Research Report
Polygyny and Canada's Obligations under International Human Rights Law
September 2006
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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
Presented to:
Family, Children and Youth Section
Department of Justice Canada
The views expressed in this report are those of the authors and do not necessarily represent the views of the Department of Justice Canada.
Aussi disponible en français
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This report may be reproduced, in part or in whole, and by any means, without charge or further permission from the Department of Justice Canada, provided that due diligence is exercised in ensuring the accuracy of the materials reproduced; that the Department of Justice Canada is identified as the source department; and that the reproduction is not represented as an official version of the original report.
© Her Majesty the Queen in Right of Canada, represented by the Minister of Justice and Attorney General of Canada, 2006
Table of Contents
I. INTRODUCTION
II. HARMS OF
POLYGYNY
A. Polygyny as a Form of Patriarchy
B. The Harm of Non-Exclusivity
C. Harms Arising from Competitive Co-Wife Relationships
D. Mental Health Harms Associated with Polygyny
E. Sexual and Reproductive Health Harms
F. Economic Harms
G. Harms to the Enjoyment of one's Citizenship
H. Harms to Children of Polygynous Unions
III. POLYGYNY
AS A VIOLATION OF INTERNATIONAL
HUMAN RIGHTS LAW
A. International Treaty and Convention Law
B. Family Life
1. The
Right to Equality within Marriage and the Family
2. The
Right to Private and Family Life
3. The Right
to be Free from All Forms of Stereotyping
4. The
Right to Exercise Free and Full Consent in Choosing a Spouse and Entering into
Marriage
C. Security
1. The
Right to be Free from All Forms of Violence
2. Women's
Rights to be Free from Inhuman and Degrading Treatment
3. The
Right to the Highest Attainable Standard of Health
4. Women's
Rights to be Free from Slavery
5. The
Right to an Adequate Standard of Living
D. Citizenship
1. The
Right to Receive and Impart Information
2. The
Right to Education
3. Women's
Rights to Religious Freedom
4. Women's
Rights to Enjoy Their Culture
IV. ARGUABLE
LIMITS ON WOMEN'S RIGHTS
A. The Right to Freedom of Religion and Right to Non‑discrimination
on Grounds of Religion/Ethnicity
B. The Right to Enjoy One's Culture
C. The Right to Respect for One's Private and Family Life
V. STATE PRACTICE AND OPINIO JURIS
A. Outright Prohibition
1. Australia
2. Belgium,
France, Luxembourg, and Switzerland
3. Canada
4. United
Kingdom
5. United
States
6. Tunisia
7. Turkey
B. Restrictions on Polygyny
1. Notice
Requirements
2. Permission
Requirements
3. Polygyny
in Parallel Judicial Systems
VI. MEANS
CHOSEN TO PROHIBIT POLYGYNY
A. Challenges of Transition
1. Transitional
Challenges for States Moving to Prohibit Polygyny
2. Transitional
Challenges for Individuals Leaving Polygynous Unions
B. Balancing a Respect for Cultural and Religious Contexts
with the Protection of Individual Human Rights
VII. FOSTERING
COMPLIANCE WITH EQUALITY RIGHTS IN MARRIAGE AND THE FAMILY
A. Improved Dialogue
B. Canadian Obligations under International Human Rights
Law
1. Presumption
of Compliance
2. Values
and Principles of a Free and Democratic Society
C. Monitoring of Canada's Obligations under the Women's
Convention
1. Reporting
Mechanism under the Women's Convention
2. Use of
the Communications Procedure under the Optional Protocol of the Women's
Convention
3. Use of
the Inquiry Procedure under the Optional Protocol of the Women's Convention
D. Monitoring of Canada's Obligations under the Political
Covenant and the Children's Convention
1. The
Human Rights Committee (HRC)
2. The
Committee on the Rights of the Child (CRC)
VIII. CONCLUSION
REFERENCES
ENDNOTES
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