Dear Ms. Arwa Othman,
I write on behalf of Human Rights Watch to share our analysis of certain recommendations on women’s rights to which Yemen’s National Dialogue agreed during its second plenary session.* We also are submitting our recommendations to the Rights and Freedoms Working Group concerning provisions to protect and promote the rights of women in Yemen, which we believe should be reflected in the new Constitution.
Those involved in the National Dialogue have both a unique opportunity and a key responsibility to ensure that the rights of women are fully protected under the new Constitution, and then reinforced through national laws and policies.
Human Rights Watch, as you may know, monitors and reports on human rights in some 90 countries around the world and is dedicated to defending and upholding the rights of women.
We hope that the Rights and Freedoms Working Group will give careful and sympathetic consideration to the recommendations we set out in the document attached. We would be pleased to meet with you and members of the committee if you consider that it would be fruitful to discuss these recommendations in more detail.
Sincerely,
Liesl Gerntholtz
Executive Director
Women’s Rights Division
* “Report the results and recommendations of the first phase: For a comprehensive national dialogue conference,” Conference on the Comprehensive National Dialogue (the National Dialogue), July 8, 2013, at http://ndc.ye/ndcdoc/Mid_report.docx (accessed September 11, 2013).
Women’s Rights in the New Yemeni Constitution
Human Rights Watch considers it crucial that the new Yemeni Constitution explicitly incorporate women’s rights, particularly with respect to the issues of 1) equality; 2) non-discrimination; 3) political participation; 4) violence against women; 5) personal status law; 6) child marriage; and 7) nationality rights.
1. Equality
The new Constitution should include a provision that clearly and explicitly guarantees women full equality with men. Such a provision would reflect and be consistent with Yemen’s obligations as a state party to international human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR),[1]the International Covenant on Economic, Social and Cultural Rights (ICESCR),[2]and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[3]These treaties all state explicitly that women and men are considered equal before the law and must be treated so in practice and afforded equal opportunities in all areas of life.
Yemen’s previous Constitution[4]stated in article 41 that “Citizens are all equal in rights and duties” but qualified such equality in article 31, which alluded to women as “sisters of men” who “have rights and duties, which are guaranteed and assigned by Sharia and stipulated by law.” The wording of article 31 effectively diluted and undermined the guarantee of equality with men that article 41 purported to provide.
Consequently we welcome the National Dialogue recommendations that aim to protect and promote women’s full equality, notably:
- Recommendation 85: “Equality between man and woman in human dignity, and a woman has her own civil personality and a guarantee of her financial independence.”
- Recommendation 88: “The State guarantees for women all civil and political rights and is committed to enable them to exercise all the rights of equal citizenship.”
- Recommendation 49: “Maintains rights for females and males on the same base of equality and hence the word citizen or citizens means and includes female and male.”
We urge, however, that Recommendation 88 be strengthened in order to extend explicit equality provisions beyond civil and political rights, to encompass economic, social and cultural rights. As a state party to the ICESCR, Yemen has an obligation to ensure that women can access their social, cultural, and economic rights without discrimination and on an equal basis with men, and it would be wise to reflect this in the wording of Recommendation 88.
Recommendation 49 also should be amended in order that equality between males and females should not be limited to Yemeni citizens, as the Recommendation could appear to imply. Such a limitation would contravene article 2 of the ICCPR, which obligates each state party to respect the rights recognized in the Covenant[5]for everyone in its territory [emphasis added] and subject to its jurisdiction, and not limit these rights to its own citizens.
In addition to the current Recommendations, Human Rights Watch urges the Rights and Freedoms Working Group to recommend that a provision be included in the new Constitution to directing state authorities to proactively adopt positive measures in all areas to achieve the effective and equal empowerment of women so that they can fully access their rights on the same basis as men. In this connection, we note that CEDAW obligates states to take all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on an equal basis with men.[6]
Action is also needed to ensure that women enjoy equality before the law with men. Currently, under Yemeni law, women do not enjoy such equality: for example, in legal proceedings, the testimony of a woman is valued at only half that of a man.[7]This situation cannot be allowed to persist if women are to have equality before the law with men, as required by article 26 of the ICCPR, which states: “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”
Article 3 of the ICCPR states that men and women should enjoy equal access to all the civil and political rights set out in the Covenant.
