Proceedings of the Standing Senate Committee on
Human Rights
Issue 9 - Evidence, April 29, 2002
OTTAWA, Monday, April 29, 2002
The Standing Senate Committee on Human Rights met this day at 4:05 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 A. Raynell Andreychuk (Chairman) in the Chair.
[English]
The Chairman: We are currently studying the American Convention on Human Rights. We began by addressing the issue of whether Canada should become a signatory to the convention. As we have heard various witnesses, we have expanded our study to look not only at article 4, which was of some difficulty, but at the entire convention, the entirety of the apparatus of human rights in the Americas and what role Canada should have in the development of human rights in this hemisphere. We are, however, zeroing in on the convention.
Before us this afternoon is the Honourable Warren Allmand, P.C., Q.C., President of Rights & Democracy, which is based in Montreal. Mr. Allmand has appeared before this committee before. He is again extending us the courtesy of giving us his opinions and expertise. Accompanying Mr. Allmand is the Assistant Coordinator of the Democratic Development Programme, Ms Geneviève Lessard.
Welcome, Mr. Allmand. Through kindly providing us with your information you are fulfilling one of the objectives of the centre, namely, to disseminate information and to be a resource to Parliament. We thank you for that.
The Honourable Warren Allmand, President, Rights & Democracy: I wish to thank you sincerely for inviting us to appear on this important issue. I appreciate the initiative of the Senate committee in looking at this convention that we have been pressing Canada to ratify for a long time. As a matter of fact, we have had a campaign at Rights & Democracy since about 1990 trying to convince Canadians and the Canadian government to ratify. We did that in part because we work with many partners in Latin America who want Canada to be a full player in the inter-American human rights system in order to strengthen that system.
You will remember that at the time Canada joined the OAS in 1990, the Minister of Foreign Affairs, the Honourable Joe Clark, said that he would seek Canada's ratification of the American convention, but that has never happened
Our principal argument for ratification is a foreign policy argument, not a domestic one. In response to our plea that Canada should ratify, both the federal government and the provincial governments have said that we do not need the American convention for Canadians because we have our Charter of Rights, human rights commissions, we have ratified international covenants and many other things. My answer to that is that the purpose is to strengthen the inter- American system, that it is for foreign policy reasons that we should ratify and not necessarily for domestic ones.
We were at an OAS convention in Guatemala when Trinidad and Peru threatened to leave the system a few years ago, and we lobbied them not to leave. They said to us and NGOs, ``How can you ask us not to leave when you have not even convinced Canada to join?'' That was a good point.
There is an old maxim that a threat to the peace anywhere is a threat to the peace everywhere. Serious attacks on human rights, whether it be in Guatemala, Peru, El Salvador or the Caribbean islands, can end up in our doorstep, as it has in the past with massive flows of refugees, increased peacekeeping commitments, increased foreign aid commitments, and the general spread of unrest and instability in the region. Even if we have many human rights instruments here in Canada, it is necessary that we join to strengthen this inter-American system.
If that same argument were given in Europe, I suppose Holland, Sweden and many other countries would withdraw from the European human rights system. They do not do that. They believe that although they have strong human rights systems in their own country it is necessary to have a strong regional system. Also, if that argument were followed, now that Mexico and Peru have changed their governments and are improving their human rights systems, they could say: ``Let us withdraw. We do not need the inter-American system anymore.'' These are false arguments. If we believe, from a foreign policy point of view, that we should have a strong regional system, we should be a full player in that system. That is our main argument.
Of course, there would be some benefit to Canadians. There would be another source of appeal outside of Canada for human rights abuses. We saw this with respect to the International Covenant on Civil and Political Rights in the cases of Lovelace and McIntyre. The Human Rights Committee of the United Nations under that particular convention was helpful. When they lost their cases in Canada, both Lovelace and McIntyre went to the Human Rights Committee of the UN. They got a judgment in their favour. Although the judgment was not legally enforceable, it was of such political significance that both Canada and Quebec amended their laws to conform to the judgment of the Human Rights Committee. Therefore, there is some benefit.
The other benefit to Canada would be to get access to the San Salvador Protocol, which is a protocol of the American Convention on Human Rights dealing with economic, social and cultural rights. We would have to ratify the American convention.
The Canadian government — and we have been lobbying with the Canadian and the provincial governments for some time — has said there were eight major and five minor areas of conflict between our laws and the American convention. When Canada ratifies, it does not want to ratify with many reservations.
We have examined, with legal experts in international law, these alleged eight major and five minor conflicts, and most do not exist.
I do not know when this list was made, but it is completely out of date, if one looks at the judgements of the Inter- American Court and the Inter-American Commission. There is exaggeration. Objections are being thought up where there are really not any at all.
For example, one of the objections on that list was that some of the standards under the American convention are lower than, let us say, the International Convention on Civil and Political Rights. Consequently, a Canadian court may move to the lower standard rather than the higher standard. It says right in the American convention in article 29 that, where there is a higher standard, one always picks the higher standard. I do not know why they put these things on the lists.
There is an article on exclusion. Nationals cannot be excluded from your country. This would interfere with our extradition laws. The inter-American system has already said that that article does not apply to extradition. This is a red herring. Most of these countries have extradition laws and they have ratified the convention.
With respect to prisons, there is an article that indicates that you cannot put a juvenile in an adult prison. Because some small provinces have in the same prison system wings for juveniles and wings for adults, they have also said they cannot do that. In Canada, however, we do not put juvenile prisoners and adult prisoners in the same cell. As a matter of the fact, if that were the case, you might see more abuse of that article in many Latin American countries than you would see in Canada.
There is a notwithstanding clause that we have. However, we have ratified the International Covenant on Civil and Political Rights and other global conventions that do not allow for a notwithstanding clause, and that has not stopped us from ratifying these other conventions, CEDAW, which is the Convention on Elimination of All Forms of Discrimination Against Women, the Children's Convention or the International Covenant. Therefore, this is another red herring.
There are two serious areas of objection. One is article 4(a) with respect to the right to life; the other is article 13 with respect to prior censorship.
We have done much work and I will get to this area in a minute. Ms Geneviève Lessard, who is with me, has done a great deal of work with women's groups in Canada on explaining the benefits of the American convention to Canadian women, and also to put them in solidarity with women's groups in Latin America. She has participated in meetings here in Canada on that subject and has also worked with me on the ratification campaign. She may be able to answer questions on that subject.
Article 4, by the way, deals with the death penalty as well under the right to life; it also deals with what possibly could be abortion.
There are two answers to that. First, we are recommending not a reservation but an interpretive declaration. It is still a work in progress. We have been working with international lawyers on the wording of an interpretive declaration that would apply to the whole American Convention on Human Rights, and not just article 4, although it would cover article 4 as well. It would protect us.
Mexico put in an interpretive declaration. There was no objection with respect to the same matter, and there was no objection by any of the states or the OAS to the Mexican interpretive declaration.
With respect to article 13, which deals with prior censorship, the worry was that this might interfere with our criminal laws against hate propaganda and hate literature, as well as our laws on child pornography. Once again, there is evidence that the commission and the court would be sympathetic to that kind of law. In any case, there is one area where we could have a memorandum of understanding, not a reservation.
Those are the two areas of serious objection, which could be covered not by reservations but by an interpretive declaration. As I say, it is a work in progress, not yet completed. We are still consulting with many people, including the women's groups.
Another serious objection, but not a legitimate one, in my view, is that some of the provinces do not want any more scrutiny by human rights instruments. Look at the Ontario case of Waldman. I mentioned two successful cases that went to the Human Rights Committee: McIntyre and Lovelace. Waldman was a Jew from Ontario who went to the Human Rights Committee asking for Ontario's support for Jewish parochial schools on the basis of freedom of religion and equality for all religions. After losing in Canada, he won in the Human Rights Committee of the United Nations. Ontario has, of course, failed to move on that. I might say that there are approximately four or five provinces that do support parochial schools, including Quebec and Alberta. I do not have the complete list, but these provinces support parochial schools by giving funding to them if they meet the standards of the provincial education system. Ontario does not want to do that. That is one case.
What lies behind much of this is that some provinces do not want any scrutiny. However, they are not being approached from a foreign policy point of view but from what this can do for Canadians.
The other argument we hear is that Canadians are not marching in the streets clamouring for the ratification of the American Convention on Human Rights. They did not do that when we joined the OAS. They did not do that on the Convention on Torture or on many other conventions. What happens is that the Canadian government takes a certain political position, shows political will and says, ``We should ratify these conventions,'' and Canadians generally agree.
There is also growing support for the ratification as a result of the globalization movement and the proposals for the Free Trade Area of the Americas agreement. At Quebec City, and in many of the forums we participate in, many people are saying that if we are going to have the FTAA we should have a strong regional human rights system and Canada should be part of that.
