Proceedings of the Standing Senate Committee on
Human Rights
Issue 10 - Evidence for June 3, 2002
OTTAWA, Monday, June 3, 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: Honourable senators, the committee is meeting today to resume its consideration of Canada's adherence to international human rights obligation. In particular, we are examining whether Canada should accede to the American Convention on Human Rights, an issue that was identified as one requiring detailed study in the committee's December 2001 report entitled, ``Promises to Keep: Implementing Canada's Human Rights Obligations.''
After hearing from a wide range of witnesses as possible, the committee will analyze the issues involved, and make recommendations and comments to the Senate for its consideration. I am pleased to have with us today Ms Sungee John from the National Action Committee on the Status of Women, and Ms Jennifer Kitts and Ms Katherine McDonald from Action Canada for Population and Development.
The Nation Action Committee on the Status of Women, NAC, was established in 1971. NAC addresses issues such as the elimination of poverty for women and children, universal child care, the full participation of women in governance, the elimination of racism and the protection of reproductive rights for women.
The second group is Action Canada for Population and Development, which was established in 1997. It is an organization working to mobilize civil society to encourage the Canadian government to meet its international commitments, particularly those arising from the 1994 International Conference on Population and Development held in Cairo.
Ms Kitts, who will be addressing the committee first, has focused on women's health, human rights and bioethics. She has worked with royal commissions, NGOs, CIDA, the WHO, and other health-related organizations. She also teaches at the University of Ottawa Law School.
Ms Jennifer Kitts, Senior Advisor, Sexual and Reproductive Rights, Action Canada for Population and Development: I would like to begin by thanking this committee for providing a forum for various groups and individuals to share their views on this important matter. As a human rights organization, and as a sexual and reproductive rights organization, Action Canada for Population and Development, ACPD, is exploring the issue of Canada's potential ratification carefully. We have just begun to examine this issue and we have not discussed this matter with all the groups and individuals that need to be consulted.
Other Canadian sexual and reproductive rights organizations, such as the Planned Parenthood Federation of Canada and the Canadian Abortion Rights Action League, need to be consulted. We also need to hear from a wide range of Latin-American organizations. We work closely with a number of reproductive rights organizations in the United States and we have begun to consult with them as well to find out more about the debate that is taking place in the U.S.
We would like to say at the outset that we are mindful of the tremendous potential benefits that could occur with Canada's ratification of this treaty. We agree wholeheartedly with Rights and Democracy, and others, that Canada's full and active participation in this inter-American human rights system would strengthen the system immensely.
We are, however, troubled by article 4.1, which protects the right to life in general from the moment of conception.
As you are aware, this is a unique provision. There is no such language found in other international human rights treaties. For example, article 6 of the International Covenant on Civil and Political Rights states ``Every human being has the inherent right to life.'' There is no mention of life beginning at the moment of conception. The European Convention on Human Rights and the African Charter on Human and Peoples` Rights also make no reference to life beginning at the moment of conception.
In the Baby Boy case, the commission states the phrase ``in general'' was inserted to allow state parties latitude with respect to their abortion legislation. The insertion of the phrase ``in general'' was seen as a compromise position between the pro-choice and anti-choice forces present at the time the treaty was negotiated. Some nations recommended that this reference, ``from the moment of conception,'' be deleted to make it consistent with the International Covenant on Civil and Political rights. Other nations disagreed.
Much has been made about the Baby Boy case. I should like to raise the following concerns. First, it does not guarantee the outcome of future disputes. It is a decision of the commission, and commission decisions are not binding. To date, the commission has refused to hear any other cases that would address the implications of article 4.1 for abortion legislation. However, there is no guarantee that this will continue in the future. In addition, the commission could change its composition.
Second, we have no legislative framework around abortion in Canada. Some legal commentators, including Canadian William Schabas, have suggested that regulation on abortion may be necessary in order to be consistent with article 4.1, given the interpretive approach adopted by the commission in the Baby Boy case.
Finally, there is some troubling language in the Baby Boy case. I would like to draw your attention to the end of paragraph 14 of the decision. The commission states that when evaluating whether the performance of an abortion violates article 4, one must ask, was it an arbitrary act? The commission goes on to state that an abortion performed without substantial cause could be inconsistent with article 4.
Obviously, this raises concerns for us. The commission is stating that an abortion that is arbitrary — whatever this means — or one that is performed without substantial cause — again, however that would be interpreted would be interpreted — could be inconsistent with article 4.
Having regard to the tremendous benefits of the human rights regime, our organization has been considering how we could ratify this convention given the troubling language in article 4.1. There are practical, political and legal implications if we were to ratify.
First, there is little doubt that were Canada to ratify a regional human rights treaty that protects life from the moment of conception, anti-choice groups would use this to try to advocate for greater legal protection of the fetus. Since the Morgentaler decision, there have been ongoing calls for greater legal protection of the fetus. While it is true that politicians today seem reluctant to open this abortion debate, this could change.
Following the Morgentaler decision in 1988, there has been a series of cases addressing the issue of greater legal protection of the fetus. We had the Tremblay case in 1989, Sullivan and Lemay in 1991, Winnipeg Child and Family Services in 1997, and the Dobson case in 1999. Each case said that it is not for the courts to extend legal protection to the fetus. However, they did say this is a job for the legislature.
Immediately after the Morgentaler decision, the federal government introduced a bill to recriminalize abortion. Bill C-43 made abortion a crime except in cases where a medical practitioner believed that a woman's life or health was in jeopardy. Abortion was to be punishable by up to two years in prison. This bill was approved by the House by a vote of 140 to 131 and was only narrowly defeated by the Senate. The vote was 44 to 43. Although the abortion debate seems relatively quiet today, it was a different story a decade ago.
Our concerns about reproductive rights have an international basis as most of our work is carried out internationally. We need only look at the Bush administration's success on the international level — something it is trying to do at the domestic level — to set back the gains we have made with respect to reproductive rights. There is a very real threat that Roe v. Wade, the 1973 decision that found certain criminal prohibitions on abortion were unconstitutional, could be overturned under the Bush administration. Should President Bush appoint one Supreme Court Justice opposed to the right to choose, Roe v. Wade could be history. President Bush has made it clear that, if given the chance, he will appoint an anti-choice justice.
We know the liberalization of abortion laws in America was a factor influencing the justices in the Morgentaler decision; the overturning of Roe v. Wade would undoubtedly increase anti-choice activism in Canada.
Outside the United States, there have been a number of international developments, in large part as a result of the Bush agenda, which have been devastating. On President Bush's second day in office, he reinstated what is called the ``global gag rule.'' This law prohibits U.S. funding of foreign organizations that provide abortions or engage in public discussion or debate about abortions, even if they do so with their own money. This is having a profound impact on reproductive health services worldwide as small reproductive rights organizations have been denied funding by the U.S. even if they speak about abortion.
We have just returned from the United Nations Special Session on Children, which took place in early May. The most contentious issue at this session was the reproductive rights of adolescents. I have provided a few documents our organization has written for the special session, an article that we wrote for the Canadian Medical Association Journal, and an editorial by Ms McDonald that was in The Globe and Mail prior to the special session, to give you more information about the debate.
The Bush administration joined with countries such as Sudan, Libya, Iran and Pakistan to attempt to roll back gains attained in the area of sexual and reproductive rights. Anti-choice groups and governments from around the world are energized in a way not seen in decades by the singular commitment of the Bush administration to set back reproductive rights for all.
This broader context of sexual and reproductive rights and the rollbacks currently taking place cannot be ignored when considering Canada's ratification of this treaty. Today, Canada is alone in North America as a champion of sexual and reproductive rights. What Canada does today is more important than ever before given what is taking place in the United States.
At the special session, Canada's position was admirable in its defence of sexual and reproductive rights. I would like to share a few words made in Canada's official statement at the closing of the special session. Canada states:
We would like to register our dissatisfaction with the debate that ensued over the issue of sexual and reproductive health. This is a critical issue to the health, survival and well-being of children and adolescents around the world. This document falls significantly short. It is regrettable that attempts were made during the negotiations to retrench on previously agreed and longstanding language.
This leaves us with the question of how to deal with the dilemma of article 4.1. Some groups and individuals have recommended that Canada ratify the convention and attach an interpretive declaration. As you know, there has been some interesting language proposed about what an interpretive declaration might look like. The idea behind an interpretive declaration is that were Canada to ratify and attach a finely drafted interpretive declaration saying, for example, that we interpret this treaty as being consistent with other international obligations, such as our obligations under the women's convention in the UN system, then this declaration would be drawn upon in future cases before the commission and the court.
Of course, we would be delighted if a finely crafted interpretive declaration, such as those proposed by Professor Rebecca Cook, or some other version, were adopted by the American human rights system, and if such an interpretive declaration could advance sexual and reproductive rights for Latin American women.
I should point out that the sexual and reproductive rights of Latin American women are routinely violated. Access to contraception can be extremely difficult in many countries. Forced sterilizations are a serious problem in many regions. Abortion is a serious public health issue throughout Latin America. It is a leading cause of maternal mortality.
Abortion is illegal throughout Latin America. In fact, in some countries, for example, in Chile and El Salvador, abortion is illegal in all circumstances, even when a woman's life is in jeopardy and even in the cases of rape and incest. There have been recent legislative changes in Latin America making the penalties even harsher for abortion providers, for example, in Colombia. Also, in Colombia in the year 2000 it was made a criminal offence to injure a fetus either intentionally or unintentionally.
