Polygamy: A Human Right or Human Rights’ Violation ?
Dr Ruth Gaffney-Rhys, University of Wales, Newport
Abstract
This article is the second in a two part series that considers the practice of polygamy. It examines the various human rights instruments adopted by the international community in order to assess the legality of the practice from an international law perspective. Although polygyny is not expressly prohibited by any international instrument, it is implicitly forbidden because it discriminates against women and violates their right to dignity. Furthermore the actual practice of polygyny often contravenes other rights of women contained in those treaties e.g. the right to privacy. The paper concludes that the practice should be discouraged but acknowledges that an explicit prohibition in the form of an international treaty might not be the most appropriate or effective means of doing so.
Keywords: Polygamy, Polygyny,International Law, Human Rights
Introduction
This article is the second in a two part series that explores the controversial issue of polygamy. The first paper concluded that polygyny (which us when a man has more than one wife) is harmful because of the adverse impact on a woman’s social status, economic position and health (Gaffney-Rhys, 2011). As a consequence of this, the international community has criticised the practice, but is this stance reflected in the human rights instruments that the community has adopted ? The purpose of this paper is to examine the provisions of international treaties and assess whether polygyny (where a man has more than one wife) is permitted or prohibited by them.
Introduction to International Law
The international community has adopted a series of formal instruments that require state parties to eradicate certain practices and provide rights for individuals living in the said jurisdictions. Additional international agreements are designed to ensure that marriages, divorces and civil judgements that take place in one contracting state are recognised in others. On a global level instruments have been adopted by the United Nations and the Hague Conference on Private International Law whilst regional instruments have been adopted by the Council of Europe, the African Union (formerly the Organization of African Unity), the Organisation of American States and the League of Arab States. Declarations have also been adopted by international Islamic organisations, namely the Islamic Council of Europe and the Organisation of the Islamic Conference. In some cases, a formal body has been established to monitor compliance, for example, the Committee on the Elimination of Discrimination Against Women hears complaints and receives reports regarding the implementation of the United Nations Convention on the Elimination of all Forms of Discrimination Against Women 1979. In other instances, the instrument takes the form of a Declaration that is not intended to be legally binding e.g. the Universal Declaration of Human Rights 1948, which was adopted by the United Nations and the Cairo Declaration on Human Rights in Islam 1990, which was drafted by the Organisation of the Islamic Conference.
Instruments that Expressly Refer to Polygamy
Although many international agreements contain provisions relating to marriage and equality, very few expressly consider the issue of polygamous marriages. Article 11 of the Hague Convention on the Celebration and Recognition of Marriages 1978 provides that a contracting state can refuse to recognise the validity of a marriage if ‘at the time of the marriage under the law of that state … one of the spouses was already married…’. As the Convention is designed to ‘ensure the recognition of the validity of marriages across national borders’, rather than to provide basic human rights, it does not actually prohibit polygamy (See Outline of the Convention, 2007). Rather, it permits contracting states to refuse to recognise a polygamous marriage if it contravenes the law of that jurisdiction. The Hague Convention thus reflects current practice whereby monogamous societies will refuse to recognise polygynous unions and emphasises that monogamous jurisdictions are not obliged to recognise plural marriages. However, it should be noted that only three states have actually ratified the Convention, namely, Australia, Luxembourg and the Netherlands, which means that it has little practical significance. The only other instrument that expressly considers polygamous marriages is the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, which was adopted by the African Union in 2003. Article 6 states that ‘monogamy is encouraged as the preferred form of marriage and that the rights of women in marriage and family, including polygamous marital relationships are promoted and protected’. The African Union has thus acknowledged that women in plural marriages require protection but it did not go so far as to outlaw polygyny. This was an option contained in the draft protocol produced in 2001, but it was rejected in favour of the current version of article 6 discussed above. According to Banda (2008), government experts decided against prohibiting polygamy because, amongst other things, it would be unfair to women who are already in plural marriages. They could, of course, have prohibited polygamy prospectively and permitted contracting states to recognise plural marriages formed before a specific date. Article 6 requires state parties to enact appropriate national legislation to guarantee the promotion of monogamy and the protection of women in polygynous marriages, but given the indefinite nature of the provision it is unclear what state parties are actually required to do. In addition, article 5 of the Protocol requires contracting states to eliminate harmful practices. Female genital mutilation and scarification are cited as examples of harmful practices, but polygyny is not. This combined with the fact that the Protocol expressly refers to polygamy but does not prohibit it means that the message to African nations is not as strong as it could be.