Equality before the law requires that men and women are afforded equal rights with regard to legal capacity, including access to legal remedies and due process. Article 15 of CEDAW states that:
1. States Parties shall accord to women equality with men before the law.
2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.
Further, Human Rights Watch urges the Rights and Freedoms Working Group to add a Recommendation that all national laws be promptly audited to determine whether or not they support and promote the equality of women, and that laws that fail to do so or are inadequate should be appropriately amended.
2. Non-discrimination
Human Rights Watch recommends that Yemen’s new Constitution should also contain a clear and explicit provision on non-discrimination in order to protect women’s right to equality and the rights of minorities. The Constitution should prohibit discrimination, whether direct or indirect, on grounds of sex, gender, marital status, pregnancy or other gender-specific attributes, as well as on other non-gender specific grounds, and ensure that multiple forms of discrimination are recognized and prohibited.[8]
The Constitution should also state explicitly that existing laws and state policies that are discriminatory—directly or indirectly—are inconsistent with the Constitution and should be amended as necessary to bring them into full conformity with the Constitution and its rights guarantees. The Constitution should also direct the legislature to pass legislation to prohibit discrimination by the state or private entities, and to empower courts to strike down discriminatory laws, policies, and practices, and afford those affected an effective remedy.[9]
In this connection, we note that CEDAW obligates all states parties to:
condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle.[10]
Recommendation 96 from the National Dialogue provides that:
The state take legislative measures for the protection of persons or certain categories such as (marginalized, women, children, persons with disability or impairment) due to discrimination, and the promotion of their situation.
This provision, although welcome, is overly narrow and should be expanded to ensure that all legislation that discriminates on any of the grounds enumerated in the Constitution (including those suggested above) is to be revised or replaced by legislation that provides every individual full protection from discrimination.
3. Political participation
CEDAW specifically obligates states parties to take “all appropriate measures” to ensure that women have the right to vote in all elections on equal terms with men, are eligible for election to all publicly elected bodies, and can participate in the formation of government policy.[11]Other international and regional human rights conventions contain similar provisions.[12]
Human Rights Watch urges the Working Group to recommend the adoption of measures to specifically address social and cultural impediments to women’s full participation in political life even where their rights are legally and constitutionally guaranteed and protected. These include public awareness campaigns to promote women’s right to participate on equal terms with men; capacity building and educational programs geared to the needs of women candidates and voters; and leadership training for women candidates. Such measures, alongside the constitutional provision guaranteeing equality and non-discrimination, would assist in transforming those societal attitudes that currently create barriers to women’s participation in public life.
Further, a constitutional provision should be included to ensure that temporary special measures aimed at accelerating de facto equality between men and women, and special measures protecting maternity, should not be considered discrimination, in accordance with CEDAW’s article 4.[13]
4. Violence against women
Human Rights Watch particularly welcomes Recommendation 119 of the Rights and Freedoms Working Group to “criminalize all types and forms of violence against women.”
As you will be aware, Yemen currently has no law designed specifically to protect women from gender-based violence, only the general protection provided in the Penal Code that criminalizes physical harm. Yet, international and regional human rights treaties, declarations and treaty body interpretations all obligate state authorities to act with due diligence to combat violence against women. For example, the CEDAW Committee—the international expert body that monitors compliance with CEDAW—has identified violence against women as a form of discrimination, and declared that states have a due diligence obligation to prevent, investigate, prosecute, and punish all acts of gender-based violence.[14]
Several states already explicitly reference violence against women or family violence in their constitutions.[15]
Yemen’s new Constitution should include provisions that define gender-based violence as a form of discrimination and direct that state authorities take steps to prevent and respond to it, including by providing women with access to justice.
Human Rights Watch urges the Rights and Freedoms Working Group to recommend that (1) Yemen’s legislature should enact laws to end all forms of violence against women and girls; and (2) encourage the government to develop a national plan of action on violence against women and girls.
A number of provisions in the Personal Status Law undermine women’s equality but may also create conditions that can facilitate marital rape and domestic violence.
