WUNRN
November
22, 2010
CANADA'S ANTI-POLYGAMY LAWS GO ON
TRIAL
___________________________________________________________
Research Report
Polygyny and
Canada's Obligations under International Human Rights Law
September 2006
Prepared by:
Rebecca J. Cook, M.P.A., J.D., J.S.D., F.R.S.C.
Faculty Chair in International Human Rights
Co-Director, International Reproductive and Sexual Health Law Programme
and
Lisa M. Kelly, B.A., J.D. candidate
Faculty of Law, University of Toronto
I. INTRODUCTION
The term “polygamy”
can refer to the simultaneous union of either a
husband or wife to multiple spouses. As a general term, polygamy therefore
includes the practices of bigamy, polyandry, and polygyny.
The term “bigamy”
is typically used in domestic legislation that
prohibits marriage to more than one person simultaneously. While this report
will not examine Canada's domestic legal prohibition of bigamy or polygamy in
depth, domestic legislation is useful for clarifying terminology. According to
the Criminal Code, bigamy occurs when a person who is already married marries
again, marries more than one person simultaneously, or marries someone that he
or she already knows to be married.[1] Significantly, the Criminal Code does not
provide an express definition of polygamy. The principal difference between
bigamy and polygamy, however, as described in the Criminal Code, is the fact
that bigamy requires a “form of marriage”
as defined in section 214,
where polygamy does not.[2] In its 1985 report on bigamy, the Law
Reform Commission of Canada also provided its own definition of polygamy:
. . . polygamy consists in the maintaining of conjugal relations by more than two persons. When the result of such relations is to form a single matrimonial or family entity with the spouses, this is regarded as polygamous marriage.[3]
By focusing on the formation of a “single matrimonial or family entity”
without requiring the actual legal validity of the form of the multiple
marriages (as is usually the case for bigamy), the Law Reform Commission's
definition thus included those polygamous unions where subsequent marriage
ceremonies may be solely religious or customary in nature. It is this focus on
subsequent de facto religious or cultural marriages that is central to
the legal prohibition of polygamy. Prohibiting bigamy alone, with its
requirement of multiple de jure marriages, would fail to address the
lived reality of these de facto marital unions.
Within the Canadian context, there is no evidence of polyandrous polygamy,
wherein a wife is simultaneously married to multiple husbands.[4] In contrast, there is evidence of
polygynous unions, wherein a husband has multiple wives. For precision, this
report will mainly use the term “polygyny”
throughout. Given that
polyandrous unions are not permitted in systems governed by Islamic law,
Fundamentalist Mormon teachings, nor generally under customary norms, the term “polygyny”
more accurately reflects the majority of polygamous unions and the
international human rights norms with which they conflict.
In analyzing Canada's commitments under international human rights law, this
report will consider Canada's obligations to respect freedom of religion as
well as guarantee equality between men and women. Although polygyny, as
practised in Canada and elsewhere, engages freedom of religion arguments, it is
important to note the distinction at law between religious belief and
religious practice. While Canada is not entitled under international
law to restrict religious belief, it is entitled and in fact obliged in some
circumstances to restrict religious practices that undermine the rights and
freedoms of others. Courts have decided that the right to manifest one's
religion can be limited for legitimate purposes including the protection of health,[5] the promotion of secularism and the
protection of gender equality.[6] Even within Canada's own constitutional
framework, as Lorraine Weinrib has noted, although “Charter interpretation
must be consistent with the ‘preservation and enhancement of the multicultural
heritage of Canadians,' the reading of all Charter guarantees must effectuate
their equal guarantee to men and to women.”
[7]
Amidst this international and domestic law commitment to gender equality, this report will outline how the practice of polygyny violates women's right to equality within marriage and the family, amongst other rights, using the sources of international law identified in Article 38 of the Statute of the International Court of Justice (I.C.J.) as a guiding framework:
Art. 38.1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
- International conventions, whether general or
particular, establishing rules expressly recognized by the contesting
states;
- International custom, as evidence of a general practice
accepted as law;
- The general principles of law recognized by civilized
nations;
- Subject to the provisions of Article 5, judicial
decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of
law.
Under international human rights law, there is a growing consensus that polygyny violates women's right to be free from all forms of discrimination. Where polygyny is permitted through religious or customary legal norms, it often relies on obedience, modesty, and chastity codes that preclude women from operating as full citizens and enjoying their civil and political rights.[8] Within this framework, women can often be socialized into subservient roles that inhibit their full participation in family and public life. The physical, mental, sexual and reproductive, economic, and citizenship harms associated with the practice violate many of the fundamental human rights recognized in international law. State practice indicates that a complete legal prohibition of polygyny is the norm in most domestic systems including all of the Americas, Europe, countries of the former Soviet Union, Nepal, Vietnam, China, Turkey, Tunisia, and Côte d'Ivoire, amongst others.[9] In addition, there is a marked trend toward restricting the practice elsewhere, particularly through judicial and/or spousal permission requirements. These restrictions reflect not only the socio-economic problems associated with polygyny, but also a growing recognition of women's right to equality.
The right to gender equality has been central to the evolution of post‑World
War II international human rights law. Initially, human rights
declarations and conventions adopted a negative sense of gender equality by
deeming sex a prohibited ground of discrimination. The 1948 Universal
Declaration of Human Rights (Universal Declaration),[10] the International Covenant on Civil and
Political Rights (the Political Covenant),[11] and the International Covenant on
Economic, Social and Cultural Rights (the Economic Covenant),[12] all relied on the norm of sex
non-discrimination. Within this non-discrimination framework, there are
variations that may import positive obligations on States parties.
