Proceedings of the Standing Senate Committee on
Human Rights
Issue 10 - Evidence for May 27, 2002
OTTAWA, Monday, May 27, 2002
The Standing Senate Committee on Human Rights met this day at 4:04 p.m. to study the status of Canada's adherence to international human rights instruments and on the process whereby Canada enters into, implements, and reports on such agreements.
Senator Joan Fraser (Deputy Chairman) in the Chair.
[English]
The Deputy Chairman: This session of the Standing Senate Committee on Human Rights is now in order to resume consideration of Canada's adherence to international human rights obligations. In particular, we will examine whether Canada should accede to the American convention on human rights, an issue identified in the committee's 2001 report, ``Promises to Keep: Implementing Canada's Human Rights Obligations.'' After hearing from a range of witnesses, the committee will analyze the issues and make recommendations to the Senate.
[Translation]
Our first witnesses are from the Fédération des femmes du Québec and the National Association of Women and the Law.
The Fédération des femmes du Québec was founded in 1966 as an umbrella group for women and associations wishing to coordinate their activities in the area of social action. Over 120 organizations are affiliated to the Fédération, which also organized the World March of Women. The Fédération is represented today by Ms Diane Matte, the Coordinator of the World March of Women and also by Ms Gisèle Bourret.
The National Association of Women and the Law was established in 1974 and is working to enhance the legal status of women through legislative reform. The Association is represented by Ms Andrée Côté, who is the Director of Legislation and Law Reform.
Ladies, we would like to welcome you here today. Each of your organizations has about 10 minutes in which to make its presentation. Following that, there will be a question and answer period.
Ms Diane Matte, Coordinator, World March of Women, Fédération des femmes du Québec: I would like to thank the committee for having invited us to speak to the issue of the Canadian government's ratification of the American Convention on Human Rights. The Fédération des femmes du Québec and the World March of Women, of which I am the coordinator, firmly believe in the importance of developing both a regional and global system to promote and defend human rights. In our opinion, human rights are intrinsically linked to basic women's rights.
In 2000, the World March of Women, which was an initiative organized by women to fight poverty and violence, rallied together 6,000 non-governmental organizations in 160 countries and adopted 17 world-wide resolutions to combat poverty and violence among women. Several of these resolutions urged countries to ratify and to enhance initiatives to guarantee equality and women's rights.
With the birth of the Free Trade Area of the Americas and a privatization and deregulation-based agenda for areas such as health and education, we would like to identify just how the ratification of the American Convention could curtail the loss of fundamental rights, our common heritage and specific equality standards.
In addition, women in the southern hemisphere clearly use international or regional instruments in a very different way from us. Several of these women are urging us to lobby the government into ratifying the convention. It is clear that for these women in the southern hemisphere ratification by our government would buttress their struggle for equality and their rights.
In the wake of the Peoples Summit which was held in Quebec City in April 2001, which unanimously condemned the Free Trade Area of the Americas as a racist, sexist and environmentally destructive initiative, the Fédération des femmes du Québec, the World March of Women, developed, in consultation with Rights and Democracy, a training program designed to enhance our understanding of human rights instruments in the inter-American system. Approximately 20 women from various areas took part in this initiative. Ms Lucie Lamarche, Professor of Legal Philosophy at the Université du Québec in Montreal — you have already heard from her — and Ms Liliana Tojo, from CEJIL, which is a Latin American human rights advocacy group, encouraged us to look at the American Convention on Human Rights, and to continue our discussion on this issue. We intend to make this training available to further groups next year.
We are here today to talk to you about the issues and discussions which came out of this training session. However, we are not here to discuss with you the outcome of consultations with our members.
We would also like to reiterate our concerns as they relate to section 4.1 of the Convention. This is the section dealing with the right to life:
Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
The real problem area here lies with the term ``in general, from the moment of conception,'' since this could potentially serve as an argument for groups wishing to criminalize or prohibit abortion in Canada. It might also be used as an argument against specific types of contraception or as a way of attempting to exert more control over the actions of pregnant women.
In our opinion, any measures of this type would fly in the face of a woman's right to control her own body and decide when and if she will have babies. However, as my colleague will tell you in her presentation, we believe that there are ways of preventing this negative impact. Undoubtedly, a strict process must be undertaken to weigh the pros and cons. However, this process must be transparent and democratic and must include consultation with and input from the feminist movement throughout Canada, so as to ensure that human rights are in sync with women's rights.
Ms Gisèle Bourret, Fédération des femmes du Québec: We want to address the problem raised by section 4.1, as my colleague has just said. Indeed the ratification of the Convention by Canada would be one more piece in the human rights protection puzzle.
First of all, Canada's ratification of the American Convention on Human Rights would put Canada under the jurisdiction of the Inter-American Court on Human Rights and would commit it to taking tangible steps to comply with opinions or recommendations from the Inter-American Court or Commission.
Second, the American Convention on Human Rights and the protocol that stems from this Convention, known as the San Salvador Protocol, could be used to more effectively protect the economic, social and cultural rights of Canadians.
In the wake of what Professor Lucie Lamarche from the Université du Québec in Montreal stated before this committee, we would like to raise three points on the issue of the protection of economic, social and cultural rights. The first of these concerns section 1 of the Convention. This section of the Convention stipulates that rights and freedoms recognized and guaranteed by the Convention must be implemented without any discrimination. Discrimination in this section may mean economic status or any other social condition. We believe that these stipulations, which include gender, could more effectively protect women, which, as we all know, often make up the poorest or most economically disadvantaged sectors of society.
We would like to stress that section 26 urges State Parties to undertake to adopt measures with a view to achieving progressively the full realization of the rights implicit in the economic and social standards.
Last, specific concepts, which are rare in this type of instrument, are included as points of reference to more effectively protect and defend the rights of all people. Section 21 deals with the interest of society, while section 32 deals with the just demands of the general welfare, in a democratic society.
We believe that given the unprecedented development and almost unfettered progress of trade agreements it is now even more pressing that we assert these types of concepts.
We would also like to address the issue of the importance of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, the Belém do Para Convention. This Convention, to our knowledge, is the most effective instrument that we have at our disposal to eradicate violence against women.
Why has Canada not yet ratified this Convention, but is indeed considering the ratification, in the near future, of the Anti-Terrorism Convention, which it helped to draft?
The Belém do Para Convention, which has been in force since March 5, 1995, includes many meaningful and major sections on women's rights. A case in point, section 2 defines physical, sexual and mental violence in both the private and public sectors. Sections 7 and 8 detail the obligations and duties of individual states, including reparation and compensation responsibilities.
This Convention could be ratified without necessarily ratifying the American Convention on Human Rights. However, it is undoubtedly true that the interpretation or implementation of the do Para Convention does come under the terms and conditions of the main Convention.
The very real problems raised by the second sentence in section 4.1 could probably be addressed by adding an interpretative declaration.
We are not legal experts and we do not want to get into a detailed discussion on the possible wording of such a declaration. Professor Rebecca Cook, from the University of Toronto, put forward possible wording for two types of declarations. The first would be annexed to section 4.1 and the second, of a more general nature, would cover the entire Convention. The initial consultations that we have undertaken, in the wake of Professor Lucie Lamarche's training initiative, were not sufficient to enable us to opt for either type of declaration. We intend to continue our collective discussion of this issue. However, we are now in a position to set out specific points that we consider should be included in any potential declaration developed by Canada.
Firstly, and we would like to refer to two Supreme Court of Canada decisions, particularly Tremblay v. Daigle, in 1989, and the Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), in 1997, which stated, in reference to the Canadian and Quebec Charter of Rights and Freedoms, that ``the only right recognized is that of the born person'' and that the term ``human being'' did not include fetuses.
What is required is wording setting out the prohibition of sexual discrimination in terms of the whole range of rights covered by this Convention, including freedom, integrity, personal dignity and more specifically, the requirements of women as they relate to pregnancy, childbirth and maternity services such as family planning, including abortion.
We are advocating the development of an interpretative declaration and, more generally, discussions on the ratification of the Convention. This should take place in a transparent manner and should ensure the broadest degree possible of consultation with human rights advocacy groups in civil society, especially including women's groups throughout Canada.
The Deputy Chairman: Before we move on to questions for the Fédération des femmes du Québec, we will allow Ms Côté to make her presentation.
Ms Andrée Côté, Director of Legislation and Law Reform, National Association of Women and the Law: I am pleased to have the opportunity to address you and to be able to put forward some our concerns as they relate to the ratification of the American Convention on Human Rights, and more especially in terms of the chapter on the right to abortion. I will limit what I have to say to the abortion issue.
Currently, the National Association of Women and the Law has not developed a definitive position on ratification. We are involved in the research, consultation and discussion process with other women's groups, both at the Quebec and national level. At our latest conference, held last March, we organized a series of presentations by panelists, including Ms Lamarche, Ms Cook and Ms Tojo from CEJIL. We are currently looking into the possibility of organizing a national meeting to discuss these issues.
I would like to put forward some of our concerns here today in the hope that the Senate Committee on Human Rights will support us in the initiatives that we have undertaken with other non-governmental organizations. These initiatives are designed to help us to effectively develop solutions to genuinely strengthen the inter-American human rights system, while at the same time maintaining women's rights.
The issue is how we can play a full role in the inter-American system if we ratify the Convention, without endangering the gains that women have fought so hard to make. There are important issues for women here. At stake are the respect of women's rights, their dignity, their independence, their freedom, their safety and their equality.
Also at stake is Canada's ability to adhere to the principles established at the Vienna Conference in 1993, the World Conference on Human Rights, which firmly established the principle of the universality and indivisibility of rights, the principle that women's rights are human rights and that other rights cannot be obtained or won at the expense of women's fundamental rights.
Let us begin by looking at the problems that can be identified with article 4.1, which reads as follows:
Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
Even on first reading, this article is of concern. It sets out a general rule that life is protected from the moment of conception. There is only one case in which this article has been interpreted by the inter-American system, in Baby Boy in 1981. That case was based on a complaint from a pro-life group called Catholics for Christian Political Action, against the acquittal of a doctor who had carried out an abortion on a 17-year-old girl in Massachusetts. A complaint was also lodged against the precedents established by the Supreme Court of the United States in Roe v. Wade. It was alleged that article 1 of the American Declaration of the Rights and Duties of Man should be interpreted using article 4.1 of the American Convention on Human Rights.
