Var går gränsen? Om staters skyldighet att inte erkänna utländska barnäktenskap

Sammanfattning: The thesis examines whether there is an obligation for states to not recognise foreign child marriages and whether child marriages are prohibited through the prohibitions against slavery, servitude or servile marriage. The review finds that there is no uniform definition for who is a child, what constitutes a child marriage and when one is mature enough to freely consent to marriage. The definition of slavery most likely refers to both slavery de jure and slavery de facto. The necessary prerequisite is to examine whether a person is treated as an object. Regarding servitude, international courts have said the custom demands a particularly serious denial of liberty where the victim is forced to provide services and feels there is no opportunity to change the situation. However, the requirements have been criticised and it has been stated that the customs that constitute servitude should be defined individually. The relevant custom for the thesis is 'servile marriage', which refers to when a woman is commercialised through marriage. Child marriage is often characterised by onerous work, limited freedom of movement and difficulties in leaving the marriage. The degree of control means that child marriage is likely to be included under the prohibitions against slavery and servitude. However, it is not certain whether child marriages constitute 'servile marriage'. An obligation not to recognise foreign marriages may be established in CEDAW as article 16(2) states that child marriages should have no legal effect. As mentioned, however, there is no clear definitions regarding which marriages constitute child marriages. The applicability of the principles of Article 41(2) ARSIWA is also discussed. The principle implies an obligation not to legally acknowledge a situation created by a serious breach of a peremptory norm. As shown, child marriage can constitute slavery and since slavery is a peremptory norm, there could be an obligation for states not to recognise foreign child marriages. What remains is the problem of defining a child marriage. It has also been questioned whether the principle expressed in ARSIWA is applicable to all peremptory norms.