Furthermore, some constitutions, for example, Peru and El Salvador, state that life shall be protected from the moment of conception. This was a recent constitutional reform in El Salvador and there have been calls in other nations of the region to make this addition in line with the language that is found in the American convention. We know, though, that despite the legal prohibitions on abortion, they continue to be carried out. Where abortion is illegal and clandestine, it is often unsafe, sometimes resulting in death, and often resulting in illness and disability. The argument that an interpretive declaration in article 4.1 could improve the situation of Latin American women, were it adopted by the inter-American human rights system, is compelling.
What, then, is the legal effect of an interpretive declaration? We have done some research — although not comprehensive research — into this matter. We know that with an interpretive declaration a state is simply indicating its view of the interpretation of a treaty. This view may or may not be accepted in future legal cases.
Professor Don McRae, former Dean of Law at the University of Ottawa, and an expert in international law, writes that with an interpretive declaration the state has not ruled out the possibility that its interpretation will be rejected.
A French law professor, Alain Pellet, who is also special rapporteur on reservations with the International Law Commission, said that the legal effect of interpretive declarations is that they can be seen as offers of interpretation governed by the fundamental principle of good faith but lacking any inherent authentic or binding character. As I said before, it would be wonderful if we drafted an interpretive declaration and it was adopted, but there is no legal guarantee this will happen. To paraphrase Professor McRae, Canada would not be ruling out the possibility that our interpretive declaration would be rejected.
Another option, which we presented to a meeting of Canadian lawyers last March, and which to our knowledge has not been raised with this committee, is what is called a ``conditional interpretive declaration.'' A conditional interpretive declaration is a statement made when ratifying a treaty. The state makes its consent to be bound to the treaty conditional on a specific interpretation of one or more provisions of the treaty. For example, Canada could make an interpretive declaration, such as the examples proposed by Professor Rebecca Cook or some other version, and state at the end of its declaration that if this interpretive declaration is contested by another party, then this instrument shall be null and void. This last sentence would change the declaration from a mere interpretive declaration to a conditional interpretive declaration.
We do not know whether this is politically feasible. We have yet to hear any comments from other groups or individuals about their views on this option. However, it may be another option available to get around the troubling wording of article 4.1.
In summary, we at Action Canada for Population and Development are committed to exploring each of the options available to Canada to get around the troubling wording of article 4.1. There are others which we could, perhaps, discuss during questions. You have heard from other groups as well. As I said, there is much discussion and debate that needs to occur with all voices being heard. This is an excellent beginning.
In closing, we are grateful to this committee for providing a forum for groups and individuals to continue this important debate.
Ms Katherine McDonald, Executive Director, Action Canada for Population and Development: Honourable senators, I will provide some information that might be useful to the committee. As Ms Kitts mentioned, we have been involved with the preparations for the special session on children. We were also involved in the five-year reviews of the Cairo Program of Action and the Beijing Platform for Action. In another capacity, I attended the Beijing Conference itself. In each of these conferences there have been interpretive statements at the end of the meetings setting out the views of various countries on the sometimes controversial issues surrounding sexual and reproductive health and rights.
We have noticed over the preparations for the special session on children, and what we hear from our colleague who is at this moment in Bali attending the preparatory meetings for the World Summit on Sustainable Development, is that there has been an absolute right turn on the part of the Bush administration. The administration during the five- year review of the Cairo Program of Action supported the term ``sexual and reproductive health and rights.'' It promoted the Cairo principles and promoted the rights within the context of Beijing. The administration has now said that they no longer support Cairo and Beijing programs. The implications for this for the international community and for the divisions that occur in international fora around these issues are devastating. The American administration, being the last remaining superpower, of course carries huge weight in the international setting. We can see already the effects in terms of the erosion of rights over the last 18 months.
I was in New York for the second preparatory meeting for the children's session some three days after Bush was sworn into office in 2001. I was horrified to see the promotion of abstinence as being the major strategy to combat HIV/AIDS and unintended pregnancy.
We have seen the U.S. administration promoting footnotes stating, for example, that reproductive health services in any circumstances cannot have anything to do with abortion, even in countries where abortion is legal. Their aid dollars would in fact push countries into accepting restrictions that are outside their own legislative requirements.
It is extremely important that Canada take a lead, both domestically and internationally, during these meetings. In fact, I was very proud of the Canadian delegation during the special session on children. They were absolutely heroic in withstanding the pressure, as were many negotiating blocks of developing countries, including the Rio group, which comprises 19 Latin American and Caribbean countries.
There is a will out there to support sexual and reproductive health services and sexual and reproductive rights. It is a question of whether or not we will allow this conservative tide to overwhelm the international fora.
I would be happy to address anything further during the question and answer period.
Ms Sungee John, Secretary, Executive Board, National Action Committee on the Status of Women: The National Action Committee on the Status of Women welcomes this opportunity to share our views and concerns before the Standing Senate Committee on Human Rights in these hearings on the American Convention on Human Rights.
As Canada's largest feminist organization, representing over 700 member groups, NAC has been at the forefront of advocacy on behalf of women in Canada. This brief is presented from the perspective of the grassroots community- based organization. Before proceeding, I would like to say that NAC, as an organization, echos the presentation given by our friends at ACPD.
NAC recognizes the importance of the American Convention on Human Rights and the relevance it holds for the member states of the Organization of American States. However, article 4.1, as currently worded, presents a dilemma for equality-seeking women's organizations. Because of article 4.1's potential impact on women's lives, it is critical that women and women's organizations are given the opportunity to obtain full and accurate information about the American Convention on Human Rights and discuss firstly amongst ourselves and secondly with government the import of the convention and the various arguments for or against its ratification. This will take time — time to disseminate the information, time to organize consultations, and time to understand the language in the document.
At this point, equality-seeking women's groups are struggling merely to exist and to work for women's rights amidst the never-ending cutbacks at both federal and provincial levels. In fact, this year alone, three provincial governments have eliminated their ministries overseeing women's issues. Across this country, women's organizations do not have the necessary resources to hire — on staff or as consultants — legal experts to analyze policy and legislation. In the American Convention on Human Rights, women's groups would need the advice of experts with a highly specialized knowledge of gender and international law. This should raise serious questions about women's access to law. article 4.1 delves into an issue fundamental to women, and the broader voices of women need to be heard on this issue.
Many of our OAS partners in the south recognize and value Canada's leadership in matters respecting social, cultural, socio-economic and human rights. However, with the convention, Canada's leadership must begin with the political will to guarantee the inclusion of women and women's organizations as active and integral participants, especially women from the community-based sector.
Canadian leadership must recognize the broad political strokes in the interpretation of article 4.1 and the resulting polarization of debate. Moreover, in a post-September 11 hemisphere, our borders are increasingly difficult to define. With the globe's only superpower left as our neighbour, we have seen first-hand its muscle and influence and its political will to exert its own particular and rigid agenda upon the world. Governments come and go. Without a clear understanding of the impact of article 4.1, we fear that women's likes will be at stake.
Finally, NAC urges the Standing Senate Committee on Human Rights to commit the federal government to implementing a gender impact analysis, not just of article 4.1 but the entire document. As a signatory to the Beijing Platform for Action, Canada and other states parties agreed to ``integrate gender perspectives in legislation, public policies, programs and project'' and ``to seek to ensure that before policy discussions are taken, an analysis of their impact on women and men respectively is carried out.''
In closing, we ask this committee to recommend that women across Canada be given information and opportunity to hold their own dialogue. We ask the committee to allow Canadian women more time to analyze and discuss the American Convention on Human Rights in its entirety.
Senator Jaffer: You mentioned the movement to the right. That happened even before Bush came in. I attended a number of human rights meetings at the United Nations and after Beijing. I appreciate your acknowledgement that Canada has taken heroic steps, because it has.
It was good of you to remind us that that Canada has played a very important role in standing up with the Scandinavian countries and some others. What other specific things do you think that Canada could do?
Ms McDonald: The Department of Foreign Affairs always take the lead on the negotiations around these issues and usually brings in experts from aligned departments — either Health Canada or CIDA, often both — to deal with sexual and reproductive health and rights. It has been our observation, having been involved in several of these meetings, that it often takes a number of weeks and months for the staff to get up to speed in terms of the history of the language and the history of the document. This particular language is more rights based than others, and very often these people in aligned departments do not have a legal background and have not attended previous meetings.
I always thought that one way to obtain coherency in a practical way would be to have a ``SWAT team'' of people who were very well versed in the language, in the issues, in the controversies, and send them from one meeting to the other. That is exactly what we hear is happening at the World Summit on Sustainable Development. Mr. John Klink, the former UN representative for the Vatican, is now a key member of the United States delegation. He is an incredible strategist in terms of being able to block negotiations and obtain the results that he is seeking. I understand the same six people that were at the special session on children are now in Bali as we speak.
Canada, on the side of right and good and just causes, could do the same. I spend a lot of time with very bright people, very good people within government, but I have to brief them before each meeting. One or two have been to the meetings before, but they are stretched too thinly and are responsible for so many files. The woman at the WSSD in Bali is responsible not only for gender but for climate change. The woman responsible for sexual and reproductive health is also responsible for Africa, which of course is a huge issue at the WSSD. Even if you have the expertise there, they are stretched. If this committee could make a strong statement on coherence — and I know that this is the basis of the committee — it would be terrific in very practical terms.
Senator Jaffer: Ms McDonald, that really helps, because it something practical we can work on.