Article 23(4) of the Political Covenant, for example, requires States
parties to “take appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage, during marriage, and at its
dissolution.”
The term “ensure”
is typically interpreted within the
treaty context as imposing a positive duty on States parties to achieve the
stated goal.
In addition to these international instruments, various regional human rights treaties also operate under a general non-discrimination framework. The European Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention),[13] the American Convention on Human Rights,[14] and the Arab Charter on Human Rights[15] all prohibit discrimination on the ground of sex, but do not extend this to ensure de facto equality in family and public life.
In contrast, the object and purpose of the Convention on the Elimination of All Forms of Discrimination against Women (the Women's Convention)[16] reveals a clear commitment to transformative equality. In its General Recommendation no. 25 on temporary special measures, CEDAW noted that the Women's Convention aims to:
eliminate all forms of discrimination against women with a view to achieving women's de jure and de facto equality with men in the enjoyment of their human rights and fundamental freedoms.[17]
In this sense, the Women's Convention extends beyond a non-discrimination
framework that would protect both men and women from sex-based discrimination
through its recognition of the particular discrimination women face. Its
Article 16 provision on equality within marriage and family relations
calls on States parties to “take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and family
relations”
in order to ensure “a basis of equality of men and women.”
In doing so, the Women's Convention not only articulates a commitment to
women's rights within the family, but also expresses a transformative sense of
equality by outlining the reciprocal marital responsibilities men and women
should share.
Amongst regional human rights instruments, the African (Banjul) Charter on Human and Peoples' Rights[18] and the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa[19] both share a similarly transformative approach to equality. The African Charter not only prohibits discrimination on the basis of sex,[20] but also requires States parties to:
ensure the elimination of every discrimination against women and also ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.[21]
Building on this, the preamble to the Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa reaffirmed:
the commitment of the African States to ensure the full participation of African women as equal partners in Africa's development.
Thus, both the African Charter and its Protocol express a commitment to eliminating all forms of discrimination against women and ensuring their effective participation in family and public life.
The Convention on the Rights of the Child (the Children's Convention) includes a non-discrimination clause (Article 2) and extends the guiding principle of the best interests of the child. Article 3 states that:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
This provision requires that the “best interests of the child”
will
always be a “primary consideration.”
In this sense, there is a positive
obligation on States parties to give children's best interests primacy beyond
simple non-discrimination
In order to achieve these goals, several of the leading international human rights treaties established committees that monitor state compliance with their respective treaty obligations. The Women's Convention established the Committee on the Elimination of Discrimination against Women (CEDAW) to monitor whether states' laws, policies, and practices have been brought into compliance with the Women's Convention. Similarly, the Political Covenant established the Human Rights Committee (HRC), the Economic Covenant established the Committee on Economic, Social and Cultural Rights (CESCR), and the Children's Convention established the Committee on the Rights of the Child (CRC).
These committees, which meet once to three times per year, assess reports from member states on what the states have done to bring their laws, policies, and practices into compliance with their treaty obligations. After considering and discussing country reports with representatives of the reporting states, committees issue Concluding Observations on those reports, which assist countries in discharging their future reporting obligations.
The committees have also developed helpful General Comments or General Recommendations on specific articles that explain the content and meaning of specific rights. Where committees are capable of hearing complaints from individuals or groups from consenting countries (HRC, CEDAW), or undertaking inquiries into alleged violations in consenting states (CEDAW), the opinions that committees form in response also contribute to the content and meaning of rights by showing how a right or a group of rights apply to particular facts.
Several of these treaty bodies including CEDAW,[22] the HRC,[23] the CESCR,[24] and the CRC[25] have expressly stated in their concluding observations that polygyny violates the rights articulated within their respective treaties. In addition, both CEDAW and the HRC have condemned the practice in their General Comments and Recommendations. In its General Comment no. 28 on Equality of Rights between Men and Women, the HRC stated:
It should also be noted that equality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle. Polygamy violates the dignity of women. It is an inadmissible discrimination against women. Consequently, it should be definitely abolished wherever it continues to exist.[26]
Echoing this statement that polygyny violates women's equality and dignity within marriage, CEDAW noted in its General Recommendation no. 21 on Equality in Marriage and Family Relations that:
Polygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions of article 5(a) of the Convention.[27]
While there is a growing consensus that polygyny thus violates women's right to be free from all forms of discrimination, this consensus fractures somewhat at the notion of immediate prohibition given the deleterious effect this may have on existing polygynous marriages and those unions that may have helped poor women and to a lesser extent children of polygynous marriages.
This report will argue that these transitional concerns can be addressed through family law measures providing for mandatory child support and the availability of relief on relationship background regardless of whether there is a legally recognized marriage. In moving to develop consensus around the prohibition of polygyny, it is important to be sensitive to the place of women within their particular context and recognize the importance that religion and culture may have within their individual lives. As with many cultural or religious practices that are harmful to women, the means chosen to abolish polygyny, if they are to be effective, need to be sensitive to the context in which women live. It is important to recognize throughout, however, that a lack of consensus regarding the optimal means of addressing polygyny does not dilute the growing consensus that polygyny is a form of discrimination and therefore a violation of international law.