Polygyny and Canada's Obligations under International Human Rights Law
In light of the harms to women and children associated with polygyny, this section will outline the various rights of women and children that the practice violates under international human rights law. While the rights analysis here involves human rights that are by definition universal, it is clear that just as the harms of polygynous unions may differ according to their context, so also may the rights violations. Significantly, however, the right to equality within marriage and the family is violated per se by polygyny regardless of the cultural or religious context in which it is practised.
In assessing Canada's obligations under the various treaties that protect the rights of women and children, there are four guiding principles in treaty interpretation: the textual principle, the contextual principle, the object and purpose principle, and the dynamic principle.
The textual principle focuses on the ordinary meaning of the text. As Cook notes, for human rights treaties, a textual approach that looks to objective criteria is more appropriate than subjective criteria that try to ascertain only the intent of the Parties. Moving beyond the text itself, the contextual principle requires one to also look at the interrelationship of all components of the text, including the preamble, annexes and subsequent agreements and practice, as mandated by article 31(2) and 31(3) of the Vienna Convention.
The object and purpose principle requires that treaties be interpreted in a manner that gives full effect to their object and purpose while remaining consistent with the ordinary sense of the words and other parts of the text. The clearest articulation of the object and purpose of the Women's Convention is found in CEDAW's General Recommendation no. 25, which explains that:
States parties to the [Women's] Convention are under a legal obligation to respect, protect, promote and fulfill this right to non-discrimination for women and to ensure the development and advancement of women in order to improve their position to one of de jure as well as de facto equality with men.
Where limitation clauses exist, they are therefore strictly interpreted to leave the widest margin of rights protection available. In determining the more specific object and purpose, the travaux préparatoires can be useful in clarifying textual uncertainties, particularly where an interpretation of the textual meaning or object and purpose of the treaty under Article 31 (1) of the Vienna Convention on the Law of Treaties
“(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”
Because the object and purpose of human rights conventions evolve over time, the dynamic principle of interpretation is particularly important. In Marckx v. Belgium, the European Court of Human Rights applied the principle to enable an unmarried mother to legitimate her child in the same way a married woman could, stating that
“the Convention must be interpreted in light of present day conditions.” The reporting mechanism under the Woman's Convention helps to ensure that the Convention maintains
“an elastic or dynamic component” as states report their legislative, judicial or administrative progress in eliminating discrimination against women. In applying the dynamic principle, it is thus essential to ascertain what constitutes “present day
conditions.” One of the most effective ways to do this is to examine how other judiciaries are analyzing certain types of practices, particularly within the context of a given treaty.
As this report argues throughout, polygyny is a form of discrimination against women that international treaty law requires states to eliminate. The most specific articulation of this is found in CEDAW General Recommendation no. 21 on Equality in Marriage and Family Relations. This is further reflected in the General Comments and Concluding Observations of several treaty bodies including CEDAW, the HRC, the CESCR and the CRC, which have stated that polygyny violates women's right to equality and the best interests of the child.
From its inception, modern international human rights law has called for gender equality before the law and in marriage. The preamble to the 1947 United Nations Charter indicates a
“determination… to reaffirm faith in fundamental human rights… in the equal rights of men and women…” Article 55 of the Charter states that the U.N. will
“promote… universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to… sex…” In addition, the U.N. Commission on the Status of Women, which first met in 1947, agreed to work for:
freedom of choice, dignity of the wife, monogamy, and equal rights to dissolution of marriage.
This mandate was reflected in the Universal Declaration's Article 16, which states that:
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family… [and]… are entitled to equal rights as to marriage, during marriage and at its dissolution.
This commitment to gender non-discrimination is also evident in both the Political and Economic Covenants. Article 2(1) of the Political Covenant requires States parties to ensure the rights articulated in the Political Covenant without distinction of any kind including sex. In a similar vein, Article 3 provides that States parties shall
“undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” Significantly, the Political Covenant also includes a strong commitment to marital equality, building on the Universal Declaration's commitment by adding equal responsibilities within marriage beyond just equal rights. Article 23(4) of the Political Covenant requires that ratifying States:
shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage, and at its dissolution.
The Economic Covenant also contains a general non-discrimination clause on the basis of sex (Article 2). In addition, States parties have a positive obligation under Article 3:
to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.
While the Economic Covenant does not expressly guarantee equality within marriage and family life, it is arguable that the positive obligation to ensure the equal enjoyment of the rights articulated therein imposes a duty on States parties to abolish discriminatory practices such as polygyny that undermine women's ability to enjoy their rights.
It is in the Women's Convention, however, that one sees the greatest international commitment to transformative gender and marital equality. The preamble of the Women's Convention expresses a conviction that:
a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women.
As CEDAW explains in its General Recommendation no. 25 on Temporary Special Measures:
The position will not be improved as long as the underlying causes of discrimination against women, and of their inequality, are not effectively addressed. The lives of women and men must be considered in a contextual way, and measures adopted towards a real transformation of opportunities, institutions and systems so that they are no longer grounded in historically determined male paradigms of power and life patterns.
It is this commitment to a real transformation of institutions, such as polygyny, that provides the greatest protection for women within the family. Where States parties legally encourage, condone, or simply ignore unequal familial practices of polygyny, they perpetuate male paradigms of power, resulting in women's de facto and de jure inequality.
In striving to achieve this transformation, particularly within the familial realm, Article 16 of the Women's Convention requires States parties:
To take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular [to] ensure, on a basis of equality of men and women:
- The same right to enter into marriage;
- The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
- The same rights and responsibilities during marriage and at its dissolution;
- The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
- The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
- The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
- The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
- The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
Here, the Women's Convention established a comprehensive equal rights and responsibilities regime for men and women within the family. It is this equality in rights and responsibilities that asymmetrical marital practices such as polygyny violate. As Susan Deller Ross has noted, when a husband has multiple wives, each wife essentially has only a fraction of a husband. As a result, spousal maintenance and child-care resources are all divided unequally vis-à-vis individual polygynous husbands and their respective wives whether during marriage or at its dissolution. Such husbands are able to share only a fraction of their emotional, sexual, and financial attention with each individual wife, meaning that polygynous wives have fewer de facto marital rights and their husbands fewer responsibilities.