You mentioned the right to life and the issues in Latin America, but I think we should also remember that our country is multicultural. We must also work here, because our rights can get eroded as well. We have work here to do as well. It is all over America.
Senator Kinsella: I would like to probe three areas with our witnesses. The first is building on what Ms McDonald has just said about the tremendous amount of work ahead of you on this file alone and the limited resources available to NGOs to prosecute this work. I agree. Perhaps we can encourage the government to reinstate the Human Rights Program in the Department of Canadian Heritage, formerly well-developed when our honourable colleague Senator Joyal was the secretary of state. It was a strong program that made available support to community groups across the country.
It is critical to our full appreciation and to the sensitivity that comes with our studying any human rights question. There is a spinoff benefit in other areas as we study the pros and cons of Canadian ratification of this convention in public. As you know, this study has been going on since we became a member of the OAS in 1990, but behind secret, closed doors. I do not know, Madam Chair, whether we have been successful to get the minutes of the meetings of the continuing committee responsible for human rights.
The Chairman: Not yet. We will have to use bigger tools to pry that door open.
Senator Kinsella: I would also invite you to reflect upon the historical. In the drafting of the Universal Declaration of Human Rights, the distinguished representative from Lebanon, Charles Malek, the great international philosopher, attempted to have the same kind of definition of ''life'' put into the declaration as you have in article 4.1 of the convention. However, the drafting committee, chaired by Eleanor Roosevelt, rejected it.
Thus, we see in the international covenants that flow from the universal declaration, the language that is more consistent with the 1949 American declaration. It is curious that, in 1949 — and this was drafted by our friends in the southern hemisphere, mainly — in the American Declaration of Human Rights they used the language of the United Nations. It is only in 1969 where you get this other language. I am interested in whether you have reflected on this or in your research you have been able to identify why that change was made. It is contrary to UN language and it is contrary to their own language of the declaration.
Finally, Ms Kitts, you spoke of the interpretive declaration and the distinction between it and a conditional interpretive declaration. Is there a further distinction with the notion of reservation?
Ms Kitts: Perhaps I will address the latter part first, on reservations.
The other option is a reservation. That is what the federal government has brought forward to you. That is to say, if they were to ratify, they would require a reservation. They are certainly permitted to do so under the Inter-American Human Rights System, under article 75. Reservations are used when a state is satisfied with most of a treaty, but are unhappy with one or two provisions and the state refuses to be bound by certain provisions.
There is no question that a reservation could be used. The Vienna Convention states that a state can use a reservation as long as it is not incompatible with the object and the purpose of the convention. Given the interpretation by the commission in the Baby Boy case, it would be difficult to say that a reservation to article 4, permitting abortion, would be incompatible with the object and the purpose of the convention. However, there are many disadvantages associated with a reservation. As you have heard, they are generally frowned upon, particularly with respect to human rights treaties. They signal an incomplete commitment to the purpose of the convention.
It has also been argued — and this is something to which we have given thought — that if Canada were to ratify and attach a reservation, the attaching of a reservation would signal that Canada recognizes article 4.1 as an obligation for governments to maintain or put in place abortion legislation. We are trying to advance international reproductive rights. This could almost be seen as a step back.
I do not know if I have answered your question fully. It is certainly a stronger legal measure than a major interpretive declaration. We are interested in this notion of an interpretive declaration. We think it might provide all the good of an interpretive declaration in terms of giving some wonderful language to the American Human Rights System to use, but it may provide more protection because we are making ratification conditional upon this interpretation.
We would like to do a lot more research on this one angle. The International Law Commission has a special rapporteur on reservation, Alain Pellet, the professor I mentioned. Their study has been ongoing for more than a decade. They are looking at the exact legal nature of these conditional interpretive declarations.
I do not think I can answer why the change happened from the late 1940s to the 1960s, except it is maybe the vagaries of reproductive rights. I understand that there was legislation in certain countries that varied dramatically. When the American declaration was drafted, the countries had different situations with respect to abortion so they wanted to make everyone happy. Interestingly — and this is an important point often made by those who say that we should ratify this convention — there have been some strong developments in the UN system around reproductive rights, specifically the Convention on Elimination Against all forms of Discrimination Against Women, as well as the Human Rights Committee and the Committee on Economic, Social and Cultural Rights. They have all made important connections between unsafe abortion and a violation of a woman's right to life.
There have been good developments at the international level in terms of the development of norms around reproductive rights. The argument goes that, given these important developments at the UN level, this is an argument in favour of ratification. It is argued that the American system often looks to the UN system for guidance in terms of interpretation, which is not a legal certainty.
Senator Joyal: Sometimes, it is a win-win situation. I have the impression we are in a lose-lose situation with this discussion. You are well aware that Canada joined the OAS in 1990, more than 12 years ago. The government at the time quite properly stated that they were considering in the short term to ratify the human rights convention. Here we are, 12 years later, still battling the interpretation of some words around the convention.
As a committee, we want to come forward with some action, some recommendations. After having heard quite a large presentation of witnesses who are urging us to urge the government to ratify, we would feel uneasy at being in a position to recommend that while, at the same time, have the feeling that we are hurting women's status in Canada. That is the last thing we want to do. All of us around this table, in our respective capacities in real life and in previous incarnations, are certainly trying to move forward in favour of equality. I would not like to find myself faced with making the decision of the Inter-American Court that would reduce what I call ``the non-protection'' that abortion has in Canada, because we are in a legal vacuum.
However, at the same time, I feel that Bill C-56, which is currently before the House of Commons, recognizes the legal implications for the fetus. As a lawyer, I have no doubt about this. We can argue that something is in the process to provide some legal basis to the fact that the fetus, or the embryo, does not have rights and is not a subject of rights. That is essentially the language that we want to use.
Ms John, as I listened carefully to your comments I wondered if you have a time frame for your agenda for consultation, study and reporting? Would it be a few months or perhaps one year before you could report to the committee? We could then continue our discussions on other aspects of the convention. We find ourselves in the position of dealing with a question relating to article 4.1 that has not been resolved. We do not want to push it because we do not want to legally hurt the little status that we have. We do not know what will happen in the other place in the years to come. I do not want to elaborate on that today, but that is the reality.
What do you advise us to do as a committee in relation to this article of the convention? We will have to make up our collective mind and draw a conclusion from all of the witnesses we that have heard. Am I putting you in a difficult position by asking you to answer that question?
Ms John: It is difficult to answer because the amount of time required is tied to the resources that women's organizations have and the resources that government is willing to commit to ensure that this consultation is as thorough as possible.
Last year, in September 2000, Rights in Democracy organized a consultation over the length of the convention. It was at this meeting that a small number of women's organizations got together and raised their concerns. We have been pressuring for more time to establish an opportunity for women, not just in Canada but in the south as well, to have a dialogue.
That pressure has been on for more than one and one-half years now and we have not even reached the point of establishing a meeting. That is purely the result of a lack of resources and funding. If there is a serious commitment, I would say perhaps in six months at a minimum. However, it is difficult to be certain.
Senator Joyal: I am not suggesting any course of action, because it is not our role to do so. When I was minister responsible for the administration of the program on the Status of Women, Mrs. Anderson, Chair of the National Action Committee, and I thought about developing a specific project linked to that with a specific budget. There is a new Secretary of State (Multiculturalism) (Status of Women), the Honourable Jean Augustine, with whom many at this table are acquainted. We could press her to approve a budget that would be specifically allocated for that study and that research. It is an important issue, and I would feel uncomfortable taking a final stand without having more comprehensive input from women's groups in Canada.
We have heard your colleagues in Quebec and it has been helpful to hear from various professors who came to testify, because they concentrated on some of the legal aspects. However, there are other aspects to be included, as Ms Kitts mentioned in her statement.
If you say that six months is what you can expect to give us an idea, this committee will be able to frame its agenda and plan our intervention on this issue.
Ms Kitts: To me, six months appears very ambitious. We have been trying to look at all the different options — the pros and the cons. Treaty law and interpretation comprise an area of international law that not too many people know about. We have been doing our best, but there is certainly a place for a thorough review of all of the available options. I have mentioned the interpretive declaration, conditionals and reservations. As well, an advisory opinion has been suggested; you could also amend the treaty. There are different options available and I note that there is a strict legal question of the options available.
We have done some consulting and we often feel we do not have all of the facts. Often we simply do not have the resources to obtain all of the facts, but we are committed as an organization to put more time and research into the various options so that we can share the information and have more facts to work with.
We are also taking an active role in a fall meeting in Guadalajara with the Association of Women and International Development, AWID. The meeting proposes to be large with women's groups from around the world. Given its location in Mexico, there will certainly be a great number of women from both North and South America. We are hoping to use this as an opportunity for more debate with women throughout North America and South America.
Senator Joyal: If I may, the testimony that we have heard at this committee has been helpful in establishing the groundwork for research. We have heard from Professor Lucie Lamarche, Ms Andrée Cote and other representatives from the Fédération des Femmes du Québec. All of them have contributed something in discussing various aspects of article 4.1. That could be helpful as a starting point for anyone who is in the legal profession or human rights, social science division, to look into the implications of the various options, which are not infinite. We know there are limited options apart from not signing the convention or signing it with closed eyes. There are nuances between those two extremes, and we could evaluate the pros and cons in each of those other options.
Certainly, the work of the committee would be extremely helpful. We have all learned from this study. Again, that could be a starting point for your work and could help to guide us in the direction that you suggest.