The other area of new support comes from the Aboriginal community in Canada. The court rendered a decision last summer recognizing that, under the American Convention on Human Rights, indigenous people have the right to certain lands that they traditionally occupied. That has impressed some of our indigenous peoples.
I wish to point out that, at the Quebec Summit, one of the things that the Government of Canada and other governments in the Americas committed to was the strengthening of the inter-American system. That is contained in the final document of the Quebec Summit. They also said they would take steps to strengthen the system in their own countries. We are not seeing that in Canada unless we ratify.
When the OAS held its general assembly in Windsor, Mr. Axworthy said that he would take steps to look into the ratification process and push it ahead. His exact words are in a speech he gave at that meeting.
With respect to the issue of transparency, since human rights are a shared federal and provincial responsibility, the federal government periodically discusses these matters with the provinces. We heard that last fall there would be such a meeting, and we asked for the right to be present as an observer to hear what was going on. We were refused. They will not allow anyone to attend those meetings as an observer. What is more troubling is that the lead department for those meetings is the Department of Canadian Heritage, not Foreign Affairs or Justice. There is no strong foreign policy argument being put forward by the federal government for ratification; the government is not advocating from a foreign policy point of view for the ratification. It is simply: ``What do you think, boys and girls? Do you like it or not?''
I am troubled by Canadian Heritage's involvement. It is responsible for publicizing human rights instruments in Canada, but it does not have a policy role, as far as I know. That is either the Department of Justice for domestic human rights or the Department of Foreign Affairs for international human rights.
In conclusion, we strongly recommend that we ratify with an interpretive declaration that would cover the entire treaty, and in particular article 4, and one memorandum of understanding in article 13. If you look closely at the other eight major and five minor issues, they amount to nothing; they are an exaggeration and out of date in relation to the jurisprudence of the American court and the American commission.
The Chairman: Does Ms Lessard wish to add anything?
Mr. Allmand: She was at the meetings of the National Association of Women and the Law and also the Fédération des femmes du Québec. She has worked with associations in Latin America. She speaks Spanish. Ms Lessard was with me at the OAS meetings in Costa Rica when this was discussed, and also at the Quebec Summit. Ms Lessard could answer any questions.
Senator Fraser: First, could you leave with us the reference for the ruling on indigenous peoples? That sounds interesting, and I should like to read it.
Mr. Allmand: Yes.
Senator Fraser: Second, on the convention — here I betray the fact that I am new to this — on article 20, the right to nationality, what is the difference between nationality and citizenship?
Mr. Allmand: I do not think there is very much difference. I cannot give you a legal answer to that question, but I think it means more or less the same thing. I could determine the answer and provide it to you.
Senator Fraser: Finally, article 13 does not bother me as much as article 14. As a former journalist, I automatically react with grave caution, to say the least, at any notion that any state body can tell the media what to say, which is essentially what this does. It also occurs to me that this would compound difficulties in those countries where a free press most needs protection. Let us assume a journalist is in a military dictatorship and is brave enough to publish the truth about some nasty goings-on. The benefit of the journalist's work can by undone by publishing, for instance, the general's statement: ``No, of course I never killed or tortured or made anyone disappear. This is all a lie.'' I honestly have grave trouble with that. However, I repeat, I am new to this. Do you know if anyone else has had grave trouble with that?
Mr. Allmand: They have not. However, our researchers on this article pointed out that there are similar provisions to this article in provincial legislation, although not in Quebec. It is also contained within many civil law traditions, this right of reply. The Inter-American Court considers that national law should establish the conditions of the exercise of the right and that the contents of the law may vary from one state to the other within the framework of the concept stated by the court. It is not an airtight provision that applies in the same way to all states.
By the way, Mr. Cassel will appear after me, and he may have answers to some of these questions as well.
Canadian legislation does provide for compensation. The risk of a successful complaint is minimal, I am told, in the inter-American system. This article has never been a big issue.
Senator Fraser: The only province where I worked as a journalist was Quebec. If my recollection is accurate, the way the system works there — and perhaps this is the way it works elsewhere — is that if the newspaper agreed to publish a correction or a retraction, appropriately prominently, that would constitute defence in subsequent libel proceedings. However, the law could not, on a blanket basis, say: ``Any offended party can come along and demand...''
Mr. Allmand: The way I read the article, it is almost that the person would have the right to submit a letter to the editor to respond. We also have the press council. We have one in Quebec, I believe. Sometimes they recommend corrections. I do not know if newspapers often turn them down, but I have the impression that generally they agree.
I have not heard of this article being problematic. You will hear from other witnesses that will offer you more on the experience of this article in the inter-American system, I hope.
That is not one of the articles that Canada has on their list. Some provinces have a similar provision. I always thought that you had to print a letter to the editor or something like that.
The Chairman: You have mentioned that there were eight major issues raised in Canada and five minor, and you have pointed out two. Do you have this in writing so that we may have it as part of our record?
You said it is outdated. We have department officials who indicate they are, due to the confidentiality of the process between federal and provincial officials, seeking advice as to whether they can provide the materials. Anything you have would be helpful in our analysis.
You also indicated that lawyers looked at certain sections, and again it would be helpful if you have that in a form you could file.
Mr. Allmand: We wrote the minister for Latin America, David Kilgour, and he sent us a letter about all these objections. It is worse that they consider objections to a treaty as confidential on the basis of security. That is a flagrant violation of transparency. Other federal-provincial meetings have taken place in public on more serious matters.
The Chairman: In fairness to the department officials, our first report indicated that the ministers have not met for some 11 years; thus, it is not a question of transparency at the ministerial level. The working committees are comprised of bureaucrats. Before they responded fully, they wanted to ensure all their colleagues are in line.
I am hoping they adopt your approach of transparency and provide us with it. In the meantime, I want the benefit of what information you have.
Mr. Allmand: When we received the list of these eight major and five minor conflicts, we had them studied by experts. We presented a brief to the Canadian government, dated May 19, 2000, and there are further interpretations by the commission and the court that would be helpful. I appeared before the House of Commons committee and distributed this document.
Under each objection by the government, we have a response. I would be glad to have that sent to the committee. It deals with each of the objections, major and minor, in turn.
The other one was on the responses of other international experts.
The Chairman: If you have any analysis on sections that you had as part of your work, it would be helpful to provide them. It is a cost-cutting measure, and we will to take into account as much information as we can table here.
Senator Kinsella: You outlined some foreign policy objectives that could be met by Canadian participation under this particular treaty. Let us reflect on some of the domestic benefits for Canada. Your appearance here, as we are discussing whether Canada should ratify the convention, is already serving an important domestic objective. That is making Canadians aware that there is regional machinery for human rights in the Americas hemisphere. How does that help us across Canada?
Would you agree that the more we participate with others on the planet in explicating the values of human rights the better it is for our school children and university students?
You alluded to the Lovelace case, which I had a hand in writing myself. There was an international instrument used, but it had tremendous direct impact domestically. Would you reflect on some of the ways the human rights agenda in Canada can be enriched by greater participation in all the machinery of the OAS in the field of human rights?
Mr. Allmand: On the foreign policy side, to do anything that assists in regional peace and stability helps us as Canadians. We can see what massive attacks on human rights do, whether in Afghanistan, the Middle East or New York City, how that can spread and upset the stability and peace of the entire world. To have an instrument and institutions in our region where human rights are respected and can be enforced can help us. If we think we can build a wall around Canada and escape serious attacks on human rights, whether in the Americas, the Middle East, Afghanistan, Yugoslavia or elsewhere, we are wrong. We are involved in this one little world.
In our discussions with women's organizations, they pointed out that being in solidarity on such issues with women's groups in the Americas — the Caribbean, South America, Central America, Mexico and the United States — strengthens all our human rights. We learn from them and they learn from us. Women's groups in the Americas want us in the system because if we are there then Canadian jurisprudence, such as Morgentaler and others on women's reproductive rights, can be brought in and cited before the commission and the court in the inter-American system. We can help them, while they have wisdom on many issues that could help us in the strengthening of our system.
There could be other examples. Just as Lovelace and McIntyre went to Geneva to plead their case, the Inter- American Court is in the Americas. It is probably easier to access as some of the institutions are in Washington and some in Costa Rica, and if they had to be used it could be to the benefit of all Canadians.
Senator Kinsella: Reference was made to the work you and your organization has done with Canadian women's organizations. Part of the logjam, and it has been jammed up for 12 years, is with a number of the provinces.
Are you able to work with provincial women's organizations to sensitize them to the importance of this convention and Canadian ratification, thereby having them exert influence on provincial governments to move with greater dispatch in the direction of giving their approval?
Do you know which provinces have agreed that Canada ought to deposit the instruments of ratification, and which provinces have not indicated that they agree or disagree that Canada should ratify?
Mr. Allmand: That is a question causing me concern. We wrote to all provincial ministers two years ago, and we visited those we could. After listening to us, they said they gave their advice to the federal government and would not tell us.