It is for these reasons that CEDAW has stated that polygyny violates women's right to equality within marriage. In its General Recommendation no. 21 on Equality in Marriage and Family Relations, the Committee stated 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.
While the General Recommendations of CEDAW are not binding interpretations of the Convention, they are considered influential interpretations. In particular, as Byrnes notes, General Recommendations provide useful material from which to form arguments based on the Convention in both political and legal contexts. They have been invoked before national courts and tribunals including in New Zealand, Canada, and India.
In Vishaka and Others, the Indian Supreme Court cited CEDAW General Recommendation no. 19 in relation to sexual harassment to fill a lacuna in Indian law that had failed to adequately protect women in the workplace. The Court stressed that India had ratified the Women's Convention and that the Government had made an official commitment at the Fourth World Conference on Women in Beijing
“to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector.” As such, the Court stated that it
“had no hesitation in placing reliance on the above [General Recommendation] for the purpose of construing the nature and ambit of [the] constitutional guarantee of gender equality in our Constitution.”
In addition to the comments above, CEDAW also suggested that states should require the registration of all marriages, whether conducted civilly or according to customary law, in order to:
ensure compliance with the Convention and establish equality between partners, a minimum age for marriage, prohibition of bigamy and polygamy and the protection of the rights of children.
Despite CEDAW's recommendation that states require registration, this remains one of the most significant obstacles to prohibiting polygyny. Evidence from the Ugandan context, where most people marry under customary law, indicates that few of these unions are registered, despite a requirement to do so under the Customary Marriage Registration Decree. Similarly, the majority of polygynous Fundamentalist Mormon unions in Canada and the United States are never civilly registered. To avoid blatantly flouting criminal bigamy prohibitions, most Fundamentalist Mormon polygynous husbands legally marry one wife and have religious marriage ceremonies only with subsequent wives.
The right to private and family life, recognized in both the Political Covenant and the European Convention was traditionally applied in cases of state-based violations of privacy including laws that prohibited homosexual activity between consenting adult males. Significantly, the HRC noted in its General Comment no. 16 on Article 17 (Right to Privacy) of the Political Covenant that the right to private and family life imports positive obligations beyond a traditional non-interference interpretation. The HRC stated that:
the obligations imposed by this article require the State to adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right.
Because States parties are obliged to prohibit interferences with this right by either
“State authorities or natural or legal persons,” the right to private and family life can no longer be classified as a purely State-individual concern. Rather, States parties have a duty to prohibit interferences at the individual-individual level as well as to generally protect this right.
Beyond this more positive conception, however, there has been little development as to the actual substantive content of the right to private and family life. For this reason, it is important to articulate some of the interests that may inform this right, namely dignity, security and relational interests in family life.
The dignity element of exclusive marital relationships as well as the legal and economic security interests bound up with it is fundamental to family life. In this sense, the high rates of divorce and re-marriage within monogamous legislative frameworks differ from actually polygynous contexts because the latter lack the kind of formal structures around ending marriage and re‑marrying that protect those security and property interests.
When practised patrilocally (where wives reside together with a husband's kin group or clan), polygyny violates the right to familial privacy and undermines women's security and relational interests by compounding the inherent difficulties of sharing one's husband. One former polygynous wife interviewed in prison while serving a life sentence for killing her husband remarked:
How can I go to sleep knowing that my husband is lying with another woman just next door? Just knowing that one's husband has another woman makes one crazy enough without having to see her every day.
In reaction to these types of familial privacy concerns, Article 27(2) of the Ugandan Constitution now guarantees every person the right to privacy. Under Ugandan law, any man who practises polygyny patrilocally, whether he has the consent of the senior wife or not, interferes with her right to privacy.
In most instances, requiring co-wives to cohabit not only violates their privacy, but also constitutes an attack on their honour, reputation, and dignity. In Itwari v. Asghari, the Allahabad High Court noted that the increasing mobility of Muslim women makes the introduction of another wife into their domicile an even greater insult today than it may have been historically. Linking this to wives' emotional well-being, the Court observed that:
the importing of a second wife into the household ordinarily means a stinging insult to the first… [who is]… automatically degraded by society. All this is likely to prey upon her mind and health if she is compelled to live with her husband under the altered circumstances.
Here, the Court was clear that patrilocal polygyny not only undermines a wife's right to familial privacy, but can also be extremely detrimental to her personal honour. Significantly, the HRC has interpreted Article 17 as imposing a positive obligation on States parties to ensure that
“the honour or reputation of individuals is protected by law…” Given the HRC's finding in its 2002 Concluding Observations on Yemen that the persistence of polygamy is
“an affront to the dignity of the human person and discriminatory under the Covenant,” the legal allowance or encouragement of the practice, regardless of residency requirements, violates Article 17.
Even so, separate residency requirements may at the least reduce some of the psychological tension associated with shared domiciles. However, as the international non-governmental organization Women Living under Muslim Law (WLUML) has noted, where polygyny is permitted, legislation rarely requires separate dwellings. Moreover, “separate dwellings” can be interpreted as separate residences in separate locations, different homes in the same residential community or compound, or merely separate kitchens or bedrooms with shared facilities. Even where states such as Mali require in principle that each wife have her own household, this is often violated in practice by husbands who insist on wives living together under husbands'
“head of the family” authority.
Even where polygynous families maintain separate households, women's relational and security interests in family life are nevertheless violated. The case of Natakunda, a Ugandan wife who was convicted of conspiring to murder her husband's proposed wife, reveals the extent to which polygyny can undermine women's precarious economic security interests in marriage. Because of an early pregnancy, Natakunda was unable to complete her schooling or attain any professional qualifications. She placed all her economic security in a joint venture business with her husband from which she hoped to eventually assist her own children. When her husband threatened to take a new wife, a school-aged girl he had impregnated, Natakunda saw the proposal as a devastating attack not only on her personal dignity, but also her economic security interests. Without the kind
of matrimonial property protections that have been developed in many family law regimes within monogamous systems, Natakunda faced the prospect of losing her only form of economic security. In the words of the prosecutor-state attorney, Natakunda's eventual crime
“[was] a case of extreme emotion… loss of hope and despair.”
