The American Convention on Human Rights is Part of the “Regional Solution”

14 October 2003
October 14, 2003

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The Preamble to the Declaration of the Summit of the Americas, adopted by the heads of state in Quebec City in 2001, calls on all the states to commit to full respect for human rights and fundamental freedoms. To this end, they agree to strengthen and refine the effectiveness of the inter-American human rights system, including the Inter-American Commission and Court of Human Rights (Preamble, par. 2). These institutions belong to the Organization of American States (OAS), of which Canada has been a member since 1991. The commitment is reminiscent, to some extent, of the “European model,” in which human rights instruments are recognized as a fundamental concern of the states integrated economically and institutionally within the Council of Europe and the European Union.

The Summit of the Americas is not an OAS initiative but rather a stage in the “heads of state summit process” designed to create a free trade area of the Americas (FTAA).

No one can predict precisely what will become of the FTAA project or in what form this integration will be concretized, but everyone agrees that integration is happening. The proliferation of bilateral trade treaties, the creation of subregional institutions, the proliferation of democracy-building initiatives, the emphasis on security issues and, in general, cooperation initiatives among the states of the hemisphere are all undeniable signs of it.

Whether one vilifies or lauds the integration process, which-and this is important-is not strictly economic in nature, one cannot deny its existence. This trend appears irreversible to us. Yet Canada seems to be playing cat and mouse with its regional human rights commitments. It can boast of being one of the few countries that saw fit to ratify the American Convention Against Terrorism as its first regional convention!!! How exactly can the regional transposition of a convention designed to fight terror be seen as an asset when deprived of its essential counterpart: the ratification of the (ACHR)? Canada is an important player in democracy promotion in the Americas. It actively supported the adoption of the Inter-American Democratic Charter by the OAS General Assembly in 2001. But this Charter is not a human rights treaty. And, as to the reasons why it has hesitated to propose ratification of the ACHR to Canadian civil society and the provinces since joining the OAS, the Canadian government has certainly not been guilty of excessive transparency. Canada is now sufficiently involved in the hemispheric integration process to embark on an urgent dialogue on this issue.

It must be admitted, though, that certain segments of Canadian civil society still have confused ideas about the importance of ratification. Many people still have their sights set on the United Nations and, for some of us, identification with the Americas is still a rather hazy proposition. The question often raised is: Why ratify a regional human rights instrument that would have the same scope as international instruments of the same nature to which Canada is already a party? The answer is clear. Where Canada is concerned, the strengthening of democracy and human rights-friendly regimes flows from a dual imperative: not only must we help strengthen such regimes in Latin America, but we must step up our guarantees of the rights of Canada’s own nationals, which are put in jeopardy as the hemispheric security agenda clashes with the human rights agenda.

It might be replied that Canada is bound by the American Declaration on the Rights and Duties of Man. While this is true, it merely amounts to saying that Canada would not want to submit to the jurisdiction of the Inter-American Court of Human Rights, which it cannot recognize unless it ratifies the Convention. So what does Canada fear?

In the debate over the advisability of Canada’s ratification of the ACHR, it would be wrong to isolate the Convention from the other inter-American human rights instruments. Of particular note are the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (San Salvador Protocol 1998, in force as of 2000) and the Additional Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990). The OAS has also adopted the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Belém Do Pará Convention, 1994).

Since the Protocols are subordinate to the ACHR, the ratification of the former depends on that of the latter. In the case of the San Salvador Protocol, the stakes are high for Canada. In view of the considerable deficiencies in the Canadian Charter of Rights and Freedoms around the protection of economic and social rights, and the general unwillingness of the Supreme Court to recognize, even indirectly, the existence of social rights, the only logical conclusion is that by failing to take the necessary steps to adopt this protocol, Canada inexplicably misses out on an opportunity to keep in step with Europe and, as well, a chance to inscribe its involvement in the hemisphere within a context that affirms the interdependence and indivisibility of all human rights.

It is true that a few passages of the ACHR are not perfectly compatible with the state of Canadian law. For this purpose, there are ratification techniques (reservations, interpretative clauses) that we can use to protect ourselves against interpretations that might jeopardize domestic human rights protections. The use of these techniques would certainly be appropriate in regard to the wording of ACHR Article 4(1) on the protection of life “in general, from the moment of conception.”

Some might be tempted to propose the ratification of less fundamental or thematic instruments so as to buy time while stepping up Canada’s presence in the OAS. For example, it might be suggested that only the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women or the Convention Against Torture ought to be ratified at this time. But how strong is a tree without its roots? Besides, this would be tantamount to denying the jurisdiction of the Inter-American Court (the culmination of this human rights regime, whose counterpart is absent from the UN system), depriving victims of rights violations of a fundamental remedy. Moreover, it would promote a surgical vision of human rights protection systems, contrary to the Vienna principles on the interdependence of all rights. In the case of Canada, it would amount, for all practical purposes, to a refusal to protect the social and economic rights guaranteed by the San Salvador Protocol.

In conclusion, the debate over Canada’s ratification of the ACHR concerns not only the Canadian government but also civil society and the provinces. With the exception of the NGOs that have long been working in solidarity with Latin America, one often gets the impression that these actors behave as if their citizenship were frozen in time and space. Human rights are not chosen-they are respected! That is why the commitment of the heads of state at Quebec City in 2001 must be taken at face value. We must demand that the Canadian government invite civil society and the provinces to take part in an effective dialogue leading to ratification of the ACHR. There is no reason why this necessary ratification cannot be achieved while also preserving Canadian human rights law and women’s gains around reproductive rights.

Lucie Lamarche is a professor in the Département des sciences juridiques at the Université du Québec à Montréal and Director of CEDIM (the Centre d’études sur le droit international et la mondialisation).

about NAWL
The National Association of Women and the Law is a not-for-profit feminist organization that promotes the equality rights of women through legal education, research and law reform advocacy.
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