The Right to Marry : A Right to Marry Polygynously ?
The Universal Declaration of Human Rights 1948, the European Convention on Human Rights 1953, the International Covenant on Civil and Political Rights 1966, the American Convention on Human Rights 1969 and the Arab Charter on Human Rights 2004, each provide a right to marry, but do not specifically mention monogamy or polygamy. This might suggest that state parties could prohibit or permit polygyny without infringing the treaties. Chapman goes further by suggesting that a man wishing to take an additional spouse in a jurisdiction that prohibits polygyny could argue that his right to marry has been infringed (2001, pg. 7). However, this argument will fail because the right to marry contained in the instruments above is subject to restrictions imposed by national law. Such limitations are lawful provided that they are reasonable, justifiable and ‘do not make this right illusory for large groups of the population’ (Erikson, 1992, pg. 250). In Johnston and Others v Ireland [1986] the applicants (a married man and the woman he wanted to marry) argued that the prohibition against divorce contained in the Irish Constitution at the time, infringed their right to marry. The European Court of Human Rights held that the right to marry does not imply a right to divorce in order to remarry and by analogy would not entail a right to marry polygynously. Chapman also indicates that a prospective second wife could claim that her right to marry is restricted by the prohibition against polygyny (2001, pg.7). This assertion will be unsuccessful because the monogamy requirement does not preclude her from marrying; it merely prevents her from marrying men who are already wed. In Johnston v Ireland the female applicant’s claim failed, as she was not completely deprived of the right to marry; she was only prevented from wedding married men. Consequently, a prospective second wife’s claim will also fail.
Polygyny as a Form of Unlawful Discrimination
The discussion above has demonstrated that monogamous jurisdictions that have ratified human rights treaties that contain a right to marry cannot be required to allow polygamy. But can polygynous contracting states permit the practice without infringing their treaty obligations ? Each of the instruments discussed above prohibits discrimination on the grounds of sex and as a consequence, a system of law that permits a man to take an additional wife but not a woman to take another husband arguably contravenes these provisions. In addition, article 23(4) of the International Covenant on Civil and Political Rights 1966 specifically provides for equality in relation to marriage, as does article 6 of the Protocol to the African Charter on the Rights of Women. Comments issued by the Human Rights Committee, which is responsible for monitoring compliance with the International Covenant, confirms that polygamy should be eradicated because it is discriminatory. Paragraph 24 of General Comment 28 provides that ‘equality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle’. The Committee further explains that ‘polygamy violates the dignity of women. It is an inadmissible discrimination against women. Consequently, it should be definitely abolished wherever it continues to exist.’ Similarly, in its concluding observations on Yemen, the Committee stated that polygamy ‘is an affront to the dignity of the human person and discriminatory under the Covenant’ (2002, para 9). It is thus clear that the Human Rights Committee considers polygyny to constitute unlawful discrimination against women, not simply because the practice is restricted to men but because it violates the dignity of women. Unfortunately the International Covenant itself does not make this clear: it does not prohibit polygamy nor does it provide a right to dignity (see later).
The position under the Convention on the Elimination of All Forms of Discrimination Against Women 1979 is similar to the treaties above, as article 16 requires contracting states ‘to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations’ but does not expressly refer to polygynous marriages. However, article 16(a) provides women with ‘the same right to enter into marriage’ as men. It can thus be argued that state parties that allow men, but not women, to have plural spouses are in breach of article 16(a). Comments and recommendations made by the Committee on the Elimination of Discrimination Against Women clearly indicate that polygyny should be prohibited in order to ensure compliance with the Convention. For example, paragraph 14 of CEDAW General Recommendation 21, states that ‘polygamous marriages contravene 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.’ It is thus evident that CEDAW, like the Human Rights Committee, has condemned polygamy because of the social, emotional and economic implications for women and children. CEDAW has also indicated that polygamy ‘is incompatible with the integrity of women’ and ‘regardless of how deeply rooted’ the traditions were ‘if they perpetuated discrimination against women they needed to be directly addressed’ (2004).