To me, that is unacceptable in a democracy. We give our advice to the federal government, but we cannot find out what advice the provinces are giving to the federal government, and we cannot attend as observers to listen to the discussion at the meetings.
Senator Kinsella: Are you referring to the meetings of the continuing committee of the officials responsible for human rights?
Mr. Allmand: Yes.
Senator Kinsella: This is a continuing committee of federal, provincial and territorial ministers with responsibility for human rights, which has not met for 12 years.
Mr. Allmand: They met last fall, and we asked to go to the meeting. At least the committee met.
Senator Kinsella: Did the ministers meet?
Mr. Allmand: No, they did not.
Senator Kinsella: Has this group of ministers met in the last 12 years?
Mr. Allmand: You are right. I was talking about the officials.
Senator Kinsella: The officials meet once a year, not twice, and they are secret meetings.
Mr. Allmand: Yes.
Senator Kinsella: We do not know what the agenda is, or the progress they are making.
Mr. Allmand: Exactly. With respect to the women's movement, we had a one-day meeting in Montreal at which we invited all the major women's movements and other groups that might be concerned with the ratification of the charter. We had a very good discussion with them. There were follow-up meetings. Perhaps Ms Lessard could tell the committee about the meetings with the Fédération des femmes du Québec and with NAWL, the National Association of Women and the Law.
[Translation]
Ms Geneviève Lessard, Assistant Coordinator, Democratic Development Program: The work that has been done with the women's rights movements in Canada was done, first, mainly with national organizations. More recently, at the request of the Fédération des femmes du Québec (FFQ), the community service of the Université du Québec à Montréal held a training session led by Dr. Lucie Lamarche. That training session was intended mainly for Quebec women's groups. It was a pilot project designed, first, to make women's groups aware of the problem of the inter- American system, its main instruments, the general economic integration dynamic and the need to join this inter- American human rights system.
In the near future, those representatives of Quebec's women's groups will in turn have the opportunity to receive training enabling them to give these types of information sessions on the inter-American system.
This pilot project is not one of our initiatives, but we nevertheless supported it. We supported it in Quebec, and we hope to be able to do the same in the other provinces in the hope of raising interest among women's groups and among the universities.
Senator Kinsella: Has this group contacted the Government of Quebec?
Ms Lessard: Representatives from the Conseil du statut de la femme were at the training session. For the moment, women's groups are not prepared to lobby provincial jurisdictions directly for ratification. They are currently studying the inter-American system and its risks and opportunities.
We spoke a moment ago about the human rights opportunities for Canadian men and women. On this point, if Canada ratified the American Convention on Human Rights supported by a solid interpretive declaration in the development of which the Canadian women's groups would have taken part, if things were transparent, if women's groups were involved in the discussion and we had those declarations of interpretation, we could reinforce women's rights in Canada and in Latin America in particular. All women in Latin America could benefit from the Canadian interpretation.
Senator Kinsella: Do you know whether the Government of Quebec has made a final decision?
Ms Lessard: As Mr. Allmand mentioned, the provinces refer us back to the Canadian government. In other words, they toss the ball back and forth. It's nothing more than a game of hide-and-seek. We don't exactly know which province has which objection. We only get bits of information from conversations.
Senator Kinsella: If I remember correctly, when we were in the same situation, before international agreements were ratified, the Government of Quebec was the one that conducted the most thorough studies of the governments of the other provinces. Quebec conducted an in-depth study of the UN international treaties.
If the Government of Quebec took this initiative, it would be interesting to know whether the Quebec government has already given its support for ratification. If the Government of Canada is the only one not wishing to ratify, parliamentarians may intervene, but we have no information at this time.
[English]
Mr. Allmand: At this training session at the Université du Québec à Montréal, we assisted in having Latin American women experts attend the meeting. There was an expert from Latin America saying why she thought Canadian women should support it. There was a meeting at the recent conference of the National Association of Women and the Law with women from all over the country. We had four members of our staff there, including Ms Lessard, and the chairman of our board, Kathleen Mahoney from Calgary, participating in that meeting and giving information. Both the Fédération des femmes du Québec and the National Association of Women and the Law are looking seriously at the question of ratification.
[Translation]
Am I right?
Ms Lessard: Yes. The National Association of Women and the Law examined the Belem do Para Convention on Violence Against Women, the American Convention on Human Rights and the system in general in a series of workshops. Of course, the position will come later, but we sense that Canadian women's groups are interested in pushing the study on the inter-American system further.
[English]
The Chairman: Both associations will be before us as witnesses.
[Translation]
Senator Ferretti Barth: When you say interpretive declaration, you're mainly referring to the Association nationale des femmes au Québec.
Are the other associations in the other Canadian provinces working in concert with Quebec? Are they cells isolated from one another without any coordination? What will be the final result?
Mr. Allmand: At that meeting we had in Montreal a year ago, we invited a number of women's associations, including NAC; we have a list of them. A number of national organizations were present, including the Fédération des femmes du Québec. A number of other meetings were subsequently held with national groups and the Association of Women's Groups. A training session was also held at the Université du Québec à Montréal.
I also understand that English-speaking women from other provinces expressed the wish to have a similar training conference in English held in the other provinces. That was also the case of the national groups and groups in the other provinces.
Senator Ferretti Barth: If a consensus is reached among the national associations of women across Canada, we will have enormous strength, but if we only do little things here and there, we'll still be here two or three years from now.
The first thing would be to make women's groups aware that they should join forces and form a Canadian national federation representing women's wishes. Failing that, we will never be able to support the suggestions concerning the issue of women.
Mr. Allmand: Our purpose is not to force the creation of a federation, but to reach a consensus on the issue. However, we are only in the initial stages of this program. Enormous progress has been achieved since we started this campaign. Among other things, training conferences are currently being offered. I hope we can achieve good results.
Your committee will have the opportunity to hear from those groups in the near future.
[English]
Senator Joyal: I have a series of questions that I will ask all in a row. Some are related to the philosophy of human rights that we try to implement in those international instruments and others are targeted on specific issues. In 1990, when Canada joined the OAS — and I know that you were one of the members of the other place pushing for that — was there any statement made by Canada on the inter-American human rights agreement?
The second question is about the Aboriginal issues. You will remember that the Summit of the Americas on Aboriginals took place in Columbia, South America. Did some Aboriginals groups in Canada — I am thinking of the Assembly of First Nations — make representation to Canada to join the inter-American human rights instruments, because it would give them an international basis to get the international treaties that they have been working on for many years?
Third, when the federal government wants to introduce legislation or sign an agreement in a field that is of joint competence, such as human rights — especially the property of civil rights section, section 92 of the Constitution — there is a responsibility of the province in that domain. However, there is a possibility for the federal government to move in its own jurisdiction. You mentioned an interpretive declaration. Have you prepared a draft that we could see and determine if there is a possibility for the federal government to sign the instruments with the proviso that the provinces opt in as the determined on their respective basis?
My last question is about the fundamental values that we try to promote as a country. The prime minister was touring Africa last month. If the African countries want to profit to the maximum of commerce and trade with the eight most developed countries in the world, there are two domains in which they must improve. The first domain was governance, and the second was human rights. The African leaders group said that there was a joint draft on governance, and they would be able to achieve change. However, they said that human rights was their own affair. In other words, it is an off-limits domain.
It is strange that we are the leader in the negotiation of a free trade agreement with South America yet at the moment that we do not want to join in an international instrument that establishes human rights in South America. We as a country believe that economic integration is more achievable if there is some kind of joint approach on fundamental human rights and environmental issues. You will remember the free trade discussions with the U.S. and Mexico 10 years or 15 years ago. We must streamline our speeches internationally. We cannot want a group of countries to benefit from free trade and, at the same time, declare that we do not need a human rights instrument that could exist with another part of the world. The subliminal message is that we have a better approach.
There is an important argument that did not exist 10 years ago. This argument needs to be developed more. As a country, we must have one approach to human rights internationally on the basis of the globalization movement that we must address.
Mr. Allmand: In 1990, when Canada joined the OAS, I understand that the Right Honourable Joe Clark made a statement. I do not have it with me but it was to the effect that he would pursue joining the inter-American human rights system.
That statement could be obtained. I do not know if it was in Hansard when the bill was being put through. The then prime minister made that statement, but other things happened. There was a change of government, and joining the inter-American human rights system has not been pursued for one reason or another.
On indigenous issues, as far as I know neither the AFN nor any other Canadian indigenous group has made any recommendation with respect to ratification.
The judgment by the Inter-American Court of Human Rights on the Nicaraguan case was made only last August. We have been asked to provide the committee with information on that decision, and we will provide it. There is only recent interest by indigenous groups in Canada. We will see what will happen.
With respect to the joint jurisdiction, you are right. Human rights come under both federal and provincial jurisdiction. When it is a matter of ratifying a treaty dealing with human rights, the federal government consults the provinces.
