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 The establishment of the Canadian Human Rights Commission in 1978 followed hard on the heels of Canada’s ratification in 1976 of the two International Human Rights Covenants.³³⁵ Since that time, the Commission has played an important role in ensuring Canada implements its international human rights obligations domestically and in helping to advance human rights standards at the international level. In fact, the Commission played a pivotal role in the development of the "Paris Principles" in 1991, principles which were subsequently endorsed by the UN General Assembly³³⁶ (A/RES/48/134 of 4 March 1994). These Principles set out minimum standards for independent and impartial national human rights institutions, and provide that "national institutions should promote the harmonization of national legislation, regulations and practices with international human rights instruments."³³⁷ In fulfilling this mandate, the Commission has recently begun to incorporate international human rights law into its analysis of new government legislation. For example, in 2001, in providing comments on the Anti-terrorism legislation (Bill C-36)³³⁸ and amendments to the Immigration and Refugee Protection Act (Bill C-11)³³⁹, the Commission examined international human rights standards binding on Canada and concluded that aspects of both pieces of legislation were inconsistent with Canada’s obligations under international human rights law.

The importance of international human rights law in the Canadian context was highlighted in 2000 by the Canadian Human Rights Act Review Panel, chaired by the Honourable Gérard La Forest. In its report entitled Promoting Equality: A New Vision³⁴⁰, the Review Panel made a series of recommendations to amend the CHRA and the mandate of the Commission. Specifically, the Review Panel recommended that the CHRA include explicit reference to international human rights law in the preamble and provide the Commission with a mandate to monitor Canada’s performance in this regard. In 2001, the newly established Standing Senate Committee on Human Rights issued its first report³⁴¹ and reiterated the recommendation that the CHRA make explicit reference to international human rights instruments and that the Commission be given sufficient resources to conduct a systematic review of proposed legislation and policies for consistency with international human rights standards.

Similarly, Canadian courts are increasingly turning to international human rights law to provide persuasive interpretations of Canadian domestic law. In 1999 in the Baker case,³⁴² the Supreme Court of Canada went beyond the traditional presumption of statutory conformity with international obligations to state that the "values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review"³⁴³. In the particular case of Baker, this meant that immigration officials were bound to consider the values expressed in the Convention on the Rights of the Child³⁴⁴ when exercising discretion. In early 2002, the reasoning set out in Baker was applied, in part, in the Suresh case³⁴⁵, where the Supreme Court examined the application of the Convention Against Torture³⁴⁶ to interpret the Charter and the non-refoulement provisions of the Immigration Act³⁴⁷. The Court wrote that "the inquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law."³⁴⁸

A similar trend is being seen in other jurisdictions. In 2001, in a case involving Zambia, the African Commission on Human and People’s Rights held that international treaties, although not part of a State’s domestic law nor directly enforceable in the national courts, nonetheless imposed internal obligations on State parties.³⁴⁹ These developments further highlight the fact that international human rights standards and trends can, and increasingly do, have a profound impact on human rights at the domestic level — within Canada as well as in other "dualist" states where international law is not automatically and directly applicable in domestic courts.

While international law is increasingly informing the interpretation of Canadian domestic law, there remain significant gaps between the two. In its report, the Standing Senate Committee on Human Rights also stressed that there are gaps between Canada’s obligations under international human rights treaties and our domestic law, gaps which mean that "Canada is not entirely fulfilling its international commitments and risks denying its people access to certain of their human rights."³⁵⁰

For the first time a brief overview of developments and trends in international human rights law is being provided in the Commission’s Legal Report. The section is not meant to be exhaustive, nor to cover every relevant issue. Rather it looks — at the three broad issues dealt with by the Canadian Human Rights Tribunal or other Canadian Courts this year and addressed in other sections of this report - discrimination on the grounds of sex, disability and race, the rights of indigenous peoples and economic, social and cultural rights. It also and examines major international developments on these issues.

