
parties.8
8.
The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery (Supplementary Convention) obligates States
to undertake all “practicable and necessary legislative and other measures” to bring about
the abolition or abandonment of various institutions and practices which amount to forced
marriage, such as promising or giving a woman in marriage, where she does not have the
right to refuse, following payment to her parents, guardians, family or another person or
group; the right of a husband, his family or clan to transfer his wife to another person for
value received or for any other reason; and the inheriting by another person of a woman on
the death of her husband.9 As discussed under Section V, forced marriage can under certain
circumstances amount to slavery and slavery-like practices.
B.
Child marriage
9.
Article 16, paragraph 2, of the Convention on the Elimination of All Forms of
Discrimination against Women provides that “the betrothal and the marriage of a child shall
have no legal effect.” The African Charter on the Rights and Welfare of the Child also
prohibits both child marriage and the betrothal of girls and boys and requires that legislative
and other measures be taken to protect their rights.10 The Committee on the Rights of the
7
8
9
10
4
General Assembly resolution 1763 A (XVII).
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa
(2003), art. 6 (a); South African Development Community (SADC) Protocol on Gender and
Development (2008), art. 8, para. 2 (b); Association of Southeast Asian Nations (ASEAN) Human
Rights Declaration (2012), art. 19; American Convention on Human Rights (1969), art. 17 (3).
Supplementary Convention on the Abolition of Slavery, art. 1.
African Charter on the Rights and Welfare of the Child (1999), art. 2.
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