Thus, although Article 18 of the African Charter on Human and Peoples' Rights states that
“the family… [as] the natural unit and basis of society… shall be protected by the State which shall take care of its physical health or moral needs,” the Charter's tacit acceptance, though discouragement, of polygyny in Article 6 underscores a tension within the document. Given that subsequent marriages disrupt the family unit of the present husband and wife, the Charter duty imposed on states to protect such families seems to require that states restrict and eventually abolish polygyny.
In addition to interfering with the right to private and family life, polygyny as practised in many cultural contexts also violates women's rights to be free from all forms of stereotyping.
Article 5 of the Women's Convention requires States parties to:
take all appropriate measures to modify the social and cultural patterns of conduct of men and women,with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles formen and women.
Context-specific factors such as religious or cultural teachings that endorse polygyny as a way of maximizing reproduction clearly stereotype women's roles within the family. More generally, polygyny tends to essentialize women's reproductive capacity as being central to marital success. In many cases, polygyny is seen as a solution to a wife's infertility, her “inability” to have enough sons, her post-menopausal state, or simply to maximize reproduction. In all these scenarios, a wife's value within marriage is equated with her reproductive capacity (and particularly ‘male-child reproductive capacity'). In this way, polygyny and reproductive stereotyping reinforce each other.
States parties have an obligation to address such patriarchal stereotypes within the familial realm as well as the broader legislative and social frameworks that perpetuate them. In outlining the importance of temporary special measures in challenging gender discrimination, CEDAW noted that:
States parties' obligation is to address prevailing gender relations and the persistence of gender-based stereotypes that affect women not only through individual acts by individuals but also in law, and legal and societal structures and institutions.
In applying this reasoning to the particular issue of polygny, CEDAW has consistently articulated the need to eliminate cultural, customary, and legal norms that perpetuate the practice. In its 2001 Concluding Observations on Guinea, the Committee noted:
with concern that, despite prohibitions in statutory law, there is wide social acceptance and lack of sanctions for such practices as … polygamy and forced marriage including levirate (the practice of marrying the widow of one's childless brother to maintain his line) and sororate (the custom of marriage of a man to his wife's sister or sisters, usually after the wife has died or proved sterile)… [The Committee] expresse[d] concern that the civil code contains provisions in family law that discriminate against women and that reinforce discriminatory social practices… [and] …that the Government uses social practices and customs to justify the non-enforcement of the civil code.
Here, the Committee drew attention to the intersection between discriminatory legislation, non-enforcement of civil laws, and harmful social practices and customs. Harmful and discriminatory practices such as polygyny are often premised on and subsequently reinforce stereotypes of women that are in turn used by governments to justify discriminatory family laws and the non-enforcement of equality provisions.
In combating such stereotypes, the Committee encouraged public-awareness campaigns
“to eliminate the gap between statutory law and social customs and practices, especially with regard to family law.” This may be particularly helpful for women in polygynous unions in Bountiful, B.C. and elsewhere in Canada where family practices do not accord with statutory law. In particular, the Committee's direction that the Government of Guinea ensure
“women's awareness of their rights” is relevant in the Canadian context where some women may be unaware of the legal protections available to them should they wish to leave polygynous unions.
The importance of free and informed consent in marriage is reflected in CEDAW's General Recommendation no. 21 on Equality in Marriage and Family Relations where it observed that
“a woman's right to choose a spouse and enter freely into marriage is central to her life and to her dignity and equality as a human being.” This is echoed in regional international human rights treaties. Article 6(a) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women calls on states to enact
“national legislative measures to guarantee that no marriage shall take place without the free and full consent of both parties.” Here, the Protocol is clear that free and full consent is a necessary prerequisite to achieving the Article 6 goal of ensuring that women and men enjoy equal rights as equal
partners in marriage. Marital equality cannot be achieved where the marriage itself was not freely consented to by both parties.
The essential dignity involved in such consent is obviously violated in cases where women or girl-children are assigned to polygynous marriages without any free choice as to the proposed spouse or the marriage itself. Within the Canadian and U.S. Fundamentalist Mormon polygynous contexts, priests assign marriages for girls sometimes as young as fourteen.
Even where marriages are not assigned by others without the consent of the proposed wife, the informational and educational shortcomings in some polygynous contexts undermine the possibility of free and informed consent. As human rights reports have argued in the United States Fundamentalist Mormon context, women and girl-children who are denied external education and are trained to obey religious teachings within closed polygynous communities may not see any other options outside polygynous unions. In this sense, where women and girl-children are denied the most basic information, there is no real opportunity for them to exercise “free and full consent” to marriage as required under international human rights law.
The importance of access to information in the context of marital choice has long been articulated by the United Nations General Assembly. In 1954, the General Assembly's Resolution 843 (IX) on the Status of Women in Private Law: Customs, Ancient laws and Practices Affecting the Human Dignity of Women noted that some:
women are subject to customs, ancient laws, and practices relating to marriage and the family which are inconsistent with [the] principles [of the United Nations Charter and the Universal Declaration of Human Rights].
In urging states to abolish such practices, the Resolution recognized the importance of
“ensuring complete freedom in the choice of a spouse.” This notion of “complete freedom” infers a level of informed freedom. Given the deleterious implications of polygyny, one can also extend the human dignity reasoning to include a choice as to the type of marital union and whether one will have co-wives.
Where women or girl-children are not sufficiently mature or do not have adequate information about their marital rights and their sexual and reproductive health needs, the possibility for informed and “complete freedom” of choice is severely compromised. In light of this, Resolution 843 (IX) also recommended that
special efforts be made through fundamental education, in both private and public schools, and through various media of communication, to inform public opinion in all areas mentioned in the second paragraph of the preamble above concerning the Universal Declaration of Human Rights and existing decrees and legislation which affect the status of women.
