Women in Society
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ISSN 2042-7239 (Online)
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
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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
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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.
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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
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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).
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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.
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If co-wives and their children are required to live in accommodation that
cannot adequately house them all, their right to an adequate standard of
living which is contained in article 16 of the Protocol to the African Charter
on the Rights of Women, article 25 of the Universal Declaration, article 11 of
the International Covenant on Social, Economic and Cultural Rights 1966
and article 38 of the Arab Charter 2004 will be infringed. Article 6 of the
Cairo Declaration on Human Rights in Islam 1990 also provides that ‘the
husband is responsible for the support and welfare of the family’ whilst
article XIX© of the Universal Islamic Declaration of Human Rights 1981
states that ‘every husband is obligated to maintain his wife and children’ but
limits this by adding ‘according to his means’. As explained in the first article
in this series, Islamic law allows a man to take up to four wives, provided
that he can treat them equally, which is interpreted to mean that he must be
in a position to support them all (Gaffney-Rhys, 2011). In Asian jurisdictions,
such as Pakistan, Bangladesh and Malaysia this obligation is reinforced by
national legislation that requires a man to obtain permission from the
authorities prior to taking an additional spouse. Polygnous men in these
jurisdictions should therefore be able to satisfy their responsibilities, but in
countries where plural marriage is not strictly regulated, the provisions of the
instruments above are often breached. It should be noted that inadequate
accommodation is not a problem that is restricted to or experience by all
polygynous families. In addition, it may be preferable for a woman from a
poor family to enter a polygynous marriage than to remain in her natal home.
Indeed, the economic vulnerability of women was forwarded as a reason to
allow polygyny to continue in Namibia (CEDAW Initial Report, 1997).
However, addressing the economic vulnerability of women (by adopting laws
and programmes that ensure that females are educated, trained and able to
work outside of the home) would weaken this apparent justification for
permitting plural marriages. In fact, articles 12 and 13 of the Protocol to the
African Charter on the Rights of Women and articles 10 and 11 of CEDAW
specifically require contracting states to eliminate discrimination in terms of
access to education and training and in relation to employment.
Violence and Harmful Traditional Practices
In extreme cases, polygynous wives are subjected to physical violence.
Furthermore, female genital mutilation is commonly practiced in polygynous
societies as a means to curb the sex drive of multiple wives. Violence and
female genital mutilation breach article 24 of the U.N. Convention on the
Rights of the Child 1989, which provides a right to health and protection from
harmful traditional practices. Article 4 of the Protocol to the African Charter
on the Rights of Women specifically prohibits violence against women whilst
article 5 outlaws harmful traditional practices. Article 33(2) of the Arab
Charter also prohibits violence and abuse of women and children. In
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addition, physical violence and female genital mutilation can constitute
torture, inhuman and degrading treatment, all of which are prohibited under
article 5 of the Universal Declaration of Human Rights, article 3 of the
European Convention on Human Rights, article 5 of the American
Convention on Human Rights, article 8 of the Arab Charter on Human Rights
and article 7 of the International Covenant on Civil and Political Rights. Cook
and Kelly further argue that ‘polygyny as practiced in some contexts may
closely resemble slavery’ (2006). This is because plural wives are often
required to adopt service roles and because reproduction is seen as an
essential part of their role. Cook and Kelly thus suggest that ‘women in a
sense become sexual slaves’. Practices that resemble slavery are prohibited
by the United Nations Supplementary Convention on the Abolition of
Slavery, the Slave Trade and Institutions and Practices Similar to Slavery
1957. Violence against women, sexual slavery and female genital mutilation
are not restricted to polygynous societies or plural marriages and are
consequently issues that need to be addressed separately. But the fact that
they are associated with polygynous families adds weight to the claim that
polygyny is harmful and should therefore be restricted or abolished.
Are States in Violation of their International Obligations ?
The discussion above has demonstrated that the practice of polygyny
potentially infringes provisions of all the human rights instruments referred to
in this paper. In most cases, these assertions have not been tested,
however, the Human Rights Committee and the Committee on the
Elimination of Discrimination Against Women have expressly condemned
the practice and urged contracting states to eradicate it. It is therefore clear
that polygyny contravenes the International Covenant on Civil and Political
Rights and the Convention on the Elimination of all Forms of Discrimination
Against Women and yet many jurisdictions that have ratified these
instruments permit plural marriage. In fact, the vast majority of states that
allow men to take an additional wife have ratified both instruments. Iran has
ratified the International Covenant but not CEDAW, whilst the reverse is true
of Singapore, Malaysia, Comoros, Oman and the United Arab Emirates.
Qatar and Saudi Arabia are the only jurisdictions that have not ratified either
instrument and as a consequence, are the only states that are not obliged to
comply with the provisions of either instrument. However, Qatar and Saudi
Arabia have ratified the Arab Charter on Human Rights 2004, which
prohibits discrimination on the ground of sex. As explained earlier, allowing a
man to take an additional spouse but not a woman is discriminatory and the
practice of polygyny is incompatible with the principle of equal treatment
because it violates the dignity of women. If the Committee of Experts that
monitors compliance with the Arab Charter interprets the prohibition against
discrimination in the same way as the Human Rights Committee and
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CEDAW, Qatar and Saudi Arabia would be in breach of the Arab Charter. In
reality, this is unlikely given the fact that polygyny is tolerated in the region.
Is Polygyny a Right of Man ?
As explained earlier, men wishing to practice polygyny in a jurisdiction that
prohibits it, will not be able to claim that their right to marry has been
infringed because this right is subject to restrictions imposed by national law.
