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I. Topics discussed
The obstacles to the ratification of some key human rights instruments of the inter- American system.
The system's future: its jurisdiction, role, and mandate.
The regional system as protector of the universality of human rights.
State sovereignty.
II. Presentations
M. Irwin Cotler, moderator, stated that the topic of the round-table requires a political and legal understanding of the inter-American Commission and Court as well as their interrelation. Even though Canada and the United States have yet to ratify the American Convention and recognize the Court's jurisdiction, they already provide a certain credibility to the system through the implementation of the Commission's work. However, the system's efficiency and integrity require that its participants have a clean record, and that is the main topic of the debate on universalization.
This debate is particularly important in 1998, year of the 50th anniversary of the Universal Declaration of Human Rights, of the Covenant against Genocide, and the American Declaration on the Rights and Duties of Man. This is also the year of the Summit of the Americas when the issue of accession to the inter-American system's instruments will be inescapable, in particular that of Canada and the United States.
When examining the reluctance of Canada and the United States, mention is often made of technical obstacles such as the right to life protection given by the American Convention and its incompatibility with Canadian law regarding the protection of women's rights, the freedom of expression protection and its incompatibility with Canadian legislation against hate propaganda, and the extradition prohibition and its incompatibility with other treaties signed by Canada. Several technicalities related to the Canadian federal system can also be added to this list.
Shouldn't we go beyond these technicalities and examine the broader cultural and philosophical factors? Canada and the United States probably consider that their own protection systems are preferable and fear submitting to a system providing less human rights protection. Maybe they do not wish to be party to a system that addresses massive and gross human rights violations.
The debate on the universalization of human rights thus becomes important. If it is the political legacy of the inter-American system's other member states that Canada fears, it should be recalled that the European human rights protection system was precisely created in reaction to such legacies.
The universalization issue refers not only to the universality of human rights norms and their economic and cultural repercussions, but also to the access to justice for vulnerable groups.
Douglass Cassel congratulated the Centre on its initiative and stressed the importance of Canada's participation in the inter-American system, in particular the role played by Canadian diplomats during the 1997 meetings on the system's reform.
Starting his presentation by giving a historical background to the OAS, Mr. Cassel recalled that in 1945, the twenty-one OAS founding members met in Mexico to coordinate their strategy for the San Francisco convention to create the United Nations and plan the setting up of the future inter-American system. With the support of the United States and prompted by the death camps in Europe, the founding members planned the drafting of two treaties. The first treaty would address state rights and the second, individual rights. They also assessed the eventuality of the creation of an inter-American court on human rights. In 1948, they adopted the OAS Charter, which included member state rights. Individual rights were included in a non-binding declaration, rather than in a treaty. The project for a court, on the other hand, needed to be examined more closely. What happened between 1945 and 1948? In 1947, several events occurred. The Supreme Court of the United States invalidated a California law which discriminated against Japanese-Americans. The Court based its decision on the American Constitution but four of the Justices also referred to the UN Charter. This decision drew the attention of the American Bar Association, the Senate, and the State Department. In a different matter, the NAACP filed a complaint to the UN Commission on Human Rights denouncing systematic racial discrimination in the United States. Coming before the 1954 ruling of the US Supreme Court banishing racial segregation, these events, among others, led to an OAS Charter that was weak on human rights.
The Canadian ratification of the inter-American Convention is very important because it would provide support, diplomatic credibility, and financial stability to the system and would allow Canada to participate in the election of the Court's judges. Furthermore, Canada's membership would counter the argument often invoked by the United States that if the "Canadian angel" does not ratify the Convention, then neither should the United States.
Universalization is already present in a sense in the inter-American system. Any individual from a member state can file a petition to the Commission. Moreover, Commission recommendations can pertain to any state in the hemisphere, the Commission can undertake on-site visits in any OAS member state and publish reports therepn, and the inter-American Court can also render advisory opinions to all member states.
However, despite this partial universalization, states could broaden it even more. Of the thirty-five OAS members, only seventeen are full members, having ratified the Convention and accepted the Court's jurisdiction. Eight other states have ratified the Convention but have failed to recognize the Court's jurisdiction. Finally, the ten remaining states are subject to the Declaration but have not ratified the Convention nor recognized the Court's jurisdiction. This diversity weakens the system. For example, some states reject human rights comments coming from countries that are not full members of the system. Also, some full members might consider withdrawing their membership given the hesitations of countries such as Canada that maintain they cannot ratify the Convention — as suggested by the Peruvian delegation in Washington in 1997.