In this sense, free and informed consent, similarly to other rights, is often contingent on one's knowledge that such a right even exists. Countries such as Canada should promote rights awareness campaigns, particularly for women and children within vulnerable contexts such as those living within closed religious communities, recent immigrants, and adolescent girls generally who may be unaware of their domestic or international rights.
Gender-based violence is characterized in CEDAW's General Recommendation no. 19 on violence against women as
“violence that is directed against a woman because she is a woman or that affects women disproportionately.” Given that General Recommendation no. 19 defines
“gender-based violence” as including acts that inflict physical, mental or sexual harm, polygyny as practised in many contexts can be included within this category.
Moreover, like CEDAW, the 1993 General Assembly's Declaration on the Elimination of Violence against Women defined the term “violence against women” as including:
any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women…”
In addition to this robust definition of violence against women, the Declaration's specific attention to traditional practices that are harmful to women is significant in the context of polygyny. In a non-exhaustive list, Article 2(a) notes that violence against women encompasses:
physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape…and other traditional practices harmful to women…
Given the serious physical, sexual and psychological harms often associated with polygyny, it constitutes a
“traditional practice harmful to women” and can therefore be considered a form of violence against women as per Article 2(a) of the Declaration.
In addition to the Declaration's classification of violence against women, CEDAW's General Recommendation no. 19 also noted that:
gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention.
In this respect, gender-based violence may violate provisions of the Women's Convention that do not expressly refer to violence. Some of the rights and freedoms that gender-based violence can impair or nullify include:
- The right to life;
- The right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment;
- The right to equal protection according to humanitarian norms in time of international or internal armed conflict;
- The right to liberty and security of person;
- The right to equal protection under the law;
- The right to equality in the family;
- The right to the highest standard attainable of physical and mental health;
- The right to just and favourable conditions of work.
As a human rights analysis of polygyny indicates, the practice tends to undermine several of these rights, including, but not limited to, the right not to be subjected to cruel, inhuman or degrading treatment, the right to liberty and security of the person, the right to equality in the family, and the right to the highest attainable standard of physical and mental health. Then U.N. Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, characterized polygyny as a form of violence in her 2002 Report on cultural practices in the family that are violent against women. There, she noted that
“several… forms of threat or violence are used to ensure that women stay obedient within a marriage, for example the threat of the husband taking another wife…”
“In some countries, polygamy”, she stated,
“is either legal or condoned.”
Because it exists within the familial realm, polygyny is an especially serious form of violence. CEDAW has referred to domestic / familial violence as
“one of the most insidious forms of violence against women”and in turn a violation of Article 16 of the Women's Convention. Familial violence, as the Committee notes, is
“perpetuated by traditional attitudes” These traditional attitudes:
by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse [and] forced marriage… Such prejudices and practices may justify gender-based violence as a form of protection or control of women.
In violation of Articles 2(f), 5 and 10(c) of the Women's Convention, such traditional attitudes tend to reinforce patriarchal family practices such as polygyny that in turn can reinforce attitudes that condone violence against women.
Beyond often constituting a form of violence itself, polygyny can also indirectly catalyze or aggravate domestic violence because of the often acrimonious nature of co-wife or husband-wife relationships. In field research carried out by Law and Advocacy for Women in Uganda, for example, 86.7 % of a focus group in Iganga and 80 % of a focus group in Kampala identified polygyny as a cause of domestic violence. Ruth Mukooyo, a representative of the FIDA Legal AID project, argued:
The constitution talks about equality. Polygamy offends this principle. Most of our population is polygamous. Even when they marry in church they still go and get other pseudo-wives. They had to compromise in the Domestic Relations Bill. Therefore now they require the wife's consent… . Polygamy really encourages violence. It is psychological torture for wives which leads to conflict.
This connection between polygynous relationships and domestic violence is also seen within Fundamentalist Mormon communities in Utah, where adult women have reported spousal battering and intimidation.
In addition, the inability of polygynous husbands to devote sufficient resources and attention to their family may also constitute a form of violence. In its General Recommendation no. 19, CEDAW noted that:
the abrogation of their family responsibilities by men can be a form of violence, and coercion. These forms of violence put women's health at risk and impair their ability to participate in family life and public life on a basis of equality.
Accordingly, the type of economic deprivation reported across a variety of polygynous contexts as a result of husbands' inabilities to adequately or equally support multiple wives and children can itself be considered a form of violence.
In addressing the oft-noted ‘private' nature of such familial abuses, CEDAW has expressly stated that:
under article 2(e) the Convention calls on States parties to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise. Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.
In this regard, States parties are required to take appropriate measures to eliminate violence and discrimination against women, whether resulting from the actions of public or private individuals.
The customary or religious nature of such practices does not negate the duty of States parties to condemn polygyny and other forms of violence against women. International human rights law is clear that customary or religious arguments cannot be invoked to justify violence against women. The 1993 Declaration on the Elimination of Violence against Women noted that:
“States… should not invoke any custom, tradition, or religious consideration to avoid their obligations to eliminate violence against women.”
To this end, customary, religious, or cultural arguments cannot be used to justify practices such as polygyny that may constitute a form of violence against women under international law.
In addition to the right to be free from violence, international law also provides a more general protection against inhuman and degrading treatment. Article 7 of the Political Covenant states that
“no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.” While this right was traditionally considered within the context of prisoner abuse and torture, human rights tribunals and courts have recently applied it to ensure that women's dignity is respected, protected and fulfilled. The right has been used to hold States accountable for the rape of women by government officers, for example. Thus, where polygyny is practised in a context that fosters the sexual abuse of women and children, as is alleged within the Bountiful, B.C. and Utah Fundamentalist Mormon contexts, individuals' rights to be free from inhuman and degrading treatment are clearly violated.