Because all global and regional human rights instruments prohibit discrimination and because the international bodies that uphold them consistently condemn it, it has been argued that the principles of equality and non-discrimination form part of international customary law. Cook and Kelly (2006) thus argue that polygyny infringes international customary law, as well as the specific provisions of the instruments discussed above.
Additional Infringements: Child Marriage and Forced Marriage
The practice of polygyny can also contravene several other provisions of international human rights law. Because polygyny drives drown the age of marriage for females, a plural wife will often be very young. Child marriage expressly breaches article 16(2) of CEDAW 1979 and article 21 of the African Charter on the Rights and Welfare of the Child 1990 and implicitly infringes several other treaty provisions (Gaffney-Rhys, 2010). The shortage of females available for marriage that is caused by polygyny, leads to male family members controlling female relations and as a consequence the latter may be forced into a polygynous marriage. This contravenes article 16(2) of the Universal Declaration of Human Rights, article 10(1) of the International Covenant on Economic, Social and Cultural Rights 1966, article 23(3) of the International Covenant on Civil and Political Rights 1966, article 1 of the UN Convention on Consent to Marriage, the Minimum Age for Marriage and Registration of Marriages 1962, article 16(1)(b) of CEDAW 1979, article 17(3) of the American Convention on Human Rights 1969, article 6 of the Protocol to the African Charter on the Rights of Women 2003 and article 33 of the Arab Charter on Human Rights 2004, all of which require the parties to a marriage to provide free and full consent to marriage. Of course, forced marriage is not limited to polygynous societies and many individuals are compelled to enter monogamous unions. But as explained in the first article in this series, polygyny contributes to forced marriage by engendering a society in which men control young women (Gaffney-Rhys, 2011). Further human rights infringements may be committed if young girls are required to marry polygynously or monogamously. For example, the right to education contained in article 28(1) of the United Nations Convention on the Rights of the Child 1989 and the right to protection from sexual exploitation contained in article 34 are both arguably infringed (Gaffney-Rhys, 2010).
The Right to Dignity, Privacy and an Adequate Standard of Living
As explained earlier, the Human Rights Committee has indicated that polygamy encroaches upon the dignity of women and is consequently discriminatory. This violation will be particularly acute if the multiple wives are required to live in one household. The right to dignity is expressly contained in article 1 of the Universal Declaration of Human Rights 1948, article 3 of the Protocol to the African Charter on the Rights of Women 2003, article 11(1) of the American Convention on Human Rights 1969 and article 6 of the Cairo Declaration on Human Rights in Islam 1990. Banda agrees that polygyny violates the dignity of women and thus questions ‘how it is possible to reconcile the provisions guaranteeing women their right to dignity’ contained in the Protocol to the African Charter with the continued practice of polygyny (2008, pg. 92).
Requiring plural wives to cohabit will also contravene the right to respect for privacy and family life contained in article 12 of the Universal Declaration of Human Rights 1948, article 8 of the European Convention on Human Rights 1953, article 17 of the International Covenant on Civil and Political Rights 1966 and article 12 of the Arab Charter of Human Rights 2004. In addition, article 29 of the African Charter on Human and People’s Rights 1986 states that an individual has a duty to ‘preserve the harmonious development of the family and work for the cohesion and respect of the family’, which is arguably breached if a man introduces a new wife into the household. Similarly, article 33(2) of the Arab Charter on Human Rights stipulates that ‘the state and society provide for the protection of the family and its members for the strengthening of its bonds’. The first article in this series indicated that polygyny can harm the marital relationship due to the loss of exclusivity and that co-wife rivalry often occurs (Gaffney-Rhys, 2011). As a result, the practice of plural marriage does not always protect family members or strengthen family bonds, as article 33(2) requires. Communal living is an issue that has been highlighted by Women Living Under Muslim Law (WLUML, 2006). They point out that national legislation rarely requires a husband to provide separate dwellings for his wives and if it does, the obligation is often flouted. Furthermore, a requirement to provide separate accommodation may be interpreted as a mere obligation to provide separate bedrooms (WLUML, 2006, pg. 200). It should also be noted that article XX of the Universal Islamic Declaration of Human Rights, which was adopted by the Islamic Council of Europe in 1981, provides that ‘every married woman is entitled to live in the house in which her husband lives’. It is not therefore surprising that men often insist that their wives share a home, as according to the Islamic Declaration, a wife should live with her husband.