E. International Human Rights Charters

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The failure of the Canadian legal system to respond to the issue of racial and other forms of discrimination was not an isolated phenomenon. In the period immediately following the Second World War, there was an international trend towards the elaboration of human rights charters of various kinds. The horrors of war, the Holocaust, and the rise of totalitarianism created a climate in which it was increasingly felt that human rights values deserved enhanced recognition and protection. No nation was blameless - the fears of war had prompted Canada to perpetuate shameful discrimination against Japanese Canadians. There was an awakening to the evils of racism, and a widespread feeling that new laws and legal techniques were required.

The adoption of formal charters proclaiming fundamental rights and freedoms occurred at both the national and international levels.

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The United Nations adopted the Universal Declaration of Human Rights in 1948. A large number of European states signed the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950. Other instruments, to which Canada was a signatory, came into being over the next two decades. The International Covenant on Civil and Political Rights, adopted in 1966, is one of them. Some of the rights in these modern bills of rights could be subject to limits prescribed by law, limits that are necessary in a democratic society, and some of the rights could be subject to formal derogation in times of officially proclaimed emergencies. These and other features of international human rights charters influenced the drafting of the Charter.

As colonialism collapsed, the constitutions of newly independent states almost invariably contained entrenched charters of rights and freedoms. Even in nations with established constitutional regimes, the protection of human rights and the struggle against discrimination and racism attracted unprecedented attention. The decision of the Supreme Court of the United States in its 1954 ruling, Brown v Board of Education,25was a watershed. The Court found that racially segregated schools violated the guarantee of equal protection of the laws, and it overruled a late-nineteenth-century precedent that had implicitly sanctioned racial...

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