Reception of Specific International Human Rights

AuthorMark Freeman, Gibran Van Ert
We observed in Chapter Eight that courts and counsel are often too
quick to find that international human rights norms are not imple-
mented in Canadian law. We argued that the absence of explicit imple-
menting legislation must not be equated with non-implementation. In
short, the concept of implementation is more subtle than is sometimes
thought. The purpose of this chapter is to put this subtler conception
of implementation into practice. We do so by isolating twenty human
rights or groups of related human rights and describing them as they
exist in both international and Canadian law. By so doing we are able
to identify which domestic laws serve an implementing function by
giving effect to Canada’s international human rights obligations. We
end this chapter with a discussion of international and Canadian pro-
visions governing derogations from human rights norms.
It is not always easy to say whether the constitutional, quasi-con-
stitutional, statutory, or common laws of Canada meet international
requirements. Like all legal questions, this one often leaves room for
reasonable disagreement. Accordingly, we do not attempt to pass judg-
ment on Canada’s domestic human rights record in respect of all the
rights discussed below. But we do not hesitate to identify points of past
and present difficulty where we see fit.
Each right or group of rights is addressed separately. First the right
is described as it appears in instruments binding on Canada at interna-
tional law, namely the UDHR, the ICCPR, the ICESCR, the CERD, the
CEDAW, the CAT, the CRC, certain ILO treaties, the AmDR, and other
chapter 10
216 international human rights law
binding instruments.1Next, the right is discussed as it appears in the
main non-binding instruments, notably the ACHR and its protocols, the
ECHR and its protocols, the EurSC,2the AfrCHPR and the AfrCHPR
Women’s Protocol, and other relevant instruments.3Finally, the right is
examined as it appears in Canadian law. There is, admittedly, a certain
artificiality to this approach, for many of the rights considered here do
not easily stand alone but depend upon and overlap with others.
Canada’s practice in international law is such that the distinction we
draw between binding and non-binding instruments accords closely
(but not exactly) to the distinction between UN instruments and instru-
ments elaborated by regional human rights systems. Generally speaking,
Canada participates very heavily in the UN treaty system and very little
in the Inter-American and Council of Europe systems. This overlap
between “binding” and “UN” on the one hand, and “non-binding” and
“regional” on the other, is subject to one important exception: the
AmDR. As explained in Chapter Six, the AmDR originated as a non-
binding declaration but has since been held by the Inter-American Court
of Human Rights to be an enunciation of human rights obligations bind-
ing on Canada and other parties to the Charter of the Organization of
American States 1948.4The Canadian government acknowledges the
binding character of the AmDR and recognizes the competence of the
Inter-American Commission on Human Rights to entertain petitions
from Canadians alleging violations of the AmDR.5We therefore include
it within our discussions of binding instruments.
The AmDR is not the only formally non-binding instrument we
treat as binding for the purposes of this chapter. As explained in Chap-
ter Four, the UDHR is technically non-binding (being a resolution of the
UN General Assembly), yet most of its provisions are widely considered
to represent customary international law. Throughout this chapter we
treat the UDHR as a binding instrument. We take the same approach to
the ILO’s so-called fundamental conventions,6whether Canada is a
1 On the bindingness of the UDHR and the AmDR, see the discussion immediate-
ly below.
2 We have omitted the Charter of Fundamental Rights of the European Union,
which for the moment is not legally binding on EU member states.
3 We have omitted the MWC from our discussion. For more on the MWC, see
Chapter Five.
4 [1990] CanTS no. 23.
5 See “Canada and the Inter-American Human Rights System,” statement by
Ambassador Peter M. Boehm, permanent representative of Canada to the OAS, 2
December 1999, OAS doc. OEA/Ser.G, CP/CAJP-1596/99.
6 See the discussion of the ILO in Chapter Seven.
Reception of Specific International Human Rights 217
party to them or not. We adopt this approach because the ILO does, but
we acknowledge that it remains controversial in some quarters.
Three of the instruments considered below — the UDHR, the AmDR,
and the Charter — include general limitations provisions applicable to all
the rights and freedoms they proclaim. UDHR article 29(2) provides:
In the exercise of his rights and freedoms, everyone shall be subject
only to such limitations as are determined by law solely for the pur-
pose of securing due recognition and respect for the rights and free-
doms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society.
AmDR article 28 provides:
The rights of man are limited by the rights of others, by the security
of all, and by the just demands of the general welfare and the
advancement of democracy.
Finally, Charter section 1 provides:
The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits pre-
scribed by law as can be demonstrably justified in a free and demo-
cratic society.
The reader should bear these limitation provisions in mind in the dis-
cussions that follow.
With some exceptions, we are forced by space constraints to limit
our discussion of the international human rights described below to a
survey of the relevant treaty provisions. We wish to emphasize, howev-
er, that an appreciation of the complete international legal position
requires consideration of international custom, the jurisprudence of
international courts and treaty bodies,7and international legal scholar-
ship. Similarly, our discussion of the applicable Canadian law is neces-
sarily somewhat brief. We make no attempt to address Charter
7 This material is readily accessible online and has been examined in countless
academic texts and commentaries. See, for example, M. Castan, S. Joseph, & J.
Schultz, The International Covenant on Civil and Political Rights: Cases, Materials,
and Commentary (Oxford: Oxford University Press, 2000) and N. Jayawickrama,
The Judicial Application of Human Rights Law: National Regional and International
Jurisprudence (Cambridge: Cambridge University Press, 2002). For a summary of
the workings and the Canadian jurisprudence of the Human Rights Committee,
see J. Harrington, “How Canadian Lawyers Can Contribute to the Effectiveness
of the UN Human Rights Committee” (forthcoming paper in the 2002 proceed-
ings of the Annual Conference of the Canadian Council of International Law).

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