V. International Legal Obligations Regarding Child Marriage

There is an evolving consensus in international law that 18 should be the minimum age for marriage. According to the Committee on the Rights of the Child, the minimum age for marriage should be 18, regardless of the wishes of the parents.

The government of South Sudan has obligations under international and regional human rights law to protect the rights of girls and women. These include the rights to health, to equality and non-discrimination, to information, to free and full consent to marriage, to choose one’s spouse, to education, to be free from physical, mental, and sexual violence, to an effective remedy when any of these rights are violated, and to be protected from slavery, trafficking and sale. The inadequate fulfillment and protection of these rights is both a cause and consequence of child marriage in South Sudan.

South Sudan has not ratified any major international or regional human rights treaties, despite the president promising to do so in his 2011 independence-day speech.[159] However, international law favors the automatic continuation of human rights obligations from predecessor to successor states.[160]

As a result, South Sudan inherited a duty to respect, protect, and fulfill rights guaranteed under: the International Covenant on Civil and Political Rights (ICCPR), including its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, the Convention on the Rights of the Child (CRC), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of Persons with Disabilities (CRPD), the Supplementary Convention on Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, and the  Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), the African Charter on Human and Peoples’ Rights (African Charter), the African Charter on the Rights and Welfare of the Child (ACRWC);[161] and a responsibility not to take any actions that would undermine the object and purpose of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) that Sudan has signed but not ratified.[162]

Right to Equality and Non-Discrimination

South Sudan has obligations under the ICCPR, the ICESCR, and the CRC to ensure women’s rights to equality and non-discrimination. The ICCPR calls for “the equal right of men and women to the enjoyment of all civil and political rights set forth in the … Covenant,” including the right to birth registration, to free and full consent to marriage, to equality of rights and responsibilities of spouses during marriage and at its dissolution, to life, to liberty and security of the person, and to freedom of expression.

The ICESCR makes similar provisions in article three.[163] The CRC in article 2 recognizes the right of children to be free from discrimination, including on the grounds of sex and age.[164]

The ACRWC states in article 21 that, “Child marriage and the betrothal of girls and boys shall be prohibited.” Prohibitions on child marriage and non-discrimination are also included in the Maputo Protocol and the African Charter.[165]

Child marriage is considered a form of gender-based discrimination because the practice disproportionately affects girls, and negatively impacts the realization of girls’ and women’s many other human rights. The impact of these violations is felt by women throughout their lives, and extends to their families and societies.

The South Sudanese government has an obligation to effectively address child marriage and the human rights abuses that result from child marriages, which subject women and girls to unequal and discriminatory treatment. Failure to do so constitutes a violation of the state’s obligation to guarantee women equal protection of the law.

Right to Free and Full Consent to Marriage, and to Choose a Spouse

South Sudan must ensure that those entering marriage do so with their full and free consent. The right to marriage based on “full and free consent” of the spouses is recognized in the Universal Declaration of Human Rights, the ICCPR and the ICESCR.[166] The Convention on the Consent to Marriage further specifies that each spouse must give his or her consent “in person ... as prescribed by law.”[167] The Maputo Protocol specifies in article 16 that, “no marriage shall take place without the free and full consent of both parties.”

Consent cannot be “free and full” when one of the parties involved is not sufficiently mature to make an informed decision about a life partner. To exercise full, free and informed consent, a woman needs to have the capacity to understand the meaning and responsibility of marriage; access to full information about her future spouse; knowledge of the institution of marriage; and her right to exercise a choice as to whether or not to marry, who to marry, and when to marry. [168]

The Right of Children to Express Their Views Freely

Child marriage is incompatible with international human rights laws, even if children do “consent” to the marriage. This does not mean however that South Sudan should not respect the right of children to express their views. The right of children to express their views is set out in article 12 of the CRC which stipulates that they have this right in all matters affecting them, according to their age and maturity.[169] The 2009 CRC committee’s General Comment no. 12 on the right of the child to be heard affirms this right in any judicial or administrative proceeding affecting his or her well-being.[170] In its comment, the committee goes on to set out States Parties’ obligations to establish reporting mechanisms such as telephone help lines and support mechanisms to assist children to express their views. This includes access to physicians and to teachers who can offer a safe space for children to express their views or to seek help in any matter related to their well-being.[171]

Therefore, South Sudan should take policy and programmatic measures to ensure children’s right to be heard in matters concerning marriage.

The Obligation to Enforce a Consistent Definition of a Child, a Minimum Age for Marriage, and Birth and Marriage Registration

To protect children from the harmful practice of early and forced marriages, the government of South Sudan has an obligation to enforce a consistent definition of a child and a minimum age of marriage in all judicial and customary laws and practices. It also has a duty to ensure that all births and marriages are registered by a competent authority.

The CRC committee has repeatedly addressed the need for countries to establish a definition of a child in all domestic legislation that is consistent with the provisions of the CRC. It has also taken a clear position on 18 as the minimum age for marriage, regardless of parental consent.[172] At the Africa regional level, the African Charter on the Rights and Welfare of the Child explicitly requires states to take effective action, including legislation, to specify the minimum age of marriage as 18 years.[173] The Maputo Protocol also specifies that states are to “enact appropriate national legislative measures to guarantee that the minimum age of marriage for women shall be 18 years.”[174]

The CRC defines a child as anyone below the age of 18 years.[175] South Sudan should amend the Child Act to reflect this standard. Because South Sudan recognizes customary law as integral to its legal system, it needs to ensure that both judicial and customary legal processes adopt and enforce the same definition of a child and a minimum age for marriage.

