Canadian Lawyer by Karen Busby 21 March 2016
Unless you are a keen observer of international human rights, you probably don’t know that earlier this month a United Nations expert committee issued its periodic review on Canada’s compliance with the International Covenant on Economic, Social and Cultural Rights. By acceding to this and other treaties, our governments accept the obligation to implement the provisions of the treaties and to report every five years on their progress.
But, in reality, treaties are unlikely to be implemented without an informed and engaged bar.
The soft diplomacy of UN expert reviews is an important tool for treaty implementation. Lawyers can learn much from them. They lay out “principle subjects of concern” and recommendations. Each of the more than 50 subjects identified in the recent review — such as the persistent inequality between indigenous and non-indigenous Canadians and the primacy of human rights over investor interests — could warrant a stand-alone column here.
In the next periodic review, federal, provincial, and territorial governments will be called on to explain how they responded to these concerns and recommendations.
Only a handful of short stories appeared in the media on the ICESCR review, but the documents and proceedings are accessible online, and non-governmental organizations have articulate people willing to comment. The federal and provincial governments filed reports asserting how they have demonstrated their commitment to ICESCR implementation, and almost 30 Canadian NGOs filed briefs in response. Public servants and NGO representatives then appeared in person before the committee.
The previous federal government, which had little use for the UN, appeared to bank on widespread ignorance about how the UN operates and, in particular, what its expert bodies have to say about Canada’s treaty compliance record. That government’s compliance reports on the ICESCR and other treaties were filed late, financial support was delayed or withheld, and other accountability initiatives were actively resisted.
Such actions have contributed to the embarrassing slide in the last decade of Canada’s reputation as a human rights defender.
The ICESCR is built on the principle of “progressive realization,” meaning that states are obligated to take measures to respect, protect, and fulfill their obligations under this treaty. In reality, international treaties have had limited impact on Canadian law or policy, even after they are ratified. Some provisions have been incorporated into domestic legislation and, on rare occasions, the provisions influence how ambiguous laws are interpreted by judges and other decision-makers.
The act of treaty accession also creates a commitment to ensuring the availability of domestic enforcement processes and effective remedies. While governmental delegations assert Canada’s commitment to implementation when appearing in international fora, government lawyers actively resisted stand-alone actions founded on treaty provisions before domestic bodies.
Judges, ever reluctant to adjudicate systemic claims, find ways to dismiss these cases summarily. The expert periodic review calls for improved access to effective remedies from Canadian courts and for more continuing judicial and professional education on international human rights law implementation.
If domestic remedies have been illusory in most cases, what about pursing effective processes and remedies directly before UN bodies? This strategy is also a no go. Individuals cannot complain of breaches of the ICESCR directly to UN adjudicators as Canada has refused to sign on to the optional complaint mechanism.
The optimist in me hopes the recent decision of a Canadian Human Rights Tribunal on the under-funding of First Nations child welfare programs, which references the ICESCR, may signal a reversal of these trends. The tribunal extensively reviewed Canada’s statements and commitments as expressed in the ICESCR and other periodic reviews and concluded that such statements “should not be allowed to remain empty rhetoric.”
If a government’s assertions in international fora can be used domestically as evidence of the government’s substantive understanding and procedural commitments, then lawyers need to pay more attention to these assertions.
How can you help ensure that governments are kept on the hook to implement international human rights treaties?
- Become more aware of the submissions made by both governments and NGOs and the resulting review reports;
- Call on and assist the media in writing more stories on the review processes or, better yet, write op-eds yourself;
- Understand treaty provisions and think about how they could be used in litigation;
- Use existing organizations, such as bar association subsections, to work towards realization of international treaty aspirations through policy reform and public interest advocacy, including participation in periodic reviews
Karen Busby likes to write about sex, politics and religion. She is a law professor and director of the Centre for Human Rights Research at the University of Manitoba as well as author of Manitoba Queen’s Bench Rules. She can be reached at Karen_Busby@umanitoba.ca.