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. 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

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. 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

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. 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 Covenant language used in Charter

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.