As you know, the United States has not ratified the Convention but, like Canada, it is subject to the Declaration. After examining the preparatory work, the Commission came to the conclusion that article 1 was drafted as a compromise that took into account the existing situations in various countries at the time the Universal Declaration of Human Rights was signed in 1948; article 1 allowed for abortion in certain exceptional cases: to save the life of a mother, to save the honour of an ``honest'' woman, to prevent the spread of a hereditary disease.
The Commission concluded that the right to life set out in article 1 of the Declaration does not guarantee the right to life ``from the moment of conception.'' It then examined the Convention, although the complaint was not lodged formerly with reference to the Convention. The Commission came to the same conclusion, noting that a first draft of the Convention and article 4.1 had talked about the protection of life from the time of conception. Because a number of States had objected to that wording, a compromise was reached, with preference being given to the protection of life ``in general, from the moment of conception.''
The Commission concluded that the right in article 4.1 could not be interpreted as an absolute right, which was what the complainants were proposing, and that the legal significance of the phrase ``in general, from the moment of conception'' was substantially different from the shorter phrase ``from the moment of conception.''
In short, article 4.1, according to the Human Rights Commission, does not guarantee the absolute right to life from the moment of conception and it allows for a number of exceptions. Nonetheless, article 4.1 sets out a general rule to the effect that violating the right to life, in general, from the time of conception would be prohibited.
That rule can be used as a basis for prohibiting or criminalizing abortion, which inevitably means destroying a fetus after conception. For example, the delegate from Honduras, during the discussions preceding the adoption of the Cairo action plan on population and development in 1994 expressed his government's intention to adopt a reservation regarding the platform of action, and he made the following statement:
[English]
... The American Convention on Human Rights reaffirms that every person has the right to life and that this right will be protected by law and will be protected in general, starting from the moment of conception, based on moral, ethical, religious and cultural principles, which should regulate the international community, and in accordance with the internationally recognized human rights.
As a consequence of this, one accepts the concepts of `family planning,' `sexual health,' `reproductive health,' `maternity without risk,' `regulation of fertility,' `reproductive rights' and `sexual rights' so long as these terms do not include abortion or termination of pregnancy...
[Translation]
The delegates from the Dominican Republic, Nicaragua, El Salvador and Peru also made similar statements. It therefore seems clear that a number of countries felt that article 4.1 constitutes a possible norm that protects the right to life of a fetus and prohibits abortion in general.
Moreover, besides the fact that article 4.1 could be used to prohibit abortion, it could also serve to prohibit access to certain types of contraception such as the IUD, the morning-after pill or RU-486, which all act after conception.
There is also the fact that the right to life in general from the moment of conception could also open the door to measures aimed at protecting the life and even the health of a fetus, for example, an injunction preventing a woman from having an abortion. There was the Daigle case in Quebec. Another measure would be an order putting a woman who is a drug addict in a treatment centre, which was an issue in Winnipeg.
Article 4.1 could even be used to force a woman to stop working. It might be determined that certain workplaces pose a danger to the fetus.
This article, then, is of concern because it can provide ammunition to pro-life groups and other anti-feminist, fundamentalist and right-wing movements that are trying to outlaw abortion and restore the patriarchal control of men and the State over women's lives.
Article 4.1 also commits the signatory States to ensuring such protection through specific legislation, such as the adoption of an abortion law. Right now, Canada does not have any abortion legislation.
Professor Bill Shabas, a world-renowned expert on human rights, in a discussion on the meaning of article 4.1, concluded that:
[English]
It would seem to safe to assume that article 4.1 does not impose an obligation to prohibit abortion, in general, although it may require State parties to regulate the practice and prohibit it in certain cases, such as after a certain number of weeks of pregnancy ... the current absence of any abortion law in Canada might be judged inadequate to comply with the provisions of article 4 of the American Convention.
[Translation]
That summarizes our concerns with article 4.1. In order to better understand them, we need to place them in a larger context, which will influence their interpretation. The first context to consider is the Canadian context, of course, where the courts abrogated the Criminal Code provisions that criminalized abortion, with the exception of therapeutic abortions.
In 1988, in Morgentaler, the Supreme Court of Canada ruled that a criminal prohibition on abortion violated the physical and psychological security of women and their autonomy. In particular, Madam Justice Wilson said that section 7 of the Canadian Charter of Rights and Freedoms gives women the right to terminate a pregnancy, and she asserted that women could not be treated as a means to another end.
In Daigle v. Tremblay, the Supreme Court consolidated that ruling by determining that the right to life belongs exclusively to human beings. Only the pregnant woman has the right to decide whether a pregnancy will go to term, and the father has no ``interest'' in the fetus.
In 1997, the Supreme Court, in Winnipeg Child and Family Services (NorthWest Area) v. G. (D.F.), ruled that measures to protect the interests of the fetus would violate the human rights of women, in particular the possibility of issuing detention orders to force a mother into drug treatment. Those are Canadian legal precedents which represent very important victories for women and which are the result of many years of struggle and legal intervention. The fact that Canada has no anti-abortion law is a major victory, since women's autonomy is not currently fettered in any way by the State.
Abortion is in the medical domain, and therefore a medical act, and a woman can decide to terminate an unwanted pregnancy of her own free will.
When we put article 4.1 into an international law context, we realize that the situation is less favourable, if interesting. In international law, there is no formal recognition of the right to abortion. Over the past few years, a number of authorities have recognized that criminalizing abortion leads to the practice of secret abortions, which are a major cause of death among women and jeopardize their right to life.
The Committee on the Elimination of Discrimination Against Women, or CEDAW, has often asked various States to review their legislation on the criminalization of abortion and to ensure that women have access to high-quality abortion services. CEDAW submitted general recommendation 24, which explicitly asks States to remove barriers preventing women from accessing health services, in order to ensure full respect for their right to life.
Similarly, the U.N. Committee on Human Rights decided that criminalizing abortion led to violations of women's right to life. The Committee on Economic, Social and Cultural Rights, in general comment 14, adopted in 2000, recommended that specific measures be taken to improve the health of mothers without discrimination.
We can see that in international law there are the beginnings of a corpus of law that is starting to recognize the basis of a right to abortion and certainly the consequences for women's right to life and health when abortion is criminalized.
This development of a corpus of law is interesting, but it needs to be put into a national and international political context that is worrisome right now. In Canada, for example, there are fears that pro-life activists could use article 4.1 to call for legislation outlawing abortion.
Other factors might contribute to such a scenario. Certain political parties in Canada have taken an anti-abortion position. Last week, a Canadian Alliance MP introduced a motion in the House of Commons — it did not pass, by the way — to study the definition of human being and the understanding of a fetus as a human being.
We know as well that there are currently certain pro-natalist pressures, from groups such as hard-core nationalists in Quebec and the racist lobby in Canada, to ensure that there are more white children born in Canada.
There is also an anti-feminist lobby that is generally influenced by American policies. I will end my overview of the political context with a few words about the policies of the Bush government, including the adoption of the ``Global Gag Order'' a year and a half ago, which makes it illegal to fund any organization providing information on abortion. There is a set of policies in the United States aimed not only at outlawing abortion but also at prohibiting any form of contraception and promoting abstinence as the only form of contraception. At the recent U.N. forum on the Convention on the Rights of the Child, the United States intervened along with the Vatican to oppose any reference to reproductive rights that could include abortion.
We are living in a context where the right of women to reproductive autonomy is not guaranteed. We must be very cautious. The gains that we have managed to make in Canada are unique in the world and they are fragile.
We see ratification as an interesting challenge. Could we use the ratification of the Convention as an opportunity to confirm political support in Canada for the autonomy of women, the reproductive freedom of women, and advance the cause of freedom for women everywhere on the continent? By adopting declarations of interpretation, can we develop wording that recognizes the gains made in Morgentaler or Daigle, for example, in order to guide the interpretation of article 4.1?
The question that we still need to explore is the legal force of such a declaration of interpretation. Would the Intra- American Court consider itself to be actually bound by a declaration of interpretation? That is what we must explore, in order to avoid playing Russian roulette and in order that we can rest assured that we are embarking wholeheartedly on a ``continentalization'' of human rights, while ensuring full protection of women's rights to dignity, security and freedom. That is essential in order for women to be full citizens and attain full equality.
Senator Beaudoin: The case law that you have cited is crystal clear. Right now, Canada has no abortion law. We have two Supreme Court decisions and Morgentaler. If I understand correctly, we have not signed this treaty. The issue is whether we should sign it, in view of article 4.1.
Ms Côté: The question is: Should we sign the treaty despite article 4.1?
Senator Beaudoin: If we sign the treaty, it would normally be implemented and the 1937 Privy Council decision would be adhered to. However, we know very well that this famous Privy Council decision, which says that implementation legislation must be passed in order to bring a treaty into effect in Canada, is never followed. I have never understood why we have not implemented the treaties that we have been signing for over 60 years. It is strange, but that is the reality. If we sign the treaty and we do not implement it, article 4 is not in force.
[English]
We have to implement a treaty to give effect to the treaty. If we sign and do not implement the treaty, the treaty is not the law of the land.
[Translation]
The Privy Council decision is very clear. Since the case law is clear, unless we want to change our attitude about abortion — and I do not believe that any Prime Minister over the past number of years has wanted to bring about such a change. So we have a problem. If we sign the treaty without implementing it we are not getting anywhere. Signing the treaty and trying to short-circuit article 4.1 is not very satisfactory.
I would like to know what the women of Canada would like to see. That may be a controversial question. Personally, I feel that the opinion of women is fundamental here. If there is anything that is fundamental, that is it.
Ms Bourret: We agree with you on that point.
We have an opening to further explore the implications of ratifying this convention, in particular where the second sentence of article 4.1 is concerned.
That consultation has certainly not taken place. We had some training, we consulted a few people from groups that are directly affected by this issue, but we want to have time to consult women further and discuss with them this whole problem of the inter-American system of human rights. It should also be pointed out that community groups and women's groups are not very aware of the impact that ratifying a given treaty or a convention could have. We need time to do consultations and raise awareness surrounding these issues, which are contentious, to say the least.
There are advantages to ratifying this Convention and there are disadvantages or specific difficulties, which Ms Côté has described for you at length. We need to see how to ensure that the fundamental rights of women are protected within the inter-American system. This process is just getting underway. We need more time and resources to carry it out properly.
Senator Beaudoin: Some experts appeared before the committee, and the criminal law aspects seem fairly clear to me. I am talking about Canadian criminal law.
Is article 4 of the Convention reconcilable with the Canadian situation where we have no abortion law currently? It is a decision made by a woman in consultation with her doctor. Do we want to change that? If so, can we reconcile this with article 4 of the Convention?
