Canadian Ratification of the American Convention on Human Rights
| Published date | 01 September 1998 |
| Date | 01 September 1998 |
| Author | William A. Schabas |
| DOI | 10.1177/092405199801600304 |
| Subject Matter | Article |
Canadian Ratification
of
the American Convention on Human
Rights
William A. Schabes'
Abstract
When Canada
joined
the Organisation
of
American States in 1990, it promised that it
would ratify the American Convention on Human Rights in short order. Eight
year
later,
Canada has still not taken this step. Although the provisions
of
the Convention largely
reflect those
of
other human rights treaties, to which Canada is a party, a
few
serious
and
several rather petty objections have been raised to certain provisions. The most important
concerns the right to life text, which suggests limits on the possibility
of
legalising
abortion. But on this point,
and
others, Canada may enter reservations to the Convention.
Although this solution is not ideal, in the long run it is less damaging to Canada's human
rights profile, and to the health
of
the inter-American system, than the continued refusal
to participate in Convention system.
Introduction
Regional human rights systems show a need to continually redefine themselves, as if their
existence was more or less constantly being called into question. Despite suggestions that
their role had become superfluous with the belated emergence
of
a universal system in the
1970s, they have prospered and expanded. Overwhelmed by its success, the European
system is in the throes
of
a far-reaching reform, abolishing the European Commission on
Human Rights and creating
anew,
full-time Court. IThe African system, the youngest
of
the three regional systems, can best be described as 'developing,' like the continent that
it represents. It, too, is bent on expansion, proposing the establishment
of
aCourt to
complement its Commission, following the historic model
of
the other two systems.
Somewhere in between is the American system, whose still sparse yet innovative
jurisprudence has enriched international human rights law.' In some areas, it has done
pioneering work, for example developing the first international treaties dealing explicitly
with violence against women and forced disappearances, and considering the preparation
of
an instrument for the rights
of
the disabled.
M.A. (Toronto), LL.D. (Montreal). Professor, Department of Law, University of Quebec at Montreal.
Protocol No. II to the Convention for the Protection of Human Rights and Fundamental Freedoms,
restructuring the control machinery established thereby, 15 Human Rights Law Journal, 1994, p. 86.
Thomas Buergenthal, Robert Norris and Dinah Shelton, Protecting Human Rights in the Americas: Selected
Problems, N.P. Engel, Kehl, 4th ed., 1996; Bertha Santoscoy, La Commission interamericainedes droits de
I'homme et Ie developpement de sa competence par Ie systeme des petitions individuelles, Presses
universitaires de France, Paris, 1995;Hector Gros-Espiell, 'L 'O.E.A.', in: Karel Vasak (ed.), Lesdimensions
internationa/es des droits de l'homme, Unesco, Paris, 1978, p. 600; Hector Gros-Espiell, 'Le systeme
interamericain comme regime regional de protection intemationale des droits de I'homme ', 145 Receuil de
Cours de I 'Academic de Droit/nternational, 1975,p. 1; Thomas Buergenthal, 'The Inter-AmericanSystem
for the Protection of Human Rights', in: Theodor Meron (ed.), Human Rights and International Law Legal
and Political Issues, Oxford University Press, Oxford, 1985, p. 439; Scott Davidson, 'Remedies for
Violations
of
the American Convention on HumanRights', 44 International and ComparativeLaw Quarterly,
1995, p. 405.
Netherlands Quarterly
of
Human Rights, Vol. 16/3, 315-342, 1998.
©Netherlands Institute
of
Human Rights (SIM). Printed in the Netherlands. 315
NQHR
3/1998
The European and African systems have both achieved a level
of
near universal
coverage for their principal human rights treaties. All
of
the forty members
of
the Council
of
the exception
of
the Russian Federation, which has signed the instrument and pledged its
ratification in the near future. In its relatively short life, the African Charter" has achieved
even more stunning success; it has 51 States Parties, virtually the entire continent. The
American Convention on Human Rights' does not compare favourably, with only 24
States Parties, if we take into account the June 1998 denunciation by Trinidad and Tobago.
Although accession and ratification is quite extensive in South America, the record is more
spotty in the Caribbean. In the northern portion
of
the continent, it is nothing short
of
a
disaster. The United States
of
America, which participated actively in the drafting
of
the
American Convention during the 1960s, is not a party, although it did sign the Convention
in 1977. Even more discouraging is the absence
of
Canada, a late-comer to the system but
a country distinguished for its international human rights profile and an early and
enthusiastic participant in the universal human rights system.
Canadajoined the Organization
of
American States (OAS) on 8 January 1990, ratifying
the Charter
of
the OAS.6In 1991, Canada's Secretary
of
State for External Affairs,
Barbara McDougall, announced that Canada would also ratify the American Convention,
probably sometime the following spring.' But 1992 passed, and nothing happened. A 1993
brochure published by the Department
of
Foreign Affairs stated that one
of
Canada's
priorities in the OAS is 'human rights and women's equality', and that 'consultations with
provincial and territorial governments have begun regarding an eventual ratification
of
the
American Convention on Human Rights.' The document added:
'We
have staunchly
supported an independent and effective role
ofthe
Inter-American Commission on Human
Rights and the Inter-American Court
of
Human Rights." For a few years after that, the
word in Ottawa was 'soon', or
'we're
working on it'; more recently, this has become 'not
in the near future', which sounds suspiciously like a bureaucratic euphemism for 'never,
if I have anything to do with it.' Eight years after joining the OAS, signature and
ratification
of
the American Convention now seem more distant than ever." Not only is
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 United Nations Treaty
Series, 1955, p. 221, European Treaty Series
No.5.
African Charter on Human and People's Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 4 European Human
Rights Reports, p. 417, 21 International Legal Materials, p. 58.
1144 United Nations Treaty Series, 1979, p. 123; Organization
of
American States Treaty Series, No. 36.
Charter
of
the Organization of American States, 119 United Nations Treaty Series, 1952,p. 4; 46 American
Journal
of
International Law, Supp. 43, amended by Protocol
of
Buenos Aires, (1970) 721 United Nations
Treaty Series-c. 324, (1990) Canada Treaty Series 23.
James Hathaway, 'Canada and the Inter-American Rights System: What Contribution to Expect?' (not
published), October 1991. Also William A. Schabas, 'Substantive and Procedural Issues in the Ratification
by Canada
of
the American Convention on Human Rights', 12 Human Rights Law Journal, 1991, p. 405.
Ratification
of
the human rights instruments of the OAS system, including the American Convention, was
first discussed at a federal! provincial consultation on 22 November 1990: 'Canada's First Year in the
Organization of American States: Implementing the Strategy for Latin America', Brochure published by the
Department of External Affairs and International Trade Canada, January 1991, p. 14.
'Canada and the Organization of American States', brochure published by Foreign Affairs and International
Trade Canada, 1993.
Members
of
the OAS that have not yet ratified the Convention, besides Canada, are Antigua/Barbuda,
Bahamas, Belize, Guyana,
S1.
Kitts/Nevis,
S1.
Lucia,
S1.
Vincent/Grenadines, the USA and Cuba (which is
currently suspended from the organisation). Sixteen States Parties to the Convention have also made
declarations recognising the competence of the Inter-American Court.
316
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