When the federal government consults for many of these treaties, they put forward a strong argument in favour of the treaty when they want it ratified. They did that with the Convention on Rights of the Child. The federal government went at that aggressively and got agreement. They did the same on the elimination of discrimination against women document.
When the federal government feels that there are important foreign policy or domestic reasons for pushing a treaty, even though people are not marching in the streets, the federal government decides that it is important for them to be a full player. They would then pursue the matter with some force with the provinces. Many provinces come on side when they listen to the federal government's arguments.
On fundamental values, I agree with you. If you look at the foreign policy statement of the federal government, which was handed down in 1995 just after the present Liberal government came to power and Mr. Axworthy was the foreign minister, one of the top priorities was the support of human rights internationally. Canada took a strong position at the Vienna World Conference on Human Rights in 1993. The first statement in that declaration is that human rights are the first obligation of states.
There are those of us who are trying to stop countries from quitting the OAS, such as Trinidad and Peru at one point. Peru is a strong supporter now. It is hard to convince them sometimes. They can say this to us: ``Mr. Allmand, do not ask us not to leave when you have not got your own government the join.''
I agree with everything that you said about us trying to promote fundamental values in the Americas, Africa and Asia. International human rights values as set out in universal declaration have been a keystone of Canadian foreign policy. To be half a player, to join the OAS but not join the system, is inconsistent.
The federal government has not said that it does not want to join the OAS human rights system. They have just not taken a decision. You expressed that they are against joining. To be fair, they have not said that. However, they have not moved ahead and ratified to join.
[Translation]
Senator Joyal: Do you have an interpretive declaration which could be attached to the project's ratification?
Mr. Allmand: Yes, but it must be understood that this is a work in progress.
[English]
It is not a final draft because we are consulting women's and other groups on the question of prior censorship, on the memorandum of understanding, et cetera. We could provide you with that interpretative declaration when we send you our documentation. It is one that we have discussed with international experts at the University of Toronto and in other parts of Canada. We are not doing it on our own.
The Chairman: Our study is ongoing. If you are still working on your document, perhaps the clerk and yourself could be in touch to determine when we would require it.
Mr. Allmand: We could give it to you now with the understanding that it is not the final word. You would then be able to see the sort of thing that could be done.
[Translation]
Ms Lessard: I would like to add that the National Association of Women and the Law is also working to develop an interpretive declaration. Subsequent discussions will be held so that we can reach an agreement, as you propose, on a single declaration.
[English]
The Chairman: Mr. Allmand, in conclusion, I wish to ask two questions. First, you have said that it is important from a foreign policy perspective to be part of the human rights machinery in the Americas. It was said to this committee that there are some difficulties with this convention because it is an old convention and it does not have the language. That is what I believe you have heard. Therefore, for us to sign a convention with reservations or declarations, or whatever you want to call them, would be a bad example internationally for us because then all of those countries that do not want to respect human rights would simply put lots of reservations on this. I put to that witness whether it was worse to not sign a convention and give a signal that you have a choice to sign or not to sign in a region, to become part of the human rights network or not to become part of the human rights network.
My question to you is this: When we are trying to advocate trade, good governance and good practices in the Americas, is it a better example not to sign if there are difficulties with a convention or to sign with reservations?
Mr. Allmand: By the way, the argument that it is an old convention — and we were not there when it was negotiated — therefore to come in at later point is not a good thing is a hollow argument. We were not there at the beginning of the OAS. We came in years after the OAS had started up and they had their convention. By the way, the OAS treaty includes a declaration on human rights, which we are subject to as a member of the OAS, and we did not give that argument. We did not say we cannot join the OAS, we were not around, and it is an old declaration. I could give other examples.
On the whole, there are many good provisions in the American Convention on Human Rights. It is quite consistent with the universal declaration. Some articles, however, are a bit different. I still totally dispute the fact that we need a large number of reservations. They are saying they need reservations because of extradition, which is not true, and because of the matter of the prisons, which is not true, et cetera. If you get experts before you I think they will confirm this, from both the OAS or from the Inter-American Court. If you ask them whether the exclusion of nationals will contradict our extradition, they will tell you what they think. They will say: ``No, these are mythological objections and we do not need reservations for them.'' The two places where you will need something is an interpretive declaration that will cover article 4 and a memorandum of understanding on article 13, and no reservations. We argue that they do not need any reservations. To do that, there are many more arguments, on the core of your question, to sign and become a full player in the Americas.
The other argument is that Canada is already playing quite a positive role in the inter-American system without ratifying. That is true. That is why many NGOs and many small governments want Canada in as a full player. We are showing some leadership but we are only going halfway. It would be similar to European country saying: ``We support the European system of human rights but we do not want to join. We will help from the sidelines whenever we can.'' That would be ridiculous. We are not following through for one reason for another, and we do not need a pile of reservations.
The Chairman: I want to thank both of you for attending here this afternoon. As usual, you have been provocative and helpful.
We will now turn to our next witness. Professor Cassel's curriculum vitae has been circulated.
Welcome, Professor Cassel, both to this hearing and to Canada. I would ask you to make your presentation, following which we will turn to questions.
[Translation]
Professor Douglas Cassel, Director, Centre for International Human Rights, Northwestern University, Illinois: It is a great honour for a citizen of the United States to come to the Parliament of Canada and to be able to speak on the American Convention on Human Rights and the Inter-American Court of Human Rights.
With your permission, I would like to speak in English as my French is not very good.
[English]
It is a great honour for someone who is neither a Canadian national nor a Canadian citizen to appear before you here today on such an important topic. No country can make a stronger claim to being in the vanguard of the movement to defend human dignity around the world at the beginning of the 21st century than this one. For someone who specializes in the field of international human rights law, this is indeed a great honour.
My CV reflects various attachments, institutional and otherwise. Among others, I have been external legal advisor to the U.S. State Department on the American convention and on U.S. ratification. I also chaired the working group of the American Bar Association, which studied the subject and made recommendations to the White House. However, I wish to emphasize that my remarks today are purely in my individual capacity.
I should like to address three points: first, the importance of the inter-American human rights system and, in particular, the Inter-American Court of Human Rights in Latin America; second, the importance of Canadian participation in order to strengthen, defend and maintain that system; and third, that when the American convention is properly read and interpreted there should not be a necessity for a great many reservations on the part of a country with a common law tradition.
First, I will deal with the importance of the inter-American human rights system and the Inter-American Court. In my remarks, I will focus on the court. I do so in part because I read the transcript of the first hearing approximately one month ago. It seemed to me that perhaps it would be useful to address some of the achievements of the Inter- American Court in the system.
I have given to the clerk two charts, one of which lists all of the contentious cases decided by the court since the first case in 1988 and up to the present. The second lists the participation of countries of the Americas, both as members of the court and as defendants before the court. I offer those as background materials only.
The first point to be made in understanding the success and the achievement of the court is that it is very new. Its first case was decided only 14 years ago. More than half of all the cases it has decided have been decided in the last four years. It has 32 judgments on the merits. To date, there are seven more cases presently pending, and many more soon to be referred to the court. These are contentious cases.
The second point is that most of the cases before the Inter-American Court are life and death cases, extra-judicial executions, disappearances and torture. These are very important cases both for the individuals involved and for the rule of law. The court is now expanding into other areas, including freedom of expression, indigenous land rights and others. That is a good thing, but it continues to be necessary to defend the right to life in Latin America.
In these 32 cases on the merits and in 70 cases not shown here in which the court has ordered emergency protective measures, the court has done a great job for human rights, in my opinion, directly. It has saved lives, it is saving lives, it has freed prisoners wrongfully imprisoned and detained and it has ordered the payment of millions of dollars in damages to widows, children and other survivors of human rights violations.
While 32 cases may not sound like a large number, we must understand that 32 cases involve and have an impact on a much larger number of people. For example, one of the cases involved the riots that took place in Caracas, Venezuela, in 1989 after food subsidies were decreased. Approximately 50 people there were killed. All 50 of them are part of that one case. All of their families are the beneficiaries of the damages awarded in that one case. In the Nicaraguan case involving indigenous land rights that was mentioned earlier, the court has required Nicaragua to amend its land laws regarding ``indigenous,'' which will benefit the entire indigenous population of Nicaragua. In the Panama case involving the wrongful reduction of pensions of public employees, 270 individuals are participating in that case. The number 32 is misleading because it actually involves a much larger number of people.
The indirect effects of what the court does are even greater. First, it requires reforms of legislation. The Peruvian amnesty decree that allowed amnesty for atrocities in Peru has had to be revoked because of court orders. The Peruvian laws allowing the use of military courts to conduct kangaroo court trials of suspected terrorists have had to be amended based on the court's rulings. The Chilean law that allowed censorship of motion picture films has had to be amended based on a court order. I could go on.
