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The Human Rights Committee and the Case of Sandra Lovelace

Published online by Cambridge University Press:  09 March 2016

Anne F. Bayefsky
Anne F. Bayefsky*
Affiliation:
Faculty of Law, Common Law Section, University of Ottawa
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 20 , 1983 , pp. 244 - 266
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1983

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References

1 See the Case of Sandra Lovelace, Human Rights Communication R.6/84. The International Covenant on Civil and Political Rights will hereafter be referred to as the “Covenant,” and the Protocol to it as the “Protocol.” They both came into effect on March 23, 1976, and entered into force for Canada on August 19, 1976.

2 R.S.C. 1970 c. 1–6.

3 Pp. 2, з, 4, Communication of Sandra Lovelace to Human Rights Committee, December 29, 1977. The texts of the articles are:

  • 23 (1)

    23 (1) The family is the natural fundamental group unit of society and is entitled to protection by society and the State.

  • 23(4)

    23(4) State Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of the children.

  • 24

    24 A11 persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

  • 27

    27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

Later, Lovelace added two other articles:

  • 2(1)

    2(1) Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

  • 3

    3 The State Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

4 The Working Group is charged with certain limited responsibilities for processing complaints: Rules of Procedure 89, 91(1), 94( 1), (First) Report of the Human Rights Committee, Supp. No. 44 (A/32/44), as amended p. rao (Second) Report of the Human Rights Committee, Supp. No. 40 (A/33/40).

5 (1974) 38D.L.R. (3d) 481.

6 Protocol, Article 5(a): “The Committee shall not consider any communication from an individual unless it has ascertained that … (b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged.”

7 P. 2, CCPR/C/DR(VII)/R.6/24.

8 Ibid.

9 Ibid.

10 P. 2, letter of the Permanent Mission of Canada to the United Nations, to the Secretary General of the United Nations, September 26, 1979.

11 P. 2, letter of the Permanent Mission of Canada to the United Nations, to the Secretary General of the United Nations, April 4, 1980.

12 P. 2, Submission of the Permanent Mission of Canada to the United Nations, to the Secretary General of the United Nations, April 4, 1980.

13 P. 2, Pt A, drafted by Mrs. Sandra Lovelace, submission to the Human Rights Division of the United Nations, June 20, 1980.

14 “Whatever may be said about the decision, the Government of Canada has undertaken to revise the Indian Act, including the various sections dealing with Indian status, and has taken measures to ensure that this revision is done only after consultation with the Indians,” p. 106, Report of Canada, on the Implementation of the Provisions of the Covenant, March 1979.

15 P. 6, letter of the Permanent Mission of Canada to the United Nations, to the Secretary General of the United Nations, November 22, 1980.

16 P. 39, reply of Sandra Lovelace to the Human Rights Committee, December 2, 1980.

17 Ibid., 40.

18 Ibid., 8–15.

19 Ibid., 20–22.

20 They considered specifically Arts. 2(1), 3, 26, 23(2), 17, 12(1), 24(1), and 27.

21 Mr. Bouziri, p. 11, CGPR/C/DR(XIII)/R.6/24.

22 Ibid., 6, para. 10.

23 Ibid., 8, para. 11.

24 Ibid., para. 13.1.

25 Ibid., 9, para. 14.

26 Ibid., para 15.

27 Ibid.

28 para. 16.

29 Ibid., 10, para. 17.

30 One additional case against Uruguay was discontinued after being declared admissible: see Communication No. R/31, at 120 (Fourth) Report of the Human Rights Committee, Supp. No. 40 (A/35/40).

