In July 2015, during the 29th Session of the Human Rights Council, as reported by SPW and many other sources, a Resolution on the Protection of the Family has been adopted. This was very difficult debate and the final text failed to recognize and include recently adopted human definitions in relation to family formations, gender and sexuality. But the resolution has also requested the Office of the High Commissioner for Human Rights (OHCHR) to prepare a report on the subject. This report, which is titled Protection of the family: contribution of the family to the realization of the right to an adequate standard of living for its members, particularly through its role in poverty eradication and achieving sustainable development, was released last week (February 22th-26th, 2016).
The report resulted from extensive research and consultations. As informed by the OHCHR, submissions have been presented by 26 member states, four national human rights institutions, two UN agencies, two regional bodies and 72 civil society organizations from across the political ideological spectrum and all regions of the world. *
The document offers thorough compilation of information on existing human rights definitions and standards that recognize the heterogeneity of family formations and most principally anchor principles of equality and non discrimination across and within family structures. These parameters are vital to countervail unrelenting efforts currently being made by conservative forces and state actors that aim at restricting the definition of family formation and limiting the application of norms concerning equality within and across family, the eradication of various forms of discrimination and intra-household violence.
To more precisely illustrate how the report can positively contribute to ongoing national and international debates on the “family” structures, rights and related state obligations, SPW has selected few outstanding paragraphs of the document.
P 15. The internationally agreed texts adopted at these summits and conferences contributed to the crystallization of an international consensus on the role of families in development, which is still considered valid today.1 This consensus encompasses (a) the need for family-centered measures and family-approaches as part of development policies;2 (b) the recognition of varied forms of family depending on the different cultural, political and social systems, as well as the changes undergone by the family as a social institution;3 (c) the recognition of the principle of gender equality and that family policies should be based on the respect for and promote equality between men and women;4 (d) the need for special protection for family members who may be in a situation of vulnerability, including children, youth, the elderly or people with disabilities;5 and (e) the integration of universal access to reproductive health services, including family planning and sexual health, as part of development efforts.
P 24. There is no definition of the family under international human rights law. According to the Human Rights Committee, “the concept of family may differ in some respects from State to State, and even from region to region within a State, and that is therefore “not possible to give the concept a standard definition.”1 Similarly, the Committee on Economic, Social and Cultural Rights has stated that the concept must be understood “in a wide sense” and “in accordance with appropriate local usage.” Other international human rights mechanisms have expressed similar views.
P 25. The concept of family may also differ according to the specific rights and responsibilities at stake. For instance, in relation to rights of the child, the concept of the family may include a variety of arrangements that can provide for young children’s care, nurturance and development, including the nuclear family, the extended family, and other traditional and modern community-based arrangements, provided these are consistent with the rights and the best interest of children.4 Likewise, the notion of “family environment” in the Convention on the Rights of the Child may encompass children’s social ties in a wider sense. The Convention on the Protection of the Rights of all Migrant Workers and Members of their Families defines the family as encompassing all relationships that, under applicable law, “produces effects equivalent to marriage” (arts. 4, 44(2)).
P 26. States retain a margin of appreciation in defining the concept of family in national legislation, taking into consideration the various legal systems, religions, customs or traditions within the country, including indigenous and minority cultures. However, international standards set forth at least two minimum conditions for the recognition and protection of families at the national level: first, the respect for the principle of equality and non-discrimination, including the equal treatment of women; and second, the effective guarantee of the best interest of the child. Given these parameters, human rights mechanisms have found that some forms of relation, such as polygamy and child marriage are contrary to international human rights standards and should be prohibited.
P 27. In addition to the above principles, international mechanisms have called upon States to protect specific forms of family in view of the vulnerability of their members in relations to the enjoyment of human rights. For instance, the international mechanisms have drawn attention to the discrimination suffered by women and children in de facto unions, and have called for the regulation of those unions in domestic law. In similar terms, the Committee on Economic, Social and Cultural Rights has called upon States to provide legal recognition of same-sex couples.
