| 2. Customary International Law
[841] Dr. Cook suggests there is evidence of an emerging customary rule against sex discrimination. At para. 73 of her report, she further links this customary law rule to “the dominant trend in international state practice … to restrict and in some cases prohibit the practice of polygamy”.
[842]Determining whether Canada has an obligation to prohibit polygamy due to a binding norm of customary international law is a far murkier process than determining Canada’s treaty obligations. Customary obligations are created by consistent and uniform state practice that is based on an understanding that the practice is required by law (opinio juris). Although the state practice must be “uniform”, this does not require that every state follow the practice.
[843] Polygamy is still permitted in many countries worldwide, particularly in Africa and the Middle East. I note that in her categorization of countries according to the level of polygyny, Professor McDermott indicates that in at least 47 of 171 countries, more than five per cent of women are in polygynous marriages. In such circumstances, it simply cannot be said that state practice with regard to polygamy is consistent and uniform, let alone that states conduct themselves in a manner that suggests an understanding that they are required by law to prohibit polygamy.
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