Implementation of International Covenants

1
Implementation of International Covenants

• International Covenant on Civil and Political
  Rights (ICCPR)
• International Covenant on Economic, Social and
  Cultural Rights (ICESCR)

2
Reminder of elements of Canadian human rights
protection

• Anti-discrimination legislation
• Employment equity
• Canadian Charter of Rights and Freedoms
• Focus today on the Charter

3
Subjects today

• 1. How Canada has (or has not) implemented ICESCR
• 2. How Canada has implemented ICCPR
• 3. Possible relevance of the Canadian experience
  for Taiwan

4
Covenant on Economic, Social and Cultural Rights

• Examples of rights protected
• Right to employment, including training and
  economic development (Article 6)
• Right to social security (Article 9)
• Highest attainable standard of physical and
  mental health (includingmedical services)
  Article 12
• Free education at primary level and at all levels
  over time Article 13

5
Canadian implementation

• Very little done to implement
• Challenges hindering implementation
• Belief Covenant sets goals rather than concrete
  legal rights
• Article 2 achieving progressively
• Article 4 Allows limits on rights for the
  purpose of promoting the general welfare in a
  democratic society

6
Further challenges to implementation

• Rights stated in broad terms for example, right
  to highest attainable standard of physical and
  mental health
• Rights impose positive obligations on governments
  and courts reluctant to enforce such obligations

7
Taiwans challenge

• Covenant is now law how to implement
• Possibilities
• Detailed judicial test about what achieving
  progressively and general welfare mean
• Similar to Canadian approach to Charter section 1
• Monitoring by governmental organizations
• Monitoring by NGOs

8
International Covenant on Civil and Political
Rights

• Examples of rights in ICCPR
• Freedom of expression
• Right to liberty and security of the person
• Equal treatment before courts and tribunals,
  including rights of people charged with offences
• Freedom of association, including right to join a
  trade union
• Equality rights

9
Canadas implementation of the ICCPR

• Canada ratified in 1976
• But must take further steps to incorporate into
  domestic law
• E.g. Incorporate into statute or constitution

10
Three ways Canada Implemented

• 1. Covenant language used in Charter
• 2. Review of statutes to find and amend those
  that violate rights
• 3. Court cases using Covenants to interpret the
  Canadian Charter.

11
Covenant language used in Charter

• S. 11
• Any person charged with an offence has the right
  (d) to be presumed innocent until proven guilty
  in a fair and public hearing by an independent
  and impartial trib
• Canadian Charter

• Article 14, para 1Everyone shall be entitled to
  a fair and public hearing by a competent,
  independent and impartial tribunal established by
  law
• para. 2
• Everyone charged with a criminal offence has the
  right to be presumed innocent until proved guilty
  according to law
• ICCPR

12
Review of statutes to identify violations of new
rights

• Similar to process now occurring in Taiwan
• Did make some useful changes
• But generally a failure many violations
  overlooked
• Very difficult process
• Unlikely to catch all violations

13
Court Decisions

• Powerful tool in Canada to protect rights
• Much more effective than review of statutes.

14
Different effects of Covenants in court cases

• To expand a right
• Law limiting collective bargaining struck down
• To limit a right
• Crime of uttering hate propaganda upheld
• To limit discrtion of a minister of government
• Minister cannot extradite to the U.S. to face the
  death penalty
• To narrow a statute to avoid conflict with a
  right
• Not a crime to use reasonable force to
  discipline a child. Detailed test for
  reasonable force

15
Earlier failure of Canada to protect
rightsCanadian Bill of Rights

• Statute enacted in 1960 with rights much like
  Charter
• Courts interpreted it so narrowly it protected
  almost no one
• Why
• Failure of courts to adjust to new role in
  interpreting rights

16
Courts changed approach with Charter

• It is clear that the meaning of a Charter of
  Rights cannot be determined by recourse to a
  deictionary nor for that matter, by reference to
  the rules of statutory interpretation. The task
  of expounding a constitution is crucially
  different from that of construing a statute.

17
Possible relevance of Canadian experience to
Taiwan

• Mainly experience with ICCPR
• Need for judicial education programs
• Need for training for police and other officials

18
Possible relevance to Taiwan, continued

• Statutory review will not catch all the problems.
  Need for a backup
• Court cases one possibility
• If so, need for legal assistance
• Consider not only covenants but other
  international documents, even ones Taiwan has not
  adopted.