By Paola Limón
Paola Limón, Senior Research Officer at the Human Rights Centre/School of Law of the University of Essex, was present at the 166th Period of Sessions of the Inter-American Commission on Human Rights (IACHR) as part of the research activities under the ESRC-funded Human Rights Law Implementation Project (HRLIP). The blog refers to the two main public activities that took place during these sessions: the Forum of the Inter-American Human Rights System and the IACHR’s public thematic hearings. At both these activities, domestic implementation of international human rights obligations came across as a central concern for all relevant actors, with the HRLIP presenting its preliminary findings on this matter in relation to Canada.
Forum of the Inter-American Human Rights System
On 4 and 5 December 2017, the Inter-American Commission and Court of Human Rights (“IACHR” and “IACtHR”) jointly convened the “Forum of the Inter-American Human Rights System”. The objective of the Forum was to provide a hemispheric space for the promotion of human rights, through dialogue and dissemination of Inter-American standards among the different actors that make up the Inter-American Human Rights System (IAHRS) and the general public, on matters of special relevance at the regional level.
Participants included Commissioners, Judges and staff members of the IACHR and the IACtHR; representatives of other regional and international human rights entities, like the Inter-American Commission on Women,the International Committee of the Red Cross, and the UN Offices of the High Commissioner for Human Rights (OHCHR) and the High Commissioner for Refugees (UNHCR); high-level authorities of Member States of the Organization of American States (OAS), as well as recognized members of civil society organizations and academic institutions from across the Americas region and beyond. The Forum not only included events organized by the co-convening bodies, but also facilitated active involvement of civil society and other actors through simultaneous side-events. The Forum was the first of its kind in many years and is intended to become an annual event for the foreseeable future.
Besides discussions on the balance, challenges and main advances of the IAHRS, dialogue heavily revolved around issues of implementation of recommendations and orders issued by the IACHR and the IACtHR. As such, representatives of OAS Member States and civil society organizations referred to good and bad practices in relation to implementation of precautionary and provisional measures, friendly settlements, merits reports in individual cases, and judgments. Particular focus was given to the existence and current development of national legislation for compliance with decisions and recommendations, as well as to experiences with official domestic institutional systems and mechanisms for compliance with decisions and recommendations.
As part of the Forum, the IACHR and the Republic of Paraguay signed a memorandum of understanding to, among others, support the creation of the Inter-American System for Monitoring Recommendations of the IACHR. This system would be based on Paraguay’s digital System for Monitoring Recommendations (known as “SIMORE”), which systematizes the international human rights recommendations it has received and facilitates public access to up-to-date information on their status of implementation.
Follow-up and implementation of international human rights obligations in Canada
On 7 December 2017, the IACHR also held eight public thematic hearings in relation toCanada and the United States of America.
The HRLIP secured one of these hearings, together with Amnesty International Canada (English Branch), the Canadian Coalition for the Rights of Children, the Canadian Feminist Alliance for International Action (FAFIA) and the Social Rights Advocacy Centre on “Follow-up and implementation of international human rights obligations in Canada”. The video of the hearing is available here.
During the hearing, Paola Limón presented some of the HRLIP’s preliminary findings in relation to implementation of decisions issued in individual communications in Canada. The presentation initially referred to Canada’s limited engagement with the IAHRS, having only attained full membership in the OAS until 1990, automatically subjecting itself to the IACHR’s oversight under the Charter of the OAS, the American Declaration on the Rights and Duties of Man, and the IACHR’s Statute and Rules of Procedure. Despite this, Canada has been the object of two country/thematic reports on its refugee determination system (2000) and on missing and murdered indigenous women (2014), as well as two merits decisions in the cases of John Doe et al (2011) and Suresh (2016).