Article 40 of the Personal Status Law requires a woman to be obedient to her husband and includes the requirement that she is not permitted to leave the matrimonial home without his permission. The provision also requires that women should allow husbands to have sexual relations whenever they require. Marital rape is not criminalized.[16]
The Penal Code allows for reduced and lenient sentences for men convicted of “honor killing.” Article 232 provides that a man who murders or injures his wife or her partner in the act of committing adultery should receive a maximum prison sentence of one year or a fine.[17]In other circumstances, the crime of murder is punishable by death under Yemeni law. Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty, but considers the extremely lenient sentences imposed for “honor” crimes conveys a message that killing in the name of “honor” is considered permissible, whereas it never can be.
Other current legal provisions that criminalize zina (sexual intercourse outside of marriage)[18]and “immoral acts” have a discriminatory impact on women. For example, under “immoral acts” they can lead to accusations of khilwa (according to which a woman found in the company of a man who is not her relative is considered to have committed a crime). Such provisions undermine women’s human rights, including their right of equal protection under the law.[19]
Criminalizing consensual sex in private between adults contravenes international standards on the right to privacy. Moreover, it increases women’s vulnerability to rape and other sexual abuse in that women are likely to be deterred from reporting such crimes against their person if they fear this could lead to their own prosecution under the laws relating to zina or “immoral acts.”
The Rights and Freedoms Working Group should make a clear Recommendation advocating the prompt repeal of these discriminatory legal provisions.
5. Personal Status Law
Constitutional guarantees of equality and non-discrimination should be reinforced by amendment of the Personal Status Law and other laws that impact on women’s legal status in marriage, the dissolution of marriage, and inheritance.
The Personal Status Law currently contains provisions that discriminate against women in relation to marriage, divorce, custody of children, and inheritance.[20]
The CEDAW Committee has called for all states parties to “guarantee equality between women and men in their constitutions” and to “eliminate any constitutional exemptions that would serve to protect or preserve discriminatory laws and practices with regard to family relations.”[21]
In this respect, Human Rights Watch urges the Rights and Freedoms Working Group to add a Recommendation that the new Constitution should contain a provision affirming that women have equal rights with men to enter into marriage on the basis of their full and free consent, equal rights within marriage and in the case of its dissolution, and equal inheritance rights with men.
(a)Marriage
Under current Yemeni law, a woman is not entitled to enter into marriage on the basis of her own free will, but can do so only with the agreement of her male guardian.
Although article 10 of the Personal Status Law declares that a marriage is invalid if either spouse was coerced into it,[22]this is undermined in practice by article 23, which requires that only previously married women express their consent to a marriage whereas the silence of an unmarried woman, a “virgin,” is deemed to signify her consent to a marriage.[23]Article 23 is discriminatory, at least in impact, as it is often a girl’s or woman’s male guardian who decides that she is to marry.
The right to marriage based on the “full and free consent” of both spouses is recognized in the Universal Declaration of Human Rights, the ICCPR and the ICESCR.[24]
The Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriages,[25]to which Yemen is party, further specifies that both spouses must give their full and free consent “in person ... as prescribed by law.”[26]
Under Yemeni law, a man may enter into marriages with up to four wives if he is able to treat them all equitably, has sufficient financial means, and the woman he is about to marry is aware that he is already married and he informs his present wife or wives of his intention to marry again.[27]A Yemeni woman, by contrast, has to have her male guardian conclude her marriage contracts. Under Yemeni law, when a woman’s guardian refuses to consent to her marrying a husband of her choice, she may petition a court to grant her such permission, but this may be refused.[28]If a woman marries without the permission of her male guardian, the guardian is entitled under the law to file for an annulment of her marriage.