In addition to the universalization of the Declaration and complaint system, there is also another very particular form of universalization of the Convention: all the Spanish-speaking member countries have ratified it and only two of them have yet to accept the Court's jurisdiction. Thus, in Latin America, the Convention system is already almost universal.
This dichotomy could be explained by differences between civil law and common law, anglophone and latin cultures, the North and the South, etc. But it is rather the result of different political realities. The political context of the time probably contributed to the system's founding, but not to the creation of an efficient system. The Latin American democracies of the 1950s helped improve the system but its progress was slowed by other factors including anti- interventionist policies protecting national sovereignty, and the fact that most Latin American States were for many years under totalitarian regimes. Also, the OAS evolved mainly during the Cold War, which had positive and negative effects on the system. Finally, it is worth noting that the OAS is not simply an extension of US foreign policy, as shown by its institutional decision-making process based on consensus.
Nevertheless, the role and influence of the United States must not be underestimated. Having failed to prevent the creation of the Commission, the United States played a major role in its dilution (by eliminating the complaint procedure proposed in the early drafts of the Commission Statute). But Jimmy Carter greatly contributed to the ratification of the Convention by thirteen Latin American countries which paved the way for the implementation of the Convention and creation of the Court. Ironically, Mr. Carter failed to obtain US ratification. After signing the Convention in 1977, he submitted the project to the Senate where it has languished.
In 1994, taking advantage of the Miami Summit, numerous concerted efforts tried to persuade the United States to ratify the Convention. But, as a result of the November 1994 elections, Republican Senator Jesse Helms became head of the Senate Committee on Foreign Policy and the project became unrealistic. The coming April 1998 Santiago Summit is reviving the internal debate in the United States Department of State.
The reasons for the Senate's refusal to move on this issue over the last twenty years are basically related to the United States' long-standing reluctance towards human rights treaties: a long history of isolationism and inconsistency towards domestic racial discrimination, the Cold War, fear of Communists who might make use of the human rights protection instruments to embarrass the United States, and, most clearly, the superpower's refusal to relinquish any decision-making power. Not all of these historical factors today are as strong as they used to be.
Regarding the substance of the Convention and reservations, it is worth noting that the lawyers counselling the American government on the wording of the Convention are the very same ones who defend US interests before the Commission when petitions are filed against that state. Moreover, some US constitutional laws and provisions grant better protection than those stipulated in the American Convention. For example, the First Amendment is more generous than the Convention's provisions on freedom of expression. The US reservations can be divided into three categories:
Reservations based on principle
The United States wants to include a reservation regarding the protection of freedom of expression since the protection given by American legislation is both broader and narrower; for example, the U.S. in limited circumstances allows prior restraint, which is proscribed by the Convention. The latter also raises an issue regarding the right to abortion. Since the Convention is intentionally vague on this question, nobodyknows how the Court would interpret it. The American Constitution very clearly protects women's rights on this issue. The United States will probably include a reservation or understanding regarding the right to life.
Political necessity reservations
The death penalty issue will not be settled in the United States by the ratification of the Convention and much more will be needed to put an end to this practice. Consequently, a reservation on this issue is inevitable.
Minor and technical reservations
Some of the reservations that have been proposed are not very serious. For example, because the Convention provides for the right of the accused to call adverse witnesses to the stand, an understanding was proposed to allow such witnesses only on the condition that their testimony be relevant. Other proposals are more serious. For example, the Convention makes a provision for the segregation of convicted offenders from detained persons awaiting judgement, while in some State prisons, segregation is done according to the risk the detainee represents to the public. Consequently, there probably is an incompatibility. This contradiction requires either a reservation or the reform of the detention system in certain prisons. This problem would be best resolved by specialists.
In conclusion, Mr. Cassel stated that the inter-American system is an impressive achievement, but with Canada's support, it would become far more influential and efficient.
In his presentation, William Schabas first demonstrated the usefulness of regional human rights protection systems. [ Mr. Schabas referred extensively to his paper "Canadian Ratification of the American Convention on Human Rights". Copies are available from Mr. Schabas. ]Canada probably hesitates to accede to the inter-American system because it considers that its integration into the universal system is more useful.
Canada, whose public commitment to human rights is recognized worldwide, has several reasons for not ratifying the Convention. Firstly, given the length of the ratification process, it has not been uncommon in the past that Canada sign a treaty without ratifying it.