South Sudan should also pass legislation requiring the registration of marriage. The Convention on Consent to Marriage, Minimum Age for Marriage, and Registration of Marriages states that all marriages should be registered by a competent authority.[176] The Maputo Protocol also calls on governments to ensure that all marriages are recorded in writing and registered in accordance with national laws.[177] The CRC committee has also addressed the obligation of governments to make the registration of all births and marriages compulsory and to put in place measures to enforce implementation.

Right to Health

By virtue of its inherited international human rights obligations, South Sudan is required to fulfill the right to health on a nondiscriminatory basis. This right is enshrined in numerous international human rights instruments, including the Universal Declaration of Human Rights, the ICESCR, the African Charter, the Maputo Protocol, and the CRC. The ICESCR specifies that everyone has a right “to the enjoyment of the highest attainable standard of physical and mental health,” and requires that it be implemented without discrimination on the basis of sex, age, or other prohibited grounds.[178] Article 24 of the CRC recognizes children’s rights to health and to access health services, and notably the right to be protected from traditional practices prejudicial to the health of the child. [179]

The African Charter recognizes that every individual has “the right to receive information” and “the right to education.”[180] The Maputo Protocol specifically includes “the right to have family planning education” and further obligates governments to “provide adequate, affordable and accessible health services, including information, education and communication programs to women especially those in rural areas.”[181]

Several treaties and authoritative interpretations specifically note that reducing maternal mortality rates and improving maternal health services should be considered priorities in the progressive realization of the right to health. The ICSECR provides that the full realization of the right to health requires States Parties to take steps to reduce rates of still-births and infant mortality. The committee that monitors the ICESCR has noted “a need to develop and implement a comprehensive national strategy for promoting women's right to health throughout their life span,” noting,

A major goal [of a national strategy] should be reducing women's health risks, particularly lowering rates of maternal mortality and protecting women from domestic violence. The realization of women's right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health. It is also important to undertake preventive, promotive and remedial action to shield women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights.[182]

Underage marriage has serious health consequences for girls and contributes to South Sudan’s extremely high maternal and infant mortality rates. The government of South Sudan should take steps to reduce its high rates of child marriage, and to improve girls’ and women’s access to reproductive health care and information to ensure that it fulfills its right to health obligations.

Right to Education

The ICESCR and the CRC guarantee to everyone the right to free and compulsory education.[183] The right to equal opportunity in education is stipulated in the CRC, the African Charter, the Maputo Protocol, and the African Charter on the Rights and Welfare of the Child.[184]

In its general recommendation on the aims of education, the CRC committee explains the purpose of education to develop a child’s “personality, talent, mental and physical abilities to full potential” and to prepare a child to assume life’s responsibilities.[185] It remarks that an education provides children with life skills such as critical thinking, the ability to make well-balanced decisions, to develop a healthy lifestyle and good social relationships; and empowers them by developing their self-esteem and confidence.[186]

Early and forced marriages are a major contributor to South Sudan’s extremely low rates of school enrollment—particularly at the secondary level—among girls and literacy among women. It is also a major cause of school drop-out for girls. By failing to curb child marriages, South Sudan is failing in its obligation to ensure access to education for boys and girls on an equal basis.

The Right to be Free from Physical, Mental, and Sexual Violence

Under international and regional law, the government of South Sudan has an obligation to prevent, investigate, prosecute, and punish violence against girls and women.[187] The responsibility is grounded in the rights of non-discrimination and equality, security of person, health, and freedom from torture provided in treaties whose human rights obligations South Sudan inherited from Sudan following independence.

The CRC requires that states parties protect children from physical, mental, and sexual abuse or exploitation through legislation and other social and educational measures. The obligation to protect children from violence includes protection from parents or other caregivers.[188] Article 34 of the CRC clearly delineates the obligation of states to protect children from sexual exploitation and abuse.[189]

The Maputo Protocol calls on States to adopt legislative, administrative, social and economic measures as may be necessary to identify the causes and consequences, and ensure the prevention, punishment, and eradication of all forms of violence against women, including sexual violence whether it occurs in private or public.[190] It specifically requires that States take measures to protect women who are at risk of being subjected to harmful practices or all other forms of violence, abuse and intolerance, and to establish mechanisms and accessible services for effective information, rehabilitation and reparation for victims of violence against women.[191]

As this report shows, girls who are subjected to child marriage may experience violence from their spouses, in-laws, and other family members. This includes physical, verbal, sexual, and psychological abuse. Girls and women don’t always report violence to the authorities due to a number of cultural and legal barriers noted earlier. Nonetheless, some women do report abuse, including forced marriages, but they rarely get help.

South Sudan’s obligation to prevent, investigate, prosecute, and punish violence against girls and women includes ensuring that state actors, such as the police, the judiciary and customary courts take all reasonable steps to provide everyone within its territory with effective protection against such violence by private parties.[192] Included in this obligation is the State’s duty to effectively investigate whenever such violence occurs, which international human rights tribunal case law says involves an investigation capable of leading to the identification and punishment of those responsible.[193]In a case involving sexual assault one human rights court has noted, 

The Court finds further that rape is for its victim an offence of manifestly debasing character and thus emphasizes the State's procedural obligation arising in this context…. The effective official investigation should be capable of leading to the identification and punishment of those responsible…. The minimum standards as to effectiveness defined by the Court's case-law also include the requirements that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness. [194]

Police and customary courts inaction in the face of violence against women creates an atmosphere of impunity facilitating further violence, and dissuades women from seeking help. Their failure to act exposes girls and women to further violence, especially once the perpetrator knows the survivor has reported the attack, as some cases in this report show.