Author:La Forest, Anne Warner
Position:Forum: Rights in Times of Challenge

"Canada is back my friends" Prime Minister Justin Trudeau declared at the Paris climate summit in November 2015 just weeks after defeating Stephen Harper in the federal election. (1) This specific statement was intended to signal Canada's support for the United Nations in relation to its work on climate change. However, there is no doubt that a commitment to international human rights was understood to fall within this declaration. From the beginning of his mandate to the present date, the current Prime Minister has made diversity and human rights a centerpiece of his mandate. For example, on Canada day this year, our Prime Minister made this statement:

"In the 150 years since [Confederation!, we have continued to grow and define ourselves as a country. We fought valiantly in two world wars, built the infrastructure that would connect us. and enshrined our dearest values--equality, diversity, freedom of the individual, and two official languages--in the Charter of Rights and Freedoms. These moments, and many others, shaped Canada into the extraordinary country it is today--prosperous, generous, and proud." (2)

Our 150th anniversary offers an appropriate occasion to reclaim the past and focus on our long relationship with international human rights law. And it is of interest to consider where the future may lead. The phrase "Canada is back" implies that Canada had been away. Looking at the matter from the point of view of someone who came of age in the 35 years that has followed the coming into force of the Canadian Charter of Rights and Freedoms, (3) it might appear that there had been some stepping back from Canada's focus on human rights and international human rights. But taking the long view, the reality is that whatever party has been in power, international human rights and their acceptance and integration nationally has consistently taken a path of quick progression followed by a period of challenge and then reshaping. To use a metaphor that is particularly apt in Prince Edward Island, a province surrounded by ocean, the evolution of international human rights and Canada's embrace thereof has proceeded like the waves reaching our shores; quick movement forward and then the water recedes somewhat before moving forward again, never in quite the same direction.

In my remarks, my hope is to show in broad strokes that since Confederation, there have been three such progressive movements and that each in turn has been followed by a period where advancement has slowed or been hampered by internal constitutional barriers only to be renewed and reshaped in a manner that seeks to resolve those limits and to more fully embrace the current needs of Canadian society. I also hope to show that these movements have been integrally connected to Canada's independence and the development of its unique vision in the world. It is that in the end that will define us as a nation. What becomes evident on review is that international human rights law has not only deeply influenced us; we have contributed to its evolution.

This lecture then is largely a reflective one but in my final remarks, I will comment on where the future may lead us building upon the discussion in the earlier parts of this lecture.

Before turning to these progressive movements in relation to international human rights law, I want to take a few moments to set the table. Specifically, I will make a few comments about international law in general, international human rights law in particular, and where, in 1867, Canada fit into that story.

  1. The Background: International Law, International Human Rights Law and Canada in 1867.

    Like many other aspects of Canadian law, our understanding of international law derives from our relationship with and the reception of the law of England. The years before and after the Treaty of Westphalia in 1648 saw the emergence of independent European nation states who sought to have exclusive jurisdiction--apart from the Roman church--in relation to persons and things within their defined borders. By 1789, Jeremy Bentham, the great utilitarian philosopher, had coined the phrase "international law" and asserted that it had evolved to mean the body of rules, norms, and standards that apply between sovereign states. (4)

    There are two important points here to emphasize for our purposes. The first is that international law refers to the law between states and not to the law applicable within a state. Critical to understanding international law is that within the recognized borders of each state, the state is sovereign over its territory and importantly in this context, its citizens. In 1789, international law was focused upon regulating matters beyond the reach of individual states such as diplomatic and commercial relations, laws relating to war, and the law of the sea.

    The second point is that the body of rules were in the form of custom and treaties. Putting these two points together, custom and treaties were understood to be obligations between states and did not have application directly within a state unless adopted within the state. Under English law, because custom, representing practices accepted between states, operated much like the common law, it was brought into effect within England through the courts. (5) Treaties however, involved the prerogative of the Crown and under British constitutional law, while the executive could ratify treaties that would then be binding between states, they would only become the law within England through the enactment of legislation by Parliament. (6) This process of adoption within the state is referred to as implementation. As we shall see directly, almost all international human rights law is in treaty form.

    Given the foregoing remarks, it should not come as a surprise that international human rights law was not initially treated as a subject of international law for the simple reason that the treatment of persons was considered to be a matter within the purview of states. Human rights as we understand them now, were addressed, if at all, within nation states. If we return to 1789 for a moment, we would find that to be the year in which two critical documents in terms of human rights were drafted: The American Bill of Rights and the French Declaration on the Rights of Man. To the extent that early international law focused on the treatment of persons, it was addressed as a consequence of matters directly affecting international relations between states. There were thus, for example, protections offered to individuals who were acting in a diplomatic capacity and to those engaged in war.

    It was not until the 20th century and the end of World War I that human rights began to be of international concern such that their protection became the subject matter of treaties. Over the course of the next 100 years, we have come to loosely classify international human rights as falling within three categories, sometimes referred to as generations of rights in recognition of the timing of their emergence. (7) To connect them to the French Declaration, liberte or first generation rights are described as negative rights and protect civil and political rights such as freedom of expression and life, liberty, and security of the person; egalite or second generation rights are described as positive rights and protect economic and social rights such as health, education, and working conditions; and fraternite or third generation rights protect collective rights belonging to groups on the such bases as language and culture.

    At the time of Confederation, the idea of what would become Canada developed within the international context I have just described. At an international level, what was central during this period was colonization. This focus resulted in an interesting paradox. While international law had originally evolved as a means of allowing the emergence of independent nation states in Europe, it had, by the 19th century, evolved to include understandings that ensured that colonial states had the authority to provide oversight of the law within their colonies.

    While Canada of course was conceived of as a Dominion and thus had greater independence than other colonies, the practical reality in international terms was a division between international relations (over which the mother country was to continue to have jurisdiction) and matters within Canada. Further, in terms of the latter, there was, as we know, a further proposed division of powers between matters of national importance, and those of more local concern.

    Transposing this discussion to the language of the British North America Act, 1867. (8) what one sees is that s. 132 in effect reserved the power to ratify international treaties to the executive in England while implementation was left, for the whole of Canada, to Parliament:

    "The Parliament... shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries".

    Sections 91 and 92 addressed matters internal to Canada. And recalling our discussion to this point, matters of human rights were not generally perceived yet to be international in character and thus legislation affecting the civil rights of individuals were treated as a local matter encompassed within s. 92(13). That then is the background. We turn now to the three projects. The first covers the period from 1919 through 1937 and focuses on the creation of the International Labour Organization and the Labour Conventions Case. (9) The second period runs from 1945 to 1976 and focuses on the development of the United Nations Declaration on Human Rights (10) and Canada's response thereto. The third focuses on the period from 1976 to the present with particular focus on the Canadian Charter of Rights and Freedoms, 1982. I will spend the largest amount of...

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