Ms Kitts: I agree with you completely. I have attended some of the hearings and I have read all the transcripts. I find the information that is in the public record from the government and from various NGOs, that details the various issues has been incredibly informative. When we try to research this issue, we have found that there is not a great deal of published material about the difficulties surrounding ratification. It is actually striking that more academics who, while they might say to ratify, have not explored all of the details and nuances to the extent they could have done so. There is tremendous fodder for academic research. Perhaps we could encourage more academics that have these skills to pursue this area.
Senator Fraser: Could you tell us more about the conditional declaration as an instrument? How has it been used, and where has it been used elsewhere? What does it do? Does it mean that if a person dares to bring a case before the commission we back out of the whole convention? I do not understand what you are talking about, and it sounds intriguing.
Ms Kitts: You have understood it quite well. The conditional interpretive declaration states that you are ratifying it with this interpretation. If any party disagrees with this interpretation, we are backing out.
Senator Fraser: Do you mean the whole of the convention?
Ms Kitts: That could be the condition imposed. The legal literature has not written very much about this. The International Law Commission has been doing the most work. It has been used in practice on a number of occasions, and one thing we want to do is look at all the treaties that have used conditional interpretive declarations in order to get a sense of how they are used.
In international treaty law there is often practice without actual documentation or articles written about it, so some diplomats know about and it no one else does. The special rapporteur on reservations, Professor Pellet, is documenting these trends and exploring the exact legal nature of a conditional interpretive declaration. There is debate about if it would be tantamount to a reservation. Professor McRae wrote that to impose such a condition would be tantamount to a reservation. It appears that Professor Pellet is suggesting there is another middle ground; there is an alternative that is neither a reservation nor an interpretive declaration, but is a conditional interpretive declaration. However, he has yet to state definitively what the exact legal nature is. There are some good opportunities for research. He footnotes a number of treaties that have used this that I have yet to review.
Senator Fraser: Could you give us some of these references? This is a whole new area to explore. As I listen to you, I find it hard to discern the actual difference between that and a reservation. In addition, could you provide specific examples of who else has done this? Would we be in the company of countries we loathe or countries we respect?
Ms Kitts: I should have brought the footnote with me. It covered treaties relating to fisheries and other issues. It is used in practice, it is not an obscure thing, just not well documented.
Ms McDonald: The subtle difference would be that if you had a conditional interpretive declaration and you were able to back out of a treaty if that condition were violated, that would be one thing. Whereas, with a reservation, you could remove the reservation and still be a signatory to the treaty.
If the unfortunate event would ever happen where we had a government that was prepared to undo or retract on reproductive rights, there would be the danger of a reservation. It could be removed with a stroke of a pen and you are still signing on to the treaty. In order to take the next step, you would have to unsign the treaty, which can be done as well.
The Chairman: It seems that we are struggling to gain the information here and Canadians have a right to know why we are not in the treaty, or why we are out of it with justification.
We will look at the risk on doing something on article 4.1. We have to look and be cautious and careful that we do not intrude on any rights or benefits that Canadians have. I say Canadians broadly, not just women, because it is a fundamental public policy issue.
We have to weigh that against our responsibilities internationally and in this hemisphere, and we have to weigh as to what would be the benefit for all those women in the hemisphere in being part of the process. Have you looked at that part of it?
You have put out succinctly and eloquently the pitfalls around article 4.1 and what we should do as a process in Canada. As your work is international, have you looked at the benefits that may accrue to so many women and those societies if we were to be part of the process?
I use by example the Council of Europe, and its human rights machinery. The fact that is a pre-condition of coming into any European consultations, et cetera, has triggered much good and much change in those societies. If the Council of Europe concept were not there, would those societies be in the same position and would the reformist movements have taken hold? I would like some comment on your work in Latin America from the perspective of the other part of the risk of not going in.
Ms Kitts: As an organization, we do not question what you have stated. The benefits to men and women throughout the region are clear if we were to ratify this convention. Many arguments have come forward by various individuals and groups have indicated this. We would endorse the infusion of resources, the respect for human rights and Canada being at the table. At a meeting in March, Professor Rebecca Cook eloquently laid out the tremendous benefits for Latin American women were we to ratify this convention.
We do not take its as a given, but we accept that and are trying to grapple with how do we go about this, given that belief. We certainly plan to consult widely with a number of groups throughout the hemisphere on this matter, as we have not heard a wide range of Latin American groups. We received letters from some and we have consulted with some of our partners at international meetings, but there are many groups and individuals we need to consult with.
The Chairman: That will be the dilemma for our committee: weighing those competing benefits and risks and how to put forward some policy advice to the government.
Senator Poy: It seems that you are actually for ratification, except for article 4.1. When it comes to time frame and budget, studying the problem could go on forever. The other choice is we ratify, and we have conditional reservations or conditional interpretive declarations. However, what Ms McDonald said has troubled me. You are saying, if we should have a government that can undo what Canada stands for in abortion rights, then everything can be undone.
How do we protect from that? How do we word it so that cannot happen if we were to ratify?
Ms McDonald: The conditional interpretive declaration seems to offer the most scope, because it would mean that if the condition were breached we would be in the position we are today, having not signed or ratified.
Senator Poy: Could you not say only article 4.1 does not apply, while the rest does?
Ms McDonald: That is a reservation and it can be withdrawn easily.
Senator Poy: Then we are not out of the whole thing?
Ms McDonald: We are not out of the dilemma.
Senator Poy: If we should have a government that would do what the U.S. is doing, then we would be in a lot of trouble. Is that what you are saying?
Ms Kitts: I will put out one other option. It may not be feasible, but it is the safest option. I put it out because it needs to be discussed.
The current parties to the convention can amend the treaty, which is complicated. They can also agree to an authoritative interpretation of a provision. This amounts, in effect, to an amendment. According to the Vienna Convention on the Law of Treaties, article 31 3. (a), when interpreting a treaty you can consider any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions to be an amendment. The current signatories to the American Convention could get together and say what they believe the treaty to mean.
I am assuming that would be a difficult thing to achieve on this controversial issue. Nevertheless, it is another option that needs to be discussed.
The Chairman: A party could withdraw from most conventions. It is not just a question of reservation. If a government or the UN wants to pull out, there are ways that that can be done. I do not see the trigger on reservation clause as crucial as it was being stated. Any government with a determination can move off an entire convention, let alone a reservation.
Ms Kitts: The unique thing about this treaty is the language. A new government could decide it does not want to be part of, for example, the Covenant on Civil or Political Rights. The language in this treaty is troubling. It is not usually the case with other treaties. Usually, countries are encouraged to withdraw their reservation, where they have them.
Senator Poy: Have the member countries of the treaty ever tried to reword the treaty?
Ms Kitts: I do not know the answer to that. It would be wonderful to hear from a representative from that human rights system as to whether that has been discussed as an option, or is remotely feasible.
Senator Poy: That could be extremely helpful to the women from South American countries, particularly.
Ms Kitts: Absolutely. In terms of norm building and international law around reproductive rights, that is the best thing that we could do.
Ms McDonald: To follow up on something that Senator Andreychuk said, we had the experience recently of the American government un-signing the treaty on the Rome Convention on the International Criminal Court. That is troubling.
Senator Kinsella: On this point, in the Canadian context, the agreement that exists is based upon a constitutional convention that Canada can only ratify these conventions in the human rights field with the concurrence of the provinces. This is why there is a federal-provincial/territorial consultation happening.
We ratified the covenants with the agreement, in writing, of all the jurisdictions in Canada. Not only is the agreement there for ratifying it, it is stipulated that any derogation from that agreement would require the consent of all governments.
Within the Canadian context we do have an extra safety against any mal-interpretation or an attempt by the colour of a given government of the day to get rid of that reservation and embrace 4.1. Would you not agree that we have a special safeguard?
Ms Kitts: That is a very good point.
Senator Kinsella: That was not the question I wanted to ask, but I wanted to get it on the record.
This question is political-philosophical as opposed to legal. Do you think that there may be a correlation between the wording of 4.1 agreed to in 1969 and the political ideology of the majority of the governments in the southern hemisphere during that period? There is a correlation between extreme right wing governments, dictatorships and military regimes and the kinds of views expressed in 4.1. Therefore, we as Canadians who reject that kind of ideology, had we been a member of the OAS in 1969, we never would have signed.
I say this being mindful of what Professor John Humphries used to tell us. In 1948 at the Palais de Chaillot, they did a straw vote to determine which countries would sign the universal declaration on December 10, 1948. Four countries would not sign: Byelorussia, the Soviet Union, South Africa and Canada. Everyone was shocked. Canada changed its position after looking at the company it was keeping. Much the same, in 1969, we probably would not have ratified this because of the company we would have been keeping. However, there has been a change in South America and particularly in Central America.
Do you have any comments as to the ideological issue?
Ms John: If a country such as Cuba would be involved, there may be more of a debate on this. Cuba alone of the Latin American-Caribbean countries would have a more progressive view with respect to women's rights and in particular article 4.1.
Ms Kitts: You are right that the insertion of 4.1 reflected the situation regarding reproductive rights that existed in Latin America at that time. It is clear from the Baby Boy case that they go through the preparatory work and speak of the debate between countries that wanted to remove language from the moment of conception and those that wanted to keep it. It reflects that debate at the table.
I spent much time speaking about abortion being illegal throughout Latin America. There has been movement in certain countries to get the right to life being protected from the moment of conception within constitutions. There are still troubling issues around reproductive rights in that part of the world.