Ms Matte: It is clear that, as things stand, article 4.1 is irreconcilable with Canadian law. It would be a major step back and a serious threat to our acquired rights, which are fundamental human rights.
We want to ensure, as a minimum, that we keep what we have won at the Supreme Court level, that is the recognition that a woman's right to terminate an unwanted pregnancy is part of her fundamental human rights, her right to human security, freedom and equality. We can put that in, but would it be compatible with article 4? That is what we will have to see.
I think it would take a few declarations of interpretation to inject a certain interpretation of our law into the provisions of the Convention. It is possible those declarations of interpretation might be seen as reservations, in other words, as going against article 4.1. That is quite possible. If that is the case, it will not necessarily be the end of the world.
Certainly, in Canada, the right to life is protected by many clauses other than clause 4 of the Inter-American Convention. I am not saying the ideal thing to do is to have reservations on this article. Professor Rebecca Cook, amongst others, says the worst of all interpretations would be to put a reservation on clause 4.1 at the outset.
If declarations of interpretation are being added to article 7 of the Convention, saying that every individual has the right to freedom and security of the person, maybe we could add a declaration of interpretation to that same article to say that we, in Canada, interpret this as including the right of a woman to interrupt an unwanted pregnancy. There we would not be going against article 4.1, but we would certainly be clarifying the scope of our vested rights in article 7. I do not know if that would hold, legally. I hope you will have the opportunity to push this matter further and perhaps by adopting two or three declarations of interpretation in different articles, we will manage to consolidate what we have already gained.
We fought so hard — I was personally involved in this fight in Montreal in the 70s and 80s. It required a lot of energy from two or three generations of women. We do not want to start it all over again.
Senator Kinsella: As you know, the decision to ratify or not ratify is a joint decision involving the provinces and the federal government. Have you had any contact or discussions with the provincial governments for example with the Government of Quebec which, usually, does very in-depth studies on these matters? I know it did a marvellous study before the ratification of international pacts. This decision was almost made in camera.
It is the first time this Senate committee is going to be throwing any light on this question. It is a very important and very informative discussion.
Ms Côté: I will not answer for my Quebec colleagues, but Canada-wide, the national association has not had any contact with the representatives of the different provinces. I admit that we're behind on this matter, as are many other social groups. What made us aware of the stakes here is the discussion on Canada's adhesion in 1990 to the Organization of American States, but perhaps even more the Summit of the Americas in Quebec City. As my colleagues were saying, it is also a matter of becoming aware that we might have an interest in uniting human rights, in joining an inter-American system and trying to progress with socio-economic standards on a continental scale.
Frankly, women's groups are just starting to think about all this. The spontaneous reflex of many groups was to say that they did not want to accede to the Convention because of clause 4.1. Now, our colleagues from the south are calling upon us and we are trying to find a way to ratify this while keeping what we already have. We are starting our work. We are establishing contacts with women's groups and other human rights defence organizations. We are not at the stage where we are lobbying the provinces yet.
Senator Kinsella: From the standpoint of promoting human rights all across the world and from the standpoint of women, do you think it is important for Canadian women to participate in this fight against discrimination? Do you think it is important to conceptualize the problem of this Convention in the area of international rights and in the international, hemispheric context?
We are more aware since the Quebec City Summit. From that point of view, would it be a good thing to ratify, with all necessary reservations — not necessarily with all the reservations — so that Canada — and all the women's groups — could participate with full solidarity?
Ms Côté: We can talk in terms of solidarity, but on the international scene, the women's movement has been active in research during the last 20 years. It wants the community of States and especially the United Nations, to recognize, the rights of women as being full-fledged human rights and to develop the tools that women can use to address their governments. That is very clear. The World March of Women is a good example. The women in the southern countries often use those international tools of human rights as a lever on their own governments. Just think about the Convention on the Elimination of All Forms of Discrimination Against Women.
The inter-American system is not well known. That is also true for the Quebec women's movement. According to our latest information, the inter-American system of human rights goes further, in some respects, than the United Nations system where defenders of human rights are concerned. We are looking at the possibility of working jointly with the inter-American system.
I was referring to all the agreements surrounding the FTAA. The inter-American system of human rights is almost becoming a way of putting a monkey wrench in the works of those programs States use more and more to withdraw from their populations and to do away with the recognition of certain rights or to set back rights acquired by women in some of the poorest populations. We would like to explore the use of that inter-American system.
However, article 4.1 is an enormous irritant right now. We should make more use of the solutions available to make a concrete contribution to the inter-American system, as a State. We should also try to find a way for Canadian women to benefit from this.
Ms Bourret was mentioning the positive points of the Convention that might be of some interest to use here, not only where solidarity with women in the south is concerned but also as concerns our own situation as a lever for progress and to broaden even more the concept of respect for human rights and the question of equality.
Senator Joyal: Have you evaluated the impact of the article in the light of the stem cell legislation? The debate on the legal status of the fetus was raised in that context. If you look at the second sentence of the first paragraph of article 1, the question would be relevant.
In practice, if Canada were to sign the Convention as worded, its legislation could be attacked before the courts as being in violation of the right to life as of the moment of conception. Conception could happen as soon as the ovum is fertilized and thus you could not argue that you could not do research on a cell whose effect would be to destroy it. Do you have any comments?
Ms Côté: We did not do any specific research on the question. The interpretation could be that conception could mean immediately. The church has been debating that matter at length. In modernistic terms, conception begins immediately as soon as the ovum is fertilized. That could eventually lead to an interpretation that would be that strict. Would that be accepted in Canada? There would certainly be a debate. From the technical point of view, I do not see what could prohibit such an interpretation.
Senator Joyal: There could be two ways of getting around the difficulty posed by article 4.1. You said that we would have to see how, at the legal level, the inter-American courts have interpreted the legal scope of a declaration of interpretation. Have they recognized it as having an inherent force of the same nature as an article of the Convention, or is it viewed as a formal reservation? Your opinion is that a reservation leads to a strict interpretation of article 4.1, which is that conception happens the moment the ovum is fertilized. We are then placed before a situation like:
[English]
We are damned if we do and we are damned if we don't.
[Translation]
Until we find out otherwise, if we cannot answer the question you raised in the conclusion of your presentation to the effect that we do not know the legal scope of a declaration of interpretation, we run the risk of signing the Convention including a declaration of interpretation that could be set aside by the courts, in other words giving article 4.1 the scope that other countries have argued, such as Honduras and others, who have pointed out their strict interpretation of article 4.1.
Ms Côté: We do not have the answers to all the questions, especially to your question concerning the interpretation of the American court on the reservations and the declarations of interpretation. I hope your committee will find an answer, because that is what is at stake.
There is an article in the Vienna Convention on the Law of Treaties defining a reservation as being:
[English]
... as a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State.
[Translation]
In other terms, if you adopt a declaration of interpretation clearly guaranteeing the right of women to abortion or which clearly states that article 4 defines a person as being a human being born live, then it is understood that the right to personal freedom and safety includes the right to interrupt an unwanted pregnancy. For example, if we use a very clear language in our declaration of interpretation and we judge that it goes against the spirit of article 4.1, then it will become a reservation even if we call it a declaration of interpretation.
That allows for a bit of leeway. We are not conceding the most negative interpretation, on the contrary, the interpretation is presumed to go in the direction of the universal recognition of women's human rights and the direction of the recognition of the right to life of women in the different United Nations venues, but it would clearly go contrary to an interpretation recognizing the right to life immediately after conception.
Maybe if the court were to judge that our declaration of interpretation squarely opposed article 4.1, it would recognize it in law, finally, as being a reservation.
That is a hypothesis and I think that it is really a question that deserves further study to make sure we are not playing Russian roulette with the rights of women.
Ms Bourret: I would like to add two things. First, a declaration of interpretation must be accepted by the court or the commission.
Secondly, I have trouble seeing this declaration of interpretation being taken as a reservation. The first sentence of article 4.1 reads: ``Every person has the right to have his life respected.''
A reservation concerning article 4.1 sweeps all that away. Thus, it is difficult to talk about a reservation. We are actually talking about a declaration of interpretation and we are trying to refine the meaning, the nature and the impact of such an article based on the questions raised by Ms Côté.
We sometimes seem to neglect the fact that the Convention is a whole. The articles which are part of a convention are interpreted in conjunction with all the others. Amongst other things, let us not forget article 29 which reads:
No provision of this Convention shall be interpreted as:
b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State party or by virtue of another convention to which one of the said States is a party;
That could be most interesting in developing the declaration of interpretation.
Earlier, I was talking about the principle of sexual non-discrimination applied to all of the rights which is detailed in a specific article. As an example, in article 22.8, concerning displaced persons, sex is not mentioned. If there were a general clause of sexual non-discrimination, other articles than article 4.1 could also be targeted by that statement in a positive way.
Ms Côté: Very briefly, article 29, paragraph b) recognizes the exercise of any right or freedom recognized by virtue of the laws of any State party. Abortion, on the other hand, is not protected by the legislation and that is a problem.
Objections were raised, for instance, to the provisions on equality rights in the Convention. They were saying that it could perhaps only guarantee formal equality, and that access or positive action program may be in jeopardy. It is clear that in the section 15(2) of Canadian Human Rights Act and in the Charter of Rights, there is legal and constitutional protection for the principle of access to equality prograMs Abortion, on the other hand, is not guaranteed in the legislation. Thus, I am a bit worried about the efficiency of section 29 in this respect.
Ms Matte: To us it is clear that the Convention cannot be studied without looking at the situation in Canada. It is an invitation to fill the current gaps in the recognition of the right of Canadian women to abortion and to family planning services.
[English]
Senator Taylor: I believe we are one of the few states in the world that separates the right to own property and gives it to the provinces and not to national government. The question of whether or not a woman can own property and have the right to property is important. Quebec was the first province in Canada to do something about it. My own province of Alberta has been dragged, kicking and screaming, into the twentieth century with regard to property rights. Because property rights are under the provinces and not under the national government, do you see any conflict between this and the federal government? Are property rights considered to be a part of women's rights?
[Translation]
Ms Matte: This question is far beyond my realm of expertise. If we look at the experience of the World March of Women, the issue of access to property, access to land is, in America, very clearly a problem. The Convention has not been studied to see what kind of access it could give. It may be interesting to look at the situation of aboriginal women or aboriginal peoples in the Americas or in Nicaragua. However, I must confess that the issue of property rights is not really within our realm of expertise.