Secondly, the Canadian government has claimed that ratification is proceeding but needs more time for consultations with the provinces. However, such delays can vary greatly. When the federal government is determined, the consultation process can be very short. Thus, the provincial consultation regarding Canada's ratification of the 1989 ILO Convention on the rights of the Child was very brief. This should also be compared with Canada's abstention in the United Nations General Assembly vote on the adoption of the Universal Declaration of Human Rights when M. Pearson alleged that he first needed to consult with the provinces because of the possible implications this instrument could have on provincial matters. This is surprising given that the text was not even binding on the states! Recent research in the federal cabinet archives has shown that in fact, the government of the time feared that the Jehovah's Witnesses would invoke the Declaration's provisions on freedom of religion, and the Communists, those on democratic freedoms. (Note: a forthcoming article in the McGill Law Journal will examine this question).
Thirdly, Canada could be hesitating because it already has a good human rights protection system and has acceded to universal instruments. But Canada's technical apprehensions regarding the American Convention also apply to the International Covenant on Civil and Political Rights of which it is a signatory: for example, abortion and the notwithstanding clause. Canada should rather examine how the American Convention supplements the Canadian and international systems. Finally, article 29 of the American Convention states that if another instrument better protects a right, the provisions of that instrument shall apply. Therefore, there is no reason for Canada to fear any negative effects from the fact that the American Convention protects rights less than other national or international instruments.
Canada should not hesitate to ratify the Convention because the inter-American institutions might give a restrictive interpretation to certain rights. This is after all a fact of law and even in domestic law, there are no certainties. It is true that the Inter-American Court might contradict the UN Human Rights Committee in its interpretation of certain rights. Also, authors of unsuccessful petitions to the Inter-American Court could proceed to appeal the ruling before the Human Rights Committee. But one would have thought that Canada had overcome its fear of such uncertainties when it ratified the International Covenant on Civil and Political Rights in 1976.
Certain technical issues are blocking Canadian ratification. Firstly, on the abortion issue, the situation resembles somewhat that of the International Covenant on Civil and Political Rights. The American Convention is not incompatible with Canadian law (the 1988 Morgenthaler case). Moreover, if article 4 of the American Convention seems to cause a problem, Canada could simply enter a reservation. A second technical issue concerns freedom of expression and the prohibition of prior restraint. Here again, Canada could enter a reservation by which it accepts the obligations of the Inter-American Convention to the extent that these are consistent with the obligations it has already assumed under other human rights treaties.
Canada is hesitating for other technical reasons, but these are very weak. Regarding the fear that the provisions on discrimination might prohibit affirmative action, it should be noted that neither does the International Covenant on Civil and Political Rights contain a provision explicitly allowing affirmative action, and that this is not a problem. The Human Rights Committee has interpreted that the International Covenant implicitly permits affirmative action because it is not considered as discrimination. Another minor technical issue concerns the right to property, which was omitted from the International Covenant but is already included in the American Declaration. Moreover, international jurisprudence is clear on this question.
In conclusion, Mr. Schabas recalled that reservations must not be incompatible with the object and purpose of the treaty. None of the reservations mentioned here goes against the object and purposes of the American Convention. Thus, Canada could submit its reservations to the Inter-American Court for review. As for the policy of not ratifying instruments with more than two reservations, Mr. Schabas answered that while it looks bad to have too many reservations, it is even worse to stay out altogether.
III. Questions and Comments
M. Warren Allmand, ICHRDD, explained that the ratification of the Convention never was a priority in Parliament. Members of Parliament know very little about the inter-American system. Human rights and other interest groups have not sufficiently pressured and lobbied the government on this issue. Several provinces already have a human rights charter and commission in addition to the Canadian system. If the government tabled ratification in the House of Commons, there would be an interesting debate on several issues, including the right to property, abortion, and freedom of speech. NGOs, universities, and other groups need to exert more pressure. If Canada wishes to fully participate in OAS activities, it must ratify the Convention. The Convention will provide organizations representing minorities and vulnerable groups a new forum to further their cause. For different reasons, our laws do not always do them justice.
Mr. Cassel said that he does not know exactly what the advantages are for Canada in signing the Convention. However, the system and many member states desperately need the support of Canada.
Stewart Istvanffy, immigration rights lawyer, touched on the Canadian government's refugee deportation policy saying that Canada would be willing to ratify an instrument such as the American Convention if it were convinced that it would never lose a case before the Inter-American Court. But since the Canadian government has now lost cases before international bodies, it has strong hesitations. In particular, Immigration Canada fears that the international community could interfere in domestic Canadian issues. Following a decision of the UN Committee against Torture blaming the Canadian refugee deportation policy, the Canadian authorities complied with the decision but hushed it up. No follow-up was undertaken at the government level. In the field of immigration, Canada is violating human rights (calling into question of the right of asylum, plan to abolish due process for non citizens) and does not want to draw international attention on these violations.
