Canada resists expansion of economic, social and cultural rights mechanism

The United Nations has created a new international mechanism through the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The Optional Protocol (OP) aims to enable those whose economic, social and cultural rights are violated to seek justice if they are denied a remedy in their countries. The OP was opened for signature and ratification in September 2009. Canada, the United States, Australia, the United Kingdom, Japan. India, Egypt and Saudi Arabia oppose the OP. Countries from the poorer regions of Africa and the Americas are the most supportive of it.

Here are two perspectives, for and against, the Canadian government position.

Dana Cryderman (DC) is a spokesperson for the Department of Foreign Affairs and International Trade.
Bruce Porter (BP) is a member of the Steering Committee of the International NGO Coalition for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and Director of the Social Rights Advocacy Centre, Toronto. (BP)

DC: Canada has serious concerns regarding the complaints mechanism for economic, social and cultural rights set out in the Optional Protocol, including:

– the absence of a clear definition of certain economic, social and cultural rights which raise doubts about whether these rights are amenable to adjudication;
– the risk of undue interference by an international body in the social policy and resource allocation decisions made by States; and
– the existence of a trust fund in the complaint procedure which could be used by States as a means to evade their international human rights obligations, or attempt to transfer them to the international community.

BP: Refusal to ratify the Optional Protocol reflects a pattern that we are familiar with in other countries, which do not support effective human rights mechanisms because they know that they are not in compliance with their obligations.

Canada has been severely criticized for allowing homelessness and hunger to become so widespread when we clearly have the resources to eliminate these human rights violations.

The other aspect of their lack of support, however is that they do not really believe in social and economic rights as human rights that should be subject to effective remedies. Canada is now out of step with the international human rights movement which has emphasized in recent years that there must be legal remedies available when governments do not fulfill their obligations to ensure access to adequate housing, food, healthcare, etc. There is never a “clear” definition of human rights – they are interpreted and applied contextually, and rely on case by case consideration and interpretation. The issue is Canada’s willingness to allow these rights to be clarified and enforced contextually, not the absence of a clear definition.
The Canadian government seems to have lost its ability to see the benefit of constructive criticism within a human rights framework. That is all it would be committed to under the OP.

The Committee would consider “communications” submitted by individuals if they have no remedy left within Canadian law and they would issue “views.” These are not enforceable in court.

The argument that Canada makes, about the OP allowing for “interference” with governments’ decisions about how to allocate its resources or to choose policies is not accurate at all.

The government’s alternative to this kind of “undue interference” is to assert that no human rights body should hold Canada accountable for egregious violations of these fundamental human rights when it has an abundance of resources in order to ensure that no one is homeless or hungry.

To be blunt, it means that they believe a country like Canada should be able to choose to let people go hungry and homeless without being held accountable for it in a human rights forum. In other words, Canada wants to leave people homeless in the streets or hungry, without any accountability at all.

DC: Canada stands up for human rights and takes principled positions on important issues to promote freedom, democracy, human rights and the rule of law – values that define this country – are enjoyed around the world. Canada has ratified many of the human rights treaties of the United Nations and has a long tradition of participation in the drafting of United Nations human rights instruments and cooperating with relevant monitoring mechanisms.

As a State Party to the core International Human Rights conventions, Canada is committed fully to the progressive realization of economic, social and cultural rights as well as to the protection of civil and political rights. Canada recognizes that all human rights are universal, indivisible, interdependent and inter-related.  Canada continues to promote and protect human rights through policies, programs and legislation that reflect Canadian values and evolving international human rights standards.

The federal, provincial and territorial governments work both collaboratively and in a complementary fashion to promote and protect human rights in Canada and enhance implementation of international human rights treaties to which Canada is a party.

BP: On the other hand, Canada has become increasingly isolated in the international community for its refusal to support stronger mechanisms to protect Economic, Social and Cultural (ESC) rights, its positions on indigenous rights, on the right to water and more recently on environmental rights.  Canada seems to have abandoned its historical allegiance to a holistic approach to human rights, based on a strong affirmation of social rights such as the right to housing, to health care etc, which historically distinguished our notion of rights from the more singular focus on individual liberty and freedom from government “interference” in the U.S. and established strong resonance between Canada and the international human rights movement.

DC: Many of the rights in the ICESR are subject to progressive realization, which is not the case for the civil and political rights set out in the ICCPR. There are concerns as to whether aspects of economic, social and cultural rights can be appropriately subject to quasi-judicial review as well as with the standard of review that the committee will apply in reviewing complaints.  Given these concerns, and as the OP is a new instrument that is not yet in force, Canada has decided to wait to see how the committee handles cases in the future before further consideration is given to signing on to this protocol.

BP: All human rights are framed in broad terms. The right to security of the person, to life, to equality, these are very broadly framed rights, as they should be. They acquire more specific meaning through being applied in various contexts to particular facts.

It is by bringing forward issues, whereby particular groups – gays and lesbians, women, people with disabilities, racial groups, etc. – identify particular areas where the broadly framed rights are not being adequately protected.

The standard of review in the OP is that of “reasonableness” – the same standard that is applied to the accommodation of disabilities under Canadian law and use of discretion by government officials.

DC: Some ESC rights are addressed by legislation in Canada. All governments in Canada have adopted human rights legislation prohibiting discrimination on various grounds in regard to employment matters, the provision of goods, services and facilities customarily available to the public, and accommodation. Labour laws protecting the rights of workers to bargain collectively, child protection laws, family property regimes and privacy legislation are also examples of these legislative measures.

The Government of Canada does not believe that all aspects of economic, social and cultural rights are amenable to judicial review or that its international human rights treaty obligations require it to protect rights only through legislation.  Economic, social and cultural rights are advanced and progressively realized through government policies and programmes.

To best address regional and local priorities and circumstances, each provincial and territorial government designs and delivers programs and services related to Canada’s international obligation to enforce ESC rights.
BP: It is true that a wide range of legislation may be relevant to the enforcement of ESC rights. On the other hand, the concern that has dominated recent reviews of Canada by UN human rights bodies is that there is a general absence of any effective remedies through which affected individuals and groups may enforce their rights.

As in other countries, the absence of remedies correlates to increasing violations. It is difficult to accept Canada’s recalcitrant insistence that we should simply rely on “government policies and programmes” to realize the right to housing, to food, to an adequate standard of living, with no human rights review possible, when these human rights violations increase to tragic proportions.

Quebec has been the only jurisdiction in North America to include social and economic rights in its human rights charter. I think this might be something that Quebec could take some leadership on.

DC: Canada declined this recommendation to develop a national strategy because provinces and territories have jurisdiction in this area of social policy and have developed their own programs to address poverty.  For example, four provinces (Ontario, Quebec, Newfoundland and Labrador, Nova Scotia) have implemented poverty reduction strategies while others such as New Brunswick are in the processes of developing their strategies. The Government of Canada supports these measures, notably through benefits targeting children and seniors. These efforts are having a positive impact: low-income rates for seniors, women, and children have fallen considerably in the past decade.

BP: There have been a myriad of recommendations and concerns related to the government’s failure to address the systemic causes of poverty and homelessness that are within federal jurisdiction: employment insurance ineligibility among single mothers, short term and part time workers; the absence of a national childcare program; cut-backs to social housing and housing subsidies; the National Child Benefit Supplement agreement with the provinces and territories to claw back benefits from social assistance recipients to get funding for other programs; the failure of the Canadian Human Rights Act to protect from discrimination because of poverty or to include international human rights in its mandate, and so on.