Research Report

Polygyny and Canada's Obligations under International Human Rights Law

September 2006

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REFERENCES

International Materials

Declarations[531]

Universal Declaration of Human Rights (1948)

Declaration on the Elimination of Discrimination against Women (1967)

Declaration on the Elimination of All Forms of Religious Intolerance and of Discrimination Based on Religion or Belief (1981)

Declaration on the Elimination of Violence against Women (1993)

Beijing Declaration and Platform for Action (1995)[532]

Declaration of Commitment on HIV/AIDS (2001)

Treaties

Regional

European Convention for the Protection of Human Rights and Fundamental Freedoms (1953)

American Convention on Human Rights (1969)—Canada not a party (has neither signed nor ratified)

African [Banjul] Charter on Human and Peoples' Rights (1981, 1986)

Arab Charter on Human Rights (1994)

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (2003)

International

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962, 1964)—Canada not a party

International Convention on the Elimination of All Forms of Racial Discrimination (1965, 1969)—Canada: signature 24 August, 1966; ratification 14 Oct., 1970

International Covenant on Civil and Political Rights (1966, 1976)—Canada accession 19 May, 1976

International Covenant on Economic, Social and Cultural Rights (1966, 1976)—Canada accession 19 May, 1976

Vienna Convention on the Law of Treaties (1969, 1980)—Canada accession 14 Oct. 1970

Convention on the Elimination of All Forms of Discrimination against Women (1979, 1981)—Canada: signature 17 July, 1980; ratification 10 December, 1981

Convention on the Rights of the Child (1989, 1990)—Canada: signature 28 May, 1990; ratification 13 December, 1991

Jurisprudence

Canada

Ali v. Canada (Minister of Citizenship and Immigration) (1998), 154 F.T.R. 285 (Canadian immigration officers can refuse entry to polygamous families)

Baker v. Canada (Minster of Citizenship and Immigration) [1999] 2 S.C.R. 817 (even where an international treaty has not been implemented in Canada, the values of international human rights law may nevertheless help inform the contextual approach to statutory interpretation)

R v. Ewanchuk [1999] 1 S.C.R. 3 (concurring judgment notes the international human rights context in which Canada's reforms to its sexual assault laws arose; it examines the Women's Convention not as binding in itself, but as informing a Charter analysis)

Kaddoura v. Hammoud [1998] O.J. No. 5054 [Q.L] (contract made under s. 52(1) of Ontario' Family Law Act for $30,000 payable to the wife was not enforceable due to the religious content of the contract)

R v. Keegstra [1990] 3 S.C.R. 697 (contextual factors and values arising from Canada's international agreements should be considered under s.1; international human rights law is of particular significance in assessing the importance of Parliament's objective under s. 1)

Lim v. Lim, [1948] 2 D.L.R. 353 (B.C.S.C.) (legal recognition of a polygamous union was not granted)

R. v. Morgentaler [1988] 1 S.C.R. 30 (criminalizing abortion and therefore requiring a woman to carry a fetus to term violates her right to security of the person)

N.M.M. v. N.S.M [2004] B.C.J. No. 642 [Q.L.] (Mahr was enforceable as a valid part of a marriage agreement per s. 48 of the Family Relations Act)

Slaight Communications Inc. v. Davidson [1989] 1 S.C.R. 1038 (Canada's international human rights obligations should inform both the interpretation of the content of Charter rights as well as what may constitute a pressing and substantial objective to restrict the right under s.1)

Suresh v. Canada (Minister of Citizenship and Immigration)[2002] 1 S.C.R. 3 (inquiry into the principles of fundamental justice is informed by international law, including jus cogens)

Yew v. British Columbia, [1924] 1 D.L.R. 1166 (B.C.S.C.) (limited recognition was granted to a widow of an actual polygamous marriage for inheritance purposes).