Mr. Schabas recognizes that very few NGOs are concerned by the Convention. Ottawa should look beyond the technicalities and demonstrate that ratification is possible. This should be done not for the direct benefit of Canada but rather to promote human rights in the hemisphere. A positive approach is needed in presenting the Convention to the Canadian provinces and people, as happened with the Convention on the Rights of the Child.
Mr. Cotler said that we must take advantage of the fiftieth anniversary of the American Declaration on the Rights and Duties of Man as well as the sympathy and initiative of Minister Axworthy to ask him to lead a campaign in favour of the Convention. Also, the International Centre could motivate NGOs, human rights lawyers, and the Canadian government. If nothing is undertaken in 1998, it will be even more difficult because there will always be more reasons to not ratify.
Alain Dupuis asked Mr. Schabas to give details regarding the Convention provisions on discrimination.
Mr. Schabas indicated that what is at issue is whether it is necessary to enter a reservation in order to protect affirmative action policies. The Human Rights Committee has already supplied the answer in its interpretation of the International Covenant on Civil and Political Rights stating that temporary affirmative action is not discrimination. Moreover, Canada can always ask for an advisory opinion from the Court. Another possible solution would be to enter a reservation protecting affirmative action policies. This would not be morally dubious and Canada's image would not be tarnished.
Mr. Cassel added that article 29 of the Convention provides that no article shall be interpreted as restricting the rights recognized by other international treaties. Several other instruments already protect affirmative action, including the Convention on the Elimination of Discrimination Against Women and the International Convention for the Elimination of All Forms of Racial Discrimination.
Andrew Reding, World Policy Institute, said that to set the government in motion on this issue, it is necessary to seek the active lobbying support of the human rights NGOs, the churches, and the labour movement. However, these groups know very little about the Convention and the inter-American system. It is necessary to educate them and to coordinate their actions. Their lack of coordination was obvious during the NAFTA negotiations. The US labour movement fears that the Convention will legitimize economic integration. The churches prefer to wait for instructions from their synod or fear the women's movement's reaction regarding article 4. The reservation solution is insufficient for these groups because they do not understand what a reservation is. Information activities should be organized to educate these groups.
Darryl Robinson, Department of Foreign Affairs and International Trade, does not agree that the government's lawyers are blocking the ratification project. On the contrary, most of them are in favour of it and are actively supporting it. He mentioned that public support is necessary. Finally, he asked Mr. Schabas to give his recommendations regarding the right of reply issue.
Mr. Schabas explained that Canada could recognize the right of reply. Anyway, it already recognizes this right to some extent. Judges working under common law jurisdiction have the discretionary power to order injunctions in libel cases. If the right of reply is included in the debate on freedom of expression, why not enter a reservation stating that Canada accepts the obligations of the Convention to the extent that they are consistent with the obligations it has already assumed under other treaties?
Mr. Allmand stated that it is probably not the Department of Foreign Affairs and International Trade that is blocking ratification but rather the Prime Minister's Office where decisions are electorally motivated and taken according to whatever is profitable for the party in power.
Speaking for himself, José Herrán-Lima, Department of Foreign Affairs and International Trade, said that Canada's ties with Latin America are very recent. With the arrival of Latin American immigrants in the 1970s, Canadians realized that massive and gross human rights violations were occurring in that region. The problem is how to convince the Canadian public to join a system if it is only for the system's benefit. What is our answer to the question: "What is in it for us?"
Mr. Schabas answered that, with respect to trade, Canada has everything to gain from human rights protection. Moreover, it is a lot easier to ratify the Convention than it was to promote the Landmines Treaty.
Iris Almeida, ICHRDD, indicated that the universalization of human rights is at a critical juncture. The principles of universality and indivisibility are under question, as well as the concepts of economic, social, and cultural rights. Regarding the Canadian and inter-American context, we should go beyond rhetoric and strengthen the ties between the economic integration of the Americas and human rights. These two issues should be addressed together.
Mr. Cassel said that it could be argued that Canada could benefit from the inter-American system's protection of human rights and contribution to social stability in Latin America. Living conditions in some countries are critical and a source of instability and rebellion. If Canada wishes to ensure stability in these countries, it needs to strengthen not only political and civil rights but also economic, social, and cultural rights. The inter-American system has the advantage of sharing common values. Freedom of expression, for example, is better addressed regionally because, at the international level, countries such as China are very reluctant on human rights issues.
Mr. Cotler added that the Convention is to the advantage of Canadians since it would provide them with another forum, an additional safety net against the negative effects of globalization.
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