[English]
Senator Taylor: I was wondering whether Canada could sign something guaranteeing property rights for women when they do not have the constitutional right to do so.
Going back again to article 4.1, how does that affect the modern trend of stem cell research? Could this be used to stop it or aid it or sideline it? What is your opinion on that?
Ms Côté: On the face of it, yes, it could probably be used against that kind of research because clearly 4.1 guarantees protection to life as of conception. Theoretically, it is a possible use of it.
If we wanted to do stem cell research, it would be better to have a democratic debate in Canada and decide where we stand on the issue. It is clear that we have had those debates around the issues of abortion and women's rights. It is always preferable to use domestic debate and establish a consensus.
As far as your concern about property rights, we had concerns way back that property not be included in the Charter of Rights and Freedoms because we wanted to ensure collective rights of Aboriginal peoples over property. That is where our take on the property issue has come from. We were concerned that the guaranteeing of property rights in the convention could possibly jeopardize collective rights, but we understand that there have been recent decisions from the Inter-American Court that do in fact recognize Aboriginal title and Aboriginal rights over property, and those concerns have been allayed.
[Translation]
Senator Joyal: Senator Taylor's question is important. If Parliament has adopted legislation recognizing research on stem cells, it would be protected under section 29, as Ms Bourret just said, because there would be formal national legislation legally recognizing the possibility of doing research and destroying embryonic cells. Thus it could be argued that the rights of a foetus are not absolute, as the last sentence of section 4.2 seems to indicate.
Ms Côté: And we would still have to establish that research on stem cells is a right or a freedom.
Senator Joyal: Yes.
Ms Côté: In section 29, we read:
... restricting the enjoyment and exercise of any right or freedom recognized by the legislation ...
Is this a freedom? I think that this is a matter for debate.
[English]
The Deputy Chairman: On the matter of property rights, I would observe that there are countries in the world — although I do not know of any in the Americas — where women's property rights are, indeed, a serious issue. There are countries where women do not have the right to inherit property, for example. It is not an academic issue, although it may be for us right now, fortunately.
[Translation]
I am coming to my question that I hope is simpler and shorter. Both your organizations are consulting your members. I think that Ms Bourret said very clearly that you wanted time before giving a clear answer. Have you any idea of how much time you need?
Ms Côté: On a national scale, we cannot envisage completing the process before a year and a half or two years.
Ms Bourret: As far as we are concerned it is more or less the same, either a year or a year and a half. Based on the training given by Lucie Lamarche, the UQAM community service wants to work with us to help us continue the training, namely to train multipliers, and to reach out to all of our groups concerned with the matter. Thus it would take a year or a year and a half.
Ms Matte: As far as we are concerned, it is important to consult women in the Americas. There is the Canadian aspect, but it is important to be in a position to judge the situation. Perhaps we have not sufficiently stressed how important it is for women in the South to have leverage. Thus we must assess how our government could help women in the Americas in these matters.
Ms Côté: There is obviously a financial factor at work. Women's groups are not funded at all at this time. On a Canadian level, we receive nothing. Nor do we know who will be funding us. This is a problem. This is why it is taking time. We must find sources of funding. If the Senate were ready to help us in any way at all, it would be greatly appreciated.
The Vice-Chair: I do not think that it is part of our mandate. We thank you very much for having come today. You have given us much food for thought and we are grateful to you for that.
[English]
Our second witness today is Mr. John Foster who works with the North-South Institute, an independent Canadian research body founded in 1976. It conducts research on Canada's relations with developing nations and on a broad range of foreign policy issues. Mr. Foster is principal researcher in civil society. In particular, he will be addressing the San Salvador Protocol to the convention.
Mr. John W. Foster, Principal Researcher (Civil Society), North-South Institute: Madam Chair, my intervention today is based on work done last year for Rights & Democracy in Montreal, and part of the framing of a debate which, from what I have read of the committee's deliberations and heard today, is something of which you are very much a part.
The context in which I am coming at this issue has to do with the overall international context, in particular the creation of new regimes that govern our economic, social and other life, and the place of human rights initiatives within that context. We are not standing still, so to speak.
While we have just heard an appeal for time, I am probably arguing that there is also some urgency in this issue.
Fundamentally, in the context of globalization, we are dealing with a situation in which the scope and the time dimensions of a multitude of factors that affect the quality of life and the security of people, and the role and capacity of states and interstate bodies to act on behalf of their people, are changing rapidly. These may be matters of capital flows for an investment, trade in goods, expansion of trade, and various impacts on labour, environment, et cetera. Generally, governments have ended up being unsure and ill-equipped to regulate these factors in the interests of the security of their citizens. Thus, we have tended to negotiate and endorse agreements that restrict the ability of governments — and thus their citizens — to do so, at the same time as we have extended protections to traders and investors.
While the post-war period was characterized by development of the United Nations and international financial institutions, it inaugurated a series of human rights agreements and institutions that are familiar to us. In the last 15 years —whether we are talking about the bilateral free trade agreement, the WTO, the NAFTA, or a number of other bilateral agreements — we have had a tremendous institutional and legal development on the commercial side. We have created some new bodies, whether they are those that administer the WTO or NAFTA, which are powerful, well- resourced and intrusive.
Basically, we have had no comparable or balancing development on the human rights side. This argument has been made by others, including a former premier of Quebec. I simply underline it and repeat it here.
The pace and reach of development of human rights agreements that might balance or condition trade and investment accords have not been apparent. I am speaking, for instance, of the effort to secure core labour rights, the failure to secure a protocol that would facilitate individual or group complaint under the UN Covenant on Economic, Social and Cultural Rights. I understand that Canada's representatives at the recent commission did not support the continuation of this initiative. National implementation and respect for existing human rights agreements continues to fall short of the mark.
The need to continue to elaborate human rights protections and establish or strengthen practical applications is urgent. Therefore, my first point is that action should be taken to begin to right the imbalance, to reinforce and strengthen human rights protections that are available to citizens. What we require is an energetic and creative expansion of human rights regimes and the availability of access and recourse. I fear that Canada's posture is rather equivocal, if not negative, in this regard.
There are cases of actual clash between existing human rights obligations of states such as Canada and the demands arising from the new generation of trade and investment agreements. The existing human rights institutions have belatedly, yet increasingly actively, taken note of these conflicts, particularly at the level of the UN bodies. The UN Secretary-General has argued that the principles and standards of human rights should be adopted as an indispensable framework for globalization, citing both concerns for rising global inequalities and optimism about areas of convergence between these regimes. However, we have been slow to take that piece of advice seriously.
I note in this regard the report of the Standing Committee on Foreign Affairs and International Trade, following the Quebec City summit last year, in which it asked the government to report by April of this year on how human rights, labour standards, environmental agreements and so on might be adequately enforced in this new international legal context. To my knowledge, we have not yet seen that report from the government side, although I do understand that some preparatory work has been commissioned by the Department of Foreign Affairs and International Trade. This is absolutely central. I would hope that the review and debate of these issues as a result, for example, of this standing committee request would preoccupy this body and Parliament more broadly, and that any further trade and investment agreements should be subject to a thorough human rights review prior to finalization, signature and ratification.
This has come up most pointedly in a number of newsworthy occasions. You might think in general at the global level of the conflict between the right to health and the TRIPS regime over access to essential medicines, which was a major issue prior to the Doha WTO event. A number of issues regarding democratic rights, as well as protection of the environment, have come up around chapter 11 of NAFTA. Unfortunately, some of the signs we saw that the government might consider seeking revision of that chapter have not yet taken concrete form.
My third point is simple. Canada should ratify the American Convention and the Protocol of San Salvador. I understand that other witnesses have addressed some of the salient issues that condition our ratification of the convention, including those I have just heard now, and I have little to add in that regard. However, I would argue that the Convention and the Protocol of San Salvador should be ratified simultaneously, or one immediately after the other, since one depends on the other. That is simply because that would embody the unity of human rights as expressed in the Vienna World Conference and the Universal Declaration, and it would provide a regional twinning parallel to our having accepted both the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights at the global level.
The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights — the so-called Protocol of San Salvador — indicates the ``different categories of rights constitute an indivisible whole, based on the recognition of the human person.''
The rights enumerated in the protocol, while they might be extended and strengthened in some areas, include a variety of guarantees regarding work, and just, equitable and satisfactory conditions of work, trade union rights, paid maternity leave, et cetera. The right to social security, and the right to health as well as to adequate nutrition, a healthy environment and the right to access basic public services are all essential to the well-being of the inhabitants of the Americas. These are emphasized and elaborated further in the protocol in the right to formation and protection of families and the rights of children, as well as the right to special protection for the elderly and the handicapped. The right to education includes special education for the handicapped.
What opportunities would ratification of the protocol offer for the extension of actual respect for these rights and action regarding their violation? First would be the usual reporting regimes. States parties have to submit periodic reports on progressive measures they have taken to secure rights. The presentation and review of such reports are an opportunity for interested parties, including non-governmental bodies, women's groups, labour groups, et cetera, to evaluate and perhaps criticize or encourage government action or inaction, and to undertake advocacy to improve performance. They at least ensure some sort of periodic review, and in the context of the hemisphere perhaps some comparison, for better or worse.
With regard to article 8, trade union rights, and article 13, right to education, violations by state parties may be subject to individual petition through the commission and the court in the manner described by the convention itself. The procedures for handling individual complaints by the commission and the court reassemble those of the European Convention and the International Covenant on Civil and Political Rights. This right of petition is a key element of the convention in article 44.
Given the limitations in the range and capacity of various existing human rights appeal mechanisms, the addition of another appeal window through the convention and the protocol not only regarding the rights and the convention itself but extending at least to some of those in the protocol would be a concrete gain for Canadians suffering violations of the enumerated rights.
The commission also has the right to observe and recommend regarding the status of economic, social and cultural rights in the protocol and to comment in its annual report to the OAS General Assembly. That takes it to a political level. Any state party and the commission can submit to the General Assembly recommendations or amendments to extend or expand the rights outlined in the protocol.
My fundamental argument is that economic integration without a countervailing or conditioning legal human rights framework is distorted and offers increased potential for injury and inequity. Ratification of the key inter-American human rights instruments is a first step toward correcting this situation. It should be noted that development of human rights and social commitments are a dynamic part of the European process of economic and broader integration. Responsibility for arguing that a similar development should not be sought in the Americas lies with opponents of human rights agreements.