International and Regional Human Rights Tribunals

European Commission on Human Rights

Bibi v. The United Kingdom, Appl. 19628/92 9Dec., 29 June 1992 (upheld the UK Immigration Act 1988 providing that a woman would not be entitled to immigrate to the UK, on the basis of a polygamous marriage, if another woman had already been admitted to the UK as the wife of the same husband; Commission found that there was an interference with the applicant's right to respect for her family life, but held that it was justified for the protection of morals and the rights and freedoms of others)

European Court of Human Rights

Abdulaziz, Cabales and Balkandal v. the United Kingdom, 15/1983/71/107-109 (Eur. Ct. H. R.) (reprinted in Emerton, Robyn, Kristine Adams, Andrew Byrnes, & Jane Connors, International Women's Rights Cases (London: Cavendish, 2005) at 618) (noting that sex discrimination should receive heightened attention),

Kjeldsen v. Denmark (1976) 1 E.H.R.R. 711, (Eur. Ct. H. R.) (for mandatory sex education in schools, sensitivity to parents' views is required, but education course was upheld)

Kokkinakis v. Greece (1993), 260A Eur. Ct. H.R. (Ser. A) 18. (noted the importance of respect for freedom of religion and freedom from religion in considering criminal legislation that restricted proselytism)

Marckx v. Belgium (1979), 2 E. H. R. R. 330 (Eur. Ct. H.R.) (reprinted in Emerton, Robyn, Kristine Adams, Andrew Byrnes, & Jane Connors, International Women's Rights Cases (London: Cavendish, 2005) at 18) (principle of dynamic treaty interpretation applied to enable an unmarried mother to legitimate her child by the same means a married woman could stating that “the [European] Convention must be interpreted in light of present day conditions.”)

Petrovic v. Austria (1998), 33 E.H.R.R. 307 (Eur. Ct. H.R.) (dissent drew particular attention to the importance of gender equality in parental leave legislation)

Pichon and Sajous v. France (2001), Eur. Ct. H.R. (Third Section) Appl. 49853/99 (the rights of conscientious objection can be limited for the protection of health)

Leyla Sahin v. Turkey (2005), Eur. Ct. H.R., Appl. 44774/98 (limitations on the public use of religious headscarves permitted for the purpose of protecting gender equality and maintaining secularism in official settings / institutions of higher learning)

Human Rights Committee

Singh Bhinder v. Canada, Communication Nos. 208/1986, U.N. Doc. CCPR/C/37/D/208/1986 (1989) (law requiring all persons to wear safety gear (hard hats) for public health and safety interests is a justified limitation on freedom of religion)

Lovelace v. Canada (1981) HRC 36 U.N. GOAR Supp. (no. 40) Annex XVIII; U.N. Doc. A/36/40 (1981) (reprinted in Emerton, Robyn, Kristine Adams, Andrew Byrnes, & Jane Connors, International Women's Rights Cases (London: Cavendish, 2005) at 261) (minority right to culture protected by Article 27 of the Political Covenant was upheld; claimant's right to enjoy her Aboriginal culture had been unjustifiably interfered with by a gender-discriminatory provision in the Indian Act)

Inter-American Court of Human Rights

Advisory Opinion on the Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica (1984) 5 Hum. Rts. L.J. 161 (Inter-Amer. Ct.) (reprinted in Emerton, Robyn, Kristine Adams, Andrew Byrnes, & Jane Connors, International Women's Rights Cases (London: Cavendish, 2005) at 533) (proposed naturalization amendments constituted discrimination contrary to the obligation to ensure equality of spouses within the family and equal protection of the law)

Ana, Beatriz and Cecilia Gonzalez Perez v. Mexico (2001), Report No. 53/01, Case 11.565, (Inter-Am. Ct. H.R.). (applied the right to be free from inhuman and degrading treatment to hold the Mexican State accountable for the rape of women by government officers)

Comparative Jurisprudence

India

B. Chandra Manil Kyamma v. B. Sudershan (1989) A.P. 1. HLR 183 (Court rejected the argument that religious conversion to Islam could justify / validate a polygynous union against the wishes of the first wife)

Itwari v. Asghari, A.I.R. 1960 AI 684 (the High Court acknowledged that Muslim law gave rights of divorce to the first wife against a husband who takes a second wife, and decided that a man's marriage to a second wife “is not a single but a continuing wrong to the first wife.”)

Srinivasa v. Saraswati Ammal A.I.R. 1952 Mad. 193 (the Bombay High Court in India upheld local statutes prohibiting Hindu polygyny)

State of Bombay v. Narasu Appa Mali A.I.R. 1952 Bom. 84 (the Bombay High Court in India upheld local statutes prohibiting Hindu polygyny)

Vishaka v. State of Rajasthan A.I.R. 1997 SC 3011, at 3015 (1998) 3 BHRC 261 (Supreme Court of India) (citing CEDAW General Recommendation 19 in relation to sexual harassment).

