Enforcing international conventions and customary international law in Canada

Enforcing international conventions and customary international law in Canada

Linda McKay-Panos

International courts, such as the International Court of Justice at The Hague, deal with international disputes between States, not between individuals. Very recently, in 2002, the International Criminal Court came into being to deal with individual acts of genocide and serious human rights violations (approximately 90 countries have signed on to this process). Often, people ask, “What is the point of having a body of international law if people who believe the state (their government) has violated their legal rights cannot use a court system to enforce these rights?” The short answer is that international laws are enforced in Canada, but they are often enforced in different ways.

Generally, enforcing international law using traditional methods, such as going to court, is difficult if not impossible. This is because international law relies heavily on voluntary compliance by individual states, and upon the influence that the international community (states and international organizations) and non-government organizations (such as Amnesty International) may exert on individual states (R. Bilder, “An Overview of International Human Rights Law” in H. Hannum, ed., Guide to International Human Rights Practice (Philadelphia: University of Pennsylvania Press, 1984) (Bilder)).

How is international law enforced in Canada? The particular method and level of enforcement depends upon whether the international law has been incorporated into Canadian laws, whether the applicable rule is part of customary international law (which is like a form of international common law), whether federal and provincial governments have agreed to amend domestic law so that it is consistent with international treaties, or whether the international legal provisions have been relied upon by Canadian courts in some fashion.

Enforcement of Treaty Law

Express Implementation

The most effective way to enforce international law is through action within each state’s own legal system. If Canadian domestic law provides an effective system of remedies for violations of international law, the weight of Canada’s legal system can be used to support compliance with international rules. Many international laws require that signatory states incorporate the relevant obligations into their national law, and that they provide domestic remedies. (Bilder).

If an international convention or treaty has been expressly incorporated into domestic legislation, it can be enforced in the same way that domestic Canadian law is enforced. For example, Canada has incorporated the Geneva Conventions into domestic law. Subsection 3(1) of Canada’s Geneva Conventions Act provides that everyone who commits a grave crime (e.g., torture, willful killing) is guilty of an indictable offence and can be liable to life imprisonment. Thus, a person contravening this Act, would be subject to criminal charges in the same fashion as a person who contravenes the Criminal Code.

Indirect Implementation

What if the international law has not been implemented into Canadian law? Enforcement of unimplemented international law may indirectly be possible. For example, many of the provisions of domestic laws (such as the Charter of Rights and provincial human rights legislation) have the same basic content as international human fights laws. Under the domestic legislation, an individual can obtain a remedy that will be enforced by Canadian courts. The practical result is that the person’s international human rights are being enforced.

Enforcement of Customary International Law

Most academics agree that customary international law is part of the law of Canada, provided it does not conflict with domestic statutes, with the common law, or with the Constitution (A. Bayefsky, International Human Rights Law (Toronto: Butterworths, 1992) (Bayefsky)). Theoretically, therefore, if people believe that their rights under customary international law have been infringed, they may apply to a Canadian court for a remedy. In this case, customary international law would be said to be the base of a cause of action. Unfortunately, there are few Canadian cases that demonstrate the use of customary international law as the basis for a right of action. There are, however, American cases in which the courts have held that an individual can apply to the court for a remedy in some situations where there has been a breach of international customary law.

Other Methods of Enforcement

Enforcement Through Interpretation

International laws are often used by Canadian courts as tools to help interpret domestic legislation. There is a legal presumption that Parliament and the legislatures would not legislate in violation of Canada’s treaty obligations (Schavernoch v. Foreign Claims Comm., [1982] 1 S.C.R. 1092). It is believed that this presumption also applies to customary international law (Bayefsky). Thus, when courts rely upon international law provisions to interpret Canadian laws, this serves as a method of ensuring that international laws are respected.

Since the passing of the Canadian Charter of Rights and Freedoms, the reference to international law (both treaty and customary) in cases has increased tremendously. The language contained in the Charter is very similar to that found in other international instruments. During the first eight years of the Charter’s existence Canadian courts cited international human rights instruments and jurisprudence in 150 reported cases (W. Schabas, International Human Rights Law–A Manual for the Practitioner (Calgary: Carswell, 1991)).

Enforcement Through Force of International Opinion

Another method of enforcement occurs when one country exerts diplomatic pressure on another by complaining about an alleged breach of international law. Sometimes the pressure is informal–called “quiet diplomacy”. Other situations may involve one state making a formal complaint to the United Nations about the actions of another state (Bilder), or imposing trade sanctions on a particular country.

International pressure is perhaps the most powerful UN enforcement mechanism. For example, if a state violates a section of an international convention that it has ratified, the Commission of Human Rights may pass a resolution condemning the state’s behaviour and directing the state to do some act or refrain from doing some act in order to comply with its international obligations. The international publicity, reprimand, and even trade sanctions that may result from such a resolution will often move the offending state into compliance with its obligations even though there may be no legally ‘enforceable’ penalty for non-compliance with the international convention.