31 The two that did not disclose violations involved Finland and Sweden.

32 See the following specialized publications on the Civil and Political Covenant, and the Committee and its work: Henkin, Lewis (ed.), The International Bill of Rights, the Covenant on Civil and Political Rights (1981)Google Scholar; Fischer, Dana, “Reporting under the Covenant on Civil and Political Rights: The First Five Years of the Human Rights Committee,” 76 Am. J. Int’l L. 14a (1983)Google Scholar; Möse, Erik, Opsahl, Torkel, “The Optional Protocol to the International Covenant on Civil and Political Rights,” 21 Santa Clara L. Rev. 271 (1981)Google Scholar; Zuijdwijk, Ton, “The Right to Petition to the United Nations Because of Alleged Violations of Human Rights,” 59 Can. Bar Rev. 103 (1981)Google Scholar; Lippman, Matthew, “Human Rights Re-Visited: The Protection of Human Rights under the International Covenant on Civil and Political Rights,” 10 Cal. Western L. J. 450 (1980)Google Scholar; Ramcharan, B. G., “The Emerging Jurisprudence of the Human Rights Committee,” 6 Dalhousie L. J. 7 (1980)Google Scholar; Ryan, H. R. S., “Seeking Relief under the United Nations International Covenant on Civil and Political Rights,” 6 Queen’s L. J. 389 (1980)Google Scholar; Nowak, Manfred, “The Effectiveness of the International Covenant on Civil and Political Rights: Stocktaking after the First Eleven Sessions of the U.N. Human Rights Committee,” 1 Human Rights L. J. 136 (1980); Christian Tomuschat, “Evolving Procedural Rules: The U.N. Human Rights Committee’s First Two Years of Dealing with Individual Communications,” Ibid., 249 Google Scholar; Bossuyt, Marc, “Le Règlement Intérieur du Comité des Droits de l’Homme,” 14 Revue Belge de Droit International 104 (1978–79)Google Scholar; Fischer, Hugo, “The Human Rights Covenants and Canadian Law,” 15 Canadian Yearbook of International Law 42 (1977)Google Scholar; Schwelb, Egon, “The International Measures of Implementation of the International Covenant on Civil and Political Rights and of the Optional Protocol,” 12 Texas Int’l L. J. 187 (1977)Google Scholar; Tardu, M. E., “The Protocol to the United Nations Covenant on Civil and Political Rights and the Inter-American System: A Study of CoExisting Petition Procedures,” 70 Am. J. Int’l L. 778 (1976).CrossRefGoogle Scholar

33 The first meeting opened on March 21, 1977.

34 Pursuant to Art. 40, Covenant. Canada submitted its first report in March 1979 and it was considered by the Committee on March 25–28, 1980. (UN Documents CCPR/C/SR. 205, CCPR/C/SR. 206, CCPR/C/SR. 207, CCPR/C/SR. 208, CCPR/C/SR. 211).

35 This applies to those states which have made a declaration under Art. 41 of the Covenant. Canada made such a declaration valid from October 29, 1979.

36 For a detailed account of procedure, see E. Möse, T. Opsahl, supra note 32, at 271.

37 Under its procedural rules, the Committee will consider a communication submitted on behalf of an alleged victim by others if it appears that the person is unable to submit the communication himself. But the author of the communication must have a “sufficient link” to the victim. (Rule 90(1) (b), page 64, (First) Report of the Human Rights Committee, Supplement No. 44(A/32/44); para. 580, (Second) Report of the Human Rights Committee, Supplement No. 40 (A/33/40) ).

38 Art. 1, Protocol.

39 Art. 3, Protocol.

40 Art. 5(2) (a), Protocol; see also para. 580 (Second) Report of the Human Rights Committee, Supp. No. 40(A/33/40).

41 Art. 5(a) (b), Protocol; see paras. 68–72 (First) Report of the Human Rights Committee, Supp. 44(A/32/44).

42 Para. 586, (Second) Report of the Human Rights Committee, Supp. No. 40 (A/33/40).

43 An additional thirty-one of these 124 cases are still pending at the pre-admissibility stage.

44 The Committee has left open the possibility of deciding a case is inadmissible after an initial determination of admissibility: Rule 93(4); para. 587, supra note 42.

45 Ibid., para. 581.

46 P. 63 (First) Report of the Human Rights Committee, Supp. No. 4o(A/ 32/44).

47 Ibid., 66, Rule 94(3).

48 Ibid., 65, Rule 91(2).

49 See supra 245–46.

50 Supra note 42, at 101, para. 588.

51 Ibid., para. 589.

52 See supra 246–47.

53 Art. 5 (1), Protocol.

54 Art. 41 (1) (g), Covenant.

55 Art. 28, Art. 36, European Convention on Human Rights, Rule 39(3), Rule 39(з)) Rule 42(3) (b), Rule 45(3), Rules of Procedure of the European Commission of Human Rights.