The right to be free from inhuman and degrading treatment is also being increasingly utilised to protect human sexuality. In assessing practices such as polygyny that are harmful to women's mental and sexual and reproductive health, particularly because of its interference with spousal intimacy, the right to be free from inhuman treatment is especially relevant. As has been explained, human sexuality serves an important role beyond reproduction in contributing to human bonding, intimacy, affection and fidelity, spousal or partner attraction, and as such is central to human development and security. While sexuality has traditionally been treated by courts through a negative, non-interference right to privacy, it has been argued that because sexual intimacy is inherent to being human, a denial of that sexuality, or by extension a violation of it through harmful sexual practices, denies individuals the right to be fully human.
Indeed, recent work by the Pan American Health Organization has noted that:
sexual health is the experience of the ongoing process of physical, psychological, and socio-cultural well being related to sexuality. Sexual health is evidenced in the free and responsible expressions of sexual capabilities that foster harmonious personal and social wellness, enriching individual and social life. It is not merely the absence of dysfunction, disease and/or infirmity. For sexual health to be maintained it is necessary that the sexual rights of all people be recognized and upheld.
To legitimize through law marital practices that are harmful to women's sexual well-being and contrary to their inherent dignity is therefore a violation of women's right to be free from cruel and inhuman treatment.
Such reasoning was applied in Itwari v. Asghari where the Allahabad Court applied a cruelty analysis in denying a Muslim husband restitution for conjugal rights from his first wife. In dismissing the notion that considerations of cruelty could differ according to English, Hindu, or Islamic law, the Court noted that:
the test of cruelty is based on universal and humanitarian standards that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife's safety or health.
In light of current social conditions, the increased mobility of Muslim women, and the deleterious effect of polygyny on women's well-being, the Court reasoned that:
the onus today would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the other.
Placing the onus on husbands to prove that taking a subsequent wife is not an act of cruelty to the first wife even within a system where polygyny is legally permissible for Muslims is indicative of the emerging recognition that polygyny often constitutes an act of cruelty.
One of the most important yet elusive rights for women globally is the right to the highest attainable standard of health. Where traditional practices such as polygyny undermine women's mental, physical, and sexual and reproductive health, they not only deprive women of this health right, but also threaten the enjoyment of other human rights, including the right to life, liberty, and security of the person, amongst others.
The right to the highest attainable standard of health has long been recognized as a fundamental human right. The World Health Organization's (WHO) 1946 Constitution stated that:
the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.
This commitment to the right to health has been echoed in subsequent international human rights treaties including the Economic Covenant, the Women's Convention, the Children's Convention, as well as various regional human rights instruments. In fact, according to the WHO,
“every country in the world is now party to at least one human rights treaty that addresses health-related rights, including the right to health and a number of rights related to conditions necessary for health.”
The Economic Covenant furthered earlier articulations of the right to health by including a positive duty for States parties to recognize it. Article 12 provides that:
States parties to the [Economic] Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
Given the association between polygyny and various health harms to women, as well as emotional and behavioural dysfunction in children, “recognition” of the right to the highest attainable standard of health requires that States parties prohibit discriminatory practices that are harmful to the health of women and children. While the provision may not impose the same level of positive State obligation that a duty to “ensure” the highest attainable standard of health would, it nevertheless requires States to tangibly “recognize” the right. In order to be meaningful, recognition in this sense requires States parties to prohibit practices such as polygyny that violate the right to the highest attainable standard of health.
To this end, although the CESCR has been sensitive to the resource constraints many States parties face in providing adequate health care, it has been clear that:
States parties have immediate obligations in relation to the right to health, such as the guarantee that the right will be exercised without discrimination of any kind (art. 2.2) and the obligation to take steps (art. 2.1) towards the full realization of article 12. Such steps must be deliberate, concrete and targeted towards the full realization of the right to health.
Accordingly, States parties have a duty to take “concrete and targeted” steps to abolish practices that prevent women from enjoying the right to health. The CESCR has noted that this requirement to take proactive steps toward the full realization of Article 12 includes the shielding of
“women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights.”
Furthering this general right to the highest attainable standard of health, Article 12 of the Women's Convention strives to ensure that women receive adequate and non-discriminatory access to health-care. Article 12 calls on States parties to:
take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
This Article has been interpreted by CEDAW in its General Recommendation no. 24 on Women and Health as implying a State obligation to
“respect, protect and fulfill women's rights to health care.” The obligation to protect women's right to health is particularly relevant in the context of polygyny. As CEDAW has noted:
The obligation to protect rights relating to women's health requires States parties, their agents and officials to take action to prevent and impose sanctions for violations of rights by private persons and organizations.
Where polygyny threatens the mental, physical, and sexual and reproductive health of women, States parties are therefore obliged to prevent and subsequently eliminate the practice. Moreover, because polygyny can be considered a form of gender-based violence, it is essential that States parties ensure
“gender-sensitive training to enable health care workers to detect and manage the health consequences” of polygynous violence.
Within the last decade, women's health and the factors that shape it have attracted even greater international attention. As the 1995 Beijing Platform for Action, Fourth World Conference on Women noted:
Women have the right to the enjoyment of the highest attainable standard of physical and mental health. The enjoyment of this right is vital to their life and well-being and their ability to participate in all areas of public and private life. Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. Women's health involves their emotional, social and physical well-being and is determined by the social, political and economic context of their lives, as well as by biology.
This robust interpretation of women's health is particularly relevant for the elimination of harmful familial practices. Practices such as polygyny can, as the above Harms section has illustrated, impact women's health in a variety of ways—physically, mentally, emotionally, psychologically, and sexually. A holistic approach to women's health illustrates that an interference with any facet of a woman's health negatively impacts her ability to enjoy a requisite level of private and public well-being.