Mauritius

Bhewa v. Government of Mauritius, [1991] LRC (Const) (religious freedom, as protected by the Mauritius Constitution and the International Covenant on Civil and Political Rights, does not allow the Muslim community to apply its own religious law to deny women equal rights within marriage)

Nigeria

Mojekwu v. Mojekwu (1991) NWLR Pt. 194 at 739 (a deceased's brother sought to inherit the deceased's estate to the exclusion of the deceased's daughter; Court applied the “repugnancy to natural approach” in finding against the customary practice)

South Africa

Bhe and Others v. The Magistrate, Khayelitsha and Others Case CCT 49/03; Shibi v Sithole and Others Case CCT 69/03; South African Human Rights Commission and Another v President of the Republic of South Africa and Another Case CCT 50/03 (2004) (South African Constitutional Court) (decision rejecting the application of customary law of primogeniture, but still sensitive to the importance of custom)

United States

Bronson v. Swensen, 2005 U.S. Dist. LEXIS 2374 (D. Utah 15 February, 2005)(decision upholding Utah's prohibition of polygamy against a challenge that the legislation was an unconstitutional violation of the applicants' rights to free exercise of their religious beliefs, right of association, or their right to privacy)

Reynolds v. United States, 98 US 145 (1879) (Court decided that a Mormon's right to religious freedom did not include the right to an exemption from the federal criminal law prohibiting polygyny)

Secondary Materials: Books and Monographs

Altman, Irwin & Joseph Ginat. Polygamous Families in Contemporary Society (Cambridge: University of Cambridge Press, 1996)

An-Na'im, Abdullahi, ed. Islamic Family Law in a Changing World: A Global Resource Book (London: Zed Books, 2002)

Bakht, Natasha. Arbitration, Religion and Family Law: Private Justice on the Backs of Women (National Association of Women and the Law: March, 2005)

Bennion, Janet. Women of Principle: Female Networking in Contemporary Mormon Polygyny (Oxford: Oxford University Press, 1998)

Betzig, Laura. La femme de mon mari: étude ethnologique du marie polygamique en Afrique et en France (New York: Aldine Pub., 1986)

Bretschneider, Peter. Polygyny: a Cross-Cultural Study (Uppsala: Uppsala University, 1995)

Center for Reproductive Law and Policy. Women of the World: Laws and Policies Affecting Their Reproductive Lives—Francophone Africa (New York: Center for Reproductive Law and Policy, 2000)

______. Women of the World: Laws and Policies Affecting Their Reproductive Lives—Anglophone Africa, 2001 Progress Report (New York: Center for Reproductive Law and Policy, 2001)

Center for Reproductive Rights and University of Toronto International Programme on Reproductive and Sexual Health Law. Bringing Rights to Bear: An Analysis of the Work of UN Treaty Monitoring Bodies on Reproductive and Sexual Rights (2002)

Cook, Rebecca, Bernard Dickens, & Mahmoud Fathalla. Reproductive Health and Human Rights (Oxford: Oxford University Press, 2003)

Economic and Social Commission for Asians and the Pacific. Human Rights and Legal Status of Women in the Asian and Pacific Region (Studies on Development of Women: United Nations, 1997)

Emerton, Robyn, Kristine Adams, Andrew Byrnes, & Jane Connors, International Women's Rights Cases (London: Cavendish, 2005)

Holtmaat, Rikki. Towards Different Law and Public Policy: The Significance of Article 5a CEDAW for the Elimination of Structural Gender Discrimination (Den Haag: Reed Business Information, 2004)

Joseph, Sarah, Jenny Schultz, & Melissa Castan. The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (Oxford, Oxford University Press, 2000)

Knop, Karen. Diversity and Self-Determination in International Law (Cambridge: Cambridge University Press, 2002)

Law Reform Commission of Canada. Bigamy, Working Paper No. 42 (Ottawa: Law Reform Commission of Canada, 1985)

Life in Bountiful—A report on the lifestyle of a polygamous community, (Prepared for the Committee on Polygamous Issues, funded by the B.C. Ministry of Women's Equality, 1993)

