Women's Human Rights Resources Database

This article explores the development Islamic family law and the reforms that have been made to keep the law in line with the conditions of Muslims in each country. The study conducted revealed that Indonesian and Malaysian marriage laws have given Muslim women in both countries positions closer to equal with men, but when viewed from a human rights and gender equality perspective, the marriage laws are still significantly lacking. The article begins with a historical overview of legal reforms in Muslim-majority countries before doing a deep dive in to the marriage laws of the two countries in order to draw comparisons. The author concludes that in order for further progress to be made in the marriage laws of these countries, the perspective of the majority of Muslims must be shifted: namely to the view that changes to Islamic family law that improves the condition of Muslims, especially women, is not a deviation from Islamic teachings.

This paper explores the legal and social protections that are unavailable to young girls and women who have entered into child marriages, thus violating their human rights. While there are regulations regarding minimum age requirements to marry legally, families can avoid such legal protections through marriage dispensation and allow for child marriages to proceed. The study finds that child marriage is a vehicle with which society can deprive girls from certain economic rights, including the right to achieve an education. Girls entering child marriages drop out of school and are disallowed from pursuing higher education. This causes girls and women to become economically and socially dependent on others, thus exacerbating the gender gap. While these violations are contrary to article 13 of the Indonesian Constitution outlining the universal right to education, there are no laws criminalizing the deprivation of educational rights among young girls. 

The author examines provisions of the Convention on the Rights of the Child (CRC), the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages (Marriage Convention) detailing how these instruments address aspects of child marriage and how they fail to effectively ban child marriage. Also addressed is the incidence of child marriage and the social, economic, cultural, religious and political causes of the practice. The author argues that additional provisions to the CRC would be the most effective means of curbing child marriage, as those who support child marriage can use the CRC as it stands to support their arguments.

The author argues that there should be greater state intervention in marriage, in particular, in the context of Commonwealth African states. Traditionally, customary law in many African nations restricts women's property rights and reproductive rights, and unequal power relations in the home can lead to gender-based violence. The author argues that the state has a dual obligation to promote equality and women's rights within intimate relationships, and these goals are best served by increased state regulation of marriage. The author argues that within the plural legal systems of Commonwealth Africa, statutory marriage regimes can provide women a more equitable alternative to the customary marriage law and an opportunity to protect their own rights within the marital relationship. The author proposes that Commonwealth Africa states implement a legislative floor that would create a minimum standard for women's rights within marriage. Johanna E Bond, Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law (2011) 14 Yale Human Rts & Dev LJ 1.

In order to develop relevant and culturally appropriate international strategies for child marriage, the author argues that diverse socio-economic conditions and the cultural specificity of childhood and adolescence need to be examined. The author discusses the problem of uniformly conceptualizing all persons under age 18 as "children", as constructions of childhood vary across cultures. She examines how banning child marriage could exacerbate the underlying socio-economic problems that lead to child marriage in the first place. The author promotes the examination of particular consequences of child marriage to women and girls in specific contexts as essential for international human rights analysis of early marriage. [Descriptors: Marriage, International]

This article begins with a description of female genital mutilation (FGM) practices and an examination of the international human rights provisions that may be invoked to protect individuals opposed to FGM. The rest of the article provides a guide on how United States adjudicators should determine asylum claims involving FGM. The international protection guidelines issued by the Office of the United Nations High Commissioner for Refugees serve as a basis for this guide. [Descriptors: Migration - Refugees and Immigration, Reproductive Rights - Female Genital Cutting, International]

This article examines the violations of the human rights of women in Sierra Leone under the General Laws, Customary Laws, and Islamic Laws that pertain to marriage, divorce, and inheritance. Using the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Universal Declaration of Human Rights (UDHR), the author explains how the laws and customs pertaining to marriage in Sierra Leone violate the commitments Sierra Leone has made to these international instruments. The author concludes with recommendations for urgent reform and domestic codification of the provisions contained in the international agreements to which Sierra Leone is signed. [Descriptors: Marriage, International - Africa]

This note examines Johnston v. Ireland , which challenged the Irish ban on divorce in the European Court of Human Rights, and concludes that the court should have found that a constitutional bar to divorce violates human rights of both women and men. Part I summarizes the political and religious divisions that shape Irish divorce law and related family matters. Parts II and III discuss the case in the context of the European Convention on Human Rights. Part IV concludes that the case was wrongly decided. [Descriptors:Marriage, International - Europe]

The Restatement (Second) of Conflict of Laws (1971) covers a broad range of family law topics. However, since 1971, there have been significant changes in family law in the United States and abroad, mostly concerning divorce, equitable distribution of property, and same-sex marriage. As such, the Second Restatement reflects an older legal tradition and is, consequently, not as equipped for addressing international family law conflicts in the advent of globalized couples and families. With the Third Restatement of Conflict of Laws currently being written, the authors of this article discuss the changes in family law and propose new approaches to marriage and divorce conflicts that should be reflected in the Third Restatement. The authors emphasize cross-border recognition of marriage and divorce judgements to better address legal consequences, specifically those surrounding family status and divorce validity. They also propose greater recognition of the autonomy of married and unmarried partners, such that their independent financial and property interests define the economic consequences of their relationship. 