Under CEDAW, women have the same right as men to enter into marriage[29]and “the same right freely to choose a spouse and to enter into marriage only with their free and full consent.”[30]
(b) Divorce
Yemeni law allows a man to unilaterally divorce his wife by pronouncing his repudiation of the marriage three times.[31]A woman seeking to divorce her husband, however, must apply to the courts and may do so only in limited circumstances, such as when her husband fails to provide for the family financially although he has sufficient means.[32]
If a woman wishes to divorce her husband for other reasons, she may file for khul’, or no-fault divorce, under which she is required to pay back her dowry and forgo claims to the temporary financial support provided in other divorce cases.[33]
Article 16 of CEDAW obligates states parties to take appropriate measures to ensure that women and men equally have “the same rights and responsibilities during marriage and at its dissolution.”[34]
The CEDAW committee has stated that “states parties should eliminate any procedural requirement of payments to obtain a divorce that does not apply equally to husbands and wives.”[35]
6. Child marriage
Human Rights Watch welcomes the attention that the Working Group has given to the rights of children, as reflected in a number of principles. However, it is essential that the law should define a child precisely, in order to ensure coherent and consistent application of laws protecting children. In accordance with relevant international law, we believe that the new Constitution should define the term “child” as any person under the age of 18.[36]
Child marriage is one of the most severe forms of gender discrimination in Yemen. Currently, the law sets no minimum age of marriage and affords only minimal protection to girls by prohibiting sexual intercourse until a girl reaches puberty. As Human Rights Watch has documented, however, this minimal safeguard is ineffective in preventing cases in which pre-pubescent girls have been subjected to marital rape.[37]
Human Rights Watch urges the Rights and Freedoms Working Group to recommend a constitutional provision setting a minimum age of marriage of 18.
Many other countries in the Middle East and North Africa that recognize Sharia as a source of law have set the marriage age at 18, with some allowing exceptions in narrow circumstances. These include: Algeria, Egypt, Iraq, Jordan, Libya, Morocco, Oman, Tunisia, and the United Arab Emirates.[38]
Several international treaties and conventions, to which Yemen is party, explicitly prohibit child marriage or have been interpreted to prohibit child marriage, and obligate States parties to take measures to eliminate the practice. They include the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage. Both the CEDAW Committee and the Committee on the Rights of the Child have recommended a minimum age of 18 for marriage.[39]
Human Rights Watch urges the Rights and Freedoms Working Group to recommend that in addition to a constitutional provision, national legislation should be passed to set 18 as the minimum age of marriage for both men and women.
In addition, the Working Group should recommend legislative and other measures to ensure that anyone who intentionally forces an adult or a child to enter into a marriage is appropriately penalized, and that marriages concluded under force may be voidable, annulled, or dissolved without undue burden placed on the victim or victims; the adoption of measures to reduce the incidence of child marriage, including action to raise public awareness of the requirement that families officially register all births and marriages; increasing and improving access to reproductive health services and information for all girls and women, including access to emergency obstetric care and family planning; developing retention strategies to ensure that girls who enroll in school are able to remain in school, such as financial incentives for families to keep girls in school and to subsidize the costs of uniforms and textbooks; and raising awareness with religious leaders about the harmful health consequences of child marriage on the lives of girls and women.
7. Nationality rights
Recommendation 120 of the National Dialogue states that:
An Arab man married to a Yemeni woman acquires Yemeni citizenship after five years of his marriage, and 10 years for a non-Arab foreign citizen and their children to acquire the Yemeni nationality directly after birth.
Currently, Yemen’s nationality law discriminates against women, and should be remedied. Article 11 of the law allows a woman who marries a Yemeni man to obtain Yemeni nationality four years after the date of the marriage if she has submitted a citizenship application to the Ministry of Interior and the ministry does not contest it in those four years.[40]
Human Rights Watch urges the Rights and Freedoms Working Group to include a Recommendation that Yemeni women and Yemeni men should have equal rights to have their spouses obtain Yemeni nationality. In addition, Recommendation 120 discriminates on the basis of nationality and origin. This too should be amended such that their spouses should not be discriminated against in relation to their nationality or origin.
[1]International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx (accessed September 11, 2013), ratified by Yemen on February 9, 1987.
[2]International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (accessed September 11, 2013), ratified by Yemen on February 9, 1987.
[3]Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res.34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx (accessed September 11, 2013), ratified by Yemen on May 30, 1984.
[4]Constitution of the Republic of Yemen, 1994 as amended by referendum in 2001 (in English) at http://www.yemen-nic.info/english_site/yemen/dostor.php (accessed September 11, 2013).