Obviously, approval of these two agreements, while necessary, is not sufficient. This leads me to my fourth and final point: Ratification of these two instruments must be coupled with a commitment of resources and personnel energies to current human rights institutions, efforts at education and training related to the use of these mechanisms and investment in research, and both national and regional consultation as to their improvement and strengthening.
Further, it must be part of an ongoing and multi-faceted effort to strengthen economic, social and cultural rights guarantees and to further engender the regional and international human rights regime. Such further steps might include gaining universal commitment to core labour rights, the achievement of an optional protocol to the Covenant on Economic, Social, and Cultural Rights, investigation and development of adequate means to deal with the human rights impact of so-called third parties — particularly transnational corporations — and further efforts to achieve the recognition of the primacy of human rights law in regional and international trade and investment negotiations and regimes.
Senator Beaudoin: I am inclined to agree when you say that we should enter the Protocol of San Salvador. If I am not mistaken, those are social and economic rights. You say at the same time we should sign the other treaty, but the other one is mainly individual rights.
We must keep in mind that out Charter of Rights, which is very fine document, is restricted to individual rights. Why mix the two together? Is there a reason? For example, we had a lengthy discussion on a very interesting point that has nothing to do probably with social and economic rights — it was, rather, individual rights. The Protocol of San Salvador protocol is mainly economic and social rights. Is there a reason why you are talking about the two together?
Mr. Foster: Your question is properly one that is on many minds in Canada. However, we already have signed and ratified two human rights conventions at the global level. We are already bound by the International Covenant on Economic, Cultural and Social Rights, as well as by the International Covenant on Civil and Political Rights. I find no contradiction in saying we should be similarly bound at the regional level.
In terms of Charter and the question of individual rights versus economic, social and cultural rights — although I would not always put it that way — is also a matter of some debate. In my province, the government has agreed that some rights relating to social assistance should be considered part of the provincial regime. That is also the case in the Province of Quebec; so there are a variety of practices in Canada.
At the institute, we are currently working on the question of health and globalization. I have been looking at the issue of health as a right in Canada. It is arguable that health is a right. In fact, I found a very short and quick answer to this problematic at CIDA in the literature rack because they have a large free poster there that says, ``Health is a human right.'' If a department of the government of the Canada publishes this and educates Canadians along this line then surely it must be true.
Senator Beaudoin: There is still the fact that we are a federation and the treaties are signed by the central authority, while the implementation of treaties vary. If it is provincial, the provinces should go ahead. I am always surprised to see how timid the provinces are in implementing treaties signed by Canada. It is a complete mystery to me.
The courts' decisions are very clear-cut: The provinces may legislate and do not; the federal authority, on the other hand, is not implementing the treaties. The only successful collective rights are probably those of the Aboriginal people because they have an article in the Constitution Act, 1982. They have collective rights under section 35. In my opinion, it is a success.
Having said that, I am in favour of social and economic rights, but the approach to those rights is still timid in our country. What do you suggest to change the situation?
Mr. Foster: I would hope that this body might be wiser than I am in this regard. You have already begun to confront that issue, in some detail, in your previous reports.
I agree with you. The current situation is quite embarrassing to Canada — internally and externally. I was witness to Canada's last report to the UN Committee on Economic, Social and Cultural Rights. On being challenged, the government representative needed to first check with the provinces to see what the answer is. This gave an unfortunate appearance and, in the end, this situation was satirized by the chair of the committee and criticized by the committee itself.
The committee, of course, advised that Canada do more in terms of the judicial route with respect to embodying our international commitments in judicial decisions and the education of judges. That is a very long and perhaps very gradual approach, although there are those who would argue that we have made some progress in that regard.
I would suggest that the federal-provincial body — the committee of ministers responsible for human rights — ought to be confronted and deal with this problem and meet. As far as I know, that committee has not met in 10 or 15 years. We are talking about a lack of leadership and lack of action. My understanding is that this is a matter of some concern to the committee of statutory human rights agents across the country. They would like to see some action taken at the ministerial level.
Those are a couple of answers from me. The committee may have answers much more wise than my own.
The final thing in that regard is that if we can encourage, cajole or whip the provinces into going along with international trade and investment agreements, which also impinge on many areas of their concern, then we could do the same in the area of human rights.
Senator Joyal: Mr. Foster, you mentioned that ``economic integration without a countervailing or conditioning legal human rights framework is distorted and offers increased potential for injury and inequity.'' You continued by saying that ``it should be noted that development of human rights and social commitments are dynamic parts of the European process of economic and broader integration.''
This is a very important element of the impact of long-term policy. I would your additional comment on a parallel between that which the European Union has followed as an approach and the comparative approach that has been discussed with the American countries with which we are presently negotiating the possibility of a free trade agreement.
Mr. Foster: I do not have much to add. I was speaking in fairly broad terMs Short of a North American or inter- American political structure such as a Parliament, the creation of a social charter — and the Protocol of San Salvador is a beginning — if appropriate and proven to some extent in the European experience, is something we should work toward in the Americas. It is as simple as that.
The argument should be: Is the responsibility the other way? Why not? In the case of NAFTA, we should not the citizens north of the Guatemalan border not have these guarantees, particularly at a time when we have given a private corporation the right to sue the Canadian government in private for a suspected injury to its present or future business. We have given corporations huge guarantees, but we have not moved to increase the balancing guarantees to individuals. That is my point.
I am not expert in the details of the European system, but my understanding is that it has improved the welfare rights, for instance, of foreign workers in the French republic or elsewhere in accordance with standards in the host country. It has changed daily life for working people or for those who may become unemployed or have suffered other injury.
Our North American labour convention is extremely weak. If you can name a worker whose job has been saved or reinstated by that convention, I would be glad to know. In an evaluation done last year of the comparable environmental agreement, we discovered that many, if not all, environmental groups avoid using the commission simply because they see it as ineffective and a waste of time.
It is obvious that we have to strengthen these countervailing institutions.
Senator Joyal: My perception of the evolution in Europe in terms of culture of rights is that there is not only a judicial approach pertaining to respect for human rights but there is what I call a ``public debate approach'' enshrined in European parliaments whereby there is a human rights commission. European parliamentarians can focus their attention on initiatives they feel correspond to priorities of intervention that contribute to the development of the culture of rights that is emerging all over Europe at a comparable level.
When we are doing something as important as ratifying the Inter-American Declaration and the Protocol of San Salvador, and at the same time we are developing a free trade agreement, it has to be supported by institutions. If we leave the respect of human rights only to the courts, to the Inter-American court or to the commission, we are not achieving the objective, which is the development of a culture of rights. Testifying before a parliamentary committee is an example of how you can improve the culture of rights in a society.
When you suggest a parallel with Europe, it is important that we reflect the way that we want to complement the approach we wish to target in the medium and long term to ensure that the very objective we are pursuing is not only to intervene when there is a violation but to develop a broader respect for rights and a discussion of those emerging rights that we feel are characteristic of civilized society.
Mr. Foster: I have no difficulty with what you are saying. I have personally, along with other civil society organizations, been quite involved in developing inter-American as well as pan-North American networks, movements, associations and actions in favour of human rights. For a long time, these were primarily geared to civil and political rights because many of the countries of the Americas were operating under a dictatorship. Canadians were active with their Latin American colleagues in funding fundamental civil and political rights and fighting against torture and forced disappearance. For the moment, we have won some of those battles and there is active discussion among civil society groups in the Americas about the broader panoply of human rights.
At the Second People's Submit in Quebec in April 2001, within the Hemispheric Social Alliance, for instance, there were extremely active and vibrant discussions of how to strengthen and deepen human rights institutions — respect, implementation — the human rights culture of which you speak.
We face some challenges in that regard. One of the most obvious is the current mood of our great neighbour regarding multilateral commitments of any sort, the International Criminal Court being a case in point. There are also strong elements in the American tradition that many people have sought to appeal to in terms of trying to bring the Americans on side. One of the issues that arise about our ratifying either of these agreements is that the Americans have not, even though they were involved in their construction.
The Deputy Chairman: Mr. Foster, let me be the devil's advocate here. Your linkage of human rights instruments and globalization, and your argument for urgency on the one hand to match the urgency on the other, intrigue me.
What difference will it make? I repeat: I am being the devil's advocate. Already in this country, human rights protection — while perhaps not perfect — is surely vastly better than what exists in countries that are already parties to the convention. Maybe I am wrong, but I am not aware that the convention has managed to avert what are widely reported as horrific abuses that have occurred under NAFTA in the Maquiladora regions in Mexico. I do not know that the convention has done that much to help people in the Mercosur regions in terms of those trade agreements. I am not talking about other elements of human rights. What possible difference would it make if we signed?
Mr. Foster: To some extent I share your scepticism because we are talking about, in one sense, instruments — and more than that, the machinery behind the instruments — which have fairly limited resources and perhaps very limited power.
Reporting mechanisms, even individual appeal mechanisms, again have very limited effect on government policy. Governments may prevaricate or may not tell the whole truth in reporting procedures, and those who review them may not be as avid or as critical as they ought to be.
You may have discovered what the Canadian government does to take on board the critical comments of a body such as the committee on economic, social and cultural rights, but I have found that an issue often obscured in a bureaucratic fog. There is a good deal that can be done in that regard.
I am simply saying that to have a window for individual appeal, to have the recognition and the periodic review of our behaviour under these rights is one step better — maybe a small step but an important one.
Have these agreements made any difference in people's lives? Earlier in the committee debate, reference was made to the situation of native people in Nicaragua and the question of their rights versus those of an Australian mining corporation, and even the behaviour of their government in respecting their land, the resources under that land, their traditions and so on.
In fact, the actions of the inter-American system did make a difference. Whether it will make a continuing difference, and whether and how you change the behaviour of a government that wilfully ignores the decision of the commission and the court, is a major challenge. However, it led to some change in the spirit, outlook and self-respect of the people involved. Ultimately, a case such as that of General Gallardo in Mexico — which was recently resolved with his release sometime after the inter-American system had willed that — is another individual case.
I am not saying that signing on to the Protocol of San Salvador alone will balance chapter 11 of the NAFTA. It is part of an evolving process whereby we assert the legal priority and human importance of human rights regimes in the face of the challenge of the new generation of trade and investment regimes.
There are obvious conflicts between the Covenant on Civil and Political Rights and what our government did in signing chapter 11 and allowing secret suits by private third parties of a democratic government. The method of working out a resolution of that conflict is not yet apparent. However, to further weaken the rights side of the equation and not taking the opportunity to strengthen seems inadequate. We should be working in the other direction.
