Hostname: page-component-78c5997874-4rdpn Total loading time: 0 Render date: 2024-11-09T23:00:19.276Z Has data issue: false hasContentIssue false
  • English
  • Français

International Human Rights in Canada: At the Juncture of Law and Politics

Published online by Cambridge University Press:  28 February 2019

Faisal Bhabha
Get access Rights & Permissions [Opens in a new window]

Extract

Thank you for the opportunity to address the very timely topic of international human rights law from the Canadian perspective. As my title suggests, my analysis of this topic sits at the intersection of law and politics, as so much of international law necessarily does. I will proceed in three parts. First, I will provide a sketch of the political context, drawing from recent events and trends, to describe a conflicted official government approach to international human rights. Next, I will examine the formal legal status of international human rights law in Canada, drawing selectively from key Supreme Court of Canada decisions. This will be far from a comprehensive account. Finally, I will discuss the recent adoption of the newest international human rights treaty, the disability convention, and discuss calls to promote access to justice at the international level for breaches of Convention norms domestically. Notwithstanding important efforts to advance the status of international human rights law in Canada, my overall observation is that, in both law and politics, the Canadian approach to international human rights is predominantly inward looking.

Type
Articles
Information
International Journal of Legal Information , Volume 41 , Issue 1 , Spring 2013 , pp. 1 - 15
Copyright
Copyright © 2013 by the International Association of Law Libraries. 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Charter of the United Nations, June 26, 1945, 59 Stat 1031, TS 993, 3 Bevans 1153, entered into force Oct 24, 1945.Google Scholar

2 See Mutua, Makau, Human Rights: A Political and Cultural Critique (Philadelphia: U Penn Press, 2008).Google Scholar

3 Ignatieff, Michael, Human Rights as Politics and Idolatry (Princeton: Princeton, U Press, 2003) at 43.Google Scholar

4 See, e.g., Morgan, Ed, “Use of force against Iraq is legal” National Post (March 19,2003).Google Scholar

5 The overwhelming majority of opinions of international law scholars and jurists was that the invasion was illegal. See Severin Carrell and Robert Verkaik, “War on Iraq was Illegal, Say Top Lawyers” The Independent (May 25, 2003).Google Scholar

6 The American-led invasion was never authorized by the United Nations. In September 2004, then-Secretary General Kofi Annan publicly declared that the invasion had been “illegal”. See Ewen MacAskill and Julian Borger, “Iraq war was illegal and breached UN charter, says Annan” The Guardian (16 September 2004).Google Scholar

7 See, e.g., Getting Back on the ‘Rights’ Track: A Human Rights Agenda for Canada (Ottawa: Amnesty International Canada, 2011) [noting that Canada's standing as an international human rights champion has dropped during the Harper years, both in the international realm and in ensuring human rights domestically].Google Scholar

8 Clark, Campbell, “Harper honoured in N.Y. as statesman of the year, aims to snub UN” The Globe and Mail (September 11, 2012).Google Scholar

9 Appeal of Conscience Foundation, online: http://www.appealofconscience.org/about-us.cfm.Google Scholar

10 “Canadian Prime Minister Stephen Harper receives World Statesman Award at 2012 ACF Dinner” (September 27, 2012). Full text online: http://www.appealofconscience.org/news/article.cfm?id=100271.Google Scholar

11 Clark, Campbell, Martin, Patrick and Mackinnon, Mark, “Envoys out as Canada abruptly severs ties with Iran” The Globe and Mail (September 7, 2012)Google Scholar

12 Israel's bombing of Gaza, known as “Operation Cast Lead”, in December 2008-January 2009 was the subject of a United Nations Fact-Finding Mission that concluded in its September 2009 report that numerous violations of international law occurred not only during the Israeli military's three-week assault, but in the underlying conditions of the more than 40 year occupation of Palestinian territories.Google Scholar

13 Getting back on the ‘rights’ track, supra at 4, 14.Google Scholar

14 Clark, Campbell, “In accepting World Statesman award, Harper paints picture of uncertain world” The Globe and Mail (September 28, 2013).Google Scholar

15 See Ibbitson, John, “Mulroney's advice to Harper: Don't give up on the United Nations” The Globe and Mail (October 4, 2012). See also Paul Heinbecker, “It's not just the drought treaty. Canada is vanishing from the United Nations” The Globe and Mail (April 1,2013).Google Scholar