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Discrimination based on sex

Canada was one of the first countries in 1981 to ratify the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).³⁵¹ Article 1 of the Convention defines discrimination against women as: "...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."³⁵²

In addition to the CEDAW, other conventions, declarations and international standards prohibit discrimination on the grounds of sex. These include the Universal Declaration of Human Rights (UDHR)³⁵³, the International Covenant on Civil and Political Rights (ICCPR)³⁵⁴, the International Covenant on Economic, Social and Cultural Rights (ICESCR)³⁵⁵ and the Convention on the Political Rights of Women³⁵⁶ and International Labour Organisation treaties pertaining to equal pay.³⁵⁷

Key issues considered in 2001 were the focus on trafficking in women, a gender-based approach to security and the development of individual complaints mechanisms for women whose internationally-protected human rights have been violated.

In late 2000, Canada signed a new Protocol to the UN treaty on Transnational Organized Crime concerning "Trafficking in Persons, Especially Women and Children".³⁵⁸ Also, late in 2000, the Security Council passed its first-ever resolution on gender and security. In 2000, attention was focussed on the adverse impact of armed conflict on women and girls, on the role of women in peace-building and on the gender dimensions of peace processes and conflict resolution.

Of great relevance to the Commission, was the coming into force late in 2000 the Optional Protocol creating a new individual complaint mechanism under the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).³⁵⁹ There were 73 signatories, 28 of whom had ratified the protocol by the end of 2001. In 2001, the Government of Canada announced that it supported the adoption of the Optional Protocol. It is currently consulting the provinces and territories regarding ratification. Ratification by Canada of the Optional Protocol would allow women, after exhausting domestic Canadian remedies, to submit individual "communications" to the Committee on the Elimination of all Forms of Discrimination Against Women alleged violation of their rights under the CEDAW treaty.

Just as the CHRA addresses sex discrimination in employment or in the provision of services, the CEDAW treaty prohibits discrimination in economic and social benefits (Article 13) and in the field of employment (Article 11), guaranteeing women’s right to work and their right to equal pay and equal treatment for work of equal value. The treaty also states that positive measures to accelerate de facto equality do not amount to discrimination. In many ways, the international legal framework guaranteeing women’s equality in these spheres mirrors the legislative framework of the CHRA, including Pay Equity provisions and the Employment Equity Act.³⁶⁰

Over the past few years, human rights bodies within Canada have increasingly recognized the compound effects of discrimination on more than one ground, or "intersectionality". In 1998, the CHRA was amended to affirm that greater certainty that "a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds."³⁶¹

Similarly, the Committee on the Elimination of Racial Discrimination (CERD) demonstrated that international tribunals are developing a better understanding of the multi-dimensional and intersecting nature of discrimination. The Committee has issued a General Comment, an interpretive statement for the CERD treaty, which provides that "certain forms of racial discrimination may be directed towards women specifically because of their gender, such as sexual violence committed against women members of particular racial or ethnic groups in detention or during armed conflict; the coerced sterilization of indigenous women; abuse of women workers in the informal sector or domestic workers employed abroad by their employers."³⁶² The Committee thus endeavours when examining forms of racial discrimination, to "enhance its efforts to integrate gender perspectives, incorporate gender analysis, and encourage the use of gender-inclusive language"³⁶³ in its review of reports submitted by State parties on their compliance with treaty obligations. Other treaty bodies, such as the UN Human Rights Committee, have issued similar General Comments. For instance, commenting on article 3 of the ICCPR (equality of rights between men and women), the UN Human Rights Committee in 2000 stated that: "Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes."³⁶⁴ According to the Committee, State parties to the Covenant, who are responsible for ensuring the equal enjoyment of rights without any discrimination, should "ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights."³⁶⁵ The Committee outlined various measures that States can undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set out in the Covenant. It also emphasizes that "Discrimination against women is often intertwined with discrimination on other grounds such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status."³⁶⁶

