International human rights law

• Author: Gib van Ert
• Pages: 323-360



 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 .