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The Right to Family

Introduction
Rights at Stake
International and Regional Instruments of Protection and Promotion
National Assistance, Protection and Service Agencies
Advocacy, Educational and Training Materials
Other Resources


Introduction

The family is the fundamental and natural unit of society and requires the full protection of the state. Human rights law upholds the positive right of all peoples to marry and found a family. It upholds the ideal of equal and consenting marriage and tries to guard against abuses which undermine these principles. It is not prescriptive as to the types of families and marriages that are acceptable, recognising tacitly that there are many different forms of social arrangements around the world.

The family unit can be made vulnerable to social, economic, and political pressures. Human rights law seeks to bolster the family unit by specifying state obligations to keep families together and to reunify them when they have become separated e.g. as a result of refugee crises. It insists on maternity rights for mothers to allow time and space for the bond to develop between mother and child. It also prescribes detailed standards for the treatment of children who lack parental care and require state intervention and the provision of foster care or adoption.


 


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Rights at Stake

(a) Right to marry and found a family

The family is recognised as the most natural and fundamental unit of society and therefore the right of all to marry and found a family is protected in human rights law. Human rights law does not dictate the types of family unit that are deemed acceptable and in the world today there are many diverse forms of families and marriages.

Whether these rights apply to same-sex couples has become a matter of discussion in recent times. Although human rights law does not make explicit reference to this, a number of its provisions concerning the right to marry and have a family, right to equality and non-discrimination etc. can be interpreted to mean that gay and lesbian couples should enjoy the protection of human rights law.

(b) Equal rights of men and women in the family

Human rights law asserts the equal rights and responsibilities of both men and women at marriage, during the marriage and at its dissolution. However, in many countries round the world, women do not have equal status compared to men in marital and family life. Laws and practices governing the status of women in the family often circumscribe their role in the unit and their legal capacity. The status of women is often determined by their relationship to male family members and may affect their rights and entitlements e.g. right to inherit family property. In some countries, women’s rights in various areas e.g. nationality and citizenship are curtailed or denied by law upon entering a marriage.

(c) Right to give full and free consent to marriage

Human rights treaties say that no marriage should be entered into unless consent is freely given by the intending spouses. Forced marriages for economic or cultural reasons continue to be practiced in many countries in the world today. Forced marriage of girls under 18 is an area of particular concern. Child marriage is a human rights violations under a variety of human rights. Studies have shown the health risks and prevalence of domestic violence linked to early marriage. There are a number of human rights campaigns aimed at preventing early and forced marriage of children. States are also required by a 1965 treaty to specify a minimum age for marriage. It does not stipulate a minimum age. Nor does the UN Convention on the Rights of the Child which defines a child as all persons under 18 but allows states to specify their own age limits for different matters under national law.

(d) Right to family planning

This right of individuals to freely determine the number and spacing of their children has been recognised by major UN conferences on population and development in Tehran in 1968 and in Cairo in 1994. However, the right has not been enshrined in a legally binding human rights treaty and the whole issue of family planning remains a controversial one for a variety of reasons: fear of coercive family planning programmes; idea that family planning promotes promiscuity; abortion debate and status of the unborn child.

(e) Rights of children to parental care

The rights of children to parental care are specifically protected in children’s rights treaties and governs the obligations of states to ensure children are not separated from the parents without a due judicial process, and to provide support for the parent and family unit. Provisions governing maternity rights no doubt stem from the basic principle that the fundamental bond between mother and child should be supported. A number of treaties emphasise the need to states to provide extra provision for pregnant women, to allow them maternity leave before and after childbirth which is either paid leave or leave with adequate social security benefits.

Human rights law lays down a number of standards governing the treatment of children who do not have parents and covers such issues as fostering, adoption, inter-country adoption. At the heart of these principles is the need to ensure the best interests of the child are met and to guard against the exploitation and abuse of this especially vulnerable category of children. The duty of parents to ensure provisions are made for children at the dissolution of a marriage is also prescribed.