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Under the UN Charter³⁶⁷, States have pledged to take action jointly and separately to promote a better quality of life, full employment and conditions for economic and social progress and development. While none of the main international human rights instruments contain specific provisions pertaining to persons with disabilities, the UDHR recognizes that all human beings are born free and equal in dignity and rights. Furthermore, the ICCPR provides that all persons have the right to protection against discrimination and to full and equal enjoyment of their human rights. Therefore, persons with disabilities are clearly entitled to the full range of rights recognized in the Covenant. This was further reaffirmed in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in 1993. It stated that "any direct discrimination or other negative discriminatory treatment of a disabled person is therefore a violation of his or her rights."³⁶⁸ International human rights law therefore clearly covers the need to ensure equality for persons with disabilities in all areas, including employment and social services and to eliminate all physical barriers to their full participation.

The UN Committee on the Economic, Social and Cultural Rights noted that States have the obligation "to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities."³⁶⁹ This includes both the public and private sphere.³⁷⁰ According to the Committee, in order to remedy past and present discrimination, and to deter future discrimination, State parties should adopt comprehensive anti-discrimination legislation in relation to disability. Such legislation should not only provide persons with disabilities with judicial remedies as far as possible and appropriate, but also provide for social-policy programmes which enable persons with disabilities to live an integrated, self-determined and independent life.

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In Price v. The United Kingdom,³⁷¹ the European Court of Human Rights held in 2001 that failure to accommodate disability can amount to cruel and unusual treatment in some circumstances. In this case, a four-limb-deficient thalidomide woman with numerous health problems was imprisoned in a cell with facilities unadapted to meet her specific needs. The Court rule that while there were no evidence in this case of any positive intention to humiliate or debase the applicant, the conditions in which she was detained constituted degrading treatment contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.³⁷²

In PGA Tour Inc v. Martin,³⁷³ the US Supreme Court determined in 2001 that the Americans with Disabilities Act³⁷⁴ requires the PGA to allow persons with disabilities the use of golf carts during qualification rounds for the PGA Tour. In this case, the respondent, a person with a disability, was challenging the Tournament "walking rule" which prevented participant to use golf carts. The Court reasoned that the golf course utilized by the Tour were public, thus subject to the ADA requirements, and the use of carts by persons with disabilities, who otherwise qualified, does not "fundamentally alter" the nature of the sport nor give the respondent an advantage over others.

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The year 2001 was the International Year of Mobilization against racism, racial discrimination, xenophobia and related intolerance. The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR) was held in Durban in September 2001 and adopted a Declaration and Programme of Action.

The Canadian Human Rights Tribunal’s main focus in this area during the past year was the issue of hate messages. Early in 2002, the Tribunal issued a decision in the case,³⁷⁵ which concerned Zündel an Internet web site that exposed Jews to hatred. In its ruling, the Tribunal concluded that the site created conditions that allow hatred to flourish and went on to note that "...the benefit continues to outweigh any deleterious effects on [Mr. Zündel’s] freedom of expression."³⁷⁶ The Tribunal ordered the website to be shut down. At the international level, the World Conference Against Racism considered the issue of racist and xenophobic hate propaganda. While recognizing the positive contribution that the exercise of the right to freedom of expression can make to the fight against racism, the World Conference expressed its concern about the use of new information technologies, such as the Internet, for purposes contrary to respect for human values, equality, non-discrimination, respect for others and tolerance.³⁷⁷ It emphasized that education at all levels and all ages is key to changing attitudes and behaviour and is essential in the promotion, dissemination and protection of the democratic values of justice and equity³⁷⁸ and insisted on the need to provide effective and appropriate protection and remedies to victims of human rights violations resulting from racism, racial discrimination, xenophobia and related intolerance.³⁷⁹

