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.