Thus, while the right to health is often examined within the context of access to effective and adequate medical treatment, it has important implications for the elimination of practices that are harmful to women's health. Indeed, there is a growing international recognition of the deleterious health impact of certain traditional practices, particularly with regard to sexual and reproductive health. The 1995 Beijing Platform for Action noted that:
Reproductive health eludes many of the world's people because of such factors as: inadequate levels of knowledge about human sexuality and inappropriate or poor-quality reproductive health information and services; the prevalence of high-risk sexual behaviour; discriminatory social practices; negative attitudes towards women and girls; and the limited power many women and girls have over their sexual and reproductive lives.
In this sense, inadequate education, misinformation, the limited power many women and girls have over their sexual lives, and high-risk sexual practices such as polygyny combine to undermine the health of women and girls.
While the importance of health has recently been recognized in some national constitutions including the 1996 South African Constitution, which protects economic, social, and cultural rights, including the right to health, older constitutions typically focus on the more classical civil and political rights. However, in light of an increasing awareness of the interdependence of rights, courts in states whose constitutions reflect these more traditional rights are beginning to incorporate notions of health into the meaning of those civil and political rights. In some domestic systems, this has meant that State neglect of an individual's health needs has been interpreted as a denial of the right to security of the person.
Within the Canadian context, one can see similar reasoning in the 1988 Morgentalerdecision wherein the Supreme Court held that criminalizing abortion and therefore requiring a woman to carry a fetus to term violated her right to security of the person. Thus, even where an independent right to health is not guaranteed domestically, an argument can still be made that in increasing women's exposure to sexually transmitted diseases through concurrent sexual networks, polygyny violates women's right to security of the person. Where polygyny is practised to maximize reproduction and is condoned by the State, women's inability to space births in a healthy manner may also be interpreted as a violation of their security of the person rights.
In examining inequalities within polygynous families, some commentators have noted that polygyny as practised in some contexts may closely resemble slavery where women are unable to refuse assigned service roles. Linkages between the notion of slavery and marriage, as Weisbrod notes, are commonplace in literature and folksong histories. This analogy to slavery is particularly applicable where women and girls within polygynous families are stereotyped into service roles and are essentialized as reproductive beings.
Within the Bountiful, B.C. polygynous context, for example, provincial education inspectors have acknowledged that girls are permitted only to do
“preparing, catering and cleaning up after a meal” and
“sewing and experiencing other types of handiwork or needlework” in the community's private schools. In requiring girls and women to adopt service roles from a young age, polygyny as practised in this context reifies women's central role as one of servitude.
Moreover, because reproduction is seen as essential to salvation and / or general well-being in many polygynous cultures, women may in a sense become sexual slaves who are unable to control their own reproduction. In the Fundamentalist Mormon context, for example, polygynous unions are governed by the “Law of Chastity” within marriage, which states that sexual intercourse is strictly for reproductive purposes, and thus limited to the time of girls' or women's ovulation. Incumbent in such teachings is the denial of women's access to reproductive choices that would allow them to prevent or space out pregnancies. Within some Islamic and Arab contexts, while the number of children produced within marriage may not be central, the number of boy-children often is. Women, in turn, are stereotyped into reproductive roles that can be harmful to their mental and physical health.
In addition, although child marriages are neither limited to nor indicative of all polygynous contexts, the existence of child marriage in some polygynous contexts nevertheless undermines the girl-child's right to be free from the slavery of early or forced marriage.
As the economic harms of polygyny indicate, the practice tends to undermine individuals' ability to attain an adequate standard of living. Where polygyny precludes families from attaining an adequate standard of living and places unequal economic and child-bearing strains on multiple wives, it undermines their and their children's ability to attain proper medical care, food, clothing, and even housing.
The right to an adequate standard of living was first recognized in Article 25 of the Universal Declaration, which states that:
everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services… .
This right was bolstered by the Economic Covenant, which places a positive recognition duty on States parties. Article 11 requires:
States parties to the present Covenant [to] recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
Although this “recognition” duty does not impose the same sense of obligation on States parties that the term “ensure” would, it nevertheless requires States parties to combat harmful practices such as polygyny that undermine individuals' right to attain an adequate standard of living.
In addition, Article 13 of the Women's Convention further requires States parties to:
take all appropriate measures to eliminate discrimination against women in… economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to family benefits…
Arguably, this equal right to “family benefits” includes any benefits a family receives through employment, social security, or health care as a matter of public policy. Within polygynous families, wives would not receive the same benefits as their husband if such benefits were intended to be proportionate to two spouses. Thus, if a husband availed himself of half these benefits, with the rest to be shared between his wives, each wife would receive only a fraction in comparison to her husband.
Where harmful family practices like polygyny are recognized or even encouraged through domestic legislation and non-enforcement of criminal provisions, women's right to be free from economic and social discrimination, particularly with respect to family benefits, is violated.
Where polygyny is practised within a social context that denies women and children access to information and education about the harms of the practice, alternate marital and reproductive choices, and other more general information, their ability to make informed choices and participate as citizens is undermined. The right to receive and impart information is fundamental to people's ability to exercise other rights. In recognizing this, Article 19(2) of the Political Covenant states:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The significance of the right to receive information for women's reproductive well-being is specifically addressed in Article 10(h) of the Women's Convention, which requires that women be able to access
“specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.”
While this right to receive information was traditionally interpreted as a negative right against government interference, some commentators now argue that it imposes a positive responsibility on States to provide necessary information for reproductive health choices. Thus, within the Bountiful, B.C. context, there may be a positive obligation on the Canadian government to ensure that at least basic marital and reproductive information is provided to girls and women. Given that adolescents in general face barriers in accessing accurate reproductive information, this is particularly heightened within a closed community where religious authorities control the educational curriculum.
A former teacher in a Bountiful, B.C. school has noted that students lacked basic information about life outside their community. While some of this ignorance may be explained by geographical isolation, it is also clearly the result of misinformation. There are reports, for example, that students were taught in science class that humans had never been to the moon. It is also reported that a biology final exam in one of Bountiful's classes required students to state “their personal viewpoints” on
“celestial/placement marriage, obedience, [and] raising children…” Where young girls are deprived not only of the most basic health information, but are also required to adhere to religious conceptions of reproduction throughout their education, their ability to
delay pregnancy until they reach an age of physical and mental maturity, healthily space pregnancies, and make decisions about the health consequences of sexual and reproductive activity is virtually eliminated. In this sense, the physiological harms to girls and women are reinforced by a knowledge gap that operates to nullify any notion of fully informed consent.