P 28. Article 16 of the Universal Declaration on Human Rights and article 23(2) affirm the right of men and women of full (or in the latter case, marriageable) age to “marry and to found a family.” This right is expressly linked to the principle of non-discrimination, and applies to men and women “without any limitation due to race, nationality or religion.” The principle of non-discrimination in this context is restated in the Convention on the Elimination of All Forms of Discrimination against Women (art. 16(1)(a)) and in the Convention on the Rights of Persons with Disabilities (art. 23(1)(a)).
P 29. The Universal Declaration on Human Rights provides that “[m]arriage shall be entered into only with the free and full consent of the intending spouses” (art. 16(2)). The same principle is included the International Covenant on Civil and Political Rights (art. 23(3)); the International Covenant on Economic, Social, and Cultural Rights (art. 10.1); the Convention on the Elimination of All Forms of Discrimination against Women (art. 16(1)(b)) and the Convention on the Rights of Persons with Disabilities (art. 23(1)(b)).
P 30. A logical corollary of the right to freely choose a spouse is the prohibition of forced marriages. Especially affecting women and girls, forced marriages may take various forms, such as exchange or trade-off, servile, levirate, or contractual marriages, or marriages through payment or preferment, are considered a practice similar to slavery. Such marriages should not be recognized by the State as legally valid or subsequently rectifiable. Similarly, international norms proscribe the forced dissolution of the marriage bond, including subjecting the change of legal gender to the requirement of dissolution of a previous marriage or civil partnership.
P 31. International and regional instruments are unanimous in providing that a specified age must have been reached before the right to marry or to found a family may be exercised. The Convention on the Elimination of All Forms of Discrimination against Women (art. 16(2)), as well as the Convention on Consent to Marriage, Minimum Age and Registration of Marriages (art. 2), call upon states to establish a minimum age for marriage in their domestic legislation. The Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child have stated that the minimum age for marriage should be 18 years and that the legal age of marriage age for men and women should be the same.
P 32. Correspondingly, child marriages, as well as the betrothal of a child—practices that disproportionately affect girls—are prohibited under international human rights law, and, when performed as a source of economic benefit or labor, is considered a practice analogous to slavery. Marriage below the age of 18 should be allowed only in exceptional circumstances, provided that the child is at least 16 years old and the process is subject to judicial review.
P 33. The Convention on the Elimination of Discrimination against Women states that women have the “same rights” as men to “decide freely and responsibly on the number and spacing of their children” (art. 16(1)(e)). This right is reaffirmed in the Convention on the Rights of Persons with Disabilities (art. 23(1)(a)). In order to support the exercise of this right, international law requires States to provide access to family planning as part of health care services. All individuals, including adolescents, have equal rights to access sexual and reproductive health services and information. This requires particular attention to preventing coercion and removing third party consent requirements for women and adolescents to access these services.
P 34. Article 12 of the Universal Declaration on Human Rights provides that “[n]o one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.” A similar provision is found in Article 17(1) of the International Covenant on Civil and Political Rights and in other United Nations instruments. This right has been interpreted broadly, encompassing inter alia the protection against forced evictions, the demolition of homes or property, the destruction of traditional burial grounds, and the expulsion of foreigners. The right to family life also applies in relation to persons deprived of liberty, who should be allowed to communicate with their families, subject only to reasonable restrictions established by law.
P 54. Several States have introduced changes in their legislation allowing for the legal recognition of relationships between persons of the same sex. In Argentina, the Egalitarian Marriage Law (Law No. 26618) expressly allowed for same-sex marriages. In Sweden, the reform of the Marriage Code in 2009 made the definition of marriage gender neutral, thus granting people the right to marry regardless of the sex of the spouses. In other countries, same-sex couples have been recognized by judicial action.
P 55. Other countries described legislation that grants legal recognition to unmarried couples or de facto unions. The Swedish Cohabitees Act (2003) provides minimum protection to members of de facto unions in the event of separation. In Chile, Law No. 20.830 (2015) approved the Civil Union Agreement (AUC), which recognizes the legal effects of unmarried couples, including same-sex couples. As part of their domestic legislation in relation to the family, many States reported the existence of special instruments aimed at the protection of family members against violence and abuse.
- This includes a submission by Brazilian academic associations and NGOs, which was mobilized by SPW