I take your point very well that we have problems here in Canada as well. Despite the Morgentaler decision, there continues to be tremendous problems for women to access abortion in Canada. Women in the north and in remote regions have a difficult time getting an abortion. Abortion providers have been the target of violence, harassment and death threats with the result that many physicians who once provided abortions, no longer do so. As physicians are retiring, young physicians who do not remember when abortion was illegal are not committed to providing abortion.
Your point is well taken that there are common threads in these issues throughout world.
Ms McDonald: I would add one other point. We see a dichotomy within the UN system now. During the negotiations for the special session on children, the Rio group of 19 progressive of Latin American countries fought hard for sexual and reproductive rights. After the consensus was reached and the agreement adopted, their statements noted that they could not accept language referring to abortion because in their countries abortion is illegal, or they noted that they had constitutional protection for the right to life from the moment of conception.
There has been an ideological and psychological shift in many Latin American countries. They are not prepared to throw the baby out with the bath water. They will fight for educational services and talk about adolescent sexual and reproductive health in progressive language with progressive language. At the same time, they will reserve on the right to limit abortion. There are women's organizations in Latin America that are working hard on this issue and should be supported.
It is an interesting time to be involved with the UN system from the aspect of seeing the shifting in the political alliances.
Senator Joyal: Madam Chair, could we not have a report from our researcher on where abortion is legal and illegal in the various states of South America?
The Chairman: I think that is easily available.
Senator Fraser: Specifically, whether it is illegal by statute or by constitution.
Senator Joyal: That would help us to monitor the issue both politically and legally.
Ms Kitts: I would be happy to provide some documents that look at the issue. We have documents that describe the abortion situation throughout the world, a sort of country-by-country profile. There is some excellent work done by the Center for Reproductive Law and Policy in New York about reproductive laws around the world, which I would be happy to provide the clerk.
The Chairman: I would like to thank our witnesses. As I indicated at the start, we are just starting our study. We have received some valuable information. We have yet to make any determination. I trust you will follow our work. If you have any other information that would be useful, it would be appreciated.
Our second witness is Ms Dinah Shelton who we have heard about from other witnesses. Professor Shelton has extensive teaching and other professional experience in the United States and other countries.
Ms Dinah L. Shelton, University of Notre Dame Law School, Indiana: Madam Chair, I would like to thank you for inviting me to appear before you. I must confess a slight sense of being disconcerted at the fact that I am here advocating ratification of a treaty that my own country has not yet accepted. I can affirm that I favour U.S. ratification. I hope that some day I can present similar remarks to the U.S. Senate.
As you have seen from my CV, I have written a lot on the inter-American system. I began studying it about the time the convention was adopted. I have co-authored several books with the first president of the Inter-American Court, Tom Buergenthal, who is now on the International Court of Justice. I have also appeared as amicus curiae before the commission.
Turning to Canadian ratification, Canada has been a member of the OAS for over a decade. As such, it has already assumed human rights obligations in the regional context and its performance is measured by the American Declaration of the Rights and Duties of Man. It has been the subject of petitions to the commission and the subject of a study concerning the treatment of asylum seekers.
One may then ask: Why ratify? Is there any value added becoming a party to the convention? On the other side one may ask: Why not ratify, since regional law and procedures already apply to Canada? The rights in the convention are broadly similar to those in the International Covenant on Civil and Political Rights, to which Canada is a party, and to those in the declaration. I would like to look at both questions.
First, why ratify? There are several points I would sum up under the term ``legal certainty.'' The declaration was drafted not as a treaty. As a result, its terms are broad and often vague. It was not intended to be legally binding. It was the first international instrument on human rights ever adopted, preceding the Universal Declaration of Human Rights by some six months. Its provisions are short and necessitate interpretation, a function conferred initially on the member states but, ultimately, on the Inter-American Commission on Human Rights. You can see what this might result in when you see that article 1 of the declaration simply says that every person has the right to life, liberty and security of person. That is it. The corresponding provisions of the American convention comprise four articles: Articles 4 through 8, each of which has four to six subparagraphs setting out, in much more detail, the content of the rights and the corresponding obligations of the state parties.
This delineation and more precise formulation leaves far less room for the commission to make law through interpretation of the convention than it does with respect to the declaration. Thus there is less possibility of surprising obligations being imposed upon a state party.
The commission's powers are quite broad and quite considerable. Overall, it has used these powers effectively and prudently. After the coup in Chile in 1973, for example, the commission had a delegation in Santiago within 10 days following Pinochet's coup to assess the human rights situation in an attempt to improve it. It was five years before the UN Human Rights Commission was able to send a similar body to Chile. Speed of response is an advantage we find in the inter-American system.
Again, in contrast to the UN system, which has created a new body for virtually every human rights treaty it has adopted, every treaty that has been adopted within the inter-American system adds additional burdens on the commission, and its caseload has grown. The result is that the commission is overworked, understaffed and lacking in resources. It sometimes produces opinions on cases that reflect the situation. It, after all, meets only for a short period three times a year.
For states that are not party to the convention, this poses a problem. If there is an opinion that appears to be legally untenable or poorly reasoned, either the state has to accept it or ignore the commission and give an example of non- compliance that may be invoked in states engaged in serious violations. Ratification of the convention could help to resolve this problem in at least two ways: First, it makes it more likely that Canada will have a member elected to the commission. Canadian members of international human rights bodies in the past have contributed enormously to the development of human rights in the role of law. I can cite the examples of Walter Tarnopolsky at the beginning of the committee on civil and political rights at the UN and Ronald St. John MacDonald, former judge on the European Court of Human Rights. Nothing, of course, precludes Canada from proposing a candidate to the commission now, but the likelihood of election would be enhanced if Canada were a party to the convention, since the commission has jurisdiction both over non-party states and party states.
Second, legal certainty would be enhanced by Canadian ratification because it would allow Canada to accept the jurisdiction of the court, which provides a well-needed check on the commission. Canada could then also participate through nominating and electing judges of the court, which it cannot do if it is not a party. Judges of the court, unlike members of the commission, must have legal training and have much higher standards for election than do members of the commission. The opinions of the court on the whole has been more carefully reasoned, they have been credible, and they have shown a concern to uphold the integrity of the system.
The court has, over time, corrected procedural and substantive errors of the commission when necessary and provided detailed guidance for states on the scope of the obligations imposed by the convention. Without ratification of the convention, Canada lacks this possibility of ``appeal'' should the commission decide a petition in a way that appears unwarranted. The absence of this check could well be very important in the long run. It is important to note that the court has never been a rubber stamp for the decisions of the commission.
The second reason I would pose broadly for ratification is that I believe it is in Canada's interest. I have read the testimony of prior witnesses, and many of them have alluded to the situation of serious human rights violations in the hemisphere throughout the 1970s and 1980s. We have been through periods of human rights improvement; we have been through periods where there has been regression and substantial violations. These periods of civil war, repression, disappearances and coups lead thousands who can to flee north. This will always be the case when lives and well-being are threatened.
With these individuals has come political violence. We experienced in the United States a car bombing of the former ambassador of Chile, in which he and two U.S. nationals died by agents sent by the Pinochet government — a terrorist act as a result of the human rights violations. Could it happen again? Yes. Only in the past decade have we really seen democratization in human rights begin to take hold in the region. Since 1990, every country in the hemisphere has held free and fair elections — except Cuba and maybe Florida. I hope that goes in the record.
Recently we saw a new coup attempt in Venezuela, and Colombia is continuing to fight its insurgency. Human rights violations remain a problem in several countries. In some areas, such as islands in the Caribbean and in Peru, there have been attempts to withdraw from jurisdictions that they have already accepted and renounce their obligations. Therefore, the arrow does not always point towards progress. In this regard, Canada's leadership can be extremely important — and I would say even more so than that of the United States — in solidifying the gains of the past dozen years. On some issues, U.S. ratification would not assist, for example, in the application of the death penalty, which is a problem in many Caribbean countries. Even if the U.S. ratifies the convention, it will be unable to speak out on this issue.
Moreover, Canada is the only large country that is both French and English-speaking, which makes it an important source of leadership for the English-speaking Caribbean and for Haiti, which is currently the only French-speaking country that is a party to the convention.
Parenthetically, I would like to add that I am teaching the inter-American system in French this summer, and I was unable to find any official text in French other than the charter of the OAS on the Web site of the OAS itself, even though French is an official language of the OAS.
Third, I think, and this is more altruistic, that ratification will promote and protect human rights. The ultimate goal of any human rights system is to provide a safety net for individuals should their own government fail to protect them. With NAFTA drawing North America and eventually other parts of the Americas closer together, the need for and value of regional human rights has never been greater. The UN is too diverse and I would say too distant in many respects to be sensitive to regional and local issues. Experience has shown in Europe, in the Americas and in Africa that regional systems can be more effective and more efficient than the UN. In fact, during its best periods, Latin American countries have been leaders in the UN on human rights efforts, drawing from their regional experience.
The potential is shown if one looks at the history of women's issues in the inter-American system, something — given the fact that the term ``macho'' was coined here — that one might not expect. For example, in 1923, the Pan- American Union adopted a resolution on the rights of women, recommending that governments revise their civil legislation to abolish equality of rights between men and women. This was far before anyone other than the International Labour Organization was looking at the issue. The first binding international instrument to address issues of domestic violence was adopted by the OAS in 1994. I have skipped over a few other issues such as the Convention on the Nationality of Women in 1933, the 1948 treaties on political and civil rights for women.