Law reform then has a multiplier effect. Beyond law reform, the court's judgments often have a far-reaching impact because of what they order. For example, in the case involving the constitutional court, the Inter-American Court ordered that three wrongfully terminated magistrates of Peru be restored to their position on the constitutional court. That sends a powerful message for the independence of the judiciary and the rule of law, not only in Peru but in any other country where a dictator might be thinking of playing with the membership of the judiciary.
Again in Peru, the court ordered that Mr. Ivcher, who had been wrongfully removed from his position as owner of a television station after it broadcast reports of torture and corruption, be restored to his position of that owner, thereby strengthening the institutions of the free press. The indirect effects of what the court does are extremely important.
Its rulings also serve as precedents, both nationally and internationally. Increasingly, in the last decade, Latin American supreme and constitutional courts are citing and relying on the jurisprudence of the Inter-American Court in interpreting their own constitutions and in interpreting the American Convention on Human Rights, to which they are all now state parties.
Finally, the Inter-American Court precedent serves as a precedent in international law. Its very first decision in the Velásquez Rodríguez case involving disappearances in Honduras in 1988 has transformed international law and has been adopted by the European Court of Human Rights and by the Human Rights Committee of the United Nations. There is every reason to believe that its recent decision in the Nicaraguan indigenous land rights case will also have global impact.
The court has managed to achieve all this with unbelievable cost effectiveness. The entire annual budget of the Inter- American Court of Human Rights even now is less than U.S. $1.5 billion dollars a year. Last year, the court was able to meet five times for 10 days in each meeting. The court achieved all of this while also gaining state acceptance. As you will notice from the handout that I gave you on state participation, the court has steadily won over more and more Latin American countries to join as members of the court. Most significantly, in 1998 the two largest Latin American countries, Brazil and Mexico, joined the court. That makes the court essentially universal in continental South America and Central America among all the Spanish- and Portuguese-speaking countries.
The court's record of compliance compares favourably to those of national courts, including the United States Supreme Court. The degree of compliance and the timing of compliance with its judgements depend on the type of relief ordered. With regard to monetary payments of damages awards, in all cases that have been completed, substantial compliance has been achieved — a 100 per cent record. There are some cases still pending.
With regard to the freeing of prisoners, the court's record is perfect. Every prisoner the court ordered released has been released.
With regard to annulling wrongful court degrees — either those wrongfully convicting victims of human rights violations or wrongfully discharging from responsibility the perpetrators — the court's record is not perfect, but it is pretty good. It is still in progress and it may get to be perfect.
There are two areas where the court continues to struggle with compliance, but those are areas where any national court, including the United States Supreme Court, would struggle. Those are, first, where the court orders legislative reform. That takes time. You need to persuade bodies such as this and such as the full Parliament of Canada — and you can imagine that in each country. When the court orders that legislative reforms be undertaken, there is an ongoing process of dialogue between the court, the government and the Parliament of each country. It takes time, but there has been significant legislative reform achieved as a result of the court's decisions, and there continues to be.
The final area of relief that the court orders is where it orders states to conduct criminal investigations and prosecutions of their own military and police and other personnel responsible for massacres, disappearances and torture. That, too, is a difficult process because oftentimes the government does not have the capacity to go after its own military. The government and the prosecutors and the courts make a serious effort, and the court prods them to continue to make that serious effort, but that is not one where most Latin American governments can simply salute the court and say, ``Yes, we will put that general in jail.'' The court is a positive factor in getting national governments to do their duty in that regard. The court has an excellent record of compliance with its judgments, given the nature of the relief that it has ordered and it is making a valuable contribution to human rights and the rule of law in Latin America.
What would be the importance of Canada's participation in the Inter-American Court and in the American Convention on Human Rights? I will not speak of the domestic implications in Canada; others are far more qualified, including everyone at this table, to speak about that than I am. However, in terms of the impact in Latin America, the participation of Canada, a recognized world leader on human rights, would add diplomatic weight and prestige to the Inter-American Court, enhancing its effectiveness.
A concrete example of that was given a few moments ago by Mr. Allmand. When the Fujimori regime of Peru was defying the court, it was purporting to illegally withdraw from the court, it would have been helpful had Canada been a party to the court, to engage in that diplomatic battle, rather than placing Fujimori in the position of being able to say: ``I am only moving to the spot where Canada already is.''
Second, Canada, as a developed country, could greatly increase the court's material capacity. The court now has a voluntary fund for contributions to which governments may contribute in addition to their OAS dues. If Canada were to decide to contribute to the court a figure that I think would be well within Canada's means — $6 million — that would constitute a five-fold increase in the current budget of the court. That would be a tremendous contribution to the court's ability to do the kinds of things that I described a moment ago.
Third, Canadian participation would also be important because then, as members of the convention, you could nominate Canadians to serve as judges of the court. That would be a potentially tremendous contribution to the jurisprudence of the court, both in terms of strengthening its commitment to human rights, which is already strong, and in terms of bringing a greater common law perspective to the jurisprudence of the courts, jurisprudence that now comes from the Caribbean judge and previously from our United States judge, Tom Buergenthal, who served for 12 years on the court first by nomination of Costa Rica and later by Colombia. That will not happen again; it was done to entice the United States onto the court. That did not work. No other U.S. citizen can expect to be on the court. However, it could be great to have a Canadian on the court.
Fourth, Canadian participation would also help stimulate United States participation in the American convention. I spoke recently, as did Mr. Allmand and others, at a meeting of experts convened by the OAS in Washington on the subject of ratification of the American convention. I pointed out that, twice in the last 10 years, the Clinton administration came within a whisper of sending the American convention to the Senate for ratification. On each occasion, it failed because of political circumstances at the moment, but the fact of the matter is that United States ratification of the American convention is not out of the question. It certainly will not be on the front burner of the current administration, but we may have a different government in four years. Who knows?
One of the arguments that I hear on the hill in Washington is this: ``Why would the U.S. join this organization? If a champion of human rights treaties like Canada does not join, there must be something wrong with it.'' By removing that argument and by setting a good example, Canadian participation could also eventually — and ``eventually'' might mean four or eight years — might help to bring the U.S. on board as well. That would be a good thing.
With regard to my third point, concerning reservation packages, I am not an expert on Canadian law. It would be presumptuous for me to speak about what reservations might be needed by Canada. I do not propose to do that. However, I am familiar with the convention and with the jurisprudence of the court commission. I have been through a parallel discussion about reservations packages, both with the American Bar Association and with the state department over a period of years.
I can tell honourable senators that it is my conclusion that, even in the United States, not a long list of reservations would be needed. It is too long a list, unfortunately, certainly too long a list by Canadian standards. However, though I cannot disclose confidential communications with the U.S. government here, I will mention the three reservations that I might recommend to the U.S. government.
The first relates to the death penalty and therefore would not be an issue for Canada. The second relates to separating juvenile prisoners from adults, and that should not be necessary in Canada, based on what Mr. Allmand had to say. The third relates to freedom of expression, and that would cover both articles 13 and 14. In the United States, under the jurisprudence of the U.S. Supreme Court, there are constitutional limits on the extent to which the state can require a newspaper or a television station to print a reply. The reservation in regard to freedom of expression would cover both articles and would be a single reservation.
There are then four understandings for the U.S. The first is similar to the one that Mr. Allmand proposed on the subject of abortion, an interpretive understanding. The second relates to a death row phenomenon that I assume would not be an issue in Canada. The third deals with segregating accused from convicted prisoners, which I assume would not be an issue in Canada and frankly should not be in the U.S., either. The fourth area is a reservation perhaps proposed in the U.S. for political reasons, but is not legally required.
Looking at the reservations and understandings in the U.S., if it were not for political issues relating to the death penalty, the reservations package really should come down to one reservation on free expression and one interpretive understanding on abortion.
There are then two limiting declarations that, unfortunately, would have to be included, at least in the current political climate in the United States. The first is that the treaty is not self-executing; shame on us for that. That should not be, but that, unfortunately, has become the practice of our Senate. I would hope that that would not be the practice in Canada. The second potential limiting declaration emphasizes that the ratification by the United States is contingent upon the acceptance of its reservations. Again, that reflects a peculiar U.S. attitude that I would hope would not prevail in Canada.
In short, without purporting to analyze Canadian law, and while the decision is most assertedly that of Canada acting within its domestic purview, I would be surprised if a long list of reservations and understandings were to be required in Canada.
Finally, if there were to be any doubt on a particular reservation or understanding, such as abortion, Canada, as a member of the OAS, has the right to request an advisory opinion from the Inter-American Court so that the court could clarify the matter in advance, before Canada ratified. I would hope that such a step would not be necessary, because it might take two years to get an advisory opinion. That could delay your ratification. However, if the alternative were to continue to live under a cloud that was impeding ratification, that option might be a way to break a logjam if it were absolutely necessary.
Once again, thank you very much for the privilege and the honour of appearing before the Human Rights Committee of the Senate of Canada.
