The reception of international human rights law

• Author: Gib van Ert
• Pages: 458-494



 e reception of

international human

rights law

e most signicant ex pansion of international law since the close

of the Second World War has been in the area of human rights. e

second half of the twentieth centu ry saw the proclamat ion and codi-

cation in international l aw of doctrines once recognized only in

the laws of a handfu l of states and the writings of phi losophers. e

leading internationa l human rights instr uments of the period took

the form of multilateral t reaties such as the United Nations Conven-

tion Relating to the Statu s of Refugees  and its 7 Protocol,1

the many conventions of the International L abour Organization, the

International Covenant on Civ il and Political Rights 1 (ICCPR),

the International Covena nt on Economic, Social and Cultura l Rights

 (ICESCR), the International Convention on the Eli mination of

All Forms of Racial Discrimination  (CERD), the Convention on

the Elimination of All Forms of Discri mination Against Women 

(CEDAW ), the Convention Against Torture  (CAT), and the Con-

vention on the Rights of the Chi ld  (CRC). Other signicant state -

ments of international human r ights took the form of non-binding

 [] Can TS no .

 [] Can TS no .

 [] Can TS no .

 [] Can TS no .

 [] Can TS no .

 [] Can TS no .

 [] Can TS no .

 • The reception of inter national human rights law



instruments, ch ief among them the Universal Declaration of Human

Rights  (UDHR).

e development of international human r ights continues in this

century with suc h instruments as the Convention on the Rights of Per-

sons with Disabil ities  (CRPD) and the United Nations Declara-

tion on the Rights of Indigenous Peoples  (UNDRIP). Alongside

these human rights i nstruments runs a r ich international jurispru-

dence of human rights, elab orated by regional bodies such as the Euro-

pean Court of Human R ights, the Inter-American Court of Human

Rights, the Freedom of Associ ation Committee of the International

Labour Organization, the United Nations Human Rights Committee,

and other UN treaty bodies.

e human rights movement has legitimized and popularized

rights discourse not only in i nternational law but also in domestic legal

systems. is phenomenon has been par ticularly ev ident in Canada,

which, following the constitutional traditions of England, originally

possessed no entrenched rights-protect ing instrument, but has since

adopted one – the Canadian Charter of Rights and Freedoms. In

Canada and other Westminster-model constitutions, rights were once

thought to be best protected by representative assemblies, ordina ry

statutes, judge-made law, and ancient notions of the libert ies of the

subject. e bundle of rights protected by the Westminster model wa s

much smaller tha n that now recognized at international law. But even

if the Westminster model were capable of aording adequ ate protec-

 GA Res  A (III), UN Doc A /. Judges of the Supreme Court of Canad a have

frequently refer red to the UDHR as a convention or inst rument to which Can -

ada is a signator y or party: see R v Luc as, []  SCR  at para ; Canadian

Egg Marketing A gency v Richardson, []  SCR  at para  ; Delisle v Canada

(Deputy Att orney General), []  SCR  at para ; R v A dvance Cutting &

Coring Ltd,  SCC  at para s –. is is mi staken: e UDHR is a non-

binding resoluti on of the General Assembly of t he United Nations.

 [] Can TS no .

 GA Res / ( Octobe r ).

 Part I of the Constitution A ct, , being Schedu le B to the Canada Act  

(UK), , c . S ee B Dickson, “e Ca nadian Char ter of Rights and Freedoms:

Context and Evolution” in G -A Beaudoin & E Mendes, e Canadi an Charter of

Rights and Freedoms, d ed (Toronto: Cars well, ) [Dickson] at – to –.

 See J Ajzenstat, “Reconci ling Parliament and R ights: A.V. Dicey Reads the Can-

adian Ch arter of Rights and Free doms” () : Canadian Journal of Political

Science .

Using International Law in Canadian Courts



tion to its own narrow conception of human r ights (and that may be

disputed), it is unclear that it was capable, in C anada at least, of af-

fording meaningful protection to the much broader range of human

rights established since .

Canadians eventually opted to protect rights by const itutional

entrenchment, adopting the Char ter in . e Charter is C anada’s

foremost rights-protecting instrument, but it is not the only one. Be-

fore enactment of the Charter, and still today, rights in Canada were

also protected by federal, provi ncial, and territorial stat utes.

In this na l chapter, I consider the interaction between the inter-

national and Canad ian laws of human rights. I do not purport to

catalogue al l instances of Canadi an courts using inter national law in

interpreting the Cha rter or other domestic human rights l aws. In-

stead, I describe the reception r ules that have developed around inter-

national human rights norms. Inevitably, most of this discu ssion is

devoted to how international human r ights law informs Cha rter in-

terpretation.

11.1 Reception of international human rights law through

ordinary laws

e main instr ument by which human rights are protected in Canada

is the Charter. But human r ights are also protected in Can ada by a

variety of federal, provincial, and ter ritorial bills of rights and human

rights codes, and by certa in other statutes that, while not expressly

addressed at human rights, eec tively form part of Canad a’s overall

human rights regi me. Before moving on to the Charter (the main focus

of this chapter), I oer this brief account of human r ights reception

through ordinar y laws.

 See W Schaba s & S Beaulac, Internati onal Human Rights and Canadian La w: Legal

Commitment, Implementation and the Charter, d ed (Toronto: omson Carswell,

) [Schabas & Beau lac]; M Freeman & G van Ert, Inter national Human Rights

Law (Toronto: Irwin Law, ) [Freem an & van Ert] at ch ; A Bayefsky,

International Human R ights Law: Use in Canadian Char ter of Rights and Freedoms

Litigation (Toronto: Butt erworths , ).