Implementation of International Covenants

• International Covenant on Civil and Political Rights (ICCPR)

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

Reminder of elements of Canadian human rights

protection• Anti-discrimination legislation

• Employment equity

• Canadian Charter of Rights and Freedoms

• Focus today on the Charter

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

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

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

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

Taiwan’s 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

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

Canada’s 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

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.

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 1…Everyone 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

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

Court Decisions

• Powerful tool in Canada to protect rights

• Much more effective than review of statutes.

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”

Earlier failure of Canada to protect rights

Canadian 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

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”.

Possible relevance of Canadian experience to Taiwan

• Mainly experience with ICCPR

• Need for judicial education programs

• Need for training for police and other officials

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.