However, a man wishing to take an additional wife might assert that his right
to privacy and family life is encroached upon, if the law prohibits him from
doing so. This has not yet been tested, but a similar argument was put
forward by the applicant in Bibi v United Kingdom 1992, who was the
daughter of a man with two wives. She complained because her mother (the
first wife) was refused entry on the basis that the second wife was already
settled in the country. As explained in the first article in this series, the UK
will recognize a polygynous marriage contracted overseas by a person
domiciled there, but will only permit one spouse to enter and reside (Private
International Law (Miscellaneous Provisions) Act 1995). The European
Commission agreed that the refusal to grant entry interfered with the
daughter’s right to respect for private and family life but held that it was
legitimate for the UK to do so. The Commission pointed out that the
preservation of monogamy was a legitimate aim for the United Kingdom to
pursue and that the state could not be required to recognize all polygynous
marriages or admit every plural spouse into the country. In the light of the
Human Rights Committee’s criticism of polygyny, it is likely that the same
approach would be taken in relation to the International Covenant on Civil
and Political Rights 1966, which also provides a right to privacy (see above).
Men wishing to practice polygyny will also argue that to outlaw it would
infringe their right to freedom of religion provided by article 18 of the
Universal Declaration of Human Rights 1948, article 18 of the International
Covenant on Civil and Political Rights, article 12 of the American Convention
on Human Rights 1969, article 9 of the European Convention on Human
Rights 1953, article 30 of the Arab Charter on Human Rights 2004 and
article 8 of the African Charter on Human and People’s Rights 1986.
However, each of these instruments (with the exception of the African
Charter) allows the state to place limitations on the freedom to practice or
manifest religious beliefs in order to protect the health, safety, morals and
freedoms of others. Given the harmful effects of polygyny on women and
children, contracting states can legitimately restrict the practice without
breaching their international obligations. Furthermore, it has been noted that
Islamic law does not require or even encourage plural marriage; it merely
permits it (Gaffney-Rhys, 2010). As a consequence, Poulter (1976) has
suggested that the prohibition of polygamy does not actually restrict Muslim
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practice. At a national level, the U.S. Courts have rejected the contention
that prohibiting polygamy contravenes the right to practice one’s religion
(See Reynolds v U.S. 1878). The same issue is about to be considered in
the Supreme Court of British Columbia after criminal charges against James
Oler and Winston Blackmore, who practiced plural marriage, were stayed. In
the light of the affidavit produced by Heinrich (2010), which highlights the
implications of polygamy, the Supreme Court is unlikely to prioritise freedom
of religion over the rights of women.
Conclusion
Polygamy is not expressly prohibited by any international instrument but is
implicitly forbidden because it discriminates against women and violates
their right to dignity. Furthermore, polygyny as practiced in many
jurisdictions, infringes additional human rights such as the right to privacy,
the right to protection from violence and harmful traditional practices and the
right to an adequate standard of living. It also often contravenes the
provisions prohibiting child marriage and those requiring the parties to a
marriage to provide free and full consent. As a consequence the Human
Rights Committee and the Committee on the Elimination of Discrimination
Against Women have asserted that polygyny should be eradicated, but the
instruments that they uphold do not make this clear. The question that
follows is whether they should do so ? On the one hand, the inclusion of an
express prohibition against polygamy will emphasise that plural marriage is
a human rights issue. But on the other hand, an instrument that explicitly
outlaws polygamy is unlikely to be ratified by the states that condone the
practice. The process of drafting the Protocol to the African Charter on the
Rights of Women is testament to this, as a clause prohibiting polygamy was
rejected in favour of one that merely encourages monogamy and requires
the promotion and protection of women in polygynous relationships. In the
light of this, perhaps the development of culturally appropriate programmes
that discourage polygamy and tackle some of the issues associated with it,
e.g. lack of educational and economic opportunities for females, would be
more effective at this point in time.
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Table of International Instruments
The African Charter on Human and People’s Rights 1986 (African Union)
The African Charter on the Rights and Welfare of the Child 1990 (African
Union)
The American Convention on Human Rights 1969 (Organisation of
American States)
The Arab Charter on Human Rights 2004 (League of Arab States)
The Cairo Declaration on Human Rights in Islam 1990 (Organisation of the
Islamic Conference)
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The Convention on the Elimination of all Forms of Discrimination Against
Women 1979 (United Nations)
The European Convention on Human Rights 1953 (Council of Europe)
The Hague Convention on the Celebration and Recognition of Marriages
1978 (Hague Conference on Private International Law)
The International Covenant on Civil and Political Rights 1966 (United
Nations)
The International Covenant on Economic, Social and Cultural Rights 1966
(United Nations)
The Protocol to the African Charter on Human and People’s Rights on the
Rights of Women in Africa 2003 (African Union)
Supplementary Convention on the Abolition of Slavery, the Slave Trade and
Institutions and Practices Similar to Slavery 1957 (United Nations)
The Universal Declaration of Human Rights 1948 (United Nations)
Convention on Consent to Marriage, the Minimum Age for Marriage and
Registration of Marriages 1962 (United Nations)
United Nations Convention on the Rights of the Child 1989 (United Nations)
Universal Islamic Declaration of Human Rights 1981 (Islamic Council of
Europe)
Cases
Bibi v United Kingdom 1992 (Application 19628/92)
Johnston and Others v Ireland [1986] 9 EHRR 203
Reynolds v United States 1878
UK Legislation
Private International Law (Miscellaneous Provisions) Act 1995
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