(f) Right to family reunification

Where parents and children are residing in different countries, states are obliged to facilitate contacts and deal with requests to enter or leave a state party for the purpose of reunification in a humane and expeditious manner. Such rights are only to be restricted for reasons of national security and public order. This is a particularly important right for refugees and special procedures exist in most countries to reunify refugee parents with their children. Human rights treaties oblige states to take special measures to trace the parents of an unaccompanied refugee child and to reunite them together.




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International and Regional Instruments for Protection and Promotion

International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.

The binding treaties can be used to force governments to respect the treaty provisions that are relevant for the human right to a family. The non-binding instruments, such as declarations and resolutions, can be used in relevant situations to embarrass governments by negative public exposure; governments who care about their international image may consequently adapt their policies. Many international treaties have a mechanism to monitor the implementation of the treaty.

The following international and regional treaties and mechanisms determine standards for the right to family:


UNITED NATIONS

Universal Declaration of Human Rights (1948) (article 16)
The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly in 1948. As a resolution, it is not itself formally legally binding despite common assumptions to the contrary. However, it did establish important principles and values which were later elaborated in legally binding UN treaties. Moreover, a number of its provisions have become part of customary international law. Article 16 upholds family as the natural and fundamental unit in society. It establishes the right of men and women to marry and found a family; their equal rights as to the marriage, and that consent to marriage should be freely given.

International Covenant on Economic, Social and Cultural Rights (1966) (article 10)
The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the General Assembly in December 1966 and entered into force in 1976. It elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions. Article 10 reiterates some basic rights concerning family life and then goes on to establish further rights of pregnant mothers to maternity leave and social security.

International Covenant on Civil and Political Rights (1966) (article 23)
The International Covenant on Civil and Political Rights (ICCPR) elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions. Article 23 guarantees the right to a family:
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouses.
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally (1986)
This document provides important guidelines for the fostering and adoption, including inter-country adoptions of children who lack appropriate parental care.

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962)
This treaty reiterates the right to full consent and also requires states to establish a minimum age for marriage.

Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1965)

UN population and development documents including the 1994 Conference on Population and Development Programme of Action, the 1968 Tehran Declaration, 1985 Fourth World Conference in Beijing, all contain provisions regarding the rights of individuals to family planning.

Finally, UN treaties relating to specific categories of persons can also be used to protect the right to family.

Convention Relating to the Status of Refugees (1951) (article 12)
The UN Refugee Conventions includes guidelines and principles established under the auspices of the UN High Commissioner for Refugees strengthen provisions regarding refugee rights to family.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) (article 9, 16)
CEDAW is a very relevant treaty when it comes to discrimination and unequal treatment of women vis-a-vis their status in the family and includes provisions on marriage and nationality (article 9), equality and consent, rights and responsilities within marriage, family planning, guardianship and adoption, women's right to choose a family name, a profession and an occupation, ownership and property, minimum age for marriage, and compulsory registration of marriages (article 16).

Convention on the Rights of the Child (1989) (article 9, 10, 20, 21, 22)
The Children's Convention (CRC) address the separation from parents (article 9), family reunification (article 10 and 22) and measures for children lacking parental care (article 20, 21).

International Convention on the Protection of the Rights of all Migrants Workers and Members of Their Families (1990) (article 4, 44, 45, 50)
The most recent of the main UN human rights treaties entered into force on 1 July 2003. The convention explicitly refers to migrant workers and "members of their family", which are defined as "persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage, as well as their dependent children and other dependent persons who are recognized as members of the family by applicable legislation or applicable bilateral or multilateral agreements between the States concerned" (article 4). The treaty recognizes that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State, shall take appropriate measures to ensure the protection of the unity of the families of migrant workers". States are also expected to facilitate family reunification and the treaty stipulates that states "shall favourably consider granting equal treatment, as set forth in paragraph 2 of the present article, to other family members of migrant workers" (article 44). Members of the families of migrant workers shall enjoy equality of treatment with nationals with regard to access to education, social and health services and participation in cultural life. States also have to facilitate integration of children of migrant workers in the local school system, particularly in respect of teaching them the local language and the mother tongue and culture (article 45). Finally the treaty stipulates that in case of death of a migrant worker or dissolution of marriage, the state of employment shall favourably consider granting family members of that migrant worker residing in that state an authorization to stay (article 50).