Were the Canadian State to implement compulsory sex education against the wishes of religious leaders or parents to fill this information gap, international human rights law would tend to favour the State. Human rights tribunals have increasingly erred on the side of education when confronted with religious or moral freedom arguments. The European Court of Human Rights, in a case involving mandatory sex education in schools, required sensitivity to parents' views, but upheld the educational course, stating that:
the curriculum is conveyed in an objective, critical and pluralistic manner [and does not] pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions.
Although Bountiful's schools are private, human rights standards may thus mandate that the government provide at least basic sex information to girls and women within the education system.
In addition to the right to information, the right to education is well articulated in international human rights law. Article 28 of the Universal Declaration states that:
Everyone has the right to education… Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.
This right was further expanded by the Economic Covenant, which states in Article 13 that:
[States parties] agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms.
In its General Comment 13 on the right to education, the CESCR noted the particular role that education can play in empowering women and children. It explained that:
education has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth.
Here, the CESCR recognized the role education can play in combating practices that are harmful to women and children. However, in order for education to challenge harmful stereotypes and practices, it is imperative that it be equally accessible to boy and girl children and not be used as a social instrument to reinforce traditional gender roles. To this end, Article 10(a) of the Women's Convention requires States parties to take all appropriate measures to ensure
“the same conditions for career and vocational guidance” for men and women. In addition, Article 10(c) calls for
“the elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education.”
Within the Canadian context, however, women and girl-children in the Bountiful, B.C. community are subject to unequal and discriminatory standards in education. Fundamentalist Mormon Prophet Warren Jeffs' sermons, which often centre on the celestial importance of polygyny and assignment marriage, are part of Bountiful's educational curriculum, for example. The British Columbia government's continued funding of a private school system that Ministry of Education inspectors have admitted teaches girls onlyto do
“preparing, catering and cleaning up after a meal” and
“sewing and experiencing other types of handiwork or needlework” deprives women and girls of their right to equitable education in violation of Articles 10 and 14(2‑d) of the Women's Convention, Articles 13 and 14 of the Economic Covenant, and
Article 26 of the Universal Declaration.
While religious freedom arguments are often offered in support of polygyny (either within Fundamentalist Mormon or Islamic contexts), it is important to note that women's rights to religious freedom are also undermined by patriarchal religious interpretations that promote unequal and harmful practices. Religious interpretations that permit polygyny are extremely contentious amongst the adherents of both Islam and Mormonism (whose mainstream branch re‑interpreted its faith in the 1890s to prohibit the practice). Within the Islamic context, one commentator has referred to polygyny as a
“manifestation of how patriarchal interpretation can prevail and dominate.” In making this argument, Amira Mashhour points to the fact that while unrestricted polygyny was common in pre-Islamic societies, the restriction of the number of wives one
could take was a significant step toward limiting the practice and achieving gender equality.
Moreover, the verse in the Qu'ran that permits polygyny is itself open to different interpretations:
And if ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three, or four; But if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess. That will be more suitable, to prevent you from doing injustice.
As Mashhour and others have argued, the verse can be interpreted not as enjoining polygyny or making it an absolute right, but as permitting it under limited circumstances and provided that a husband can be just to each of his wives. It is for this reason that some interpret the Qu'ran as granting an exception for polygyny, but holding monogamy as the ideal. This was precisely what motivated Tunisian nationalist leader Habib Bourguiba to prohibit polygyny. Reasoning that the Qu'ranic requirement of equal treatment of wives was impossible, Bourguiba argued that polygyny was dependent on particular conditions at the time of the revelation of the Qu'ran, and thus like slavery, should be prohibited.
As these differing interpretations reveal, there are often alternative belief systems within the same religious faith. Where patriarchal interpretations dominate, however, women may be denied the right to define their own religious beliefs or to reject such religious beliefs outright. In examining the right to religious freedom from this standpoint, it is important to note that although it was subject to great debate at the time, Article 18 of the Universal Declaration was eventually drafted to include the right to change one's beliefs or religion. While several Islamic countries initially dissented, arguing that the right to change religion conflicted with their interpretation of the Qu'ran, all Muslim member states, with the exception of Saudi Arabia, ultimately voted for the Universal Declaration with full notice of the scope of the right. Thus, the final wording of Article 18 indicates the essential role that choice and consent in religious belief should play:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Within an Article 18 analysis, just as different religious beliefs are considered to be of equal value, so too is the right to nonreligious beliefs. In this sense, the Universal Declaration established a freedom from religion that one sees reflected in the identical wording of Article 18(1) of the Political Covenant. In its General Comment on the article, the Human Rights Committee has expressly noted that
“Article 18 protects theistic, non‑theistic and atheistic beliefs, as well as the right not to profess any religion or belief.”
This freedom from religion has been recognized in European Court of Human Rights jurisprudence. In Kokkinakis v. Greece, the plaintiff petitioned the European Court of Human Rights to overturn criminal legislation that restricted proselytism. In outlining the general principles underlying the Article 9 guarantee of religious freedom in the European Convention, the Court noted that Article 9 is:
in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.
Here, the Court was clear that a robust sense of religious freedom extends to both believers and non-believers. In this sense, freedom of religion within a democratic society cannot be separated from a concomitant freedom from religion. Where patriarchal interpretations are presented as “the” holdings of a particular faith and given governmental protection at the sacrifice of other equally valid interpretations, they may be unduly foisted upon those who, if given the opportunity to make a free and informed decision, would choose not to be governed by them.
