Test-Case Litigation, Social and Economic Rights, and the American Convention on Human Rights: What Difference can it Make?

Summary of a presentation from NAWL’s 14th Biennial Conference

In the Fall of 2001, the Supreme Court of Canada heard Louise Gosselin’s Charter claim to an adequate level of social assistance (Gosselin v. The Attorney General of Québec, 27418, decision reserved). Gosselin raises important questions regarding whether states have a positive duty to provide social and economic rights and whether these rights are justifiable. In turning down Louise Gosselin’s claim to social assistance, the Quebec Court of Appeal noted, “these are issues upon which elections are won and lost” ([1999] J. Q. no 1365 (Que. C. A.). The Court of Appeal’s decision reflects the long-standing position of most governments in Canada, namely, that social and economic rights are best left to legislatures.

As a member of the Organization of American States (OAS), Canada is bound by the OAS Charter and the Declaration on the Rights and Duties of Man. However, Canada has not ratified other human rights treaties relevant to the Americas. This is unfortunate because the Inter-American system recognizes that governments have a duty to protect and secure social and economic rights for those living within their jurisdiction, and that these rights are enforceable by courts.

One of the most pressing questions for advocates is how the social and economic norms recognized within the American system can be creatively harnessed. In particular, how can they be used to persuade Canadian judges that governments have a positive obligation to provide social and economic rights, and that courts can enforce these rights where governments fail to act? Can advocates appeal to unratified as well as ratified treaties? If so, how?

An analysis of the rationales invoked by judges who have used international human rights law in their decisions indicates that international law influences judicial decision-making in five interdependent yet discrete ways. Each of these rationales says something about the ways in which norms from the Inter-American system can be woven into domestic advocacy and how these norms work as instruments of persuasion.

The following five rationales are invoked by judges to justify their reliance on international norms.

* Courts should hold governments accountable under human rights treaties because governments should not be allowed to act hypocritically (“the rule of law imperative”).
* Regional human rights instruments provide a statement of what states must do to recognize and promote the inherent dignity of all human beings (“the natural law impulse”).
* Regional treaties help “show the values” of Canadian society (“the introspection rationale”).
* An examination of law from other jurisdictions, including regional treaties, leads to more informed, sensitive, and hence effective decision-making (“judicial world-travelling”).
* Judges need to build relationships with judges in other jurisdictions and want to avoid embarrassment when their decisions are read in other jurisdictions (“globalized self-awareness”).

At the same time that we turn to the Inter-American system to promote social and economic rights, we must acknowledge that neither domestic nor international human rights law maintains an exclusive hold on progressive human rights norms. The challenges for human rights advocates and scholars in the era of globalization extend beyond understanding the creative advocacy potential available through international human rights norms. We must develop a set of principles that frames the relationship between the national and international in a way that secures the progressive development of social and economic rights. The principle of non-retrogression represents the starting point.

The principle of non-retrogression is a principle of international law that holds that a rights claimant is entitled to the rights regime that affords the highest level of available protection. This principle is included as a specific clause in numerous international conventions including the American Convention on Human Rights. One of the primary objectives of human rights advocacy should be to entrench the principle of non-retrogression as a general principle applicable to all human rights adjudication.

Reem Bahdi is director of the Women’s Human Rights Resources at the University of Toronto and the Equality Advisor of the Canadian Bar Association. She is Vice Chair of CultureLink Settlement Services and a member of the Board of Directors of The Ontario Council of Agencies Serving Immigrants (OCASI) and the Near East Cultural Education Foundation.