This article discusses the debilitating effects that child marriage and guardianship have on the overall functioning of Tanzanian society and examines the legal remedies that can be employed by the government to address these issues. On one hand, the Law of Marriage Act forces girls into early adulthood by allowing them to marry as young as fourteen. On the other hand, guardianship laws permit the treatment of adult women as minors, granting men the power to inherit women and take control over their children and property. Together, child marriage and guardianship laws rob girls of their childhood and infantilize grown women. The authors propose that the only legal solution is for the Tanzanian government to implement new laws such that girls cannot get married until the age of eighteen and that once that age is reached, they should not be subject to the control of a guardian, unless incompetent. 

This article examines the discourse in Australia, during the 1970s and 1980s, surrounding a husband’s immunity from prosecution when he had engaged in non-consensual intercourse with his wife. Appealing to a broad sense of human rights was found to be a non-compelling argument for criminalizing marital rape when brought to the public. Instead, the public found individual accounts from women who had suffered at the hands of their husbands to be much more compelling. These stories contributed to the criminalisation of marital rape throughout Australia in 1992.

This article discusses the practice of forcing girls and young women with dual UK-Bangladesh or UK-Pakistan citizenship into marriages in their home countries. The authors argue that this practice violates the human rights of these girls, for example, the right to decide when and whom to marry, the right to personal liberty and security, and the right to freedom from arbitrary detention. Forced marriage is likened to trafficking in women and girls for the purposes of slavery. The authors argue that, under international human rights instruments, states are responsible to act to prevent, investigate and punish cases of forced marriage. The authors also outline the available remedies in Bangladesh and Pakistan after abduction has taken place, particularly judicial and diplomatic protection, including habeas corpus petitions, criminal law, family law and consular assistance. [Descriptors: Marriage, International - Asia]

This study highlights the needs for closer scrutiny of the inter-sectional nature of perpetrators of domestic violence. The author posits that attention on the identities of victims of domestic violence fails to reveal the reason why success in family court cases does not always align with the victims adherence to decision-makers' expectations of the "perfect victim". The article argues that the expansion of inter-sectional and performance theory to perpetrators is necessary to gain further insight into this discrepancy.

Like many other forms of human rights violations, child marriage is an issue of international law. However, national organizations and efforts have been proven to be more successful in effecting change. This article explores child marriage in various countries throughout Africa through analyses of cases that challenged child marriage on a constitutional level. The authors conclude with suggestions for African countries to improve their ability to protect and advocate for the needs of children. It is recommended that each country should sign and ratify the relevant human rights instruments and enact legislation to create rights that are recognized in domestic courts. The authors also suggest that each country employ external organisations to ensure that these initiatives are ethical and implemented appropriately. Importantly, the authors highlight the courts’ impact and ability to play a key role in the elimination of harmful practices, including child marriage.

Women's rights in the Arab Middle East and North Africa (MENA) region are surveyed in this article. The author uses human rights standards contained in the Universal Declaration of Human Rights (UDHR) to rate the de jure and de facto status of women's rights in the areas of nondiscrimination and access to justice, autonomy, security, and freedom of the person, economic rights and equal opportunity, political rights and civic voice, and social and cultural rights. Evaluations that pertain to women's rights in marriage are found in the section entitled "Women's Inferior Status in Family Laws," where the author elucidates how women face gender-based discrimination in both the family codes of the studied countries and through Islamic law. This article ends with recommendations for reform of MENA countries' legislation and traditions in order to empower women of the region. [Descriptors: Marriage, International - Africa, International - Asia]

This article discusses the subject of widows' sepulchral rights in sub-Saharan Africa, specifically focusing on a widow's right to determine the time, place and manner of her husband's burial. In customary law in Nigeria, the right of burial belongs to the family as a whole, and it is rare that a widow will be the head of family and have control over burial rights. On the contrary, she is often regarded as chattel. Although customary law is partly to blame, the issue also stems from statutes and common law inherited from England. One remedy is to repeal or amend existing laws. But the author argues that sepulchral laws, if applied horizontally, are already guaranteed by the Nigerian Constitution. The article looks at cases where this has been done and also argues that customary law could be challenged as unconstitutional. Remigius N Nwabueze, Securing Widows' Sepulchral Rights through the Nigerian Constitution (2010) 23 Harv Hum Rts J 141.

