UDHR70 30on30 Article16 Eng

Article 16: Right to Marry and to Found a Family
Most of the 30 Articles in the Universal Declaration of Human Rights (UDHR) begin
with gender-free language: “Everyone,” “All” or “No One. But Article 16 states that
“men and women” have the right to marry, with the women drafters of the UDHR
succeeding in their determination that it should spell out clearly that women had equal
rights in marriage, given there was still very widespread discrimination in matters
relating to marriage at the time.
Some subsequently interpreted the wording as limiting marriage rights to heterosexual

couples, although nowadays it is increasingly interpreted as simply referring to both
sexes having an equal right to marry, rather than stipulating they must marry someone
of the opposite sex. Various UN human rights mechanisms have urged all States to
legally recognize same-sex unions – whether by making marriage available to same
sex couples or through other arrangements, such as civil partnerships – and have also
called for the same benefits and protections for all. And an increasing number of states
are bringing in legislation along these lines.
Article 16 delves into the intimate lives of “Denying people access to

humans. It says every adult has the right to marriage …it’s denying them the
marry and have a family if they want to. status and dignity of being
Women and men also have the same rights ordinary citizens in society.”
during their marriages, and if they divorce. In –South African Judge Albie Sachs, in
addition, for the only time in this document, it Constitutional Court decision striking
explicitly invokes the duty of the State to down statute defining marriage as
provide protection, underscoring the high “between one man and one woman.”
regard the drafters had for the family.
As Pakistani drafter Begum Shaista Ikramullah put it, “it was imperative that the
peoples of the world should recognize the existence of a code of civilized behaviour
which would apply not only in international relations, but also in domestic affairs.”
These rights have cascaded down and been amplified in a number of other UN
instruments: The International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights as well as the Conventions that
protect women, people with disabilities and migrant workers.
The drafting of Article 16 involved reconciling different world views (the Communist
bloc was critical of what it saw as U.S. restrictions on women’s rights at the time) and
overcoming religious objections. World War II, just ended, “had shown the equality of
the sexes,” said Polish drafter Fryderyka Kalinowska, and it was important to reflect
that.
The Article was also a response to Nazi laws prohibiting inter-racial marriage,
bestowing the right to marry and to found a family on “men and women of full age
without any limitation due to race, nationality or religion.” Equal rights are guaranteed
“during marriage and at its dissolution.” This was a milder word for “divorce,” which
had caused heated debate during the drafting. Some argued including it would send
a signal to the general public that the UN “approved of divorce on the same footing as
marriage.” In the end, divorce was treated as an issue of non-discrimination rather
than as a basic human right. As one commentator put it: “No one has to contract
marriage, but once one is in that state, certain rights become operative.”
Paragraph 2 of Article 16 says “marriage shall be entered into only with the free and
full consent of the intending spouses.” This, together with the phrase “of full age” in
Paragraph 1, amounts to a ban on child and/or forced marriage because children may
not be in a position to give free and full consent. However, child marriage continues to
be a problem affecting huge numbers of girls, with around one million girls under 18
getting married every month.
Closely related is the issue of forced marriage, where girls are married off to a man,
often much older, for a “bride price.” Faced with international outrage, in June 2018,
Sudan overturned the death sentence on Noura Hussein for killing her husband, who
was some 16 years older than her. The man had approached her parents when she
was just 15 and in Grade 8. On their “honeymoon,” the court heard, the husband raped
her while three of his male relatives pinned her down. When he tried to rape her again,
she killed him with a knife – in self-defence, she argued.
In neighbouring South Sudan, in November

“That a girl could be sold for
2018, the father of a 16-year-old girl auctioned
marriage on the world’s biggest
social networking site in this day her off to the highest bidder on Facebook. The
and age is beyond belief.” sale provoked a storm of condemnation,
– George Otim, director of Plan including against Facebook, with many people
International in South Sudan afraid the record amount paid for the girl would
stimulate more sales of child brides via social
media.
A recent ruling by the International Criminal Court (in the case against Dominic
Ongwen of the Lord’s Resistance Army) that forced marriage, when part of a
widespread or systematic attack against civilians, may amount to a crime against
humanity was, for many, a welcome development in jurisprudence.
In a 2018 report on the Kyrgyz Republic, the Committee on the Elimination of

Discrimination against Women concluded the Government had failed to protect
women and girls from abduction for forced marriage and related sexual violence, thus
violating their right to enter into marriage only with their free and full consent. It also
found that the Kyrgyz Republic had knowingly failed to take effective measures to
address discriminatory stereotypes and norms that legitimize bride kidnapping, as well
as to enforce existing laws criminalizing the practice alongside child marriage.
On another topic, Article 16’s language on the “right to found a family” reflects the
prevailing morality of the time associating families with marriage. Since then, it has
been argued that the right to “found” a family implies a conscious decision, so it should
extend to rights to plan births and control one’s reproduction – and even to a “right” to
in-vitro fertilization, as the Inter-American Court of Human Rights held in the 2012 case
of Artavia Murillo v. Costa Rica. Also more recently, the rights laid down in Article 16
have been re-interpreted to try to ensure equality and non-discrimination for all people
who want to marry, and all families, however they are constituted.
In 2012, then UN Human Rights Chief Navi Pillay discussed how sexual violence and
denial of contraception are frequently used against women. “Ensuring that women
have full autonomy over their bodies is the first crucial step towards achieving
substantive equality between women and men,” she said. “Personal issues – such as
when, how and with whom they choose to have sex, and when, how and with whom
they choose to have children – are at the heart of living a life in dignity.”
This is one in a series of articles published by the Office of the High Commissioner for
Human Rights (OHCHR) to mark the 70th anniversary of adoption of the Universal
Declaration of Human Rights on 10 December 1948. All rights enshrined in the UDHR are
connected to each other, and all are equally important.
To read the previous articles in this series, please visit:

https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23871&L
angID=E

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Article 16: Right to Marry and to Found a Family

Some subsequently interpreted the wording as limiting marriage rights to heterosexual

Article 16 delves into the intimate lives of “Denying people access to

In neighbouring South Sudan, in November

In a 2018 report on the Kyrgyz Republic, the Committee on the Elimination of

To read the previous articles in this series, please visit:

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