Sunday, February 6, 2011

Polys in Court: Summary of testimony - Professor Rebecca J. Cook

From transcripts of BC Supreme Court sessions on January 6, 2011.

The Attorney General of Canada called Professor Rebecca Johnson Cook to the stand as an expert in international human rights law with a particular focus on women’s rights and the obligations of States under international human rights law.

Professor Cook has a Doctorate in Law from Couple Bow in New York and her dissertation is on the application of the International Convention on the Elimination of All Forms of Discrimination Against Women (aka the women’s convention). Professor Cook also has a Masters of Law from Columbia University, a Law Degree from Johnstone, a Bachelors of Public Administration from Harvard and was called to the bar in Washington, D.C. in 1983. She is currently a professor of Law and the Chair of International Human Rights Law in the Faculty of Law in the University of Toronto. She teaches courses in international women's rights, reproductive and sexual health law, international human rights law and a class on polygamy. Professor Cook is also a professor in the faculty of medicine in the University of Toronto where she teaches medical ethics and health and human rights. She was made a fellow of the Royal Society of Canada in 1999 which is a distinction of academic excellence and fellows are elected by their peers for an outstanding contribution in their field. She listed 17 books which she has authored or co-authored, 33 book chapters, 11 legal briefs ranging from courts from the US Supreme Court and constitutional court of Columbia European court of Human Rights and the Supreme Court of Mexico. All these publications have focused on aspects of international human rights law including state's obligations and responsibilities women's rights and health issues. She co-authored a report called “Polygyny and Canada’s Obligations Under International Human Rights Law” with Lisa Kelly which was published in 2006. This report discussed the structural discrimination in marriage and family life as opposed to other forms of discrimination.

Professor Cook prepared a report specifically for this reference case. She was asked to address the harms of polygyny as viewed through the perspective of international human rights law.
- Review state practice and case law on polygamy in comparative western democracies including but not limited to Australia, UK, US and France
- Review the treatment of polygamy in international human rights law
- Review Canada's obligations with respect to polygamy

The report considers this review in three sections:
1. Harms of polygyny – inherent wrongs of polygyny and associated harms
2. State practices in opinion juris or the practice and the way the State feels obligated to address polygyny – out right prohibitions, legal restrictions, and immigration restrictions.
3. Canada’s obligations to comply with international law with regard to polygyny specific to women’s equality in marriage and family life, women’s rights to health and security of person, and children’s rights.

Professor Cook said that “Polygamy is a general term. It's a sex [gender]
neutral term that applies both to men and to women taking multiple spouses. Because international human rights law only deals with polygamy in a sex [gender] identified way, that is one man taking many wives, we use -- I use to be accurate the term polygyny which is one man taking many wives.”

Conclusions of Professor Cook’s report are as follows:
1. The patriarchal system of family life that allows a man to take multiple wives and not vice versa offends women's dignity and thus is inherently wrong. It's the actual structuring of the marriage in an unequal way that is inherently wrong.

2. As a general matter there are harms that are associated with the patriarchal system of family life that include harms to women's health,their physical and mental health, the material harms that both women and children suffer in these unions and then the harms, the particular harms to children having polygynous mothers. It is the inherent wrongs and the associated harms that the international treaty bodies the international
community have recognized.

3. The dominant practice that is now common among states is to prohibit polygyny either by criminal or family law provisions but recent prosecutions to enforce criminal prohibitions of polygyny have not been successful despite claims of freedom of religion.

4. Canada has an obligation to take all appropriate measures to eliminate polygyny under international human rights law as a form of did discrimination against women. There are collateral obligations as well. One is to dismantle prejudices and harmful stereotypes as well as ensuring that women in polygynous unions ensuring their rights are protected.

(My comment: She defines polygamy as a gender neutral term which agrees with the AG of Canada’s definition for this law but focuses on patriarchal polygyny which is the BC AG’s definition and the focus of international considerations as well. The first conclusion regarding inequality would also apply to men’s rights in polyandry but would not apply to egalitarian polyamory family structure. The associated harms and thus international obligations would also not apply to egalitarian polyamory. This law therefore restricts behaviour in agreement with the international conventions but also arbitrarily restricts behaviour that is NOT in contravention of the international conventions. Criminal law cannot be arbitrary.)