Senator Poy: Mr. Foster, you are advocating the ratification of the inter-American human rights system for Canada. I am wondering if you were here when our earlier presenters were here?
Mr. Foster: Partly.
Senator Poy: Can I hear your view as to their concern with article 4.1?
Mr. Foster: I have taken part in discussions about that. I understand their concern and I sympathize with it. As Professor Lamarche mentioned in earlier testimony, it is a considerable sign of hope that networks in Canada and segments of the Canadian population which perhaps earlier on did not pay much attention to, or were not touched by, the inter-American system are now alert to it and taking an interest. I agree with this.
The only thing I can add from previous discussions had to do with the phrase ``in general'' in that clause. When the phrase was finally defined by the American negotiators under President Carter, they recognized there were these dangers and interpolated ``in general'' to give some wiggle room in terms of the interpretation of the word ``conception.'' When we discussed this earlier among a number of human rights groups and experts, we took some refuge in that point as well as in Professor Cook's suggestion of the interpretative statement.
Senator Poy: Do you think there is room to manoeuvre?
Mr. Foster: The other thing reported to us was a number of women's groups and human rights groups throughout the hemisphere very much wanted Canada inside the debate, rather than outside.
Senator Poy: Can we have ratification with some exceptions or reservations?
Mr. Foster: The suggestion was an interpretative statement rather than a reservation, but I gather that the nuances of both options have been discussed.
The Deputy Chairman: Mr. Foster, you have given a most interesting and provocative presentation. Thank you very much.
Mr. Foster: I am very pleased you are undertaking this study. There were those of us who asked a former foreign minister if we would ratify shortly. We were at the Santiago summit and looking at a commitment to ratification at that point four years ago. We hope this study by the committee moves the government much further.
The Deputy Chairman: Thank you very much.
[Translation]
While the next witnesses come to the table, let me remind our viewers that the Senate Standing Committee on Human Rights is currently looking into the possibility for Canada signing the American Convention on Human Rights. This study follows up upon one of the subjects identified for future study in the December 2001 committee report entitled: ``Promises to be Kept: Respecting Canada's Obligations Regarding Human Rights.'' At the end of its study the committee will report to the Senate with its comments, analysis and recommendations.
Our third group of witnesses is from Amnesty International Canada, whose work we all know.
[English]
We have with us Mr. Alex Neve and Mr. Andrew Thompson from the Canadian section of Amnesty International,
Mr. Neve appeared before this committee as one of the first witnesses in June of last year. At that time, he expressed the view that Canada should sign the American Convention on Human Rights. Mr. Neve, unless you have changed your views since last year, I suspect we have a general idea about where you stand, however you can give us more detail on your views now.
Mr. Alex Neve, Secretary General, Amnesty International Canada: Madam Chair, you are indeed correct that I have not changed my position, and Amnesty International continues to strongly endorse Canadian ratification of not only the American Convention on Human Rights, but the full range of treaties within the Americas.
I personally welcome the opportunity to appear again on this topic, and to bring with me Andrew Thompson, who is a doctoral student at the University of Waterloo, and a long-time Amnesty International member who coordinates our work in Canada with respect to human rights in Chile and Peru.
He will begin with a quick snapshot to remind us all why human rights in the Americas continues to be of concern and to put this issue into the broader hemispheric context. After which, I will say a few words with respect to ratification.
Mr. Andrew Thompson, Chile/Peru Coordinator, Amnesty International Canada: Unfortunately the human rights situation in much of the Americas is critical, and in some cases it is actually worsening. As a leader within the international community, it is imperative that Canada take a greater leadership role in the Americas so that human rights are respected and protected throughout the hemisphere.
Amnesty International has concerns about the human rights violations that are being committed throughout all of the Americas. However, three examples of grave human rights abuses stand out. I would like to highlight briefly the cases of Colombia, Haiti and Chile. I will make the case that there is a real need for Canada to actively promote and protect human rights in the Americas; otherwise, more and more people will continue to be at risk.
In Colombia, as the internal conflict between the government and the FARC has escalated, the longstanding human rights crisis has deteriorated over the past two years. A number of issues stand out: First, impunity for state agents, including the military, continues to be widespread. Moreover, the widespread violations carried out by paramilitary groups working in collaboration with the military are another concern. The third point is that human rights defenders — those individuals and NGOs that help the victims of human rights violations — are increasingly coming under attack and live under constant threat. Many have also lost their lives. The fourth point is that the violations of international humanitarian law committed by guerilla forces are another major obstacle to the protection of human rights.
In 2001, more than 300 people disappeared, over 4,000 civilians were killed outside combat for political reasons, and more than 1,700 kidnappings by armed opposition groups and paramilitary forces took place. It is the civilian population that is increasingly being targeted by both sides in the conflict; the result is mass forced displacement. Since 1985, an estimated 2.5 million people have been forcibly displaced. Finally, on May 2, as Colombians prepared for the election, a massacre was committed on the Atrato River 100 kilometres north of Quibdó. Last Saturday, The Globe and Mail reported that 119 people were massacred, 40 of whom were children.
In Haiti, freedom of expression for opposition figures and journalists has become increasingly curtailed. Death threats aimed towards those who speak out against the government are frequent. In this last year, there were a series of attacks against journalists, most frequently by police and pro-government crowds. The Haitian National Police Force is also involved in human rights violations. There have been reports of ill-treatment, particularly of suspected criminals during arrest. Moreover, the police were accused of excessive use of force in some crowd control situations; while in others they reportedly failed to intervene at all. Popular justice is another common occurrence.
Finally, the judicial system in Haiti faces a number of obstacles. Judges are often pressured by elected officials and party loyalists, which thereby compromises the independence of the judicial system. Prolonged pre-trial detention is also common. There was at least one incident last year in which four prisoners were reportedly killed in the national penitentiary.
In Chile, there were reports that police used excessive force in a number of incidents, some of which included dispersing peaceful demonstrations. Scores of protestors were reportedly subjected to ill-treatment during arrest and while detained in police stations in Santiago. Indigenous groups contesting land claims were also reported to have been victim to excessive police force.
Impunity is also an obstacle to justice in Chile. In Chilean courts, both civilians and the military have systematically closed judicial proceedings in hundreds of cases involving human rights violations that have occurred during the first five years the Pinochet government was in power.
To conclude, the examples that I have highlighted represent only a glimpse of the human rights abuses taking place in the Americas. Impunity, torture and unfair trials are only some of the many impediments to justice in this hemisphere. Canada needs to do more to ensure that the Americas are a region in which human rights are protected, not obstructed.
Mr. Neve: As Mr. Thompson has outlined, human rights are still tenuous throughout the hemisphere and still under siege in a number of countries. In that context, it is our view that the necessity to take strong action to improve the means and methods of protecting human rights in the Americas must be of paramount concern.
OAS governments have recognized that formally in a number of different ways over the past several years. At the OAS's annual general assembly, there is regular attention to this by means of resolutions that seek to strengthen the OAS's human rights institutions — the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. More recently and closer to home, last year's Summit of the Americas in Quebec City also paid close attention to this concern. The summit's plan of action urged OAS states to ``consider signing and ratifying or acceding to, as soon as possible and as the case may be, all universal and hemispheric human rights instruments...''
It is notable that North, Central, Caribbean and South American leaders have all recognized that ratification is an essential first step in the pressing and necessary work of strengthening the inter-American human rights system. In numerous conversations I have had in recent years with OAS officials, NGO colleagues throughout the hemisphere and even officials from other governments in the Americas, I have had a strong sense that Canadian ratification is more important than any other. Canada's reputation, leadership and expertise are badly needed in this quest to forge strong inter-American human rights institutions.
At a time when, unfortunately, some governments have more recently sought to weaken rather than to improve those institutions, full Canadian participation is sorely needed. In addition to the leadership Canada has to offer, Canadian participation would mean that Canada's important domestic human rights jurisprudence would be more influential in rulings of the commission and courts. It would also mean that Canadians would stand a greater chance of being named to the commission and the court, thus furthering that Canadian leadership.
As the committee knows, there are six human rights instruments at stake in the OAS: the American Convention on Human Rights, its San Salvador protocol dealing with social, economic and cultural rights, and its protocol dealing with the abolition of the death penalty — those three to a certain extent go together as a package. Then there are three standalone treaties dealing with torture, violence against women and disappearances.
Since Canada joined the OAS over a decade ago, the question of possible ratification of the American Convention on Human Rights has been under review by federal, provincial and territorial governments. Early indications looked positive but then dimmed. Many of us felt real disappointment when the twin opportunities of hosting the OAS general assembly in Windsor in 2000 and then the Summit of the Americas in Quebec City last year passed without even a statement of hopeful intent to ratify.
The American Convention on Human Rights has been the subject of debate to date. Reluctance to ratify this convention arises by virtue of the government's analysis that ratification would need to be accompanied by a number of reservations.
One is article 13, freedom of thought and expression, which is said in its prohibition of prior censorship, to be contrary to Canadian law and practice dealing with issues of hate propaganda and child pornography. While there is some debate as the extent to which that is or is not the case, proposals have been made for an interpretative declaration to accompany Canadian ratification, which would clarify that Canada will interpret that article in a manner consistent with its other international human rights law obligations, such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which require Canada to take action against hate propaganda and to protect children.
Article 4.1 has been more controversial because it states that the right to life begins in general from the moment of conception. The obvious concern here is that an absolutist interpretation of this provision might prohibit access to abortion services for Canadian women and thus be inconsistent with Canadian law as established by the Supreme Court of Canada in the Morgentaler decision. I should make it clear at the outset that Amnesty International does not take a position on the issue of access to abortion services as part of our human rights work. We have intervened in the face of instances of forced abortions or when individuals have been detained for peacefully expressing their political views on this subject.
We are aware that a number of proposals have been put before government officials offering some clear and compelling wording for an interpretative declaration or reservation in this area. In particular, we have been impressed by the proposal made last January by Professor Rebecca Cook of the University of Toronto, in January 2001, in which she suggests an interpretative declaration that would clarify the issue and would also serve as a strong affirmation of Canada's commitment to sexual equality. We are also aware that a ruling of the Inter-American Commission on Human Rights — the Baby Boy case in 1981 — concluded that the words ``in general,'' in article 4.1, are significant and mean that providing access to abortion services is not necessarily inconsistent with article 4.1.