Nasir, Jamal J. The Status of Women Under Islamic Law and Under Modern Islamic Legislation, 2^nd ed. (London: Graham & Trotman, 1994)

______. The Islamic Law of Personal Status, 3^rd ed. (The Hague: Kluwer Law International, 2002)

Okin, Susan. Is Multiculturalism Bad for Women? (Princeton, N.J.: Princeton University Press, 1999)

Pearl, David & Werner Menski. Muslim Family Law, 3^rd ed. (London: Sweet & Maxwell, 1998)

Rehof, Lars Adam. Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (Dordrecht, the Netherlands: Martinus Nijhoff, 1993)

Steiner, Henry J. & Philip Alston. International Human Rights in Context: Law, Politics, Morals, 2^nd ed. (Oxford: Oxford University Press, 2000)

Women Living under Muslim Laws. Knowing Our Rights: Women, family, laws and customs in the Muslim World (London: Women Living under Muslim Laws, 2003)

Secondary Materials: Articles

Al-Krenawi, Alean. “Women from Polygamous and Monogamous Marriages in an Out-Patient Psychiatric Clinic” (2001) 38 Transcultural Psychiatry 187

Bala, Nicholas. “Controversy over Couples in Canada: The Evolution of Marriage and Other Adult Interdependent Relationships” (2003) 29 Queen's L.J. 41

Brandon, Elizabeth. “Does International Law Mean Anything in Canadian Courts?” (2001) 11 Journal of Environmental Law and Practice 399

Byrnes, Andrew. “The Convention on the Elimination of All Forms of Discrimination Against Women” in W. Benedek, E. Kisaakye and G. Oberleitner, eds., Human Rights of Women: International Instruments and African Experiences (London: Zed Books, 2002) 119-172

Canadian Council of Muslim Women (CCMW). “Position Statement on the Proposed Implementation of Sections of Muslim Law [Sharia] in Canada,” (Revised May 25, 2004), online: http://www.ccmw.com/Position%20Papers/Position_Sharia_Law.htm

Carroll, Lucy. “Talaq and Polygamy: Some Recent Cases from England and Pakistan” (1985) 5 Islamic & Comp. Law Q. 271

Chaleby, Kutaiba. “Traditional Arabian marriages and mental health in a group of outpatient Saudis” (1988) 77 Acta Psychiatrica Scandinavica 139

______. “Women of polygamous marriages in outpatient psychiatric services in Kuwait”(1987) 8 International Journal of Family Psychiatry 25

Cherian, Varghese I. “Academic Achievement of Children from Monogamous and Polygynous Families” (1989) 130 The Journal of Social Psychology 117

Coliver, S. “The Right to Information Necessary for Reproductive Health and Choice Under International Law” in S. Coliver (ed.), The Right to Know: Human Rights and Access to Reproductive Health Information (London and Philadelphia: Article 19 and University Press, 1995)

Cook, Rebecca. “Reservations to the Convention on the Elimination of All Forms of Discrimination against Women” (1990) 30 Va. J. of Int'l Law 643

______. “Obligations To Adopt Temporary Special Measures Under the Convention on the Elimination of All Forms of Discrimination against Women” in I. Boerefijn et al eds., Temporary Special Measures (Antwerpen:Intersentia, 2003)

Deller Ross, Susan. “Polygyny as a Violation of Women's right to Equality In Marriage: An Historical, Comparative and International Human Rights Overview” (2002) 24 Delhi Law Review 22

Dhar, P.M. “Polygamy Among Hindus: A Survey in Retrospect” (1985) 5 Islamic and Comparative Law Quarterly 147

Fredman, Sandra. “Beyond the Dichotomy of Formal and Substantive Equality: Towards a New Definition of Equal Rights” in Ineke Boerefijn et al., eds., Temporary Special Measures: accelerating de facto equality of women under article 4(1) UN Convention on the Elimination of All Forms of Discrimination against Women (New York: Transnational Publishers, 2003)

Gautier, Arlette. “Legal Regulation of Marital Relations: An Historical and Comparative Approach” (2005) 19 International Journal of Law, Policy and the Family 47