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In Lacko v. Slovak Republic, the UN Human Rights this year committee examined the issue of racial discrimination and the duty of State parties to the Convention on the Elimination of Racial Discrimination to prohibit and eliminate racial discrimination.³⁸⁰ The petitioner, accompanied by other persons of Romany ethnicity, went to the Railway Station Restaurant located in the main railway station in Kosice, Slovakia, to have a drink. Shortly after entering the restaurant, the applicant and his friends were told by a waitress to leave the restaurant. The waitress explained that she was acting in accordance with an order given by the owner of the restaurant not to serve Roma. The petitioner’s initial complaint was dismissed by the General Prosecutor's Office on the ground that an investigation had revealed that Roma women had been served at the restaurant and that the owner had arranged that there would be no further discrimination against any polite customers, Roma included. The petitioner claimed that the failure to remedy the discrimination was due to the absence of any Slovak legislation expressly and effectively outlawing racial discrimination in access to public accommodations³⁸¹ and that this absence of any legal norm constituted failure to comply with its obligation under article 3 of the Convention. Since criminal procedures had been undertaken against the restaurant owner for instigation to national and racial hatred, the Committee found no violation of the Convention on the Elimination of Racial Discrimination.³⁸² However, acting under article 14, paragraph 7 (b), of the Convention it recommended to the State party that it complete its legislation in order to guarantee the right of access to public places in conformity with article 5 (f) of the Convention and to sanction the refusal of access to such places for reason of racial discrimination. The Committee also recommends to the State party to take the necessary measures to ensure that the procedure for the investigation of violations is not unduly prolonged.³⁸³

In Cyprus v. Turkey,³⁸⁴ the European Court of Human Rights found that the uniqueness and severity of discrimination or differential treatment based on race can amount to degrading treatment under article 3 of the Convention in some circumstances. With respect to the situation that has existed in Cyprus since the start of Turkey’s military operations in northern Cyprus in July 1974, the applicant Government alleged that the Government of Turkey ("the respondent Government") has continued to violate the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). In particular, the applicant Government alleged that, as a matter of practice, Greek Cypriots living in the Karpas area of northern Cyprus were subjected to discriminatory treatment amounting to inhuman and degrading treatment. The Court established that the conditions under which that population is condemned to live, which could "only be explained in terms of the features which distinguish them from the Turkish-Cypriot population, namely their ethnic origin, race and religion"³⁸⁵ debasing and violate the very notion of respect for the human dignity of its members. In the Court’s opinion, there has been a violation of Article 3 of the Convention in that the Greek Cypriots living in the Karpas area of northern Cyprus have been "subjected to discrimination amounting to degrading treatment."³⁸⁶

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The 1995-2004 period was proclaimed the International Decade of the World’s Indigenous People. During this period, there have been significant international advances on aboriginal issues, such as the progress made by the Working Group on Indigenous Populations, such as the achievements of the Working Group on the Draft Declaration in preparing the UN Declaration on the Rights of Indigenous Peoples³⁸⁷, such as the establishment of a Permanent Forum on Indigenous Issues, and the appointment of a UN Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people. These international efforts have also been mirrored in the Americas where similar efforts are undertaken. The drafting of an American Declaration on the Rights on Indigenous Peoples³⁸⁸, the study on Authorities and Precedents in International and Domestic Law for the Proposed American Declaration on the Rights of Indigenous Peoples³⁸⁹ and a study on The Human Rights Situation of The Indigenous People in The Americas³⁹⁰ are but three examples.