The Chairman: Before I turn to the other members, do you have any comments on the relationship between the commission and the court and its workings? You have given us a good snapshot of the court in recent times, and that is what we should be relying upon. How is the commission positioned now?
Mr. Cassel: The commission and the court have improved their cooperation tremendously and, as a result, the efficacy of the overall operation. Both have recently amended their regulations. I will give you some examples of that.
First, the commission now has a presumption that all cases will go to the court. There are certain kinds of cases that will not go to the court, but the presumption is now that all cases will go to the court. That means that the court will have a much heavier caseload in the future.
Second, recognizing that fact, the court has amended its regulation to give much greater credence and weight to findings of fact made by the commission in order to minimize the extent to which duplicative factual hearing might take place before the court.
The court has also developed various mechanisms within its procedures to have a single judge hear certain evidence and report it to the court rather than having all seven judges sit together, or to assign an expert master to take certain evidence to maximize the efficiency of the fact-finding process.
The court and the commission have also given the individual a much greater place before the court. The commission has agreed that, although under the terms of the convention, the cases can be referred to the court only by the commission or the state. Once the commission or the state refers the case to the court, the individual victim then has full legal standing to appear before the court and argue his or her own case. He or she need no longer hide behind the coattails of the commission to carry his or her brief. The commission will now be a public minister who will defend the views and the integrity of the system, but the individual will have full entitlement to represent his or her own case. The court has been doing that for some years now in the reparations phase. It now applies in all phases of matters before the court. It is a good and well-coordinated relationship between the commission and the court, all to the benefit of human rights.
Senator Kinsella: I had the opportunity to meet Jaime Castillo, who was the president of the Human Rights Commission of Chile. He told me of a complaint that he has made to the commission. I do not know whether it has yet made its way to the courts or whether it has been declared admissible. It was in relation to article 23, the right to participate in government. His complaint was that the Chilean constitution was amended to allow senators to be appointed for life. You will remember that President Pinochet was appointed.
Do you know whether that complaint has made its way through the system?
Mr. Cassel: It has not reached the court, but I do recall reading something about it in one of the reports of the commission, which indicates to me that it has at least been declared admissible. I would be happy to check the reports of the commission to see how far down the pipeline that case has gone.
Senator Kinsella: I raise that to tease my colleagues. Surely we are not going to ask for a reservation on article 23 as well.
I will turn to the more pressing issue of the federal state provision. The United States is a federation, and to the extent that it is a federation there is some analogy with our Canadian confederation.
Are there problems in the United States, given the federal state principle that applies? Can you think of any that might have occurred in Mexico where there was a problem with state law that was overcome by a special technique? I am thinking, of course, of a problem with provincial law.
Mr. Cassel: A state that is a country is, in international law, conceived of as a unitary entity. Whether it chooses to be a unitary state internally or a federal state internally is purely an internal matter. However, when a country ratifies a human rights treaty, the state of Canada, or the state of the United States, takes responsibility for any violations of human rights that might occur inside that country, be they by the federal government or by a provincial or state government. Article 28, the federal clause of the American convention, makes that clear.
The commission, including in at least one Mexican case, has made clear its view that Mexico must be responsible for compliance with the convention, and it is not of any importance to the commission whether a violation has been committed by the federal government of Mexico or by one of the state governments. That is a matter to be worked out internally in Mexico.
In the case of the United States, we now have a standard form declaration on federalism that is attached to all of our human rights treaties. We have now ratified the civil and political, the torture, the race and the genocide conventions, among some earlier ones. The wording of the federalism clause has been refined a little each time. It now basically says that the United States federal government takes responsibility to ensure compliance with regard to all matters within its jurisdiction and will take such measures as are appropriate within its federal system to ensure that the states meet their obligations as well.
Senator Kinsella: This is important in light of the decision of the Judicial Committee of the Privy Council in the 1930s that affected Canada attempting to ratify an ILO convention dealing with minimum wage. A principle of our Canadian Constitution was established from the labour conventions cases, that is, when the federal authority enters into an international undertaking that affects provincial jurisdiction, it must only do so acting in concert with the province.
It is that principle that was behind, for example, the federal-provincial-territorial exercise that led to the study and analysis of the two covenants. That process took four or five years. In 1976, Canada ratified with the written consent of every province.
Because the process we are engaged in here went under cover, we have not been able to watch it. It has been going on for 12 years. It rests upon the principle that there must be provincial concurrence.
Therefore, your testimony is helpful here. If Canada did not have that kind of a constitutional principle, the federal authority, in working with the parts of a federation, still has to collaborate.
This committee has apprehended that this exercise is going on and it wants to provide a microscopic examination of it because there has not been much movement and there has been a great deal of mythology thrown around in terms of reservations.
It is your evidence that there are no reservations that come from the United States only because of a state law?
Mr. Cassel: I do not believe it would be necessary, because article 28 of the convention embodies in substance the same language that is attached by the U.S. as its understanding with regard to the civil and political covenant. Since there is already a federal clause in the convention, there is no need to make that additional statement for U.S. ratification.
Senator Fraser: This is fascinating. Let me tell you that Canada is not quite as simon-pure as you might think, specifically on the matter of separating juvenile from adult offenders. We have had massive debates in another committee on that matter within the past few months.
While it is policy to keep them separated as much as is feasible, the government's position is that we must retain the right in some cases to have juvenile offenders housed in adult facilities. That is particularly so in the case of Aboriginal offenders in remote communities, where the idea is that it would be harder on the kid to send him away than to keep him in his own community, even if the offenders around him are adult.
As far as one can see, looking from the outside, there are two sets of reasons why the United States has not so far joined the system. At least, that is what I think. One is political. The Congress of the United States is always very reluctant to find itself bound by other international jurisdictions. The other is the set of reservations that you outlined. Am I correct? Are those the two main families of difficulty? If so, which is more important in terms of trying to move this thing forward?
Mr. Cassel: You are correct, and I will leave with the clerk a copy of my testimony before the OAS last month, which is in Spanish only. I have not had a chance to translate it yet. It essentially makes the point that the whole ballgame is political.
We have a significant faction in our Senate of people who do not like the United Nations, who do not like international law, who do not like international treaties. They just see the American convention as one more manifestation of a philosophy of the world with which they disagree.
While it is true there are a number of legal issues — and I went through them — for possible reservations, all of those can be dealt with and will be dealt with when we are able to overcome the political problems.
As I also mentioned, the political problems are not as insuperable as they might seem. We came within a whisker twice in the last 10 years.
Senator Fraser: Can you talk about article 62, which strikes me, not being an expert in these matters, as being unusual? It reads that a state party may — or, by implication, may not — declare that it recognizes the court's jurisdiction as binding. Such a declaration may be made unconditionally on the condition of reciprocity for a specified period or for specific cases.
Is that as unusual a condition as I think? Does it weaken the weight of the court?
Of those countries that have ratified, how many have taken reservations on the jurisdiction of the court, or has everyone said, ``We are in and it is completely binding''?
Mr. Cassel: Everyone has said, ``We are in.'' This has not been an issue. This language is similar to the language of the statute of the International Court of Justice and it has been around for 80 years. Basically, states make a policy decision whether they are coming in or not. They come in.
As Mr. Allmand mentioned, there was the effort by the Fujimori government in Peru to pull out. Fortunately, the new government in Peru has repented and Peru is back in as a full member.
Senator Fraser: In the International Court of Justice, do people say, ``We are in''?
Mr. Cassel: The International Court of Justice is another matter. Their states load up their participation with all kinds of conditions, qualifications and limitations. Fortunately, that has not happened in the Inter-American Court of Human Rights.
Senator Poy: You have given us a much clearer picture of what happens with the Inter-American Court of Human Rights.
You said that in 14 years there were 32 cases in which judgment has been passed. Some of the cases included many people. It was not just 32 people.
The budget of the court is $1.5 million U.S.?
Mr. Cassel: It is a little less than that.
Senator Poy: Who enforces the judgments? Many of these governments are dictatorial. Who will have the power to say that the judgment will be enforced?
Mr. Cassel: Ultimately, the power regressed with the General Assembly of the OAS taking a political decision to apply political pressure, but the OAS General Assembly on no occasion has applied any pressure.
The court's remarkable record of compliance has come from a combination of informal international pressure. There has come to be a certain expectation within the OAS that if the court, which is a highly respected body, rules against you, you ought to comply. After all, the convention says you will comply. The honour of your country is on the line. While it is understood that certain civilian governments may have difficulty persuading their militaries to go along — and that continues to be a problem, and allowances are made for domestic difficulties in that regard — the general expectation is that there will be compliance.