The OAS was the first to elect a woman, Sonia Picado, a president of an international court. It was the first to recognize that the right to reparation should extend to projects of life, including parental child relationships. It has recognized rape as a war crime, and recognized that laws discriminatory on their face are actionable under the human rights provisions. It has accepted also, through the Baby Boy case, which I will return to, that abortion is not a matter for international legal recognition but is left to the discretion of each state. It has worked for the abolition of discrimination in nationality laws and appointed a special rapporteur on the subject of the status of women in the western hemisphere. Of course, not everything is rosy in the hemisphere and the result of the study by the special rapporteur shows a great deal of work yet to be done. Yet certainly, many of these actions in the regional system were well ahead of similar activities taken at a later time by the UN.
Why not ratify? Nearly all of the rights are already contained in instruments to which Canada is a party and the declaration, which is used to measure Canada's human rights performance at present. I made a chart to compare the Covenant on Civil and Political Rights with the American Convention on Human Rights. There are only three rights in the Covenant on Civil and Political Rights that do not appear in the American convention: The right to self- determination, minority rights and the right to property.
There are different formulations and some of the formulations have generated controversy. I should like to address two of them in particular. One you have already heard much about, namely, article 4.1 that protects the right to life in general from the moment of conception.
The phrase, as the commission noted in the Baby Boy case, which was not against a Latin American country but against the United States, represents a compromise. The commission was clear on this. It represented a compromise between states that sought to restrict the termination of pregnancy and those that did not. The compromise was intended to leave broad discretion to each state to decide for itself its policy on the issue. No reservation is needed to preserve existing law, whatever it may be. It may be felt prudent to attach an interpretive declaration, similar to what Mexico attached, to preserve the position at present should the commission, some day in the future, become more conservative and decide to overturn its case law.
It has not done so for two decades now. In 1948, states that sought to restrict abortion attempted to get language in the American declaration. They failed. They tried again with the convention and they failed. The right to life groups in the United States sought to interpret the convention and the declaration narrowly and they failed. The issue has not come up again in the last 20 years since the Baby Boy case was decided.
Nonetheless, Mexico does offer a kind of interpretive declaration that says that Mexico interprets article 4.1 consistent with the position of the commission, as it has been articulated in the case law to date. That is not a reservation because a reservation must change the legal obligations of the state, and that does not. It simply confirms the legal obligations as they have been interpreted at this point.
The other issue in which there has been considerable discussion concerns the provisions on prior censorship and free speech. As mentioned earlier, regional treaties reflect universal human rights law while including regional priorities and nuances. The free speech provisions of the convention very much reflect not Latin American law but U.S. law — they look a lot like the first amendment jurisprudence of the U.S. Supreme Court. The provision on the right of reply does reflect a Latin American concern for honour and reputation, understandable in the context of military dictatorships that sought to vilify their opponents and make it appear that they deserved to disappear or to be summarily executed. Restoration of the reputation of the victims is often one of the first things demanded when they appear before the commission or the court.
Prior censorship may well require a reservation to reconcile the obligations under the Covenant on Civil and Political Rights with the American Convention on Human Rights and with Canadian law. I do not think this should be seen as something negative. Reservations are generally opposed because states participate in the drafting of a convention and they achieve consensus on the norms. If they change their minds, this undermines the consensus that was achieved. Canada did not participate in the drafting of the American convention. Its position is similar to that of the newly independent European states joining the Council of Europe, whereby they have filed reservations to give them some time either to view whether the law ought to be changed or to preserve their position, where it is necessary, to be reconciled with obligations under the covenant. This is not a typical situation where a state changes its mind after it has already negotiated a treaty. Unfortunately, my country has a habit of doing that, but this is a different situation.
We could ask, ``Why not?'' Well, there is no problem with duplication or with overburdening the government in response to petitions. There is a non-duplication rule in the convention that the commission will not consider a petition if the matter is pending or has been decided in another international procedure. You will not be facing a lot of multiple complaints filed before both the UN and the inter-American system. Petitioners are required to select their forum at the outset.
With respect to time taken for procedures, the UN is, again, much slower on many of these issues than the inter- American system. The Inter-American Commission is now putting even more emphasis on friendly settlement than it has in the past, ensuring that cases do not drag on over a long period of time.
Finally, I would argue that, while the inter-American system cannot take sole credit for democratization and the improvement of human rights in the western hemisphere, it cannot be excluded from it either. Quick and unyielding pressure on repressive governments, as seen in OAS actions toward the Pinochet coup and the Somoza regime, led to changes in both countries in their laws and practices and ultimately to the downfall of Somoza, as he himself said in his memoirs. He attributed his loss of power to the OAS resolution condemning him because of his human rights violations. It will only be with continued emphasis on human rights in the hemisphere that the gains of the past decade will be consolidated and for this Canadian participation in the convention will be very important.
Senator Fraser: It is a pleasure to listen to someone as knowledgeable as you are in this field.
I have one particular concern about the convention that you glossed over a little: article 14, on the right of reply. I should tell you that I am a former journalist. As the article is phrased, that is telling the press what they shall print. Whether the reply in question is accurate or not, the reply might be a tissue of lies designed to obfuscate the revolution of some unpalatable truth. I am concerned about that and I do not know if I am the only person ever to raise this.
I am also concerned by paragraph 3 in article 14, but only to some extent because I do not think that would apply in Canada — I hope it would not. Yet it still bothers me, where it states:
For the effective protection of honour and reputation, every publisher, and every newspaper, motion picture, radio, and TV company, shall have a person responsible who is not protected by immunities or special privileges.
Again, are you telling the media whom they can hire? Have these sections of a convention given rise to any particular debate of which you are aware? What are your own views?
Ms Shelton: Article 14.1 states: ``Anyone injured by inaccurate or offensive statements or ideas...'' That has to be demonstrated first. I think that defamation laws provide the mechanism for that to occur. I have not seen anything that suggests that defamation laws or liable laws do not comply in and of themselves with the requirements of article 14.1. It constitutes a mechanism for demonstrating that there is inaccuracy and offence in the statements that are made and, through reporting on the defamation, it constitutes an adequate means of complying with Article 14.1.
I do not think it requires the press, under any reading, to simply take the individual's word for it and that the statement is inaccurate and then publish whatever they want in response to it.
The third paragraph, to me, appears much more to simply be a designation of who is liable to service a process. It is normal for any kind of corporate entity to have someone in place to respond to the defamation suit. It cannot simply be declared that everyone is immune, because of freedom of the press, from being sued if something offensive is published. I do not think it is actually directing who should be hired, but rather, it is setting out that someone must be responsive to any action that could be brought.
Senator Fraser: I did not think that would apply in Canada because our traditional situation regarding freedom of the press has been quite different from your own situation. Our journalists are not granted special immunity under our law, or have not been to date.
Ms Shelton: This is a particularly difficult issue. In the last five months, I have studied article 10 of Jurisprudence of the European Court of Human Rights very carefully, which is far more deferential to government restrictions on freedom of the press than, certainly, would be acceptable in the United States — I do not know how compatible it would be with Canadian law. Their convention is written quite differently from this one in terms of the freedom of the press. On the one hand, you have the right of reply for the person's reputation and honour and, on the other hand, you have the no-prior-censorship, which is much more protective of the press. This is the only convention of all the human rights treaties that contains a no-prior-censorship provision. Thus, there has been a bit of balancing.
Senator Fraser: I may be splitting hairs but, to me, this one is quite important. Under paragraph 1., which would give anyone injured by inaccurate or offensive statements or ideas...'' The meaning of the word ``offensive'' can be quite broad. I have been in a liable suit where the lawyer defending me said to the judge: ``What damage was done? This person's feelings were hurt.'' That is the only damage that was done. We were not found culpable because that was not considered sufficient.
In this case, it would be sufficient — ``offensive statements or ideas.'' Then, this person who has been offended by having it made public that he is a crook, is allowed to determine what his reply will be. He has the right to reply or to make a correction. Forgive me, but this seems to me to really be opening the door to all kinds of abuse.
Ms Shelton: It states: ``... under such conditions as the law may establish.'' That is a claw back clause. It does not end with the period after ``outlet.''
Senator Fraser: At the very least, we would have to get busy and draft a number of laws.
Ms Shelton: I would argue that the term ``offensive'' would have an objective and not a subjective standard to it. Otherwise, I would have to agree with you that this opens the door to all sorts of abuses. The terms in these agreements are generally interpreted with an objective, rather than a subjective, standard.
Senator Beaudoin: Perhaps, prima facie, I would be inclined to say that it would be a good thing to ratify with or without reservation, but that is another problem.
I have another concern. The situation in Canada now has been clearly stated: there is nothing in law, for example, about abortion because it is a matter between the woman and her doctor. No Prime Minister and no Minister of Justice wants to return to that issue. They want to leave it as it is. On the one hand, even if we do not comply with that principle, it still exists — we have to implement the treaties that we sign. We do not usually do that and, in fact, it does not change the law of the land.
On the other hand, if we sign, then we must implement the treaty. My fear is that the Supreme Court will be asked to rule on the implementation statute that would go along with article 4. Obviously, the court will deem it unconstitutional. For many years, as you will recall, Madam Justice Wilson of the Supreme Court said that section 7 of the Charter takes care of abortion. If ever we were to implement the treaty, chances are that it would be declared invalid by the Supreme Court.
That puts us in an unfavourable position. In the field of human rights, we have a Charter of Rights that is the heart of the Constitution. Therefore, it would not be an issue for Canada to enter into a treaty on human rights. Chances are that it will not be against the Charter. However, it may be against the decisions of the Supreme Court. In the field of abortion, this would be exactly the case. What do we do? Is it better to say that we have a different system so we will not ratify this because of section 7 of the Constitution?