Under international criminal law, there is no single conceptualization of forced marriage—a reality that creates legal and factual challenges for both prosecutors using “forced marriage” as a charging label for crimes as well as victims who might feel that another crime category, as opposed to forced marriage, better reflects their circumstances. Given this dilemma, this article examines how two international criminal tribunals, the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, defined and interpreted forced marriage, when both convicted individuals for this crime in Sierra Leone and Cambodia, respectively. By analyzing the tribunals' differing approaches to forced marriage, the article highlights the fluidity in the definition and categorization of "forced marriage" as a charging label and ultimately concludes that the kind of terminology that should be used when it comes to forced marriage is still a live debate in international criminal law. 

The author examines how marital status has historically impeded a woman’s human right to keep her nationality and to pass on her nationality to her children. Part I focuses on the historical narrative of stripping women of their nationality after marriage and how this has been dealt with internationally through treaties, declarations and protocols. Part II examines how legal systems have responded to this issue. Part III looks at why violating women’s right to their nationality has been accepted or ignored by international law. Part IV concludes with exploring what systems would better support women’s right to their nationality.

This article addresses the issue of marital rape and its lack of criminalization in many parts of the world. The special case of marital rape is often overlooked in discussions about sexual assault, but the authors show that international human rights laws require states to exercise due diligence in order to protect women from this type of sexual violence. Marital rape violates several fundamental human rights of women, namely, the right not to be subject to torture, the right to life, liberty, and security of the person, nondiscrimination, equality in the family, and health and well being. Throughout the article, the authors argue that criminalization of marital rape is necessary for its prevention and must be enacted universally. They also suggest that criminalization alone is not enough, but that people must be educated about the wrongfulness of marital rape and the importance of consent in sexual relationships.

The author urges feminists and scholars to re-examine their respect for cultural relativism in light of the harms to women created by laws that allow polygyny and in light of international human rights conventions. Because the voices of women have historically been absent in the development of cultural norms, the author contends that culture cannot be used as a justification for the violation of women's human rights in marriage. Polygyny is argued to violate a women's right, to equality within marriage,to religious freedom, and to enjoy her culture. [Descriptors: Marriage, International]

In this article, Ghana is used as a representative of Sub-Saharan African countries where polygyny (i.e. man with more than one wife) is practiced. With reference to the ICCPR (International Covenant on Civil and Political Rights), ICESCR (International Covenant on Civil and Political Rights), CEDAW (Convention on the Elimination of all forms of Discrimination Against Women), UDHR (Universal Declaration of Human Rights) and the African Charter on Human and People's Rights, the authors discuss the specific violations of women's rights that can occur in polygynous marriages such as inequality within marriages, increased vulnerability to HIV/AIDS, ill effects on mental health and increased vulnerability to domestic violence. Suggestions to reduce the incidence of polygyny include a uniform marriage code and registration system and the criminalization of polygyny. [Descriptors: Marriage, International - Africa]

Many women seek refugee protection fleeing from forced marriages. However, because there is no precedent establishing forced marriage as a form of persecution, these women often have to establish their claims on related harms that already constitute persecution, such as rape,. The article discusses what constitutes forced marriage and the development of requirements for refugee protection. The author then examines the meaning of persecution and how forced marriage may fit within the definition. Following this more general discussion, the article analyzes a number of U.S. cases involving forced marriage to explore the treatment of forced marriage in asylum adjudications. The analysis identifies a number of factors in asylum adjudications involving forced marriage, including legal challenges and adjudicator misapprehensions. It concludes that forced marriage as persecution is barely addressed in U.S. asylum cases. The author concludes that forced marriages should be considered a form of persecution under domestic and international law since they deprive women of the fundamental right to freely consent to marriage. Kim Thuy Seelinger, Forced Marriage and Asylum: Perceiving the Invisible Harm (2010) 42:1 Colum HRL Rev 55.

This article examines the conflicts between international and domestic marriage and divorce laws in Ireland. The article explains how Ireland’s piecemeal divorce laws developed incrementally, resulting in a radically different treatment of divorces taking place in EU countries versus divorces taking place elsewhere. The article also explains the human rights consequences of not recognizing divorces based on habitual residences, and outside the common law. These difficulties regarding divorce recognition extend to marriage, resulting the creation of an unclear and problematic new test for defining refugee marital status. The article suggests that recent developments, like the introduction of the test, have confused more than clarified, and the common law would be better served by developing the existing jurisprudence. The article argues that the court needs to modernize this conflict of laws in the face of a more internationally mobile society, and recent case law has not adequately reflected this international reality.

The article considers the case for viewing forced marriage as a gender crime. This practice was a prevalent form of violence during the civil war in Sierra Leone. The article engages in a brief examination of the Special Court for Sierra Leone trials. The author argues that recognition of this practice as a form of gender violence is crucial to advancing the scope of international law. A comparison is made between the characterization of forced marriage under international criminal law and its treatment under international refugee law, where similar violence is defined as persecution in the Convention relating to the Status of Refugees.