International Criminal Law
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1976 Bonded Labour System (Abolition) Act (No 19), which obliges the governments
of the various Indian States to release the bonded labourers and rehabilitate them,
further occasioned by similar judgments of the Indian Supreme Court,
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debt bondage
continues with impunity. The penalisation of debt bondage against children below
the age of 18 is also prescribed by the 1999 ILO Convention for the Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labour (No 182).
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The prohibition of bride-price in Art 1(c) of the 1956 Supplementary Slavery
Convention penalises the acquisition of girls by purchase disguised as payment of
dowry for marriage. This institution becomes a criminal offence where the female is
either denied the right to consent and is given to marriage on the basis of a financial
transaction of any kind by familial or any other persons, or where upon death of her
husband, family or clan members transfer her to another person, thus, basically
reducing her to an object of inheritance. Bride-price and, indeed, all the institutions
and practices penalised in the 1956 Convention were so deeply rooted in traditional
rural societies in the developing world that the western delegates agreed, despite the
vehement opposition of many non-governmental organisations (NGOs), to allow for
progressive abolition of these practices, rather than impose an immediate prohibition.
States are generally free to prescribe a minimum age of marriage and, although the
1962 Convention on Consent to Marriage, MinimumAge for Marriage and Registration
of Marriages
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is not widely ratified, the principle of full and free consent of both parties
declared in Art 1 therein is undoubtedly a rule of customary international law on
account of its presence in the widely ratified 1956 Supplementary Slavery Convention.
The practice of bride-price should be distinguished from that of ‘bride-wealth’
.
The latter constitutes a substantial and obligatory payment from the groom’s kin to
the bride’s family, not to the bride. Bride-wealth represented both marital cement
and an assurance for both partners against the bad behaviour of the other and was
to be returned if the marriage ended on account of the wife’s ‘fault’. Although the
material elements of bride-wealth did not traditionally fit within supply/demand
market notions, during the 20th century this institution has been distorted as its
ingredients have acquired national currency values.As the material ‘gifts’ associated
with bride-wealth acquired modern money value, the prospect always loomed that
bride-wealth would, indeed, become transformed into bride-price. For this reason,
many African countries have now regulated the cash value of bride-wealth. As the
1956 Supplementary Slavery Convention only intended to penalise and prevent the
downgrading of marriage to a financial transaction lacking the consent of the bride,
traditional bride-wealth does not violate the Convention.
The transfer of children under the age of 18 by their natural parents or guardian
to another person, whether for financial benefit or not, with a view to exploiting the
child or its labour is an international offence under Art 1(d) of the 1956 Convention.
A number of international instruments under the same terms expressly prohibit the
trafficking, more specifically the sale or exploitation of children in any form, such as
the 1989 Convention on the Rights of the Child,
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the 2000 Optional Protocol II thereto
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