56 E. Möse, T. Opsahl, supra note 32, at 289; see Art. 39, Covenant.

57 Oral hearings would have to take place at closed meetings, for the Committee’s examination of the communications must be held in camera: Art. 5 (3) Protocol; and see Rule 82, supra note 46.

58 Rule 93(3), supra note 42.

59 Art. 5(4), Protocol.

60 Art. 6, Protocol.

61 Supra note 46.

62 See “Decisions and Reports,” European Commission of Human Rights, Strasbourg.

63 See Bayefsky, A., “The Impact of the European Convention on Human Rights in the United Kingdom: Implications for Canada,” 13 Ottawa L. Rev. 507, 518,519 (1981).Google Scholar

64 Humphrey, J., “The Revolution in the International Law of Human Rights,” 4 Human Rights 205, 214 (1974–75).Google Scholar

65 See infra 261.

66 “Indian Act Changes Delayed Again,” Globe and Mail, December 1, 1981, at 11, citing the then-proposed Charter of Rights and Freedoms as the impetus to change the Indian Act provision.

67 On the issue of Indian status and Indian women, see Sanders, D. E., “The Indian Act and the Bill of Rights,” 6 Ottawa L. Rev. 397 (1974)Google Scholar; Sanders, D. E., “Indian Act: Status of Indian Women on Marriage to Persons without Indian Status,” 38 Saskatchewan L. Rev. 243 (1974)Google Scholar; Sanders, D. E., “Indian Women: A Brief History of Their Roles and Rights,” 21 McGill L.J. 656 (1975)Google Scholar; Lisson, J. H., “Indian Act Section 12(1) (b): The Determination of Those Eligible for Special Status” (1975),Google Scholar available from the Treaties and Historical Research Centre, Ottawa; Weaver, S. M., “Indian Women, Marriage and Legal Status” (1977),Google Scholar available from the Treaties and Historical Research Centre, Ottawa; Jamieson, K., Indian Women and the Law in Canada: Citizens Minus, Advisory Council on the Status of Women, Indian Rights for Indian Women, April 1978 Google Scholar; Imai, S., Laird, K., “The Indian Status Question: A Problem of Definition,” in Native People and Justice in Canada 113,Google Scholar Special Issue Pt. I, January 1982, Canadian Legal Aid Bulletin.

68 See S. M. Weaver, op. cit. supra note 67, at 4–7; J. H. Lisson, op. cit. supra note 67, at g, 10.

69 See K. Jamieson, op. cit. supra note 67, at 5, 9, 11, 13, and Chap. 6.

70 Ss. ir and 12 of the current Indian Act (R.S.C. 1970, c. 1–6) establish the charter membership group.

71 It was also defined patrilocally; that is, the band membership of an Indian woman becomes that of her husband upon marriage to an Indian man.

72 “An Act for the Gradual Enfranchisement of Indians, the Better Management of Indian Affairs and to Extend the Provisions of Act Thirty-First Victoria Chapter 42,” S.C. 1969, c. 6.

73 K. Jamieson, op. cit. supra note 67, at 59–60.

74 The sections defining band membership received little attention. S. M. Weaver, op. cit. supra note 67, at 10.

75 Statement of the Government of Canada on Indian Policy, 1969 (Ottawa: Queen’s Printer, 1969).

78 Cardinal, Harold, The Unjust Society: The Tragedy of Canadian Indians (The Red Paper); Edmonton: Hurtig, 1969).Google Scholar

77 Ibid., 140.

78 S. I(b) of the Canadian Bill of Rights, R.S.C. 1970, App. III.

79 [1970] S.C.R. 282; 38D.L.R. (3d) 481.

80 S. 94(b) of the Indian Act (R.S.C. 1952, c. 149) made it an offence for an Indian to be intoxicated off the reserve, conduct which would not have been punishable if indulged in by any person who was not an Indian.