On the other hand, there are many interesting aspects in that convention and we should proceed with it. What would be your decision on this?
Ms Shelton: I am not an expert in Canadian law but there are two provisions in the convention that are often overlooked and they are extremely important.
Article 29. Restrictions Regarding Interpretation outlines how the convention is to be interpreted. It states:
No provision in the convention shall be interpreted as:
(b) restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party ...
I assume that your jurisprudence is part of your law.
Senator Beaudoin: Yes.
Ms Shelton: Therefore, no provision of a convention can override that law.
Senator Beaudoin: Exactly, that is it; a decision of the Supreme Court in constitutional law is part of the Constitution per se.
Ms Shelton: So, the convention itself recognizes that you can continue to apply it.
Senator Beaudoin: Yes, but there is a contradiction. It violates section 4.
Ms Shelton: No, I firmly believe that the commission was absolutely right in saying, ``protect ... in general, from the moment of conception'' was not adopted with the intention of restricting abortions. It was adopted for two purposes. One was to provide this compromise so that states with restrictions on abortion could continue to apply them, and those that did not could continue to leave it up to the woman and her doctor.
Senator Beaudoin: Who said that?
Ms Shelton: That is in the Baby Boy case, the inter-American commission, in looking at the whole drafting history.
Senator Beaudoin: In international jurisprudence?
Ms Shelton: Yes. There is another aspect of this as well. Article 4.1 is not only about abortion. Protecting ``in general, life from the moment of conception'' is also about prenatal care for mothers. It has a positive side to it.
Senator Beaudoin: We do not discuss that.
Ms Shelton: I do not know your law enough to discuss this.
Senator Beaudoin: I am pleased to hear that according to international jurisprudence, article 4.1 does not mean that the law of the land may be reconciled with article 4.
Ms Shelton: I can tell you why I feel so strongly about this. The Baby Boy case was brought by the right-to-life groups in the U.S. to overturn Roe v Wade, the U.S. Supreme Court decision permitting abortion. That was the purpose of that case. Our law was like yours, at least for the first trimester. The Inter-American Commission on Human Rights tested Roe v Wade under both the declaration and the convention, and found that under both, the U.S. law passed muster. If the U.S. law passed, I think Canadian law will pass. It was a six to one decision. There was only one dissenting vote in the commission on that point.
Senator Beaudoin: We have to admit that, prima facie, it is a contradiction.
Ms Shelton: Article 4.1 contains an internal contradiction because it states, ``protect from the moment of conception,'' then it has this qualifying language ``in general.'' Those words were added specifically for the purpose of allowing states that did not restrict abortion to continue to apply their laws.
Senator Kinsella: I have listened to Professor Shelton lecture in Strasbourg, and I know of her work with a mutual friend.
Many of us are of the view that Canada should ratify the convention, but, as expressed many times over, we want to ensure we do not lose any of the ground we gained with a fair degree of struggle in the past 30 years in the whole area of social justice, including reproductive rights.
I found your reply to Senator Beaudoin very helpful. In light of the experience the Europeans are having — I believe the council of ministers had a study done on reservations — what would be your advice to us? Ought we go the route of a reservation, given the state of the literature on international human rights law, or should we go the route of a conditional interpretive declaration as we discussed with the previous witnesses? What would be your advice?
Ms Shelton: Are you speaking specifically of article 4.1?
Senator Kinsella: Yes.
Ms Shelton: I do not see how you can make a reservation because that means technically changing the law of the convention. If you were filing a reservation saying that the issue should continue to remain a concern between a woman and her doctor, you are not changing the law because that is the existing law of the convention. I do not see how you could frame something that does not change the legal status of your obligations under the treaty and call it a reservation
The most you can do is have an interpretive declaration preserving your position should the commission ever in the future — and I find this an academic hypothetical — change its views as far as the meaning of article 4.1.
Senator Kinsella: Did Mexico file a reservation?
Ms Shelton: It was a declaration, not a reservation.
Senator Kinsella: Do you draw a distinction between an interpretive declaration and a conditional interpretive declaration?
Ms Shelton: I must say the term conditional interpretive declaration is a new one for me.
Senator Kinsella: Under the genus of interpretive declarations, are there several species?
Ms Shelton: No. Of all of the ones that exist, and there are not that many, Mexico is the only state that has filed one on article 4.1, and it says that article is to be interpreted in the sense that we have been discussing.
Several other interpretive declarations have been filed concerning the meaning of other terms. One of them may go to article 14. I have to look at that again.
As to your question, there are not different types of them.
Senator Kinsella: In the Canadian context, Canada can only ratify international human rights instruments if all of the provinces concur. A process of negotiations and studies has been occurring. Unfortunately, it was on a behind- closed-door basis until the Senate shone some light on this question so we can have these open fora meetings and hear from witnesses.
The ministers responsible for human rights in different jurisdictions across Canada will, hopefully, make the decision and have the respective governments advise the Canadian government that they think Canada should ratify.
The flip side is the derogation from the treaty, and the same principle applies.
Is there anything about federal states and these international human rights instruments that you think this committee should be aware of beyond the ratification process?
Ms Shelton: Some people will think I had you plant this question, because it gets at my other favourite article in the treaty: article 28.
Again, the one of the advantages of the regional system is that regional governance structures can play a part in the treaty, and in the western hemisphere we have more federal states than the European system does. One of the provisions the United States insisted upon in drafting the American convention is article 28, which is the federalism provision that specifically preserves the divisions of powers and the governance structures of federal states. It is the only human rights treaty in the world that has such a provision. I would hope that that would be viewed as reassuring to the provinces in the same way that it has been viewed as reassuring to the states in the United States.
Senator Joyal: I want to follow on with at least three questions that were raised by my colleagues.
Paragraph 1 of section 28 supports one of my personal positions on the issue of implementing treaties in our federal system. I would like to read paragraph 1 because it refers to a discussion that I had with Senator Beaudoin, after his speech in the Senate on the report of our committee last week. Unfortunately, there was no time to continue the discussion, but I raised it with him in private. I want to refer to it here because it is specifically the point.
Paragraph 28.1 reads
Where a state party is constituted as a federal state, the national government of such State Party shall implement all the provisions of the Convention over whose subject matter it exercises legislative and judicial jurisdiction.
It is my contention that when Canada ratifies a treaty, it could implement the treaty in the field of its jurisdiction. I strongly believe that. Senator Beaudoin and I agree on this. There have been interpretive cases in the judicial committee of Privy Council on this. I think this is a scapegoat that we sometimes use to avoid ratifying a treaty. We say that it concerns property rights and belongs to the states — that is, in our system the provinces — and we should not move to ratify this convention.
I believe strongly that this provision reflects the legal condition of our system in relation with any international obligation. Perhaps one day we will have a discussion around the table on this point. I am glad to put it on the record.
My question is a corollary of that of Senator Kinsella. Do you know of any federalist state that has ratified a treaty with that kind of proviso — that is, the treaty applies insofar as the jurisdiction of the national governments is concerned?
Ms Shelton: The U.S, in ratifying the Covenant on Civil and Political Rights, attached a provision similar to article 28.1 to preserve the federal state division of authority. They have written it in after the fact, in a treaty that did not have such a provision.
Mexico is a federal state. It is a party to the American Convention. It has not made any comments on article 28. I do now know how they have divided the responsibility for implementing the treaty in their legislation.
Senator Joyal: My second question is in relation to article 4.1, which seems to be the crux of the issue. Again, I do not want to submit you to an interpretation exercise. I draw your attention to paragraph 1. It reads, ``Every person has the right to have his life respected.'' No one would quarrel with that in Canada. The second sentence begins: ``The right shall be protected by law.'' Again, no one quarrels with that. A system of government ruled by the rule of law is one of the four constitutional principles stated by the Supreme Court of Canada in the secession reference in 1998. We know we have to protect that in law. The sentence continues: ``in general, from the moment of conception.'' If that is so in general, what is so ``in particular''? If there is general, there is particular. Where is the particular? What conditions would cause the particular to arise? That is why I think an interpretive declaration would be fine. It establishes that there are exceptions. That is what it means — in general and in particular. In the general rule this is it, but there are exceptions. That is what it means.
The conundrum for us is how to define the exception? I submit to you as a law professor, how could we build our reasoning that would stand in court.
Ms Shelton: If I can come back to the drafting history of this provision, which was extensively reviewed in the briefs and in the discussion in the commission in the Baby Boy case, there were two version of article 4. One said everyone has the right to have his life respected and that right shall be respected by law. It also said that no one shall be arbitrarily deprived of life.
One Latin American state introduced the provision saying that the right to life shall be protected from the moment of conception. The same state had tried to put this language into the declaration in 1948 and failed. Here, they insisted that it had to be in there and participating church groups provided a great deal of support. At the same time, other states were absolutely adamant that they did not want this provision. Finally, there was this grand compromise of qualifying it with the words ``in general.'' It was left to each state to decide the particular and the general determinations. This is not governed by international law for convention.
The interpretive declaration need only say that the determination of the conditions under which life is protected from the moment of conception are defined by national or provincial law as was confirmed by the Inter-American Commission on Human Rights. You reserve the procedure, and not the substance. The procedure to say we will define it as the commission says we have the right to do by national and provincial law.
Senator Joyal: On the other hand, you are in the hands of the commission for that.
