Third-Party Consent to a Child’s Marriage Is No Consent at All
On October 23, 2019, the highest court in the Tanzanian judiciary ruled child marriage categorically unconstitutional and set the absolute minimum age of marriage to eighteen years old.1 In affirming the ruling in Rebeca Z. Gyumi v. Attorney General, the court struck down provisions of the Tanzania Marriage Act that permitted underage marriage when there was parental or judicial consent.2 The court recognized that a girl under the age of eighteen is still a child, and that it is “not desirous to subject her to complex matrimonial and conjugal obligations.”3 In so ruling, Tanzania honors its international obligation to prevent child marriages in all forms and without any exceptions.
The current international legal mechanism to outlaw child marriages is scattered across numerous treaties and conventions. The Convention on the Elimination of All Forms of Discrimination Against Women is the most direct legal authority, stating that any marriage to a child shall have no legal effect.4 The International Covenant on Civil and Political Rights provides that parties must give free and full consent before marrying, which a girl is not capable of doing until she reaches adulthood.5 And though the Convention on the Rights of the Child does not directly address the problem of child marriage, it has several provisions that may not be realized once a girl is married.6 Effectively, customary international law militates against girls marrying before they reach adulthood, which is generally agreed to be age eighteen.7
International law, however, does not have a direct answer for when a third party makes the decision on behalf of the girl. As a result, many countries skirt the intent of these laws through exceptions that allow a minor to marry if she has either parental or judicial consent.8 Indonesia purports to have a minimum age of sixteen, but a judge can override that “absolute” minimum.9 The US federal government (notably not a ratifying party to the relevant treaties) does not recognize child marriage as a human rights violation, resulting in at least twenty three states that do not even have a minimum age of marriage.10 Further, legal loopholes via parental or judicial consent allow the pernicious and prevalent practice of child marriage to continue in a country that otherwise has broad human rights protections for many other groups.11
As Tanzania and a handful of other countries now realize,12 parental and judicial exceptions to the prohibition on child marriage defeat the purpose of any rule banning child marriage. Any legal protection a young girl may have against a premature marriage disappears once a third party decides for her. Once married, she is subject to other grave violations of her rights, including the right to be free from sexual abuse and violence, the right to an education, and the right to employment.13
States that have agreed to uphold the international norm against child marriage effectively violate their obligations when they allow the practice to continue because of legal loopholes such as parental or judicial consent. The international community must eliminate these exceptions and recognize the full rights of a young girl to not marry before her time. Anything short of complete protection is no protection at all.
Rafita Ahlam is a staff member of Fordham International Law Journal Volume XLIII.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.
1 Ettie Bailey-King, Tanzania’s Supreme Court Declares Child Marriage Unconstitutional, Girls Not Brides (Oct. 25, 2019), https://www.girlsnotbrides.org/tanzanias-supreme-court-declares-child-marriage-unconstitutional/.
2 Norah Hashim Msuya, The analysis of child marriage and third-party consent in the case of Rebeca Z. Gyumi v Attorney General Miscellaneous Civil Case no 5 of 2016 Tanzania High Court at Dar es Salaam, 52 De Jure L.J. 295, 295 (2019).
3 Id. at 306.
4 Convention on the Elimination of All Forms of Discrimination Against Women art. 16, Dec. 18, 1979, 1249 U.N.T.S. 13.
5 International Covenant on Civil and Political Rights art. 23(3), Dec. 16, 1966, 999 U.N.T.S. 171.
6 Camellia Burris, Why Domestic Institutions Are Failing Child Brides: A Comparative Analysis of India’s and the United States’ Legal Approaches to the Institutions of Child Marriage, 23 Tul. J. Int’l. & Comp. L. 151, 156 (2014).
7 Elizabeth Verner, Child Marriage in Yemen: A Violation of International Law, 43 Ga. J. Int’l & Comp. L. 759, 776 (2015).
8 Justin Behravesh, Guatemala’s Ban on Child Marriage: A Step Toward Compliance with CEDAW, 41 Fordham Int’l L.J. 53, 74 (2017).
9 ZWAW Prameswari, Indonesian Marriage Law Reform: The Way to Strengthen the Protection of Children’s Rights Against Child Marriage, 2 J. Southeast Asian Hum. Rts. 286, 297 (2018).
10 United States, Girls Not Brides, https://www.girlsnotbrides.org/child-marriage/united-states/ (last visited Nov. 8, 2019).
11 Id.
12 Guatemala, for example, passed Decreto Numero 8-2015 to eliminate the parental consent rule, following in the footsteps of neighboring Panama, Costa Rica, and Honduras. Behravesh, supra note 8, at 75.
13 Verner, supra note 7, at 763. See also Quentin Wodon et. al., Ending Child Marriage: Child Marriage Laws and Their Limitations (Oct. 2017), https://www.girlsnotbrides.org/wp-content/uploads/2017/11/2017-10-ending-child-marriage.compressed.pdf.