The human rights responsibilities of host states in relation to child marriages involving refugees, a study of European responses to the European refugee crisis

Child marriage is defined as a marriage or informal union in which one of the spouses is under the age of 18. It is a widespread form of gender-based violence rooted in gender inequality, religious and cultural beliefs, and traditions. The practice is often associated with poverty, lack of education, domestic violence, and early pregnancy which entails serious health implications for girls. In times of armed conflict, child marriage frequently occurs as a coping strategy due to an increase of poverty and security threats. Ongoing crises in the Middle East and Africa have brought hundreds of thousands of refugees to Europe. Among them are hundreds of minor married girls, and European states are often unsure how to deal with them. This thesis aims to identify state obligations under international and European regional human rights law and refugee law. It finds that international human rights documents seek to eliminate child marriage through criminalisation of the practice but fail to determine a minimum age of marriage. International refugee law recognises child marriage as an asylum ground but does not stipulate binding provisions regarding family unity with the girl’s parents or her husband. Analysis of European law shows that the approach adopted by the Council of Europe corresponds with UNHCR guidelines, including a broad understanding of family. The European Union, on the other hand, follows a more restrictive way, excluding married minors from family reunification with their parents and preventing them from reunification with their spouse until a certain age. Several European states have tightened their laws and no longer recognise any child marriages concluded abroad. This paper argues that this narrow approach ignores the need for a case-by-case assessment and thus violates international standards of child protection, particularly the best interests principle.

Grantor

Department of Public Law

Year dc:date.issued

2019

Author dc:creator

• Walz, Alexa

Advisor dc:contributor.advisor

• Chirwa, Danwood

• Human Rights Law

Handle dc:identifier.uri

http://hdl.handle.net/11427/31301

OAI identifier oai:identifier

oai:open.uct.ac.za:11427/31301