In numerous conversations I have had with government officials at the federal and provincial levels, concern has been expressed that Canada would not want to ratify an international human rights treaty with a number of reservations or interpretative declarations because Canada is generally critical of other states when they do so. Amnesty International and other human rights organizations are generally critical of the use that states make of reservations because they are almost always used to avoid or override important human rights protections.
However, Amnesty International — and to my understanding, the Inter-American Commission on Human Rights — would not be critical of Canada entering reservations or interpretative declarations as outlined above because we believe their intention would be to clarify and improve the human rights content of the relevant provisions, not to weaken it.
We are also cognizant that in the case of article 4.1, a number of women's groups in Latin America and the Caribbean have indicated that an interpretative declaration or reservation would strengthen their own important human rights struggles in the area of access to abortion and other gender-equality concerns.
I would like to remind the committee that the American Convention on Human Rights is not the only OAS human rights treaty that Canada has failed to ratify: There are five others, including the Protocol of San Salvador dealing with the economic, social and cultural rights. Another is the protocol dealing with the abolition of the death penalty, which can only be ratified once and if Canada does ratify the American Convention on Human Rights.
One notable point regarding the San Salvador protocol is the fact that it is unique amongst international instruments dealing with economic, social and cultural rights. That protocol provides the opportunity for individual complaints about violations of two specific rights: the right to organize trade unions and the right to education. It is the only international treaty providing an opportunity of that nature for any economic, social and cultural right.
The three other OAS human rights treaties deal with torture, disappearances and violence against women. All continue to be of real concern in the Americas. All would benefit from Canadian involvement. I know of no specific concerns or objections on the part of the government with respect to possible Canadian ratification of these instruments. There may be some, but I have not heard them expressed. Perhaps starting here would be a helpful first step and partial entry into an eventual full involvement in an OAS human rights system.
Finally, at a time when OAS governments are moving towards greater economic integration, including the possibility of a hemisphere-wide free trade zone, there is grave concern that human rights may suffer if trade liberalization is not socially accountable and responsible. One means of guarding against the risk of trading relationships impairing rights in the Americas is to ensure the existence of an equally powerful and well-supported continental human rights system that would not only stand parallel to a free trade agreement, but would be fully integrated into any such agreement. Canada can simply not risk the unfortunate message conveyed by being inside the OAS trade integration process but outside the OAS human rights integration process.
Senator Joyal: Any observer of your report tonight would possibly be surprised by the horror stories that we hear about of events in some American states. You have referred to three such cases and the convention. If we are to ratify the convention so that we can better protect the rights of the individual and share with them what we share as humankind, are we ratifying the right documents? By ``right,'' I mean an efficient document that would help to prevent or reduce the number of abuses that your organization monitors on a daily basis. Are you not, in fact, condemning the inefficiency of those instruments at the same time that you describe the horror stories in your yearly report?
Mr. Neve: There is no question that the institutions for human rights protection in the Americas need improvement by way of reform, greater resources and strengthening in many respects.
One point that we are highlighting is that full Canadian involvement in the system would help to move that process along. At the same time, I do not disagree at all that the fact that such serious human rights problems continue in the Americas would quite reasonably give rise to the question of where those institutions have been all along in trying to address some of those problems.
The OAS human rights institutions have made contributions. There is important jurisprudence from the Inter- American Court on Human Rights, which has provided dramatic and significant relief to victims of human rights violations in a number of countries. There have been ground-breaking rulings that have established strong human rights principles. There was a famous case in the late 1980s that dealt with disappearances in Honduras, which, for the first time worldwide, established the clear proposition that a government, from a human rights treaty perspective, is responsible for the actions of death squads and other paramilitary organizations that may be linked with it.
The situation then began to improve in Honduras. One cannot point to that decision and claim that decision led to a whole process of reform and change in Honduras, but it was significant. It had strong reverberations throughout the country. The regular visits made by the Inter-American Commission on Human Rights to a number of countries have provided important recommendations that have comprised the central part of the campaigning and lobbying efforts, not only of those bodies but also, more broadly, of non-governmental organizations.
That has also held for other governments in terms of pushing for reforms in countries such as Mexico, which, in the last couple of years, has seen tremendous breakthroughs with respect to improvements in its long problematic human rights record. There is no question in my mind that the offerings of the Inter-American Commission on Human Rights, which has been attentive to human rights concerns in Mexico for many years, did play a role in addressing that concern.
There is a double message that indicates more needs to be done to improve the degree to which those institutions can do better in the way of stronger and more effective human rights work in this hemisphere. I say that while not wanting to suggest that the work they have done to date has been insignificant. In many respects, it has been significant and can only improve if it is more fully supported politically through wide support and ratification, including by Canada, and if it receives the kinds of resources that have been denied to it for too long.
Senator Joyal: I try to not wrestle with the contradiction that is embodied in this present situation. Yet, when we as a committee recommended that Canada implement some of the instruments that it has ratified, an editorial in one of the Ottawa papers said, ``Well, why should we?''
We are well protected in Canada with the Charter of Rights and Freedoms. There are 10 provincial human rights legislations. We have all kinds of government bodies to help implement and respect the legislation. If you look into the convention, the result has been appalling in some of the countries that you have mentioned. There is no priority for Canada to push for such a ratification.
On the other hand, I am tempted to say we have to start somewhere. There is a first step in everything. The instruments might not be the overall solution. I am convinced that if a country does not operate on a democratic basis, human rights are worth no more than the paper on which they are written. The fundamental rule of respect for human rights is to live in a democratic system — that is, to have a government that is responsible to the people who elect it. When there is a military dictatorship, do not expect that your human rights to be well positioned in a civil or political society.
I tried to build the case and bring to the governments and to Canadian public opinion the compelling arguments for Canada to ratify this convention and improve it, or to complement it with other initiatives that would, in the medium or long term, make it a meaningful document.
We would like the benefit of your experience to try to enlighten us and assist the report that we will produce as a committee that we expect the government will take into a consideration.
Mr. Neve: I would not want to suggest that I am unconcerned or unconvinced that Canadian ratification would be good and beneficial for those of us in Canada. I think it would be. However, unquestionably our main preoccupation is the degree to which Canadian ratification is good for this hemisphere. To a certain extent, you can argue that we do have strong laws here. We do have a Charter of Rights and Freedoms. We do have institutions domestically to protect human rights. We have already ratified a number of other international human rights treaties that do provide some options of individual petition and individual complaint for those who feel they have not been able to obtain a remedy here in Canada.
Nonetheless, there are some ways in which Canadian ratification of the OAS treaties will still improve the human rights protection that is available for Canadians. It is notable, for instance, that this would possibly open up a completely new avenue that does not yet exist for Canadians: the possibility to take an international complaint in front of an international court of human rights. The ratifications we have made within the UN system involve committees, not courts. There is something qualitatively different and judicially powerful about having access to an international court when it comes to human rights issues. That would be something of good news for Canadians wanting to ensure that the good rights protection we more or less have here continues to improve.
The broader point is that we are part of this hemisphere, and we are increasingly part of this hemisphere. We finally recognized that when we joined the Organization of American States, and ever since then, we have been taking more steps to integrate ourselves with our brothers and sisters in the Caribbean and in Central America and in South America and to build closer economic and political relationships with them. A stronger, meaningful human rights relationship must be part of that equation.
However, this is not only the answer. Canadian ratification will not suddenly turn around the OAS human rights system overnight and turn it into a magical creation. Clearly, it is one piece of a much wider effort that also includes the need to devote greater resources to those institutions and a number of other mechanisms of reform that have been proposed. Yet, it is part of the puzzle, and it could stand to make a difference to our fellow citizens in this hemisphere in terms of protecting their rights.
Senator Cochrane: We have just heard from the association for women in Quebec. Their concern is that, should a decision be made to ratify the convention, what happens to women's issues that they have worked so hard to achieve over the past number of years? Will they be compromised?
Mr. Neve: This is specifically with respect to the concern about article 4.1, I assume. We clearly recognize that that is a concern, and we agree that Canadian ratification should proceed in a way that does not jeopardize those hard-won rights. We think Canadian ratification should proceed in a way that strengthens the ability of women throughout the rest of this hemisphere to also win those rights.
I referred to the proposal that has been made by Professor Rebecca Cook. There is strong compelling wording that can accomplish that goal and go even further by sending a strong message that Canada is ratifying with an intent to bring a vigorous commitment to sexual equality and to how it understands, applies and interprets this convention, not only with respect to article 4, but also the convention more broadly across the range of its full provisions. We think that could be done with wording of that sort.
It is helped by the fact that there was that ruling two decades ago which has already got on record the fact the words ``in general'' in article 4 are there for a reason. That decision of the Inter-American Commission in the Baby Boy case examines the history of the drafting of article 4 and affirms that those words were put in there for specifically this kind of compromise to recognize that there were states that would want to ensure that wording was not necessarily inconsistent with maintaining access to abortion services.
That was 20 years ago; it is not the strongest ruling, but it is a beginning point. If it is built upon with good strong wording in an accompanying interpretative declaration, it can be win-win. It can maintain and protect the rights that have been won here on the national front and likely strengthen the capacity to continue that struggle for women throughout the Americas.
Senator Cochrane: The problem is that when there is ratification of this convention, there is no guarantee that this will really happen. Of course, there is no way to guarantee it. It is just they have worked so hard to get where they are today.
Mr. Neve: The strongest guarantee probably would be to do it by means of a reservation as opposed to an interpretative declaration. Many have proposed the interpretative declaration as the option that we would like to see considered first because it is a more human rights friendly and positive way to go about ratifying a convention. However, even if our interpretation is found to be wrong, if there was a ruling that article 4.1 is now going to be interpreted in a way that makes it absolutely impossible for there to be access to abortion services, the reservation makes it absolutely clear that Canada is opting out and will maintain the state of the law here. That would be more unfortunate because it would clearly not do as much to strengthen the ability for women in other countries to demand and promote a similar interpretation of article 4 in their own countries, which is more possible with the interpretative declaration. Legal minds would need to grapple with the degree to which an interpretative declaration or a reservation is the better strategic choice there, balancing those various concerns about wanting to ensure that there is no erosion of rights here.
Senator Cochrane: We want to improve the lives of women in other countries as well.
I have a question for Mr. Thompson. I am always shocked at the atrocities that go on around the world as I read about them. I am interested now especially in the Canadian angle and the human rights experiences of Canadians.
In the news within the last month, we have seen reports on the case of Dr. William Sampson. As I am sure we all remember, Dr. Sampson has been imprisoned since mid-December 2000 on charges related to so-called ``car bombings.'' While he has been detained, we have seen reports of torture and physical abuse. Of course, we have read that he was tried in secret and has been sentenced to death.