I would say that since about 1995 — only in the last seven years — has that come about. Until 1995, it was touch and go. Honduras had been defying the Inter-American Court in the Velásquez case, decided in 1988, and the Godínez case, decided in 1989. It was not until Carlos Roberto Reina, a former judge on the Inter-American Court, was elected president of Honduras that Honduras complied. Once Honduras did comply, the logjam was broken. Since then, I have been keeping my fingers crossed and not quite holding my breath, but I have been watching with amazement that country after country has come into line.
The court now has a procedure where it publishes in its annual report — and it is available on the Web page — the status of compliance by every country that is under a judgment of the court. That kind of public airing also has a salutary effect.
We have had a number of transitions to formal democracies, away from dictatorships, and many of the new democratic governments want to demonstrate their democratic bona fides by meeting their international obligations to the court.
It is difficult to explain how it happens. There are no marshals, army tanks or screws, but it is happening.
Senator Poy: You mentioned that payments in damages were carried out in full?
Mr. Cassel: What I actually said was ``substantial compliance in all of the cases.'' There are issues. For example, when Honduras finally made its payment, there were questions about the value of currency over time and whether the payment was really 100 per cent. You will find a number of similar issues popping up. However, in all the cases, the state has done enough so that the state and the court were able to agree that there had been compliance, even though there were issues around the edges.
Senator Poy: Can you describe what happened in 1997 in Peru with the forced disappearance? What happened to that person?
Mr. Cassel: Are you referring to the Castillo Pães case?
Senator Poy: Yes. What happened in that case?
Mr. Cassel: I do not recall the specifics of that case, but in general, forced disappearance cases are common. Someone is arrested or detained either by the army or by the police, oftentimes using unmarked vehicles with no licence plates, and polarized windows. Sometimes the perpetrators wear uniforms; sometimes they do not. Often there are witnesses who physically see the person being apprehended. Often there are witnesses who saw the person while he was in jail, or perhaps heard him being tortured, but when the family asks the army or the police about their son, husband or brother, the answer is: ``We have no registration of him. He is not in our hands.'' When the family goes to the judge to get habeas corpus and the judge issues an order to produce the person, the army and the police respond, ``We have no registration of that person.'' Sometimes they are never seen or heard from again; or perhaps months or years later, a badly tortured body is found in a dump somewhere. That is the standard type of disappearance in Latin America. I would have to refresh my recollection of the particular facts in the Castillo Páez case, which is, unfortunately, one of thousands.
Senator Poy: How, in a case like that, would the government comply with the judgment? What would the government do if a judge said, ``Where is person X''?
Mr. Cassel: Frequently, the court will order the government to conduct exhumations of suspected gravesites where it is believed the body may be found and, if properly identified, to return the body to the family for proper burial. That is common.
Also, the court will generally order the government to do what it has never done before, which is to conduct a serious investigation of the police or the army or the paramilitaries that may have been involved to attempt to identify the perpetrators and to prosecute them.
The court will also order the government to pay substantial monetary damages to the family. I remember meeting the mother and daughter of one of the victims of the disappeared in Honduras. The daughter at that time was 10 or 11 years old. I asked the widow whether it had been worthwhile to bring this case before the Inter-American Court, and she answered, ``Nothing can bring my husband back, but at least now my daughter will get an education.''
Senator Joyal: My first question relates to the interpretive declaration that was mentioned by the previous group of witnesses. Of the governments that have ratified the inter-American human rights instruments, how many have attached interpretive declarations to their ratification?
Mr. Cassel: With respect to the issue of abortion, only one government felt that it necessary to do that — Mexico attached an interpretive declaration. The text is published on the Web page of the commission.
As Mr. Allmand pointed out, the importance of that declaration was not that Mexico made it but that no one objected. You have a clear indication that, if Mexico or Canada or the United States wishes to make an interpretive declaration to the effect that article 4 leaves states free to legislate on abortion according to their internal constitutional and policy choices, words to that effect, no state in the Americas will object.
I should point out that during the negotiating conference for the convention in 1969, both the United States and Brazil attached an interpretive declaration to the workings of the negotiating conference to the same effect that states are left to decide issues of abortion according to their internal constitutions. That is precisely why the words ``in general'' were added to article 4. Article 4 reads: ``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. The words ``in general'' were added at the initiative of the United States and Brazil in order to preserve the abortion legislation that existed in the United States at that time, as well as today, and which the Brazilian government also wished to preserve.
This is an area where no reservation is needed, only an understanding.
Senator Joyal: If I understand your answer, there is only one country that has attached an interpretive declaration to its ratification, and that is Mexico.
Mr. Cassel: With regard to abortion.
Senator Joyal: There is no other provision in the convention that has been the object of an interpretive declaration.
Mr. Cassel: No, there have been a number of other reservations or interpretive declarations. If your clerk does not have them, I will ensure we get a complete copy to him. There have been very few.
Senator Joyal: In other words, is it a common procedure for the American states that have ratified a convention to attach interpretive declarations? If Canada were to attach an interpretive declaration to its ratification, would we be following the approach of other countries, or would that be an exception, similar to that followed by Mexico with respect to article 4?
Mr. Cassel: You would be well within the norm for American states. For example, Uruguay, a country with a strong reputation for defence of human rights in Latin America, attached a reservation when it signed the convention saying that its constitution provided that a person's citizenship is suspended if the person is under indictment and that that would impact the exercise of rights under article 23 of the convention. You may find more than a dozen states that, on issues that reflect peculiarities of their legal or political systems on a, frankly, relatively marginal issue like that, will make either a reservation or interpretive declaration.
If Canada were to do so on the question of abortion, as Mexico did, you would not be an outlier.
Senator Joyal: Have you not prepared a chart similar to that for the cases, outlining for each state the applicable section of their constitution? It is helpful to understand the philosophy behind it. When they are minor issues, such as a constitutional provision, one will understand the countries cannot change their constitution to join an international instrument; otherwise, we would wait years. However, if it is a matter that can be dealt with in the normal course through legislative initiative, then it is another appreciation of the approach to ratifying the instruments.
The Chairman: Senator Joyal, we could ask the witness whether he has that kind of chart.
Mr. Cassel: I do have that chart back in my files because, of course, the U.S. government wanted it. I would be happy to provide it to you.
Senator Joyal: My second question: How is it that a judge from the United States was a member of the court when the United States was not a member?
The Chairman: There is a mechanism. We did have evidence that an individual can be nominated by one of the existing states. In fact, Bertha Wilson was nominated but not elected. Perhaps you can elaborate on that.
Mr. Cassel: The only states that can nominate are those that are members of the American convention. Costa Rica, which is home to the court and which is its biggest fan, hoped to encourage the U.S. to ratify by naming our citizen, Thomas Buergenthal — who now sits on the International Court of Justice in The Hague — to sit on the court. At the next round, Colombia nominated him to sit on the court. However, after he served 12 years on the court, Latin America became convinced that the tactic was not working. While I might confess to you that I would not mind serving on the court if I were ever to be so honoured, I will have no chance of doing so, I am certain, as long as the U.S. remains outside the convention.
Senator Joyal: My final question relates to the United States' position on human rights internationally and its participation on international bodies. You have told us that, in the past 10 years, the United States came within a whisker of joining. I certainly would have applauded that, as I would have if the United States had joined the International Criminal Court.
Since September 11, something has fundamentally changed in the United States, which is a perception or conviction that they must rely solely upon themselves for their defence. That attitude was visible last summer when the United States reviewed some international instruments, and the American media commented on their seeking to leave some of them. That was coupled with the decision of the human rights committee of the United Nations to vote them out last year, which was felt as an affront. I thought it was a bad decision, as that would trigger a reaction among Americans generally, and rightly so. It was damaging to the international cause of human rights.
Although, as Canadians, we have some reservations about the choices made by the Americans in relation to the death penalty — as you know, it has been outlawed in Canada since 1976 — we have lived with that, and our rate of crime is the lowest it has ever been. We can live in a secure world without having the death penalty. We live with no legislation on abortion in Canada, thanks to the vote by the Senate of Canada some years ago, and Canadian society is no worse than the U.S. in terms of abortion.
Since September 11, the United States has reviewed its approach to security. There is a philosophy behind the PATRIOT Act. It is not just legislation, as there is an approach to human rights in that act. I would prefer the United States to equate its leadership for peace with the promotion of human rights internationally, as I think both are inseparable. You cannot have enduring peace conditions if you do not base them on the respect of fundamental human rights. I am not optimistic that the United States can join in ratification. Over the weekend, I was reading the international paper about what is happening in Europe in regards to Mr. Kissinger and some decisions previously made by the United States in South America.
While I try to share your optimism, and I do not want to be the devil's advocate on this, we are trying to understand where we can realistically join in that initiative as we have a common interest with the United States to promote human rights. It is as if the approach is more: ``We do not need those international instruments, we are mature enough as a country to look after our own interests and we do not need others. Our constitution protects Americans, and it is Americans we want to protect. The rest of the world can either abide by this or not. We will see.''