Gupta, Kiran. “Polygamy—Law Reform in Modern Muslim States: A Study in Comparative Law” (1992) 12 Islamic and Comparative Law Quarterly 114

Hoq, Laboni. “The Women's Convention and Its Optional Protocol: Empowering Women to Claim Their Internationally Protected Rights” (2001) 32 Columbia H.R. L. Rev. 677

Howland, Courtenay. “Safeguarding Women's Political Freedoms under the International Covenant on Civil and Political Rights in the Face of Religious Fundamentalism” in Courtenay Howland, ed., Religious Fundamentalism and the Human Rights of Women (New York: St. Martin's Press, 1999)

______. “The Challenge of Religious Fundamentalism to the Liberty and Equality Rights of Women: An Analysis under the United Nations Charter” (1997) 35 Colum. J. Transnat'l L. 273

Human Rights Watch, “Just Die Quietly: Domestic Violence and Women's Vulnerability to HIV in Uganda” (2003) 15, No. 15(A), 51

Ilumoka, Adetoun. “Legal Imperialism and Chauvinism: Lessons from Africa” (2005) 48 Publications of the Swiss Institute of Comparative Law1

Iversen, Joan. “Feminist Implications of Mormon Polygyny”(1984) 10 Feminist Studies 502

Jain, Kiran B. “Vice of Bigamy and Indian Penal Code: Ramifications of an Archaic Law” (1990) 32 Journal of the Indian Law Institute 386

Jegede, A.S. & O. Odumosu. “Gender and Health Analysis of Sexual Behaviour in South-Western Nigeria” (2003) 7 African Journal of Reproductive Health 63

Kaganas, Felicity & Christina Murray. “Law, Women and the Family: The Question of Polygyny in a New South Africa” (1991) Acta Jur 116

Kaufman, Amy.”Polygamous Marriages in Canada” (2005) 21 Can. J. Fam. L. 315

Khaliq, Urfan. “Beyond the Veil?: An Analysis of the Provisions of the Women's Convention in the Law as Stipulated in Shari'ah” (1995) 2 Buff. Jour. Int'l L. 1

Madhavan, Sangeetha. “Best of Friends and Worst of Enemies: Competition and Collaboration in Polygyny” (2002) 41 Ethnology 69

Mashhour, Amira. “Islamic Law and Gender Equality—Could There be a Common Ground?: A Study of Divorce and Polygamy in Sharia Law and Contemporary       Legislation in Tunisia and Egypt” (2005) 27 Human Rights Quarterly 562

Mayambala, Esther. “Changing the Terms of the Debate: Polygamy and the Rights of Women in Kenya and Uganda” (1998) 3 East African Journal of Peace & Human Rights 200

Moran, Mayo. “Authority, Influence, and Persuasion: Baker, Charter Values and the Puzzle of Method” in David Dyzenhaus, ed.The Unity of Public Law (Oxford and Portland, Oregon: Hart Publishing, 2004) 389-430

Patten, Wendy L. & J. Andrew Ward. “Recent Developments: Empowering Women to Stop AIDS in Côte d'Ivoire and Uganda” (1993) 6 Harv. Hum. Rts. J. 210

Rifkin, Janet. “Toward a Theory of Law and Patriarchy” (1980) 3 Harv. Women's L.J. 83

Sagade, Jaya. “Polygamy and Women's Right of Maintenance: Survey of Judicial Decisions” (1989) 31 Journal of the Indian Law Institute 336

Sayeh, Leila P. & Adriaen M. Morse, Jr.. “Islam and the Treatment of Women: An Incomplete Understanding of Gradualism” (1995)30 Texas Int'l L J 311

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Strassberg, Maura. “Symposium: Lawyering for the Mentally Ill: The Crime of Polygamy” (2003) 12 Temp. Pol. & Civ. Rts. L. Rev. 353

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Sunder, Madhavi. “Piercing the Veil” (2003) 112 Yale L. J. 1436

Tibatemwa-Ekirikubinza, L. “Multiple Partnering, Gender Relations and Violence by Women in Uganda” (1998) 4 East African Journal of Peace and Human Rights 15

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Weisbrod, Carol. “Universals and Particulars: A Comment on Women's Human Rights and Religious Marriage Contracts” (1999) 9 S. Cal. Rev. L. & Women's Stud. 77

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