Some countries incorporate international law as part of their national law (either directly or by enacting legislation to incorporate it) and it can be used to defend equality within marriage in your national courts, when making a constitutional claim as described above and also before an international court or an international body. Examples of this are Malawi, Colombia, and Costa Rica.
Example of international law protecting equal marriage enforced directly in national courts. Judgment 00302, Case 03‐001073‐0185‐Cl (Second Court for Civil Matters Section I), 1 December 2008, Costa Rica.
Ms. Vindas Umaña’s son died in a car accident. She took those found responsible to court seeking compensation for damages. Those responsible argued that compensation had already been given to her husband as he was the “representative” of the marriage, not the wife. The court granted compensation to Ms. Vindas Umaña, because she had faced discrimination only because of her condition as a married woman. The court made reference to the existence of discrimination against women (Article 1 of CEDAW) and need to take appropriate measures to eliminate discrimination against women in all matters relating to marriage (Article 16(1)(h)) as well as the right to a fair trial (Article 8(1) ACHR) and equality before the courts (Article 14(1) of the ICCPR).
Other countries do not incorporate international law to be enforced in national courts directly, which means that they can be mentioned in a constitutional claim to strengthen your claim, but to enforce international law against your state, you will have to go to an international court or to an international body.
Where do I go first?
In Africa: If your country made a declaration to allow individuals and NGOs to take cases to the court, you can go either to the African Commission or to the African Court of Human Rights. These countries are Benin, Burkina Faso, Côte d’Ivoire, The Gambia, Ghana, Mali, Malawi, Tanzania, and Republic of Tunisia. Claims against other countries will need to go to the African Commission first, and the commission can decide to take the case to the court if your country does not follow the recommendations of the Commission.
In Latin America: there is a dual system for individuals to follow which requires a complaint to go first to the Inter American/African Commission and if the State has not complied with the recommendations made by the Commission, the Commission will refer the case to the Court as a “last resort”.
In Asia: No comparable system exists in Asia and the Pacific. In Asian countries informal communications and complaints can be submitted to the ASEAN Intergovernmental Commission on Human Rights. The complaint will then be discussed by the AICHR representatives who are designated by the States. Bear in mind that this has been criticised for lacking independence. Also, discussion of the complaint by the Commission is not public and there has been currently no action taken by the Commission of a complaint. Non-regional mechanisms are preferable if you want to hold an ASEAN State accountable. All the ASEAN countries have ratified or acceded to the CEDAW.
For both the Commission and the court check that:
- Your country is party to the International convention that creates the international court or body, for example the African Charter on Human and People’s Rights, or the American Convention and recognizes the jurisdiction of the Court. TIP : You can click on this link and look for your country on the list. If your country is party to a treaty it must comply with the rights and obligations included in them. Your country may have applied reservations (limitations to the application of the treaty) when they became party to a treaty which you can also read.
- Think about which rights are violated by inequality within marriage in your particular case. It may be the right to equality, the right to property, to access justice, or others.
- For countries in Latin America: Check that these rights are part of any InterAmerican human rights treaty or convention.For countries in Africa: Check that these rights are part of the African Charter on Human and People’s Rights, or of the Protocol to the Charter and any other human rights instrument that the States concerned are parties to. This is broad and can include, for example CEDAW. TIP: You can find a detailed table of international law on marriage here.
- That all local remedies have been exhausted – this means that all legal avenues within your country have been attempted to the highest court, without an appropriate response which protects human rights or that you have been awaiting a response for an unreasonable amount of time (for example, a decision from a court that has taken 12 years to be resolved).
- You take your case as soon as possible or in a reasonable time since all local remedies are exhausted.
- You have proof of how your rights have been affected.
At the Commission
Recommend steps to be taken by the State party to remedy the violation such as changing the law, allowing acts by a wife to be carried out or monetary compensation.
These measures can mainly be enforced by sending letters to the State as encouragement in Africa or by publishing the case as pressure in Latin America. The Commission can also refer the case to the Court if the state does not comply with its recommendations.
At the Court:
Asserting women’s rights to equal treatment in marriage under regional & international law. Morales de Sierra v Guatemala (Inter-American Commission on Human Rights), 19 January 2001.