81 38 D.L.R. (3d) 481, 499, per Ritchie, J.

82 It has also been pointed out that the law is “administered” in the course of an Indian woman’s loss of status upon marriage and can be “enforced” if she should refuse to accept her loss of status.

83 Press release, National Indian Brotherhood, statement by Noel B. Starblanket, President of the National Indian Brotherhood, July 18, 1979.

84 Press release, Minister of Indian and Northern Affairs, John Munro, July 24, 1980. This would be done under the authority of s. 4 (2) of the Indian Act.

85 Sixty-five bands have requested the exemption: Mr. Leslie Smith, Membership Section, Dept. of Indian and Northern Affairs, August 27, 1982.

86 Pt. I, Constitution Act 1982, Sched. B, Canada Act 1982, c. 11 (U.K.).

87 In the larger context, the Constitution Act 198a, s. 37(2), has necessitated a discussion of issues involving the identification and definition of the rights of aboriginal people at a meeting of first ministers and aboriginal representatives to be held in March 1983.

88 Press release, Minister of Indian and Northern Affairs, August 4, 1982.

89 “Canada’s Indian Act Works against Women, U.N. Committee says,” Globe and Mail, August 15, 1981, reported prior to the release of the actual decision, therefore only in vague terms.

90 Press release HR/1103, United Nations Information Office, September 1, 1981.

91 The decision was also reproduced in 2 Human Rights L.J. 158 (1981).

92 “Indian Act Changes Delayed Again,” Globe and Mail, December 1, 1981, at 11.

93 For the text of Art. 26, see supra note 3.

94 See Ramcharan, B G., “Equality and Non-Discrimination,” Henkin, L. (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights 855 (1981).Google Scholar

95 Tomuschat, C., “Equality and Non-Discrimination under the International Covenant on Civil and Political Rights,” in Münch, (ed.), Festschrift für Hans-Jürgen Schlochauer (1981).Google Scholar

96 Para. 325, (Third) Report of the Human Rights Committee, Supp. No. 40 (A/34/40).

97 L. B. Sohn, “The Rights of Minorities,” Henkin, op. cit. supra note 94, at 275.

98 Ibid., 282.

99 See supra, 354.

100 In Canada’s case they have adopted two more final views: one additional violation in the case of Larry James Pinkney, Communication No. R.7/27, decided October 29, 1981, and no violation found in the case of Gordon C. Van Duzen, Communication No. R. 12/50, decided April 7, 1982.

101 See Bayefsky, A., “The Impact of the European Convention on Human Rights in the United Kingdom: Implications for Canada,” 13 Ottawa L. Rev. 507 (1981).Google Scholar

102 The Committee consists of eighteen persons who are nationals of the State Parties to the Covenant and are elected with consideration given to an “equitable geographical distribution of membership and … representation of the different forms of civilization and of the principle legal systems” (Art. 31(2), Covenant). It is, therefore, not necessary that members of the Human Rights Committee come from countries that are party to the Protocol as well as the Covenant (only the former of which allows individuals to complain of violations of the Covenant). In fact, presently 12 of 18 members of the Human Rights Committee come from states that are not party to the Protocol.

103 The Committee of Ministers of the Council of Europe, for example, supervises the execution of judgments of the European Court of Human Rights (Art. 54, European Convention on Human Rights). The Council of Europe is also relevant to the same states in many other capacities, such as in the fields of communication and inter-state travel.

104 Canada has, since Lovelace, in fact added to its international commitments, particularly with respect to ensuring equality between the sexes, by ratifying the Convention on the Elimination of All Forms of Discrimination against Women. This Convention entered into force for Canada on January 10,1982.

105 This includes attitudes such as those diminishing the role of the Indian female and mother in perpetuating the cultural community. Moreover, it should be emphasized that the determination of reasonable criteria for status does not defy political solution. See, for instance, J. H. Lisson, op. cit. supra note 67, at 30–35; reply of Sandra Lovelace to the Human Rights Committee, December 2, 1980, at 20–22.