[5]ICCPR, article 2(1) provides that:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
[6]CEDAW, article 3 states:
States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women , for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.
[7]For instance the Penal Code in article 297 states that in order to prove the crime of theft as hadd (offense prescribed as punishment in Sharia law) they require “1) a confession by the accused before a court unless he revokes it before implementation of the sentence or 2) testimony of two honest men or 3) testimony of a honest man and two honest women.”
[8]Other categories that should be included for non-discrimination are race, color, language, religion, political or other opinion, national or social origin, property, birth, disability, sexual orientation or other status. The discrimination provisions should protect equality on grounds beyond gender and recognize that there can be multiple forms of discrimination.
[9]For example, section 9(4) of South Africa’s constitution states that “National legislation must be enacted to prevent or prohibit unfair discrimination.” Constitution of the Republic of South Africa No. 108 of 1996, http://www.info.gov.za/documents/constitution/1996/a108-96.pdf (accessed September 11, 2013).
[10]CEDAW, article 2(a).
[11]CEDAW, article 7.
[12]The conventions and their interpretations call for a variety of measures to realize the right of non-discrimination in political participation. See CEDAW Committee, General Recommendation No. 23, Political and public life, (Sixteenth session, 1997), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.9 (Vol. II) (2008), p. 347, para. 5; CEDAW Committee, General Recommendation No. 25, article 4, paragraph 1, of the Convention (temporary special measures), (Thirtieth session, 2004), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI\GEN\1\Rev.9 (Vol. II) (2008), p. 365, para. 18.
[13]CEDAW, art. 4, states:
1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.
[14]CEDAW Committee, General Recommendation No. 28, The Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/GC/28 (2010), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/472/60/PDF/G1047260.pdf?O... (accessed September 11, 2013), paras. 19 and 34; and CEDAW Committee, General Recommendation No. 19, Violence against Women, (Eleventh session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.9 (Vol. II) (2008), http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19 (accessed September 11, 2013), p. 331, para. 9.
[15]These include Bhutan, Colombia, Malawi, Paraguay, and Iraq. In Bhutan’s constitution, article 8(5) states, “A person shall not tolerate or participate in … abuse of women,” and article 9(17) provides that the State “shall endeavor to take appropriate measures to eliminate all forms of discrimination and exploitation against women including trafficking, prostitution, abuse, violence, harassment and intimidation at work in both public and private spheres.” Constitution of the Kingdom of Bhutan, 2008,
http://www.wipo.int/wipolex/fr/text.jsp?file_id=167955 (accessed September 11, 2013). The Colombian constitution in article 42 states: “Any form of violence in the family is considered destructive of its harmony and unity and will be sanctioned according to law.” Constitution of Columbia, 2005, http://confinder.richmond.edu/admin/docs/colombia_const2.pdf (accessed September 11, 2013). Malawi’s constitution states that the country “shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving the following goals…[t]o obtain gender equality for women and men through - …the implementation of policies to address social issues such as domestic violence, [and] security of person.” Constitution of the Republic of Malawi, 1994, http://www.wipo.int/wipolex/fr/text.jsp?file_id=218796 (accessed September 11, 2013), art. 13(a)(iii). Paraguay’s constitution in article 60 provides that the state “will promote policies that aim at preventing violence within the family and other causes that undermine family solidarity.” Constitution of the Republic of Paraguay, 1992, http://www.servat.unibe.ch/icl/pa00000_.html (accessed September 11, 2013)). Iraq’s constitution in article 29(4) states that “All forms of violence and abuse in the family, school and society shall be prohibited.” Constitution of Iraq, 2005, http://www.wipo.int/wipolex/en/text.jsp?file_id=230000 (accessed September 11, 2013).
[16]Personal Status Law, article 40, states:
The husband shall have the right that his wife is obedient to him in that which is for benefit of the family, and in particular as follows:
- that she should move in with him to the marital home, provided that she has not stipulated in the contract that she should remain in her home or her family’s home, in which case she shall be obliged to make it possible for him to live with her and to consummate the marriage.
- that she should allow him to have lawful sexual intercourse with her without any other person present.
- that she obey his instructions and undertake work in the marital home in the manner of her peers.