Ms Morales de Sierra was a married woman who challenged various provisions of the Guatemalan Civil Code. The Code stated that a married woman was not allowed to represent the marital union; administer marital property; represent the children or administer their property; and could only work outside the home with her husband’s permission and if it did not prejudice her role as mother and homemaker.
Ms Morales de Sierra exhausted local remedies in Guatemala by making a constitutional claim, which was rejected by the Constitutional Court of Guatemala, which said that the provisions were constitutional as they provided judicial certainty on the allocation of roles in marriage. Ms Morales de Sierra identified that the Civil Code affected her right to equality and privacy. She first took her case to the Inter-American Commission on Human Rights. The Commission found that the provisions violated the right to be equally protected by the law (Article 24); to equality and balanced responsibilities in marriage (Article 17); and the right to privacy (Article 11) of the American Convention on Human Rights. Since the decision, Guatemala has made reforms to its Civil Code, making it possible for women to be heads of household and not require permission to work.
Challenging the law on child marriage before the African Court of Human Rights. 2016, Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF)
and Institute for Human Rights and Development in Africa V. Republic of Mali, 2016, African Court on Human and People’s Rights
The Mali Family Code was challenged in 2016 by two African human rights organisations which submitted a complaint to the African Court of Human Rights. They argued that the Mali Family Code law violated international human rights instruments that Mali had ratified, including CEDAW and the Maputo Treaty.
They argued that the Family Code violated human rights because the Maputo Protocol and the African Children’s Charter set the minimum legal age of marriage to eighteen, but Mali’s Family Code set the age at sixteen. The Code also allowed for an exemption for girls to be married from the age of fifteen with the consent of the girl’s father, essentially legalising child marriage. Also relating to forced marriage, the Code only included a verification of the parties’ consent by civil officials, but none for religious ministers, creating ambiguity around consent in marriage.
The African Court ruled that by not setting the minimum age of marriage at eighteen, Mali was in violation of its international obligations to protect children from child marriage, and that discrepancies in regulations relating to consent meant that Mali was violating its obligation to ensure that parties’ consent is obtained in a marriage, to prevent forced marriages. The court therefore ordered Mali to amend the Family Code and harmonize its laws with its international obligations.
Challenging discriminatory laws in the Interamerican System: CASE OF ATALA RIFFO AND DAUGHTERS v. CHILE (Inter-American Court of Human Rights), 2012.
Ms Atala separated from her husband and took custody of her children. After openly starting a same sex relationship, her husband took her to court for custody. Ms Atala exhausted local remedies in Chile by appealing and getting her case to the Supreme Court, which gave custody to her husband as they argued that the development of her children was at risk because of her sexuality. Ms Atala identified that the decision by the court affected her human rights, discriminating her based on her sexuality. She first took her case to the Inter-American Commission on Human Rights in 2004. The Commission found that there had been a violation of the right to equal protection and the obligation not to discriminate; the rights to protection of the family and privacy; the rights of the child and the Equal Rights of Spouses Following the Dissolution of a Marriage; and the right to judicial protection and guarantees, contained in the American Convention on Human Rights. Chile did not comply, to the recommendation by the Commission to revert the decision and to adopt non-discrimination legislation, so the Commission took the case to the Inter-American Court of Human Rights in 2008 and in 2010 the Court ruled that Ms. Atala had been discriminated against in the custody case in ways incompatible with the American Convention. The court awarded custody and damages of USD $50,000 damages to Ms Atala.
In Africa, there is another option which is relevant for equality within marriage which is the ECOWAS Community Court of Justice.
In Nigeria, Mary Sunday was subject to domestic violence at the hands of a policeman and the Nigerian authorities had failed to carry out an independent and impartial investigation. Mary and supporting organisations took the case directly to the ECOWAS court against the state of Nigeria on human rights grounds. The Court established that by not carrying out an impartial investigation, Mary’s right to access to justice, and right to have her cause heard were affected. The court ordered the State of Nigeria to pay Mary financial reparation.
Please bear in mind that these processes take time. They are recommended for cases where a structural or systemic change is sought to defend human rights.