Ms Shelton: Not if you said that your interpretive declaration preserves the right of Canada to define that which is in general and in particular. That is the protection. You are preserving your procedural right to make the determination subject to no review by the commission.
Senator Joyal: It would help us avoid falling one day under a commission statement that after considering a specific case, they have come to a certain conclusion, which would be contrary to the legal position of Canada.
Ms Shelton: I have the text of the Mexican declaration here. It reads:
With respect to Article 4, paragraph 1, the Government of Mexico considers that the expression ``in general'' does not constitute an obligation to adopt or keep in force legislation to protect life ``from the moment of conception'', since this matter falls within the domain reserved to the States.
That covers it. It is procedural, rather than substantive.
Senator Joyal: That exactly what I am saying. They are interpreting ``general.'' The key is ``in general,'' when it is not in fact general. We must wrestle with that when evaluating the implication for such an interpretative declaration in relation to Canadian law.
Ms Shelton: Rather than trying to detail each substantive guarantee in the declaration, it reserves it to the to the national law to define.
Senator Joyal: Has the convention mentioned that in general the state can have the authority to define the circumstances it wants to legislate?
Ms Shelton: The state can define what it ``in general'' means.
Senator Fraser: The situation in Canada now is not that there is national law on abortion; it is that the national situation is a complete absence of law on abortion. It is a federal matter, not a provincial matter. We had a law some years ago. The Supreme Court struck it down for internal reasons, not really related to the right to life or otherwise. The law is gone. The Supreme Court said that it is up to Parliament to create a better law. Parliament was unable to do so. The best attempt of the government of the day was defeated in the Senate. No government since has tried to establish a new abortion law.
Earlier witnesses suggested to us that article 4.1 could be used to oblige us to adopt a new abortion law because it says the right shall be protected, or presumably not protected, by law. You can imagine the political divisions that immediately arise.
Do you think that that is a justifiable hypothesis — that it is a real risk, bearing in mind that we have very active pro-life movements here as you do?
Ms Shelton: I think that could be invoked, as it was by U.S. right-to-life groups, who even took the U.S. government to the commission over this and lost.
Do you have fetal murder statutes that make it illegal for someone who is killing a pregnant woman to also kill the fetus?
Senator Fraser: No, I do not think so.
Ms Shelton: Do you have prenatal provisions for indigence or other types of medical care? Article 4.1 does not mention abortion. It only talks about protecting life, which can mean a whole range of things.
The failure of the U.S. right-to-life groups to win the Baby Boy case effectively ended the issue with the inter- American system. That does not mean it would not revive again in Canada. However, in all the discussions about partial birth abortions and all the other kinds of issues that come up, the inter-American protection has never been raised in the U.S. political context domestically, once that case was decided.
Senator Fraser: At least there was a law or jurisprudence.
Ms Shelton: We have jurisprudence.
Senator Fraser: At the moment, we have a vacuum.
Ms Shelton: Yet the vacuum was based upon jurisprudence, was it not? It is based upon a case.
Senator Fraser: The jurisprudence did not say there shall be no law. It said that the specific law before us fails and is struck down.
Ms Shelton: That is what Roe v Wade said as well. Roe v Wade struck down a domestic Texas law that restricted a woman's right to determine, with her doctor, to terminate her pregnancy. The U.S. Supreme Court struck that down. There is no federal legislation on abortion. States have different laws, but the constitutional determination was that there should be no law. In a way, the U.S. situation is exactly the same as Canada's situation today.
Senator Fraser: In effect, but not by a very different legal route.
Senator Joyal: It is always helpful to debate such issues because we try to refine all legal implications.
Would it be advisable to mention in our interpretive declaration that this article does not allow a petition to request Canada to legislate on this issue? In other words, should we take the interpretation that has been given by the commission on this and recognize it as an interpretive declaration that is final for Canada?
Ms Shelton: You could formulate the declaration by saying that Canada adheres to the convention and interprets Article 4.1 now and in the future consistent with the decision of the Inter-American Commission in case 2141 against the United States.
Senator Joyal: We have raised this issue previously with a Canadian professor who happens to be in the room. I refer to Professor Andrée Côté from the National Association of Women and the Law. There is a bill in the House of Commons dealing with stem cell research. There has been a position voiced against that bill in some milieu because it involves the right to life of the embryo that would be created or that has just been created in a fertility clinic. Considering that this legislation could be adopted within the next months or year by the Canadian Parliament, we do not want to find ourselves in a position whereby we would reopen case law based on the use of that section of the convention to go to the commission.
Ms Shelton: Either the Mexican formulation or the formulation that says that the provision means what the commission said it means in 1981 would, in effect, render such petitions inadmissible because they would not be alleging a violation of the convention.
I should add that members of the commission are all people who have lived through domestic political debates on this issue. They do not want to touch it anymore than anybody else does. I do not know that this is in the inter- American system, but in the European system, traditionally, they have written ``HP'' on certain files, which means hot potato. I think this one would have ``HP'' in big red letters on the front of the file.
Senator Joyal: You have alluded to something that is a preoccupation of ours, that is, the performance of the court. You have studied the courts as you stated in your testimony. You said that the court has had very high standards. An opinion shared in some milieu is that the Canadian system is good. We have a Charter of Rights; we have provincial human rights legislation. There are still 10 human rights commissions — one province wants to abolish it, namely, British Columbia. There is also one at the federal level as well. Canada has been active internationally in many forums to foster the causes of human rights generally.
With respect to the Inter-American Convention on Human Rights, there are some biases that say that the system may not be that helpful or efficient because, generally, in many of the countries in South America the situation is not that great. Amnesty International testified the other day to that effect. We know the situation in many countries. We read the paper and listen to the news. Thus, it is important for us to be convinced that the performance of the court is of the same quality as we have come to know from the European human rights court, for instance.
It might seem colonial to you for me to ask you this question. However, I think it is important to have it on the record because many people will read your testimony. I refer not only to those of us around the table but also to civil and public servants in the Department of Foreign Affairs and the Department of Canadian Heritage. It is important to have testimony such as yours on the quality of the inter-American courts.
Could you expand in terms of a comparative analysis as to how you view the court?
Ms Shelton: There are several comments I could make. You are correct; the situation in the western hemisphere has had a big impact on the jurisprudence of the court. It was not until 1998 that the court actually had a living victim of a violation. During its first almost 20 years, every case it had concerned either massacres or disappearances. People were dead. It was dealing with a particular kind of jurisprudence.
However, the court was very careful, with Thomas Buergenthal as the president, to ground its decisions in international law. Every one of its opinions cites to the European Court or the International Court of Justice and is careful to build its legal reasoning to the conclusion that it reaches. It has also been very open to accepting amicus interventions from other states, from NGOs and from individuals.
They paid a price for this at a certain point because some of the states that had been subject to suits then saw that their only means of attacking the court was to nominate poor judges. I will confess that we went through a period of having a very bad court, because NGOs and states were not paying attention. For example, Nicaragua nominated Samoza's former foreign minister as a judge on the court, and he was elected. This was one of the most egregious regimes in the western hemisphere, and their leading spokesman became a judge on the human rights court. This was not good. When he came up for re-election, everyone was geared up and he was not re-elected because the lobbying at that point convinced governments that the whole credibility of the system depended upon having good judges issuing good decisions. Now I think we have returned to a higher level.
As far as the effectiveness of the court is concerned, the commission can only issue recommendations, so it is weak in that regard. The court can issue binding decisions. That can be a plus or a minus, depending upon whether you are the defendant state or not, but it is the only court that does more than simply give money to the victims.
In the European system, the court has narrowly interpreted its mandate to say that compensation will be given when rights are violated. That does not do a lot of good if your brother has disappeared and you want to know where the bones are so you can give him a proper burial. If you are being held in prison, having money put in a bank account is no good. The Inter-American Court, in the Loayza Tomayo case against Peru, for the first time in a case involving double jeopardy and illegal detention, ordered the government to release the person who had brought the complaint. Within three weeks, the Fujimori regime released her.
The court has proved its effectiveness even with regard to regimes that generally do not have a very good human rights record. Partly, that is because they have been very careful — as was the European court — in their early judgments to base themselves on the evidence, on the record, and not try to go too far, and to not close a case until the government has complied with the judgment. The damages they have ordered have been paid, Loayza Tamayo was released from prison, and to this point they have a 100 per cent compliance record. It has taken a lot of time to get some of those states to comply, but they have in fact done so.
As they build this jurisprudence, it makes it that much more difficult for the first state to walk away. As I mentioned before, it serves a very good purpose because it is a juritical body, because the judges are generally of very high quality, and it has served to correct sometimes badly written opinions of the commission. You may end up with some of those involving Canada. Certainly I have been highly critical of a couple of opinions that the U.S. has had because I think the commission was completely off, in either their reasoning or their judgment.
The U.S. does not have the ability to appeal that to the court.
The Chairman: Thank you for giving us your information. I must say that when we started this it was very difficult to find people who are actively studying and analyzing and thinking about the Inter-American Court system. Your name was one brought to us very quickly. Certainly the information you have given us today is very valuable, and I thank you for making that extra effort to attend today.
We have now identified some of our problems, some of which are less legal and more political, because the court is not known and because that hemisphere is not well-known. Perhaps we have some misconceptions about the hemisphere and their process that we will have to overcome in some way. Whether that is an education process or a negotiation or further reflection, I am not sure. I do thank you for bringing us this concrete information that will be very helpful to your study.
The committee adjourned.