Enforcement through Reports

The United Nations General Assembly is only empowered to make recommendations about a signatory state’s conduct regarding its obligations under an international convention and, for the most part, the international conventions do not contain specific penalties for non-compliance. However, some international conventions contain requirements that the states parties report their own progress to UN committees on how they have followed the provisions of the convention. They also contain provisions that allow one state to report another state’s violations of a convention where the second state has agreed with this procedure. These reporting provisions help to shed light on the practices of states that are inconsistent with the commitments they made in ratifying an international convention.

Canada has an obligation, under some international covenants, to report periodically to international bodies on measures taken and on the progress made in implementing the obligations in the covenant. An initial report is usually required when a country ratifies an international treaty. At this point, the country is expected to review its domestic laws to ensure conformity with the treaty. Following the initial report, reports are usually submitted annually. Once a report is submitted, a committee will evaluate the report. The members of the committee are independent experts in the area, acting in an individual capacity. The committee will then determine if the state is meeting international standards, and if not, will decide what can be done in order to bring it in line with those standards.

Once it has received the Committee’s report, the government of Canada takes the feedback very seriously and has often responded by changing legislation or policy.

Individual Complaints

Individuals play a very important role in the enforcement of international human rights agreements. Individuals can seek remedies from the United Nations or other organizations. At the United Nations, there are two major procedures available for individuals to complain against states for human rights violations. First, individuals can send communications to the United Nations Human Rights Commission or its Sub-commission on the Prevention of Discrimination and the Protection of Minorities. This procedure does not permit individual claims to be considered. Instead, it provides a compilation of violations by individual states.

The second individual complaints procedure can have a direct impact on an individual. Canada is among approximately 100 nations that permit its citizens to complain to an authority outside the nation about individual human rights violations performed by the government. Canada has ratified the International Covenant on Civil and Political Rights and the Optional Protocol, which permit individuals to make complaints to the United Nations Human Rights Committee. The procedural requirements are set out in the Optional Protocol. The Human Rights Committee, which consists of 18 independent experts, meets three times per year to consider individual complaints.

The Human Rights Committee must look first at whether the complaint is admissible (e.g., not anonymous, government must be a party to the Optional Protocol, complainant has exhausted all domestic remedies). If the Committee determines that the complaint is admissible, it considers the merits of the complaint. The impugned State Party is asked to submit explanations or statements clarifying the matter and any remedy that the State Party has provided. Once the State Party’s comments are received, the complainant is given the opportunity to respond to them. The Committee then formulates its views and forwards them to the State Party and the complainant. The entire procedure usually takes between two to three years.

This procedure has been used successfully by many Canadians. For example, in the Lovelace case (Lovelace v. Canada (24/1977), S.D. Vol. 1, p.83; A/3640 (1981), p. 166.), Sandra Lovelace was a Canadian aboriginal woman who married a non-aboriginal male. Under the law at the time, an aboriginal woman who married a nonaboriginal man lost her status as an “Indian” (Although the preferred term is “aboriginal”, or “First Nations”, the Indian Act uses the term “Indian”) under s. 12(1)(b) of the Indian Act as it then was. The Indian Act did not remove Indian status from an aboriginal man who married a non-aboriginal woman.

After Ms. Lovelace divorced her husband she moved back to her Indian reserve to join friends and family. Although she was permitted to live in her parents’ house, she was not allowed to own a house of her own. Reserve housing was only given to status Indians.

Sandra Lovelace did not take her case to the Supreme Court of Canada because the court had previously ruled against an aboriginal woman in an earlier similar case. Sandra Lovelace complained to the UN Human Rights Committee, arguing that the Indian Act discriminated on the basis of sex.

The committee decided that Canada was in violation of international law on the basis that Sandra Lovelace was denied her right to belong and enjoy her own culture. The Committee did not make a finding based on sex-based discrimination. The government of Canada had two responses to the Human Rights Committee’s decision. One was to add a non-discrimination provision in the Canadian Charter of Rights and Freedoms. The other was an amendment to the Indian Act. The government abolished s. 12(1)(b) and reinstated Indian status to women who had involuntarily lost it.

Non-Government Organizations

Finally, enforcement of international law can occur through the actions of various international organizations. There are several non-governmental organizations that participate in the enforcement of international law, particularly human rights law. Many of them use publicity to bring human rights violations to light. Examples include: Amnesty International, Human Rights Watch, The International Commission of Jurists (Geneva), The International Federation of Human Rights (Paris), the International League for Human Rights (New York), and the Minority Rights Group (London).

Non-governmental organizations usually operate to assist in the enforcement of international law by educating people about their rights, by publicizing rights abuses, by advocating for people whose rights have been violated, by lobbying to influence public policy, and in many other ways.

Canadians are fortunate that international laws exist and that there are ways that we can enforce them in Canada. While this system of enforcement is not without flaws, Canadians have been successful in relying upon the international legal system to enforce their rights.

Linda McKay-Panos is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.

COPYRIGHT 2003 Legal Resource Centre of Alberta Ltd.

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