Regarding Rights

Academic and activist perspectives on human rights

Federalism, Political Will, and Canada’s Commitment to International Human Rights: A Historical Perspective

| Leave a comment

Image from National Union of Public and General Employees, Canada.  http://nupge.ca/content/%5Bnid%5D/canadas-sham-response-un-human-rights-review

Image from National Union of Public and General Employees, Canada.
http://tinyurl.com/m8eoo7y

Jennifer Tunnicliffe
McMaster University

In April 2013, the United Nations Human Rights Council (UNHRC) conducted its second evaluation of Canada’s human rights progress under the Universal Periodic Review (UPR). The final report, which takes the form of recommendations from member states of the UNHRC, identified a number of concerns, including: the lack of a national action plan to reduce high levels of poverty; excessive use of force by police against citizens in marginalized communities; a failure to uphold the basic rights of Indigenous peoples; gender inequality; and violence against women and children, Indigenous women and girls in particular.

Central to the UPR report is a broad sense that Canada is failing to fully implement its international human rights commitments. Member states questioned Canada’s refusal to ratify or give full effect to UN instruments such as the Optional Protocol to the Convention against Torture (OPCAT), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), the Optional Protocol to the Convention on the Rights of Persons with Disabilities (OP-CRPD), and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Non-governmental human rights organizations have further criticized the Canadian government for its response to the UPR.[i] Canada rejected, at least in part, more than half of the sixty-eight recommendations made. The Government also indicated that it was not currently considering becoming a party to any of the outstanding treaties. Canada rejected recommendations for national strategies to eliminate poverty, combat racism and address violence against Aboriginal women, arguing that within its federal structure these issues fell under multiple jurisdictions. Several human rights groups have accused Canada of using this federal argument to avoid meeting its international obligations. Amnesty International states,

Partially because of the complexities of federalism, partially because of a lack of political will, and partially because of a failure of leadership, concern about the growing gap between Canada’s commitment to international norms on the one hand, and action to implement and live up to those norms on the other hand, has mounted considerably over the past decade.[ii]

The current Conservative Government is under attack for eroding “Canada’s traditional reputation as a human rights leader.”[iii] Situating Canada’s response to the UPR in its historical context, however, reveals that a reluctance to be bound by international human rights law is not a recent trend. Rather, Canada has resisted committing to international human rights treaties since the introduction of the International Bill of Human Rights at the United Nations in 1947, and successive governments have used Canada’s federal nature to justify this lack of commitment.

The International Bill of Human Rights consists of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Canada actively resisted all three of these early human rights initiatives. It attempted unsuccessfully to delay the adoption of the Universal Declaration in 1948, deciding to support the instrument only at the last minute, as a result of pressure from its allies, and with officially stated reservations.[iv] The following year, Canada spoke out in opposition to the draft First Covenant on Human Rights, and in 1954 refused to commit support to the two covenants that were submitted to the General Assembly for debate. Hoping these covenants would prove too contentious for adoption, Canada instructed its delegates to remain on the periphery of debates, and to abstain in all votes on articles that could prove “embarrassing” to Canada.[v] By the late 1950s, this approach had caused Canada to be increasingly isolated and the subject of intense criticism, particularly from newer member states that supported the Covenants.[vi]

Canada justified its objections to the UDHR and the International Covenants by repeatedly pointing to its constitutional arrangement: because property and civil rights fell within the jurisdiction of provincial governments, the provinces could challenge the authority of the federal government to implement international treaties involving human rights. The Federal Government claimed it could not support the Covenants on Human Rights without a suitable federal state clause, allowing it to become party to the treaties without being bound by international law to carry out obligations outside its jurisdiction.[vii]

These federal arguments obscured the more serious reservations of Canadian policy makers over how international human rights instruments articulated and defined human rights. Canadians had a very narrow understanding of rights in the mid-twentieth century, prioritizing traditional legal and political rights. The Government opposed the inclusion of economic and social rights into international human rights law on the basis that they were a matter of social legislation and economic policy, not human rights.[viii] In Canada, the concept of equality simply referred to equal protection of the law and did not include the sense that all people should be treated as equals or have the same political, economic, social and civil privileges.[ix] There was virtually no legislative protection against discrimination in Canada when the UN introduced its Bill of Human Rights, and officials argued that the UDHR and the Covenants contained articles that called for too great a government interference. Policy makers feared the impact on Canadian domestic policy of international treaties that articulated such an expansive definition of human rights.