Discussions in all these fora suggest that much remains to be done to address current challenges, such as economic disparity, poverty and the protection of indigenous social, religious and cultural rights. As the UN Committee on the Elimination of Racial Discrimination points out: "in many regions of the world indigenous peoples have been, and are still being, discriminated against and deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized."³⁹¹ Indigenous peoples and organizations are increasingly making use of various international and regional complaints procedures available to them.³⁹²

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The year 2001 was an important year for Aboriginal rights under the Inter-American system. The Mayagna (Sumo) Awas Tingni Indigenous Community of the Atlantic Coast of Nicaragua secured recognition of its rights to its ancestral lands in a case presented by the Inter-American Commission on Human Rights (IACHR) to the Inter-American Court of Human Rights. The Commission asked the Court to establish a legal procedure for the prompt demarcation and official recognition of the property rights of the Awas Tingni Community. In its decision released on August 31, 2001, the Court stated that: "indigenous peoples, by virtue of their very existence, have the right to live freely on their own lands; the close bond of indigenous peoples with their land should be recognized and understood as an essential element of their cultures, spiritual lives, well-being, and economic survival. For indigenous communities the relationship to land is not merely a question of ownership and production but a material and spiritual element they must enjoy fully, among other reasons to preserve their cultural heritage and pass it on to future generations."³⁹³ The Court found that the members of the Awas Tingni Community are entitled to have the state delimit and issue titles to the Community’s lands, and that the State must refrain from actions that would affect lands where members of the Community live and conduct their activities.³⁹⁴

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In the fall of 2001, the Canadian Human Rights Commission, along with its provincial and territorial counterparts, intervened at the Supreme Court of Canada in the Gosselin³⁹⁵ case. The case focussed on Quebec regulations respecting social aid, centred including whether they violated equality rights by excluding people between 18 and 30 from their purview and whether they violated the right to security of the person. On this latter issue, it was argued that the International Covenant on Economic, Social and Cultural Rights (ICESCR) should serve as a persuasive guide to the interpretation of the Charter. This is just one way of ensuring implementation within Canada of our binding international human rights treaty obligations.

Article 2, paragraph 1, of the ICESCR obligates each State party "to take steps ... with a view to achieving progressively the full realization of the [Covenant] rights ... by all appropriate means."³⁹⁶ Such means can include the work of national institutions for the promotion and protection of human rights. The UN Committee on ESCR explained: "national institutions have a potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights. Unfortunately, this role has too often either not been accorded to the institution or has been neglected or given a low priority by it. It is therefore essential that full attention be given to economic, social and cultural rights in all of the relevant activities of these institutions."³⁹⁷ This can include scrutinizing of existing laws, providing technical advice or examining complaints.

The question of the justiciability of economic, social and cultural rights (and the adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights providing for a system of individual and group complaints) has been under consideration by the international community for many years. This past year, the Office of the UN High Commissioner for Human Rights organised an international workshop on the justiciability of economic, social and cultural rights in an effort to build international support for the proposed optional complaints mechanism under the Covenant.

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In the case Government of the Republic of South Africa & Ors³⁹⁸ v. Grootboom & Ors, the issue of ESCR, right to housing and the Covenant were raised before the South African Consititutional Court. In this case the respondents were evicted from privately owned lands where they had moved after leaving the Wallacedene squatter camp. They raised their right to adequate housing according to section 26(1) and (2) of the South Africa Constitution which calls on the Government "to take reasonable legislative and other measures within its available resources to achieve the progressive realisation" of the right of everyone to adequate housing. The Court held that the right of access to adequate housing has a close relationship with other socio-economic rights, all of which must be read together in the setting of the Constitution as a whole and with regard to their social and historical context. For a person to have access to adequate housing there must be land, services and a dwelling. The State must create the conditions for access to adequate housing for people at all economic levels of society and within different contexts, as the need may vary from place to place and person to person. This decision was reaffirmed in 2001 in the case Minister of Public Works and others v. Kyalami Ridge Environmental Association and others³⁹⁹ where the Constitutional Court, recalling the Grootboom case and also analysing Canadian practice and doctrine,⁴⁰⁰ supported South Africa’s Government decision to establish a transit camp on a Government-owned prison farm in the Kyalami area for the accommodation of the victims of the March 2000 Alexandria Township floods.

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End Notes