- that she should not leave the marital home without his permission. The husband shall not prevent his wife from leaving the home for any lawful purpose or for that which is customary provided that it is not a breach of honor or her duties towards him, in particular she may leave to attend to her property or to go to her employment. It shall be considered a lawful justification for a woman to help her elderly parents where they have no one else to help one or both of them other than her.
[17]Law No. 12 of 1994 regarding crimes and punishments (hereafter Penal Code), as amended by law no.16 of 1995 and Law No. 24 of 2006, article 232 (in Arabic) at http://www.yemen-nic.info/db/laws_ye/detail.php?ID=11424 (accessed September 11, 2013).
[18]Article 12 lists zina as one of the crimes that would fall within the classification of hudood (hadd singular) crimes that are crimes as prescribed under Sharia law. Article 263 provides that where zina is committed by an unmarried man or woman they are to be punished by a maximum of 100 lashes and a court may also on the basis of ta’zir (discretion) sentence them to a maximum of one year in prison; if the person was married when committing zina, it is punishable by stoning to death.
[19]Chapter 3 of the Penal Code refers to scandalous acts in breach of modesty which is defined under article 273 as “a scandalous act in breach of modesty are all acts contrary to public decency or modesty, nudity, revealing intentionally their genitals or indicating a breach of modesty and contrary to etiquette.” For instance article 275 states in cases of scandalous acts with a female that they could be imprisoned up to one year or a fine if the act was committed without the female’s consent but if she consented then the two of them could be sentenced to a maximum of six months or a fine not exceeding 1,000 riyals.
[20]Law No 20. of 1992 regarding Personal Status (hereafter Personal Status Law), as amended by Law No. 27 of 1998, Law No. 24 in 1999 and Law No. 34 of 2003 (in Arabic) at http://www.yemen-nic.info/db/laws_ye/detail.php?ID=11351 (accessed September 11, 2013).
[21]CEDAW, General Recommendation No. 29 on Article 16 Economic consequences of marriage, family relations and their dissolution, para. 11 at http://www2.ohchr.org/english/bodies/cedaw/docs/comments/CEDAW-C-52-WP-1... (accessed September 11, 2013).
[22]Article 10 of the Personal Status Law states: “Any contract that is based on the coercion of the husband or wife shall not be valid.”
[23][23]Ibid. Article 23 states “It is required that a woman give her consent. The consent of a virgin shall be her silence; while the consent of a previously married woman must be expressed.”
[24]Universal Declaration of Human Rights, adopted December 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948), art. 16; ICCPR, art. 23; and ICESCR, art. 10 (1).
[25]Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, adopted by the UN General Assembly on November 7, 1962, by resolution 1763 (XVII), at seventeenth session, Supplement No. 17 (A/5217), came into force on December 9, 1964. Yemen acceded to the convention on February 9, 1987 at http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVI-3&... (accessed September 11, 2013).
[26]Ibid., article 1(1).
[27]Personal Status Law, art. 12.
[28]Ibid., article 18.
[29]CEDAW, article 16.1(a).
[30]Ibid., article 16.1(b).
[31]Personal Status Law, article 59.
[32]Ibid., articles 51-53.
[33]Ibid., articles 72 and 36.
[34]CEDAW, article 16.1(c) of CEDAW.
[35]CEDAW, General Recommendation No. 29 on Article 16 Economic consequences of marriage, family relations and their dissolution, para. 41.
[36]Convention on the Rights of the Child, to which Yemen is a state party, in article 1, “defines a 'child' as a person below the age of 18, unless the laws of a particular country set the legal age for adulthood younger.” The Committee on the Rights of the Child, the monitoring body for the Convention, has encouraged states to review the age of majority if it is set below 18 and to increase the level of protection for all children under 18. See UNICEF, "Fact Sheet: A Summary of the rights under the Convention on the Rights of the Child" at http://www.unicef.org/crc/files/Rights_overview.pdf (accessed September 11, 2013); see also Report of the Committee on the Rights
of the Child, UN General Assembly, Fifty-fifth Session, Supplement No. 41 (A/55/41), May 8, 2000, paras. 413, 601, 634 and 1153, at http://www.un.org/documents/ga/docs/55/a5541.pdf (accessed September 11, 2013). For the purposes of juvenile justice, the Human Rights Committee has said that a child is a person under the age of 18. Human Rights Committee, General Comment No. 21 (Forty-fourth session, 1992), para. 13, at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3327552b9511fb98c12563ed004cbe59?Opendocument (accessed September 11, 2013). See also United Nations Rules for the Protection of Juveniles Deprived of their Liberty: GA Res 45/113, Dec. 14, 1990, rule 11(a).