Could you comment on that, please?
Mr. Thompson: I do not know enough about that case. Therefore, I will pass the question to Mr. Neve.
Mr. Neve: Amnesty International has been active on Mr. Sampson's case and, beyond that, for a long time has been active with respect to human rights concerns in Saudi Arabia. I must say, we have often found ourselves to be a lonely voice on that front because the international community, more broadly, has rarely shown much interest in taking Saudi Arabia on with respect to its quite abysmal human rights record.
You have pointed to some of the issues, senator, such as its absolutely outrageous treatment of women and a number of other human rights concerns. States around the world have consistently failed to take Saudi Arabia on because of its significant geopolitical influence, obviously, as well as its oil wealth, et cetera. Now, we have it coming home. We have the legacy of a failure to hold a government accountable on its human rights record, which is now a real consequence not only to hundreds of thousands of migrant workers and Saudi Arabians, but now also to a Canadian citizen.
The kinds of concerns that have arisen in his case are symptomatic of the wider concerns we have long documented in Saudi Arabia. I refer to the widespread use of torture in detention against criminal and political detainees — essentially any detainees — as well as secret judicial proceedings, often in cases where the death penalty is an ultimate punishment and there is no public awareness or knowledge of what is going on until the execution finally happens. Those are real concerns.
Clearly, we have been maintaining pressure on the Saudi officials, on our own government and on some other governments. The British government and others are involved in this case because there are other nationals who have been implicated along with Mr. Sampson.
As I am sure you have seen from the media coverage and other awareness you may have of this case, it has been very difficult even for our own government to get good, reliable information from the Saudi government as to what is or is not transpiring. Has he or has he not already been subjected to a secret trial? Has he or has he not already been sentenced to death?
At various times, new information comes to light. It is always incomplete and contradictory. Our recommendation has been for Canada to keep up that pressure, but to do everything possible to bring a number of other countries — in particular our southern neighbours — to this struggle as well. Given Saudi Arabia's power and influence, there is no question that breakthroughs will come only if there is concerted, significant international pressure, including from countries such as the United States, which do have some influence with the Saudi authorities. I think that is Dr. Sampson's best hope.
Senator Poy: Why do you think the Canadian government has not ratified up to this point?
Mr. Neve: I quite genuinely think it is the concern about the number of reservations that they feel are necessary. I think you likely have heard from government witnesses by now. In some instances, the list given is quite long. Many of us disagree and think that many of those are simply red herrings and not concerns at all.
There is no question that articles 4 and 13 in particular are of significant concern. If Canada is to ratify, we have to get it right with respect to those two articles. Proposals have been made and the wording is out there that provides the way forward, that gives the option to get it right.
Clearly, the most troubling and difficult of the provisions is article 4. The kinds of concerns, which Senator Cochrane has highlighted, around wanting to make sure it goes forward in a way that does not erode hard-won rights exist in many government circles. In addition, in government circles there is clearly disinterest in doing anything that presents the risk of putting that issue on the front pages of the newspapers, regardless of one's views on the issues concerned.
In our view, the issue has now been studied at all levels of government. The recommendations are in. The proposals have been made as to the way forward. Now, it is simply a matter of calling the question. There is a need for some political leadership. Officials must decide whether they are prepared to go ahead with this, recognizing the degree to which this is a significant and critical step toward strengthening human rights protection in this hemisphere, a role that we would very much like to see Canada play to a greater extent than they have to date. Now is the time and let us get on with it.
Senator Poy: It is my understanding that the U.S. has not ratified. You were talking about Canadian leadership. How effective do you think it can be in the Americas if the U.S., which is the strongest country, does not want to take part in it? How effective can we be?
Mr. Neve: The lack of U.S. ratification on this instrument is symptomatic of a broader lack of interest in ratifying international treaties of that sort on the part of the United States. It is an issue that comes up all the time within UN human rights circles as well.
Whether the U.S. is absent or not, it is a force to be reckoned with. We know that with respect to a number of other treaties. The U.S. has not ratified the statute that will lead to the establishment of the International Criminal Court. Not only does the U.S. not intend to ratify it, they recently took the remarkable step of unsigning, which was the first sort of largely symbolic step they have taken. They stand outside that treaty. However, at the same time, they have been through a number of different ways and means seeking to actively undermine and weaken that treaty and, therefore, the eventual court that will come into establishment next year.
It is critical that there be states within the system that are well equipped and that have good relationships with the United States and which, therefore, have some capacity to try to moderate against U.S. action of that sort. The simple fact within the OAS right now is that there is nowhere else to look in this hemisphere for the kind of leadership necessary to turn around the OAS human rights system. Canada is it. We have the expertise and the potential. We have a good bilateral relationship with the United States. Better us than anyone else. We are sorely needed.
Senator Joyal: My question is complementary to those asked by Senator Poy. In relation to your answer to the question why Canada has not signed, you focused on the ramification in our domestic legislation in relation to articles 4.1 and 13. I want to share this with you in terms of your professional experience.
I find it curious that, unless I am mistaken, none of the witnesses or documents or briefs that we have received have questioned the fact that we would give to an international court a jurisdiction over rights and freedoms of Canadians that would be determined in a way that could bring the actions of the Canadian government into question internationally. This is, as you know, one of the key arguments as to why the United States does not want to sign and has taken the initiative of unsigning for the International Criminal Court.
Have you ever discussed that issue? As you said very clearly, it would be a first if Canada were to ratify the Inter- American Human Rights Declaration. Not only would a Canadian citizen have the right to go to the Human Rights Commission of United Nations, but we would also have the definite right to go to the international court — the way that Europeans have the right to go to a European court directly without having exhausted domestic recourse. Canadians would go to the court in a different way because, of course, the inter-American human rights propose an approach that is not exactly the one followed in the European court.
Have you discussed the fact that we would be creating a precedent — a first in terms of protection of human rights for Canadians?
Mr. Neve: I have not detected that as being a concern at the federal level. At the federal level, we have taken a strong multilateral approach, a strong commitment to building international institutions. This has been well evidenced through the recent strong Canadian leadership in the drive to create the International Criminal Court. This drive has included a commitment to the notion that when it comes to the highest ideals and principles of human rights, there is a role at the international level for adjudication that stands above countries. That will only work ultimately if all countries participate, so that all countries will stand equally in front of such institutions and risk being judged.
The provincial level is where I have from time to time detected the concern that you have just raised. Even though it is the federal government, of course, that incurs the obligation and signs on, in many instances many of the provisions do touch upon issues that come within provincial jurisdiction. Depending on the government in power in a particular province at any particular time, there have been differing views about the degree to which that province is interested in being an ``international citizen'' in that same way or not. Much of our work around the OAS human rights treaties has included significant outreach at the provincial level: meetings with senior civil servants — with ministers when it has been possible — to try to convey the message of why we feel this is such an important step.
We will continue to need to do so because there is in some provinces — you are right — some reluctance about having an international body having the power to tell them what they can or cannot do in their own provinces.
Senator Joyal: I raise this issue not because I share those arguments but because, as you know, the Canadian court, after 20 years of implementation of the Canadian Charter of Rights and Freedoms, has been criticized. In some milieux, this has been termed as judicial activism. As you said properly, there are some milieux in Canada that can be very receptive to that kind of argument. If we were to establish another avenue for a court to intervene, the argument may be thrown on the table that it is a way of ``eroding'' the authority of provincial legislatures.
I think it is important to note, though, as you have said, that that argument has never been put forward by the Canadian government as being a fundamental contradiction with the constitutional position of the Canadian government. Its position is not parallel to that of the American government, which has made it a fundamental objection. Canada, to my knowledge, has never stated such a fundamental opposition to the signing or to the delegating to an international court the capacity to decide upon issues whereby a national might of course sue the Canadian government, on the basis of a decision or legislation or any action that the government might have been undertaking. It is important for us to understand and explain to Canadians the overall implication in our system, because that is part of the reality.
For us to do it right, we must understand what we are doing and the implications, the pros and cons. It reminds me of 20 years ago when we were discussing the Canadian Charter of Rights and Freedoms, what the role would be of the court in the future. It has to be well understood as being one of the implications of the decision to ratify. If we ratify, it is because we will abide by the system. Canada lives by the rule of law. If we ratify this convention, we will want to implement the convention once it is ratified. We must respect the decision of the inter-American court on the basis of the implementation of the rights and freedoms by which Canadians will be recognized.
I think it is important to discuss that issue and have it on the table when we are making our recommendations to the government.
Mr. Neve: I completely agree. The essential message comes down to the fact that this is enhancing Canada's role and prominence as a good human rights champion, leader and citizen in the Americas, and that part and parcel of that involves a clear willingness to stand along with all other nations in the Americas in judgment when we get it wrong.
That will inescapably mean that there will be some times when the inter-American court of human rights will make a ruling against Canada that will ultimately lead to human rights improvements in Canada. It will also ultimately benefit human rights throughout the hemisphere.
We cannot have it both ways. We need, want, and very much must be part of creating a good human rights atmosphere in the Americas. We cannot stand outside it and achieve that at the same time.
The Deputy Chairman: You referred several times to the need to improve the resources available for the inter- American human rights system. I suppose you mean the court and commission. Could you elaborate?
Mr. Neve: Certainly. For many years, there has been concern that both of those bodies are woefully underfunded and under-resourced. I cannot remember the dreadfully inadequate number of weeks, for instance, that the commissioners are actually able to be together to hear cases, but it is far below what is necessary to even begin to cope with the kind of caseload that comes their way. As a result, there are backlogs, which lead to further government concern about efficiency and productivity. It leads governments to want to have less to do with the system. You can see the degree to which that becomes a vicious, self-fulfilling prophecy.
At the same time, some of the rules, procedures and mechanisms by which the commission has gone about its work need to be improved, clarified, and made more efficient, open and transparent. There are numerous recommendations that have been made. Many of those have been taken seriously by states.
They have launched, through the General Assembly — which brings the OAS foreign ministers together once a year — a process by which they are committed to improving the resourcing and seeing through some of those long-needed reforMs When those begin to bear fruit, along with increased ratification by countries such as Canada, the system will have the kind of wider legitimacy and strength that it needs to be the vigorous body it can be.
The Deputy Chairman: Thank you both for appearing before the committee. Amnesty International, perhaps more than any other body, reminds us what human rights are all about. We are grateful for you being here this evening.
The committee adjourned.