Taking a case as an individual before other international bodies:
Individuals and organisations on their behalf can also make a complaint against a state for not addressing their individual problem before an international body. The relevant bodies for cases related to inequality within marriage include the Committee on the Elimination of Discrimination against Women (CEDAW), the UN Human Rights Committee and the Committee on Economic, Social and Cultural Rights.
-It may be that your right to work, or social security rights have been affected because your husband has to authorise you to work or to access your social security. In this case, your economic and social rights are most affected, making the CESCR the best place to make a complaint.
-It may be that your right to access to justice is restricted when only your husband is able to represent the marriage in court, or other civil and political rights are affected making the Human Rights Committee most appropriate.
-Finally, it may be that a mixture of rights are affected which are particularly related to the fact that you are a woman, or a married woman discriminated against because of it, which makes the CEDAW the most appropriate body.
-For CEDAW: List of Parties here.
For the Human Rights Committee: list of States that are parties here.
For the Committee on Economic Social and Cultural Rights: list of States that are parties here.
Graciela owned two apartments in Lima, in 1974. Tenants stopped paying rent, so she sued the tenants in 1978. She won the first case, however on appeal the higher court reversed this decision and argued that Graciela could not sue because Article 168 of the Peruvian Civil Code said that when a woman was married, only the husband could represent matrimonial property in court. Graciela appealed to the Supreme Court of Peru, stating that the Peruvian Constitution in force at the time outlawed discrimination against women. The Supreme Court ruled against Graciela. As she had exhausted all local remedies, Graciela took her case to the Human Rights Committee of the UN. The Committee decided that Graciela’s rights were affected, including Article 3 of the International Covenant on Civil and Political Rights to “ensure the equal right of men and women to the enjoyment of all civil and political rights…” and Article 26, “all persons are equal before the law”. The Committee therefore decreed that Peru was under an obligation to take effective measures to remedy the violations suffered by the victim.
Example: E.S & S.C v United Republic of Tanzania 2015.
Two widows were left homeless after their husbands had died – they were evicted from their homes by their husbands’ families and were not entitled to inherit any of their husbands’ estates. They made a claim before the High Court and claimed that the customary inheritance laws were discriminatory based on their sex/gender.
Although the High Court held that the provisions were discriminatory, it did not grant any relief to the claimants and did not strike down the provisions. It concluded that it was preferable to recommend, rather than order. E.S. and S.C. appealed but the appeal process was subject to lengthy delays and eventually the appeal was dismissed on a technical procedural point. This proved that they had exhausted local remedied because there was no solution given to their problem.
The women submitted a complaint to the CEDAW. The CEDAW decided that Tanzania had violated CEDAW, by not giving effective protection of women against any act of discrimination (articles 2(c)), or taking all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women(article 2(f)) and failing to modify the social and cultural patterns of conduct based on the idea of the inferiority of either of the sexes (article 5(a)) of CEDAW, denied equal economic rights and opportunities, in violation of article 13(b), denied equality before the law (article 15(1)) and denied their legal capacity (article 15(2)) and overall not afforded the same rights to women during marriage and at its dissolution (articles)16(1)(c) and 16(1)(h). CEDAW recommended repealing or amending the laws were a violation of CEDAW, and providing adequate compensation and reparations to the claimants.
Bear in mind it is a long process that may take several years before the Committee’s final decision. This is a good option if the courts in your country are not open to the protection of human rights and also if you want to make a more systemic change in your country.
USEFUL FOR: Cases where the law, policy of public or private authorities negatively impacts most married women in a manner that is structural and systematic, and change would require a progressive change and reform of many institutions, individuals and civil society organisations that focus on these issues may decide that international reporting mechanisms are a better option.
Claim: Inquiry procedure before CEDAW or the Committee on Economic, Social and Cultural Rights. More than a claim you are asking the UN Body to review a human rights problem and make recommendations on how to improve.
By whom: individuals or civil society organisations.
Against: your State
Asking for: Recommendations on how to improve human rights standards in a country on a particular topic and tracking of how the state is making changes.
Best for: holding the state progressively accountable through time and not to provide an individual remedy and quick remedy such as compensation or individual response to an affected person.
For specific of information on each international body and court, please click here.