16 In the time passed since these remarks were delivered, Canada has withdrawn from an important international drought convention that will protect vulnerable people from the effects of climate change. See Mike Blanchfield, “Canada first country to pull out of UN drought convention” The Globe and Mail (March 27, 2013). Canada also refused to sign a new treaty designed to curb arms trading. See Stephanie Levitz, “Canada opts not to sign landmark arms-trade treaty for now” The Globe and Mail (June 3, 2013).Google Scholar

17 “UN review finds Canada falling short on child rights”, The Canadian Press (October 10, 2012). Online: http://www.cbc.ca/news/politics/story/2012/10/10/pol-cp-united-nations-canada-child-justice.html. The report was referring to Bill C-10, the federal Safe Streets and Communities Act (received Royal Assent on March 13, 2012).Google Scholar

18 Ibid.Google Scholar

19 See Kennedy, David, “The International Human Rights Movement: Part of the Problem?” (2002) 15 Harv Hum Rts J 101.Google Scholar

20 For example, a closed-door inquiry headed by former Supreme Court of Canada Justice Frank Iacobucci found that Canada was indirectly responsible for the torture of three Muslim-Canadian men. In another case, the government paid $10 million in compensation to Maher Arar after a public inquiry found that Canadian security officials had given false information that led to his rendition to torture in Syria. See generally Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (New York: Cambridge U Press, 2011).Google Scholar

21 In some countries, the final step of implementation is not required. In such states, international treaties duly ratified by the Executive gain the force of law without the requirement of any domestic legislative action. Historically, France is the model monist state. The Westminster system of government has typically required independent legislative action to make international law binding, though this is changing. Under the 2010 Constitution of Kenya, for example, automatic incorporation of international law is provided. See Constitution of Kenya (adopted 27 August, 2010), Article 2 (5) and (6) providing that “general rules of international law” and “any treaty or convention ratified by Kenya” are part of national law.Google Scholar

22 Canada has signed and ratified seven key international human rights instruments: International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination Against Women; the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; and the Convention on the Rights of the Child; and the Convention on the Rights of Persons with Disabilities. Canada has also signed the optional protocols allowing for individual complaints by persons under Canadian jurisdiction with respect only to CEDAW and the ICCPR.Google Scholar

23 Reference Re Public Service Employee Relations Act (Alta.) [1987] 1 SCR 313 at para 57.CrossRefGoogle Scholar

24 Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.Google Scholar

25 Ibid at para 71.Google Scholar

26 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3Google Scholar

27 Ibid at para 72.Google Scholar

28 Ibid at para74.Google Scholar

29 Charkaoui v Canada (Citizenship and Immigration) [2007] 1 SCR 350.Google Scholar

30 The instrument by which non-citizens may be administratively detained without charge is known as the “security certificate”, pursuant to section X of IRPA.Google Scholar

31 Charkaoui supra at paras 90, 125–127.Google Scholar

32 “Remarks of the Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada” Symons Lecture (2008). Full text online: http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm2008-10-21-eng.asp.Google Scholar

33 See United Nations Guiding Principles on Business and Human Rights (endorsed by UN Human Rights Council, June 16, 2011). This was the culmination of the work of Professor John Ruggie, Special Representative of the UN Secretary-General on the issue of human rights and transnational corporations and other business enterprises, from 2005-2011.Google Scholar

34 See Francioni, Francesco, ed., Access to Justice as a Human Right (Oxford: Oxford U Press, 2007).CrossRefGoogle Scholar

35 UN Enable, Secretariat for the Convention on the Rights of Persons with Disabilities (SCRPD). Online: http://www.un.org/disabilities/countries.asp?navid=12&pid=166 Google Scholar

36 Disability Convention, Art. 5(2), (3) and (4).Google Scholar

37 Complaints procedures are established under the International Covenant on Civil and Political Rights, the Convention Against Torture Convention Against Torture, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of Persons with Disabilities and the Convention on the Elimination of All Forms of Discrimination Against Women. Canada has, so far, only signed on to the complaints process under CEDAW and the ICCPR.Google Scholar

38 Standing Senate Committee on Human Rights, Level the playing field: A natural progression from playground to podium for Canadians with disabilities, The Honourable Mobina S. B. Jaffer, Chair (June 2012). Online: http://www.parl.gc.ca/Content/SEN/Committee/411/ridr/rep/rep07junl2-e.pdf.Google Scholar

39 Jazairi v Ontario Human Rights Commission (1999), 175 DLR (4th) 302 (Ont CA).Google Scholar

40 Nuri Jazairi v Canada, Communication No. 958/2000, U.N. Doc. CCPR/C/82/D/958/2000 (2004).Google Scholar