While the Court in Kokkinakis ultimately held that the impugned legislation unjustifiably violated Article 9 because of its overly broad scope, it preliminarily accepted the Greek government's argument that such legislation would be justified if limited to “improper proselytism.” In defending the legislation, the Greek government had argued that as a democratic State, it had to
“ensure the peaceful enjoyment of all those living on its territory.” To this end, the government insisted that
“if it was not vigilant to protect a person's religious beliefs and dignity from attempts to influence them by immoral and deceitful means,” the
“protection of the rights and freedoms of others” exception outlined in Article 9(2) of the European Convention
“would in practice be rendered wholly
nugatory.” Although the legislation itself was considered unduly broad, the Court found that the government's stated purpose was
“a legitimate aim under Article 9(2) for the protection of the rights and freedoms of others.”
The importance of this freedom from religion has been articulated by numerous groups in the recent debate surrounding faith-based arbitration in Ontario. Some commentators have noted that most of the general public
“feel that religious law has its place—in the church, synagogue, mosque or temple, but not in the government's courts.” This echoes the argument that non-theocratic states such as Canada should not be positively enabling particular religious teachings or laws.
Most significantly, the Canadian Council of Muslim Women (CCMW) has noted that while some well-meaning supporters of faith-based arbitration mean to be sensitive to Canadian Muslims in ensuring that their interests are met,
“the introduction of a Muslim family law Sharia council may not solve the problem, and in fact may exacerbate the issues for families.” While clearly attuned to the religious concerns of Canadian Muslims, the CCMW believes the same laws should apply to Muslim women as to all other Canadian women. Rather than seeing secular law as conflicting with Islam, the CCMW asserts
“that the values of compassion, social justice and human rights, including equality, are the common basis of Islam and Canadian law.” Thus within the Canadian domestic context, there is a well-articulated desire by the CCMW to be free from
the imposition of religious family laws (some interpretations of which would permit polygyny) and to be governed rather by the same equality-driven family laws that govern all Canadians.
In addition to the right to be free from religion, the Political Covenant also emphasizes the role of free choice in freedom of thought, conscience, and religion. Article 18(2) states:
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
This prohibition of coercion is significant for domestic contexts that permit or refuse to prosecute polygyny. Where husbands are legally or de facto permitted to take on subsequent wives, this undermines the freedom of belief of women who view polygyny as contrary to their faith interpretation.
Moreover, even where women have been outspoken supporters of polygyny as part of their religious belief system, there may still be questions about coercion as articulated in Article 18(2). As the HRC has noted, Article 18(2) extends beyond traditional means of coercion such as the use or threat of force or penal sanctions in compelling conversion. It also includes:
policies or practices having the same intention or effect, such as, for example, those restricting access to education, medical care, employment or the rights guaranteed by article 25 and other provisions of the Covenant…
Within the Bountiful context, the indoctrination of religious beliefs through the community's private school system combined with a lack of basic information raises questions of coercion in religious beliefs. This underscores the vital need for the British Columbia Provincial government to enforce objective informational and educative standards in accordance with their own guidelines and Canada's international obligations.
The right to enjoy one's culture is enshrined in several international human rights treaties including the Political Covenant and the Economic Covenant. Article 27 of the Political Covenant protects minority cultural rights by requiring that linguistic, ethnic, or religious minorities
“not be denied the right, in community with the other members of their group, to enjoy their own culture…” This minority right to culture was upheld in Lovelace v. Canada where the HRC found that Ms. Lovelace's right to enjoy her Aboriginal culture had been unjustifiably interfered with.  The Committee held that a provision of the Canadian Indian Act that deprived Aboriginal women and their children of Indian status if they married outside their tribe violated their right to culture. The Committee failed, however, to draw direct attention to the gender-discriminatory nature of the law, which applied
only to Aboriginal women, choosing instead to focus their holding only on the violation of the right to enjoy one's culture.
While the Article 27 violation in Lovelace involved a positive, legislative interference with the right to culture, the HRC has subsequently interpreted Article 27 as extending beyond a negative, non-interference right to include positive obligations on States parties. In its General Comment no. 23 on the rights of minorities, the HRC noted that States parties have an obligation:
to ensure the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.
In this respect, where practices such as polygyny undermine women's opportunity to freely associate with others, access and disseminate cultural information, and to define the practices that actually constitute “culture,” States parties have an obligation to take protective measures against such acts.
The Economic Covenant extends beyond the Political Covenant in providing for a free-standing individual right to culture, regardless of the culture's minority or majority status. Article 15 states that:
States parties to the present [Economic] Covenant recognize the right of everyone: (a) To take part in cultural life… .
As is the case with several of the rights examined above, the ability to take part in cultural life is dependent on the respect of other human rights. The CESCR noted in its eleventh General Comment on plans of action for primary education, for example, that education is vital to the effective exercise of one's economic, cultural, and civil and political rights. In this sense, where polygyny is reinforced through biased or unequal educational opportunities, women and girl-children are denied not only of their right to education, but also their ability to effectively engage in cultural life.
Polygyny undermines the ability of women and girl children to exercise the cultural rights articulated in the Economic Covenant. In the CESCR's 2002 Concluding Observations on Benin, the Committee forcefully stated that it:
deplore[d] the State party's lack of progress in countering practices—in particular, polygamy and the early and forced marriages of girls—which prevent women and girls from exercising the rights which the Covenant accords them.
In assessing women's ability to enjoy their own culture within polygynous families or communities, it is helpful to apply Courtenay Howland's analysis of how 'private' or familial harms undermine women's ability to exercise their core civil and political rights to the cultural context. Just as the capacity to define one's religion can be undermined through patriarchal religious interpretations that may condone or promote practices that are harmful to women and children, women's ability to enjoy and define their culture can be similarly affected.
In a country such as Canada that has ethnic, religious and linguistic minority groups, the legal encouragement of a practice such as polygyny that deprives women and girl children of their most basic rights undermines their ability to fully enjoy their culture. Where financial strain and disproportionate child-care responsibilities are placed on women within polygynous unions, for example, their ability to freely associate with others as guaranteed by Article 22 of the Political Covenant is undermined. Without the financial and temporal freedom to freely associate with others, the dissemination and enjoyment of culture is severely compromised.
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