International human rights law

AuthorGib van Ert
 International human
rights law
e most signif‌icant expansion of international law since t he close
of t he Second World War has been in the area of huma n rights. e
second hal f of the twentieth centur y saw the proclamation and codi-
f‌ication in international l aw of doctri nes once recognized only in the
laws of a handf ul of states and the writ ings of philosophers. e lead-
ing international human rights instruments of the period took the
form of multilateral treaties such as the United Nations Convention
Relating to the Status of Ref ugees , the many conventions of the
International Labour Orga nization, the International Covenant on
Civil and Political Rig hts  (ICCPR), the International Covenant on
Economic, Social a nd Cultural Rights  (ICE SCR), the Internation-
al Convention on the Elimination of All Form s of Rac ial Discri mina-
tion  (CERD), the Convention on t he Elimin ation of All Forms
of Discrimi nation Against Women  (CEDAW), the Convention
Against Torture  (CAT), and t he Convention on the Rights of the
See, general ly, W. Schabas & S. B eaulac, International Hu man Rights and Canad-
ian Law: Legal Commitme nt, Implementation and the Charte r, d ed. (Toronto:
omson Carswe ll, ); and M. Freeman & G. va n Ert, International Human
Rights Law (Toronto: Irw in Law, ).
[] CanTS no. .
Notably Convention (No. ) Concer ning Freedom of Associ ation and Protec-
tion of the Rig ht to Organize  [] Ca nTS no. .
[] CanTS no. .
[] CanTS no. .
[] CanTS no. .
[] CanTS no. .
[] CanTS no. .
     
Child  (CRC). Other signi f‌icant statements of inter national hu-
man rights took the form of non-binding instruments, chief a mong
them the Universal Declaration of Human Rights  (UDHR). e
development of inter national human r ights continues in t his century
with such instruments as the Convention on the Rights of Persons
with Disa bilities . Alongside these posited human rights in stru-
ments runs a rich international juri sprudence of human rights, elabor-
ated by regional bodies such as the Eu ropean Court of Human R ights,
the Inter-A merican Court of Human R ights, the Freedom of Associa-
tion Committee of the International Labou r Organizat ion, the Human
Rights Committee and other UN treaty bodies, a nd a growi ng number
of international cr iminal courts and tribu nals.
e human rights movement has legitim ized and popula rized
rights discourse not only in internationa l law, but also i n domestic
legal systems.  is phenomenon has been particu larly evident in Can-
ada which , following the constitutional traditions of England, ori gin-
ally possessed no entrenched r ights-protecting instrument, but has
since adopted one. In Canada and other Westminster-model constitu-
tions, rights were once thought to be best protected by representative
assemblies, ordinary stat utes, judge-made law, and ancient notions
of the liberties of the subject. e bundle of rights protected by the
Westminster model was much smaller than that now recognized at
international law. Even if the Westminster model were capable of af-
fording adequate protection to its ow n narrow conception of human
[] CanTS no. .
 GA Res  A (III), U N Doc. A/. Judges of the Supreme Court of C anada have
frequently refer red to the UDHR as a convention or in strument to which Ca n-
ada is a sign atory or party: see R . v. Lucas []  SCR  at para. ; Canadian
Egg Marketing A gency v. Richardson []  SCR  at para. ; De lisle v. Canada
(Deputy Att orney General) []  SCR  at para . ; R. v. Advance Cutting &
Coring Ltd.  SCC  at par as. –. is is m istaken: the UDHR is a non -
binding resolutio n of the General Assembly of t he United Nations.
 Adopted  Dece mber ; not yet in force. Canad a signed the Convention on
 March .
 See B. Dick son, “e Canadi an Charter of Ri ghts and Freedoms: Context and
Evolution” in G-A. B eaudoin & E. Mendes, e Canadian C harter of Rights and
Freedoms, d ed . (Toronto: Carswell, ) at ––.
 See J. Ajzenstat , “Reconciling Pa rliament and Rights: A .V. Dicey Reads the
Canadia n Charter of Rig hts and Freedoms” () : Canad ian Journal of
Political Sc ience .
11 • International hu man rights law 
rights (and that may be disputed), it is unc lear that it was capable, in
Canada at least, of af‌fording meaningful protection to the much broad-
er range of human rig hts established since . Ca nadians eventually
opted to protect rights by constitutional entrenchment: we enacted,
in , the Canadian Charte r of Rights and Freedoms. e C harter is
Canada’s foremost rights-protect ing instrument, but it is not the only
one. Before enactment of the Charter, and stil l today, rights in Can ada
were also protected by federal, prov incial, and territorial st atutes.
In this f‌inal chapter, I consider the interaction between the inter-
national and Canad ian laws of human rights. I do not purport to
catalogue instances of Ca nadian courts using international law in in-
terpreting the Ch arter or other domestic human rights laws. Instead ,
I review the u ncertainty that besets the reception of international hu-
man rights law in C anada and consider possible solutions.
. Complexity of human rights reception in Canada
Commentators have rightly complained about the ways Canadi an
courts use, or fa il to use, international huma n rights law in their deci-
sion-making. Schabas has described the “often qu ite perfunctory ref-
erences to international human rights law” made by our judges “with
little concer n for theoretical u nderpinnings.” Elsewhere Schabas has
said that the message t he Supreme Cour t of Canada h as sent to the
Canadian judicial community is “that internat ional hum an rights law
never binds t he courts, that its sou rces are eclectic, contradictor y and
confusing, that erudite judges are of course welcome to invoke it, but
that at the end of the d ay its signif‌icance is secondar y and marginal.”
Bayefsky has observed that the absence of a convincing theory to jus-
tify the Supreme Court’s reliance on non-binding international sources
 See Freeman & van Er t, above note  c. .
 Ibid. c. ; Schaba s & Beaulac, above note  c.  ; A. Bayefsky, International
Human Rights Law: Use in Can adian Charter of Rights and Freedoms Lit igation
(Toronto: Butterworth s, ) [Bayefsky, International Human R ights Law].
 W. Schabas, Inte rnational Human Rights La w and the Canadian Charter, d ed. (Sca r-
borough, ON: Cars well, ) at  [Schabas, Inter national Human Rights La w].
 W. Schabas, “I nternational Huma n Rights Law and the Ca nadian Courts ” in
Canadia n Institute for the Adm inistration of Justi ce, Human Rights in the st
Century: Prosp ects, Institutions and P rocesses (Montreal: L es Éditions émis,
)  at .

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