Canada is more actively engaged with the international human rights system, having ratified two-thirds of the core human rights instruments adopted within the United Nations. In this context, it regularly receives recommendations from the UN Treaty Bodies’ concluding observations and reports of UN Special Procedures; it has also received recommendations originating in an inquiry procedure undertaken by the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW). In relation to individual communications, Canada has expressly accepted the individual communications procedures before the Human Rights Committee (CCPR), the Committee against Torture (CAT) and the CEDAW Committee. To date, Canada has found to be in in violation –or potential violation– of its international obligations in 24 cases decided by the CCPR, 9 decided by CAT, and 1 decided by CEDAW.
With this background, the presentation referred to the existing domestic framework for the implementation of regional and international human rights recommendations and decisions. In relation to general human rights recommendations, their implementation is coordinated by the Continuing Committee of Officials on Human Rights (CCOHR), a federal-provincial-territorial group established in 1975, chaired by the Federal Department of Canadian Heritage (similar to a ministry of culture), with representatives of the Departments of Global Affairs and Justice. However, the CCOHR has been found to be ineffective in this role both by civil society organizations and various UN Treaty Bodies. In relation to remedies determined as part of individual communications and cases, their implementation falls on the Department of Justice, which would undertake inter-departmental consultations to analyse the respective decisions and whether Canada agrees to take any action to implement them; without engaging with the petitioners or civil society organizations in relation to the recommendations formulated. As such, no adequate mechanism or process exists in Canada to domestically implement regional and international human rights recommendations and decisions. Further implementation concerns arise regarding Canada’s attitude towards implementation.
- Interim Measures: in at least three cases before CAT (Dadar, Sogi, and S.B and T.K.) and two cases before CCPR (Ahani and A.H.G.), Canada deported people who were protected by interim measures. With the petitioners outside Canada’s territory, eventual implementation of any final decision was rendered nugatory.
- “Implementation”?: in other cases of removal, some people who have not been deported before the bodies’ final decision, have managed to obtain permanent residency, but only because they have been able to afford filing of subsequent domestic applications and not as a consequence of government actions aimed at actively implementing the international decisions (among others, Pillai et al and Masih Shakeel).
- Federalism as justification for non-compliance: in the case of Waldman (1999), Canada’s response was limited to saying that the subject-matter fell under exclusive jurisdiction of the provinces and that the provincial authority had informed that it had no plans to take any action to implement the Committee’s decision.
- Implementation without compliance: in the case of Lovelace (1981), without CCPR expressly providing a remedy, Canada understood that it had to reform the Indian Act. And it did so in 1985, but in a way which only restored the petitioner’s rights, but did not fully address issues of sex discrimination in the Indian Act. More than 36 years after the decision, these remaining issues of discrimination have been taken up by multiple UN Treaty Bodies in their concluding observations, and even in the context of the IACHR’s 166th period of sessions.
From our research to date, it has become clear that the ineffective implementation of individual decisions in Canada is part of a broader problem in relation to domestic implementation of regional and international human rights obligations, including access to justice and effective remedies. During the hearing, these broader concerns were addressed by Shelagh Day of the Canadian Feminist Alliance for International Action and Bruce Porter of the Social Rights Advocacy Centre.
In its response, Canada reiterated its usual position regarding the non-binding nature of the recommendations issued by the IACHR and the UN Treaty Bodies. Yet, it expressed its willingness to consider the HRLIP’s findings and work closely with civil society organizations in improving coordination between all levels of government for the better implementation of its regional and international human rights obligations.
The President of the IACHR, Francisco Eguiguren; the IACHR’s Rapporteur for Canada, James Cavallaro; and the Special Rapporteur on Economic, Social, Cultural and Environmental Rights, Soledad García Muñoz called on Canada to ratify the American Convention on Human Rights and the Protocol of San Salvador, as well as to accept the contentious jurisdiction of the IACtHR. The IACHR’s Executive Secretary further referred to the IACHR’s current commitment to improve follow-up and implementation of its recommendations, and welcomed all efforts and collaboration to this regard on the part of States, civil society, national human rights institutions, academia, and other international human rights entities.
Disclaimer: The views expressed herein are the author(s) alone