Furthermore, Canadian politicians told the United Nations that Canada did not have a problem with its minority groups or with human rights. In doing so, they blindly ignored the prejudice and discrimination that was a daily part of the lives of many Canadians. Yet the Government argued against the implementation of a covenant on human rights, declaring those states in need of such a convention would never follow it, while states for which it was “unnecessary,” like Canada, would only be opening themselves up to propaganda attacks through the use of the new machinery of the international human rights regime.[x]

Ultimately, in the final votes on the two International Covenants on Human Rights, Canada reversed its policy and voted in support of adoption. Once again, it did so in response to mounting international pressure and because cultural changes at home had caused the public to be more aware and supportive of the principles of human rights. For almost two decades, however, Canada had opposed the UN’s human rights initiatives, and Canadian politicians remained reluctant to submit Canadian legislation and practice in the field of human rights to international scrutiny. This was made all the more obvious by the fact that it took another ten years for Canada to ratify the instruments.

Despite this history of resistance, the Canadian Department of External Affairs declared in 1979 that, “Canada has been at the forefront of multilateral initiatives designed to promote human rights.”[xii] Today, this same department posts on its website that, “Canada has been a consistently strong voice for the protection of human rights and the advancement of democratic values, from our central role in the drafting of the Universal Declaration of Human Rights in 1947/48 to our work at the United Nations today.”

This rhetoric ignores the extent to which concepts of universal rights have historically been opposed within the Canadian government, and efforts at the UN to introduce international treaties relating to human rights resisted by Canadian policy makers. Clearly, Amnesty International is right in identifying a gap between Canada’s “commitment” to international human rights and its political will to implement these rights. What needs to be better understood, however, is that this is nothing new.[xiii]

 


[i] A coalition of national human rights groups submitted a report to the UPR Working Group.

[ii] Amnesty produced its own report. It also reported on Canada’s response to the Review.

[iii] This criticism is common among human rights and left-wing organizations in Canada. See, for example: Maude Barlow, “Common Causes: Human Rights Policies Eroding under Harper,” The Council of Canadians, January 29, 2013.

[iv] The United States and Britain strongly advocated the adopted of a declaration on human rights. Canadian Secretary of State Lester Pearson worried about the political implications of finding itself in the company of the Soviet bloc and South Africa in not supporting the Declaration. Pearson, Lester. “Statement on the Universal Declaration of Human Rights,” Third General Assembly of the United Nations, 10 December 1948.

[v] This included articles that dealt with matters under provincial jurisdiction, as well as articles that articulated a broader interpretation of rights than was customary in Canada.

[vi] Throughout the period of the article-by-article debates of the International Covenants on Human Rights, membership of the UN expanded to include a wider representation from Asia and Africa, states that commonly supported the UN’s human rights regime.

[vii] For example, Canada made repeated references to constitutional constraints prior to the final vote on the UDHR in 1948. For excerpts from speeches, see William A. Schabas, “Canada and the Adoption of the Universal Declaration of Human Rights,” McGill Law Journal 43, no. 2 (1998): 403-441.

[viii] In this period, the majority of Canadian Liberals and Conservatives believed economic and social rights were a threat to the traditional values of individual freedom, the rule of law, and freedom in the marketplace. This is reflected in the official papers of the Department of External Affairs (Library and Archives Canada, RG25, Volumes 8118, 8126, 6407, 6927). See also, Carmela Patrias, “Socialists, Jews, and the 1947 Saskatchewan Bill of Rights,” The Canadian Historical Review 87, no. 2 (June 2006): 265-292.

[ix] For an overview of Canadian understandings of rights from the 1940s to the 1960s, see: Tarnopolsky, Walter Surma. The Canadian Bill of Rights, 2nd ed. (Toronto: Oxford University Press, 1964)

[x] “Minutes and Comments of the First Meeting of the Interdepartmental Committee on Human Rights,” 26/27 July 1950, File 5475-W-40, Part 2.2, Vol. 6408, RG25, Library and Archives Canada.

[xi] Edelstein, V.M. “The Impact of Human Rights on Canadian Foreign Policy,” Prepared for the Canadian Department of External Affairs, 18 May 1979.

[xiii] For further discussion, please see:
Behiels, Michael. “Canada and the Implementation of International Instruments of Human Rights: A Federalist Conundrum, 1919-1982.” In Framing Canadian Federalism: Historical Essays in Honour of John T Saywell, edited by Dimitry Anastakis and P.E. Bryden (Toronto: University of Toronto Press, 2009): 151-184.
Tunnicliffe, Jennifer. “A Limited Vision: Canadian Participation in the Adoption of the International Covenants on Human Rights.” In Taking Liberties: A History of Human Rights in Canada, edited by Stephen Heathorn and David Goutor (Toronto: Oxford University Press, 2013): 166-189.

Leave a Reply

Your email address will not be published. Required fields are marked *

By submitting this form, you accept the Mollom privacy policy.