Despite the variety of international and European legal instruments and the efforts of numerous international and non-governmental organizations to combat forced and child marriage, the most recent data reveal the impossibility of achieving the goal of total eradication of the phenomenon by 2030, as set out in Article 5.3 of the United Nations Sustainable Development Goals. The main studies on the subject describe child marriage as a gendered phenomenon that disproportionately affects women and is more prevalent in countries with high poverty rates. The latter should be understood not only as the unavailability of economic resources for women and girls to procure essential goods for survival but also as a lack of access to education, employment, and, in general, the enjoyment of fundamental human, civil, and political rights, necessary for individuals to realize and fully emancipate themselves in society. Indeed, one of the major factors amplifying the vulnerability of women and girls to forced and early marriage is the feminization of poverty, a phenomenon in which women and girls are disproportionately represented among low-income populations in nearly all countries of the world. This disproportion is rooted in gender stereotypes and structural inequalities that persist in the social fabric of many countries. In this context, the subject of this contribution is an analysis of the legal connection between gender-based structural inequalities, poverty, and early marriages — an issue that is inadequately addressed by international legal instruments in this area. To explain this connection in a precise and comprehensive manner, two methods of analysis will be used: root cause analysis and contributing factors analysis. The first method aims to identify the root cause of the phenomenon, the elimination of which would prevent its existence today, while the second brings to light the secondary or ‘further’ causes of forced marriages, which, if addressed, could reduce the likelihood of occurrence of the phenomenon. With such approaches, it will be studied how the main cause of the phenomenon of child brides and forced marriages is to be found in the system of rules, roles and structural discrimination inherent in patriarchal society, aggravated by other competing factors such as poverty. Moreover, after exploring the various angles and perspectives in which early marriages act as discrimination against women and as a form of gender-based violence, poverty will be highlighted not only as a cause of early marriages, but also as an intergenerational consequence, perpetuating the cycle of poverty, inequality and violence. In the light of this, the contribution aims to highlight the inadequacy of the international legal system on the subject to represent and respond to the set of social and cultural factors structurally linked to child marriage and to reflect on possible future prospects of updating international legal instruments to ensure prevention of the phenomenon and effective protection of victims' rights. In this regard, consideration will be given to the potential of expanding the scope of application of Article 37 of the Istanbul Convention, either through the amendment procedure under Article 72 or through an evolving interpretation by GREVIO under Article 69. It is believed that the inclusion of the socio-cultural environment, which increases vulnerability of girls and women to forced marriages, as one of the constituent elements of the criminal offense under Article 37 of the Istanbul Convention, could provide an opportunity to give legal relevance to social and cultural factors such as the feminization of poverty and patriarchal norms, which prevent women from expressing free, informed, and full consent, condemning them to a continuous cycle of 'poverty' and gender-based violence.
MATRIMONI PRECOCI, POVERTÀ E VIOLENZA DI GENERE CONTRO LE BAMBINE: LIMITI DEL QUADRO GIURIDICO INTERNAZIONALE E POSSIBILI SVILUPPI ALLA LUCE DELLA CONVENZIONE DI ISTANBUL
Elena Frasca
2024
Abstract
Despite the variety of international and European legal instruments and the efforts of numerous international and non-governmental organizations to combat forced and child marriage, the most recent data reveal the impossibility of achieving the goal of total eradication of the phenomenon by 2030, as set out in Article 5.3 of the United Nations Sustainable Development Goals. The main studies on the subject describe child marriage as a gendered phenomenon that disproportionately affects women and is more prevalent in countries with high poverty rates. The latter should be understood not only as the unavailability of economic resources for women and girls to procure essential goods for survival but also as a lack of access to education, employment, and, in general, the enjoyment of fundamental human, civil, and political rights, necessary for individuals to realize and fully emancipate themselves in society. Indeed, one of the major factors amplifying the vulnerability of women and girls to forced and early marriage is the feminization of poverty, a phenomenon in which women and girls are disproportionately represented among low-income populations in nearly all countries of the world. This disproportion is rooted in gender stereotypes and structural inequalities that persist in the social fabric of many countries. In this context, the subject of this contribution is an analysis of the legal connection between gender-based structural inequalities, poverty, and early marriages — an issue that is inadequately addressed by international legal instruments in this area. To explain this connection in a precise and comprehensive manner, two methods of analysis will be used: root cause analysis and contributing factors analysis. The first method aims to identify the root cause of the phenomenon, the elimination of which would prevent its existence today, while the second brings to light the secondary or ‘further’ causes of forced marriages, which, if addressed, could reduce the likelihood of occurrence of the phenomenon. With such approaches, it will be studied how the main cause of the phenomenon of child brides and forced marriages is to be found in the system of rules, roles and structural discrimination inherent in patriarchal society, aggravated by other competing factors such as poverty. Moreover, after exploring the various angles and perspectives in which early marriages act as discrimination against women and as a form of gender-based violence, poverty will be highlighted not only as a cause of early marriages, but also as an intergenerational consequence, perpetuating the cycle of poverty, inequality and violence. In the light of this, the contribution aims to highlight the inadequacy of the international legal system on the subject to represent and respond to the set of social and cultural factors structurally linked to child marriage and to reflect on possible future prospects of updating international legal instruments to ensure prevention of the phenomenon and effective protection of victims' rights. In this regard, consideration will be given to the potential of expanding the scope of application of Article 37 of the Istanbul Convention, either through the amendment procedure under Article 72 or through an evolving interpretation by GREVIO under Article 69. It is believed that the inclusion of the socio-cultural environment, which increases vulnerability of girls and women to forced marriages, as one of the constituent elements of the criminal offense under Article 37 of the Istanbul Convention, could provide an opportunity to give legal relevance to social and cultural factors such as the feminization of poverty and patriarchal norms, which prevent women from expressing free, informed, and full consent, condemning them to a continuous cycle of 'poverty' and gender-based violence.
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