There is not the perception that there was previously. I do not think the perception that existed when you said ``we came within a whisker of it'' still prevails in the opinion of the Americans, unless I wrongly read the opinion of the Americans.
Can you comment on this?
Mr. Cassel: First, I am delighted to learn that, within the last couple of days, the voting was arranged so that the United States will rejoin the human rights commission of the United Nations. Spain and Italy both graciously withdrew so that the United States, I gather, is a shoe-in, to be elected along with Germany, Australia and France, who is, I think, the fourth country in our group.
This is a difficult moment for internationalism and multilateralism in the United States. We have seen such moments in U.S. history before: during the Vietnam War, World War I and World War II. However, this, too, shall pass. I cannot recount my communications with government, but I would tell you that, even now, the issue of the U.S. joining the American convention is under active consideration. I do not want to imply any optimism that the U.S. would join the Inter-American Court, as the U.S. has a particular set of issues with international mechanisms such as that. I would not predict it, but I would not rule it out, even during this administration.
I share your concern about the importance of the United States recognizing that human rights are essential to peace, development and prosperity in the world, and that they must be pursued on a multilateral and international basis. There are many others in the United States who agree with me on that, and we are trying to do what we can from the inside to counter that isolationist world view.
It is extremely important that Canada, Europe and other democracies in the world have taken the lead on the International Criminal Court and have said that they will proceed even if the United States does not get on board. I think that is a fine example.
[Translation]
Senator Ferretti Barth: The American Convention on Human Rights was developed in the countries of South America. Is that correct?
Mr. Cassel: Not entirely. The United States also took part in the convention's development.
Senator Ferretti Barth: Do you think there is any chance of making amendments to the Convention to reflect the North American situation? As you know, our world is completely different, with different problems. We have a distinct culture and also another interpretation of crime.
Mr. Cassel: I am going to answer you in English, senator.
[English]
Mr. Cassel: A better way to do that is by the jurisprudence rather than by amending the text of the convention.
There have been a number of proposals to amend the convention floated by various countries during the last 10 years. Whenever they have been raised, the human rights community throughout the hemisphere has unanimously opposed those efforts. The concern is that, if you re-open the convention, perhaps to make some good amendments, there are a number of countries that would like to weaken the convention.
The strong position of the human rights community has been that if we need to clarify the jurisprudence, for example, to bridge some differences between civil and common law countries, the better way to do that is through the decisions, the jurisprudence of the commission and the court, and not to actually amend the convention. If Canada were to suggest amending the convention, I think it could expect a negative reaction on the part of human rights groups throughout the hemisphere, and the reason for it would be that concern.
[Translation]
Senator Ferretti Barth: It is important for the North American people to have rights consistent with its reality. We accept the rights of South America, but those people must respect our North American reality. There is no equality there. Where are human rights?
[English]
Mr. Cassel: There is not that much of a gap between the provisions of the American convention and the North American legal tradition. As I mentioned, the United States actively participated in the negotiations and supported the draft that emerged from the negotiations. The number of reservations or understandings that the United States would have to take, if you set aside these political issues about the death penalty, is quite small. You have heard Mr. Allmand suggest — it seems to be a reasonable suggestion to me — that, likewise, the number that might be needed for Canada would also be quite small.
I do not think we are dealing with a Latin American convention; we are dealing with an American convention whose very negotiation on most points accommodated the concerns of both North and South America, although there are some lingering issues like this right of supply point that we discussed earlier.
[Translation]
Senator Ferretti Barth: Can the North American reality be taken into account? Mr. Allmand and you have expressed this desire to ratify the convention. It is good for Canada to become a full-fledged player, but we also have something to say. What you're doing is very good. However, this convention must reflect our reality.
[English]
Mr. Cassel: There are quite a number of cases pending against the United States before the commission. Those cases illustrate the fact that U.S. lawyers are beginning to have an awareness — not of the convention because the U.S. is not a party of it — of at least the American declaration and the inter-American mechanism of the commission and the role that it can play within our own domestic reality, particularly in death penalty cases and in cases involving foreign nationals who are arrested in the United States. Within the law schools, there is also more teaching in that regard. While we have a long way to go, some of the first small steps have been taken.
Senator Fraser: I wish to go back to a couple of things we discussed earlier. First, when you are sending us your chart, if you have any commentaries on articles 13 and 14, I should be very grateful to see any and all such material.
Mr. Cassel: I do have material prepared and I would be happy to send it.
Senator Fraser: I should like to go back to the difference between nationality and citizenship. Could you talk about that?
Mr. Cassel: Yes. It is two sides of the same coin. Citizenship is primarily a domestic law concept. If you are a citizen of Canada you are entitled to live, vote and pay taxes here and to have certain other rights that are incident to being a citizen, which you do not have the entitlement to if you are not a citizen. Nationality is more the international law side of that. From Canada's point of view, I am a national of the United States, which is to say I am not a Canadian citizen but I am subject to protection by the Government of the United States under the protection that a government extends to its own nationals. However, in my relations with the U.S. government, I am more of a citizen.
The terms come from different historical backgrounds. They have the same legal content. However, they are looking at the same set of issues from a different perspective. There are international courts that have asked the same question you did, but they have not been able to come up with a good answer.
Senator Fraser: This would be quite different from what I understand was the system in the old Soviet Union, where your identity papers would say: ``You are a citizen of the Soviet Union and you are by nationality a Jew or a Uzbek.''
Mr. Cassel: That is not the concept in international law. The term ``national'' in international law refers to what state is responsible for you because you are a citizen of that state.
Senator Joyal: Professor Cassel, you mentioned in passing the impact of a bilateral relationship between a country that unites human rights and another country that is rather reserved on human rights; that is, the impact of a bilateral relationship to improve the status of human rights versus the influence that international instruments have generally over the implementation of the rights. I know one could write a thesis on this, but in a nutshell could you give us some hints on this?
Mr. Cassel: I think the two are so interrelated that they cannot be separated. In 1991, when Honduras was still in defiance of the Inter-American Court's damages award judgment in the Vélasquez and Godinez cases, I went to Honduras and met with the Attorney General of Honduras. I also met with the U.S. ambassador in Honduras and asked him to raise the matter with the then president of Honduras. I received a letter from the embassy a couple of weeks later saying that the ambassador had raised the matter with the president and that the president's response was: ``Why are you raising this with me? You are not even a member of the American convention or the American court.''
Why does that show the interrelationship? The reason is that this was a bilateral effort to persuade Honduras to comply with its multilateral obligation to meet the judgment of the court. At a time when Honduras's own courts did not have independence and were not protecting human rights, the Inter-American Court was, if you will, the only game in town for victims of human rights in Honduras. The bilateral and international treaties and the international institutions need to work in a complementary and coordinated fashion. If either side of that equation breaks down, the whole enterprise is the weaker.
Senator Joyal: That was well said in a short statement.
The Chairman: I wish to follow up on two points. The first is on the issue of jurisprudence. We know that courts have often used precedents from other countries and other jurisdictions, both multilateral and national. I recall 20 or 30 years ago when Canada had many pieces of new legislation and when those statues were used in other courts. Would the Inter-American Court reach to Canada's laws and human rights machinery as part of their jurisprudence more if we were in the court or out of the court?
Mr. Cassel: In the court. I cannot speak for the court, obviously, but my outside appreciation is that the court would welcome the opportunity to be able to cite the extensive human rights jurisprudence in Canadian domestic courts as a way of supporting and strengthening its interpretations of the American Convention on Human Rights. That process would be accelerated if the result of Canada's joining the court were that a Canadian was to be a judge on the court. Therefore, a judge would be in a far more informed position about the Canadian jurisprudence. Certainly, that would be one of the positive developments that one should expect.
The Chairman: You are involved in the court, and we are here studying it. You have travelled and studied many of theses countries. From a foreign policy perspective, if Canada were to signal that it was joining the convention, and subsequently the court, would there be a small ripple in the rest of the Americas or would this be a decision of note?
Mr. Cassel: I think that it would be a decision of note. The foreign ministries of Latin America would view it extremely favourably. The foreign ministries are often the biggest fans of the court, along sometimes with heads of state and government, who view the court as a way of assisting them in dealing with their own military and security forces over which they do not always have full control. A sign that Canada were to be joining the court would be viewed with great hope in terms of the future strengthening and stability of the court as an institution that the Latin American civilian governments could use to help keep order in their own houses.
The Chairman: Thank you, Professor Cassel, for extending to us your knowledge about the court and the human rights system. We appreciate it.
It is not an issue with which many Canadians are acquainted. As you know, we are televising our meetings. Canadians are acquainted with human rights, but the inter-American situation is one that many have only recently become aware of. I appreciate the information that you have given us and the balanced approach that you have taken to both our entry and that of the Americans.
You have acquitted yourself very well as a citizen of the United States. You have given us some international perspectives. We appreciate that. We would also certainly appreciate any information that you have that you would share with us in a written manner.
The committee adjourned.