[37]See Human Rights Watch, “How Come You Allow Little Girls to Get Married?,” Child Marriage in Yemen, Dec. 8, 2011 at https://www.hrw.org/reports/2011/12/07/how-come-you-allow-little-girls-g....
[38]Algerian Family Code, Law No. 84-11, June 9, 1984, as amended on February 27, 2005,
http://www.droit.mjustice.dz/code_famille.pdf (in Arabic) (accessed September 11, 2013), article 7; Egypt Child Law, Law No. 12 of 1996 (amended by Law no. 26 of 2008), http://www.nccm-egypt.org/e7/e2498/e2691/infoboxContent2692/ChildLawno12... (accessed September 11, 2013); Iraq Personal Status Law, 1959, http://apps.americanbar.org/rol/publications/iraq_personal_status_law_19... (accessed September 11, 2013); United Nations Committee of the Rights of the Child, “Consideration of Reports Submitted by States Parties under Article 44 of the Convention: Jordan,” March 2006, CRC/C/JOR/3, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G06/407/65/PDF/G0640765.pdf?O... (accessed September 11, 2013); Libyan Law No. 10 of 1984 on Provisions Concerning Marriage, Divorce, and the Effects Thereof as cited in UN Committee on the Elimination of Discrimination against Women, “Consideration of Reports Submitted by States Parties under Article 18 of the Convention: Libya,” December 2008, CEDAW/C/LBY/5, http://www2.ohchr.org/english/bodies/cedaw/docs/AdvanceVersions/CEDAW.C.... (accessed September 11, 2013), p. 39; Moroccan Family Code (Moudawana), 2004 (unofficial English translation), http://www.hrea.org/moudawana.html#12 (accessed September 11, 2013); United Nations Committee on the Elimination of Discrimination against Women, “Consideration of Reports Submitted by States Parties under Article 18 of the Convention: Oman,” July 2010, CEDAW/C/OMN/1, http://www2.ohchr.org/english/bodies/cedaw/docs/co/CEDAW-C-OMN-CO-1.pdf (accessed September 11, 2013); UNICEF, “Tunisia: MENA Gender Equality Profile, Status of Girls and Women in Middle East and North Africa,” 2011, http://www.unicef.org/gender/files/Tunisia-Gender-Eqaulity-Profile-2011.pdf (accessed September 11, 2013); UAE Federal Law no.28 of 2005 on Personal Status of 19 November 2005, Official Gazette no.439 (35th year) 14 November 2005, including Explanatory Memorandum as cited in UN Committee on the Elimination of Discrimination against women, “Initial report of the United Arab Emirates,” 2008, CEDAW/C/ARE/1 http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?sy... (accessed September 11, 2013).
[39]CEDAW Committee, General Recommendation No. 21, Equality in Marriage and Family Relations, para. 36; and Committee on the Rights of the Child, General Comment No.4, Adolescent Health and Development in the Context of the Convention on the Rights of the Child, (Thirty-third session, 2003), para. 20.
[40]Law No. 6 of 1990 regarding Yemeni Nationality, amended by Law No. 24 of 2003 (in Arabic) at http://www.yemen-nic.info/db/laws_ye/detail.php?ID=11266 (accessed September 11, 2013) and (in English) at http://www.yemenembassy.org/consulate/nationality.htm (accessed September 11, 2013). Article 11 states:
The foreign woman who legally marries a Yemeni is enjoined in his nationality whenever the following conditions are met:
(a) Submits an application therefore to the Minister.
(b) Elapse of four years at least over the date of the marriage.
(c) That the Minister by a causal decision during the said four years does not object to her enjoining the Yemeni nationality. The husband shall have the right to object in this respect to the Minister within the same period.
