Polygyny and Canada's Obligations under International Human Rights Law
- international human rights law has evolved from a framework of sex non-discrimination to a more robust sense of transformative equality, a growing consensus has emerged that polygyny violates women's right to be free from all forms of discrimination. Several treaty bodies, including CEDAW, the HRC, the CESCR, and the CRC, have stated in their concluding observations that polygyny violates the rights articulated within their respective treaties. In its General Comment no. 28 on the Equality of Rights between Men and Women, the HRC noted that because
“polygamy violates the dignity of women”and is
“an inadmissible discrimination against women… it should be definitely abolished wherever it continues to exist.” Likewise, CEDAW has argued that because polygyny violates gender equality and often has deleterious financial and emotional consequences for women and their dependents,
“such marriages ought to be discouraged and prohibited.”
- These statements by treaty bodies reflect the patriarchal discrimination and harms to women and children associated with polygyny. While such harms often differ according to the religious, customary, cultural and socio-economic contexts in which polygyny is practised, the loss of marital exclusivity is common to all such unions. Some of the other deleterious impacts include harms arising from competitive co-wife relationships, mental health harms, sexual and reproductive health harms, economic harms, harms to the enjoyment of one's citizenship, and harms to children of polygynous unions.
- In light of these harms to women and children, polygyny violates their rights as articulated in international human rights law. Specifically, polygyny undermines the rights of women and children in relation to family life, security, and citizenship. While the discrete human rights contained within these realms are by definition universal, it is nevertheless 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.
- With regard to these rights violations, international law does not provide for religious, cultural, or family life justifications. Although religious, cultural and family life protections exist in various international treaties including the Political and Economic Covenants, they do not extend to practices that violate the rights and freedoms of others. Moreover, the requirement of the Women's Convention that States parties
“ensure the full development and advancement of women”forecloses religious, cultural, or family life defences for practices that discriminate against and harm women.
- This conclusion that polygyny constitutes an unjustifiable violation of the rights of women and children can increasingly be seen as the opinio juris driving state practice to prohibit or at least restrict the practice. An outright prohibition of polygyny is the norm in the majority of states, including all of the Americas, Europe, countries of the former Soviet Union, Nepal, Vietnam, China, Turkey, Tunisia, Uzbekistan, Fiji and Côte d'Ivoire, amongst others. Regional trends in Africa, the Middle East, and Asia are increasingly toward restricting and eventually prohibiting the practice. The presence of this type of prohibitive or restrictive state practice, combined with the opinio juris that international law requires this, signals the emergence of an international customary norm that polygyny violates international law.
- Despite this growing agreement that polygyny violates international human rights law, international consensus fractures somewhat at the point of the actual elimination of polygyny. Because of transitional concerns in immigration and domestic contexts regarding ongoing legal protection for pre-existing polygynous families, some states and regional bodies have been reticent to call for its absolute prohibition. This reticence should not be interpreted, however, as a dilution of the consensus that polygyny violates international human rights law. Accordingly, in addressing polygyny within various national contexts, it is imperative that legal, political, and social systems are sensitive to the religious and cultural contexts with which women and families identify, while still protecting individual human rights.
- In order to foster compliance with equality rights in marriage and the family, it is essential that the Canadian State encourage greater dialogue between polygynous communities and families and the broader monogamous culture. Moreover, given that Canada has ratified the Women's Convention, the Economic Covenant, the Political Covenant, and the Convention on the Rights of the Child, these respective treaties raise a presumption of compliance within domestic jurisprudence as well as informing the values and principles in a Charter analysis. Finally, as a party to the Women's Convention and a signatory to its Optional Protocol, Canada is subject to its reporting mechanism as well as the communications and inquiry procedures. These monitoring provisions seek to ensure that Canada informs CEDAW of challenges it faces with regard to its treaty obligations and the various legal and policy means by which it is addressing these challenges. For these reasons, it is essential that Canada both report on and address the domestic presence of polygynous families in striving to attain the de facto elimination of polygyny.
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