Regarding Canada’s obligations internationally Professor Cook said,

“Treaty based international law is international law that has been developed by the bodies that have been established under the international conventions. Sometimes this law is persuasive. Sometimes it's considered dispositive and it varies from treaty to treaty and issue to issue.”

Each convention has a committee or a body for that monitors how states have brought their laws, policies and practices into compliance with the convention. Customary international law is evidence by general practice that states follow out of a sense of a legal obligation. As the treaty bodies considered the harms of polygamy their review of materials was limited to those discussing the harms. “...they did not think about polygyny as anything but harmful”

Treaty based International Law to which she referenced for this report:

The convention on the elimination of discrimination against women (the
women's convention);the international covenant on civil and political rights;
the international covenant on economic and social rights; the convention on the rights of the child.

(My comment: I’m pondering the Harper government’s record with regards to the Kyoto accord. I also note that the treaty bodies did not review materials discussing benefits of polygyny or other multi-partner relationship models while developing these conventions.

Chief Justice Bauman may have been wondering similarly because he asked Professor Cook if the views of these committees under the various conventions or treaties are simply guidance to the states who have signed the document or carry the force of law. Professor Cook said that only two of the committees have issued general recommendations that deal specifically with polygamy and they are for guidance but not a part of the rule of law. She said that they might become customary international law because states are acting against polygynous forms out of a sense of obligation.)

Professor Cook said
“So international law becomes enforceable out of a sense of obligations and a
commitment to keeping the treaties and pacts you have made but the international human rights equivalent of a police force is shame so where these general comments and general recommendations are used say in reporting to countries are very important because where countries do not comply then they are shamed internationally. And no country wants to become a pariah state.”

(My comment: Canada has precedents in inclusiveness in human rights most recently with the same sex marriage legislation and the world is watching us now.)

International Polygamy laws:
There was much discussion of various countries and how they have treated polygamy under their laws which are best read in the full transcripts of this testimony. Regarding polygamy ban versus the right to freedom of religion, Professor Cook sited Bhewa vs The Government of Mauritious where article 18 of the political convenant was applied to rule that a prohibition of polygamy was a reasonable limit on the freedom of religion. Canada is a party to that same covenant. Also in the US convictions for polygamy in Utah have been upheld despite claims of exercising freedom of religion.

Professor Cook was not aware of any state that has decriminalized the practice of polygyny or polygamy and felt that it would be contrary to the trends of human rights law.

Cross-examination of Professor Cook by West Coast LEAF:

The treaties listed are posted on the internet and the countries that are parties or have ratified them are listed as well. Canada has done an accession or ratification to all of the treaties listed in Professor Cook’s report which means those countries have a positive obligation to take all appropriate measures. While general comments or recommendations may not be binding on state parties, they might in some circumstance be bound by treaties.
“If a state party failed to enact some kind of prohibition against polygyny or polygamy would that constitute non-compliance” with several recommendations in the sited treaties.

(My Comment: see Amicus cross notes below. She’s talking about recommendations regarding alleged discrimination of women not polygamy or polygyny specifically.)

When a state party ratifies or accedes to a treaty they are entitled to enter a reservation to the treaty which allows them to reserve their obligation to implement a certain aspect of the treaty. Canada has not entered a reservation to the women’s convention, has taken a leading role in implementing it and conscientiously reports every four years.

Clarification on term “patriarchal structuring of family life” – the man, the patriarch, is privileged in family life privileged with respect to rights and duties. It means the man is superior and the woman is inferior in family life.

Clarification on term “negative gender sterotypes” - direct discrimination, indirect discrimination and structural discrimination. States are are obligated to modify those social and cultural practices of gender and cultural practices of conduct of men and women with a view to eliminating prejudices and other practices that are based upon the inferiority or superiority of either of the sexes. So where women are treated in an inferior way through the social practice of gender or they're treated according to stereotype roles in other words predetermined or prejudged roles they are obligated to change those practices.