 

 


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AFRICAN UNION (FORMERLY ORGANIZATION OF AFRICAN UNITY, OAU)

African Charter on Human and Peoples’ Rights (1981) (article 18)
Article 18 of this treaty upholds the importance of the family unit, urges the elimination of discrimination against women, and makes special mention of the rights of the aged and disabled to special protection measures.

African Charter on the Rights and Welfare of Child (1990) (article 18, 19, 24, 25, 30)
This treaty stipulates that the family is the natural unit and basis of society and should received the protection and support of the state. States should aksi take appropriate steps to ensure equality of rights and responsibilities of spouses with regard to children during marriage and in the event of its dissolution (article 18). The charter also contains provisions on the rights of children to parental care (article 19), obligation on states to ensure children are not separation from their parents except as a result of judicial decision (article 25), responsibilities of parents and support to be provided by the state; principles applying to children without parental care - adoption, inter-country adoption (article 24), children of imprisoned mothers (article 3).

 

 

COUNCIL OF EUROPE

Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (article 9, 12)
This treaty, commonly known as the European Convention on Human Rights (ECHR), protects the right to respect for private and family life, home and correspondence (article 9) and guarantees the right to marry and to found a family to men and women of marriageable age according to the national laws governing the exercise of this right.

European Social Charter (1961) (article 16)
This treaty upholds the right of the family to social, legal and economic protection under article 16, covering such issues as maternity rights, social benefits for families etc. States are required to submit reports at two yearly intervals which are examined by a committee of experts.

 

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EUROPEAN UNION

Charter of Fundamental Rights of the European Union (2000) (article 7, 9)
The European Charter codifies the right to respect for to private and family life, home and communications and the right to marry and the right to found a family, which shall be guaranteed in accordance with the national laws governing the exercise of these rights.



ORGANIZATION OF AMERICAN STATES (OAS)

American Convention on Human Rights (1969) (article 17)
The American Convention acknowledges that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the state." It recognizes the right of men and women of marriageable age to marry and to raise a family "if they meet the conditions required by domestic laws, insofar as such conditions do not affect the principle of nondiscrimination established in this Convention". It also reiterates that marriage requires free and full consent of the marrying partners; equality of rights and the adequate balancing of responsibilities of the spouses as to marriage, during marriage, and in the event of its dissolution; the protection of any children in the case of the dissolution of a marriage; and guarantees equal rights for children born out of wedlock and those born in wedlock.


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National Assistance, Protection and Service Agencies

Countries which have ratified these international and regional treaties have agreed to meet their obligations under these conventions by inter alia implementing these provisions fully at the national level. States need to adopt appropriate legislative measures and provide judicial remedies which uphold the right to family.

 


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Advocacy, Educational and Training Materials

For advocates

Right to respect for private and family life. A guide on the implementation of article 8 of the European Convention on Human Rights (Council of Europe)
Practical guide on how the European Court of Human Rights has been interpreted and implemented the right for private and family life (article 8 of the European Convention on Human Rights).


For educators

I Now Pronounce You... Same-Sex Marriage Legislation (Gay Lesbian and Straight Network)
In this activity, students will apply the history of "separate but equal,"taken from the era of racial segregation, to the question before the Vermont legislature today. Students will then assume the role of advisors, making recommendations to the Vermont legislature based upon international human rights practices and the current regulations of other nations.

Teaching for Human Rights: Pre-school and Grades 1-4 (Ralph Pettman, with Joan Braham, Lynette Johnston, Elke Muzik, Kath Lock, Stephanie O'Laughlin Peters, Diana Smythe)
This teacher manual provides specific suggestions, proven in practice, of what to do and why, for pre-school and lower primary teachers who want to foster children's feelings of self-esteem and social tolerance.

Teaching for Human Rights: Grades 5-10 (Ralph Pettman, with Colin Henry)
This teacher manual provides specific suggestions, proven in practice, of what to do and why, upper primary and secondary teachers who want to foster children's feelings of self-esteem and social tolerance.

 


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Other Resources

Courses and training opportunities

Organisations advocating for and educating about the right to family

 

 

 

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This guide was developed by Asmita Naik.

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