Cross-examination by the BC Teachers’ Federation:

Regarding harms to children of polygamous unions: the harmful gender stereotypes, exclusion of boys, early marriage for girls, lower levels of socioeconomic status, reduced academic achievement and self esteem as well as higher levels of reported family dysfunction and drug use and you also refer to neglect by fathers. These are in violation of the Convention of the rights of the child which says that that state parties shall take all appropriate legislative administrative social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect negligent treatment maltreatment or exploitation including sexual abuse while in the care of parents legal guardians or any other person who has the care of the child.

Cross-examination by the Amicus:

International treaties: Of the four treaties sited and noted by Professor Cook to be at the top of the hierarchy of international law, none of them contains the words “polygyny” or “polygamy”. The international treaty bodies comprise of about 20 delegates (predominantly women) who are selected by the party states to represent expert capacity (human rights). These bodies meet three times a year. None of the four committees have examined the issue of polygamy or polygyny comprehensively enough to have developed a recommendation on it because polygyny is not considered a significant diplomatic issue even comparative to other human rights issues.

Polyamory – is not dealt with in Professor Cook’s report except to distinguish it from polygyny.

Reports filed by countries to detail the legislative judicial administrative and other measures state party have taken to give effect to the treaty. Professor Cook referred to various countries such as Togo, Nepal and Nigeria on their obligations with respect to polygamy but none from Canada. Professor Cook indicated that the last report by Canada was filed in 2007 and there were no observations on it with respect to polygamy.

State practice on polygamy in comparative western democracies: Professor Cook identified countries as comparable in government and culture to Canada specifically the United Kingdom, France, Australia and the United States. Professor Cook sites national legislation and compares them amongst these countries.

Canada – section 290 (bigamy law – requires going through a form of marriage ceremony), section 293 (polygamy law – does not require going through a form of marriage ceremony)
Section 293 catches some relationships that section 290 does not.

United Kingdom – English criminal law prohibition on bigamy has been used to prosecute polygamist as the second wife and any subsequent wives are illegal. Amicus quoted from Professor Cook’s referenced source on this where further along it was noted that a marriage ceremony is required to prosecute under this law and if polygamists do not use the legal formalities that normally produce legal marriage then they commit no offence.

Australia – federal statute quoted by Amicus - a person who is married shall not go through a form ceremony of marriage with any person who is married knowing or having reasonable grounds to believe that the latter person is married. (bigamy) Amicus quoted from Australian law reform commission report which is sited in Professor Cook’s report:

“It can be argued that the offence of bigamy itself is therefore no longer necessary to deter the conduct against which it is directed. It is creating anomalies although the marriage is not valid the parties may be in a de facto relationship and certain consequences may follow from this. The commission recommends that further consideration should be given to the question of whether the policy that a person may not marry legally while already married should be enforced by a criminal offence.”

France, Belgium, Luxembourg, Switzerland: one prohibition in each country

Quoting from the website listing their legislation as referenced by Professor Cook:

(France) “On ne peut contracter un second mariage avant la dissolution du premier.” (one can’t enter into a second marriage before dissolution of the first.

(Switzerland) “Toute personne qui veut se remarier doit etabilr que son precedent marriage a ete annule ou dissous.” (Everyone who wants to remarry must establish that his or her
prior marriage has been annulled or dissolved)

(Belgium and Luxembourg)- same wording as France.

The website lists 50 countries where polygamy is recognized.

The cross-examination continued with discussion of various references used by Professor Cook most interestingly were

Uzbekistan, a Muslim country sited as being one of the countries with restrictions on polygamy (and thus a human rights leader on that issue)criminalizes consensual activities between adult males.

The Law Reform Commission of Canada’s working paper on bigamy describes polygamy as a
marginal practice which corresponds to no meaningful or sociological reality in Canada.
It also recommends removing the criminal prohibition on polygamy.

Authors, Bailey and Kaufman of one referenced book and Shana Sigmund author of another all recommend decriminalizing polygamy. Professor Cook confirmed that she was aware of this.

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