(Remarks prepared for a Law Society of Zimbabwe workshop at Troutbeck in the Eastern Highlands, Zimbabwe, May 14, 2004)
Raising international law in court has obvious pitfalls. It is unfamiliar terrain for many judges. It is unlike domestic law. International law sources are dissimilar to the sources of domestic law. Understanding international law requires legal skills different from those necessary for understanding domestic law.
There is no world parliament, no world government. Resolutions of the United Nations General Assembly are not international law, but just expressions of political opinion. There is no statute book one can pull off the shelf to tell us what international law is.
The primary sources of international law are treaties, customary international law, the general principles of law recognized by the community of nations, international jurisprudence and the opinions of respected international scholars. Each of these sources presents its own problems.
Treaties are binding on states that have signed and ratified or acceded to the treaties. But, for a state that is not party to the treaty, the treaty has no legal force.
Even for a ratified treaty to have impact domestically, it must either be legislated or be self executing. In some states, every treaty must be legislated to have internal legal force. In other states, treaties in principle once ratified are part of the internal law. But even those states require that the content of treaties can work effectively without an implementation mechanism for them to have force immediately. Treaties which require an implementation mechanism or procedure to be effective must await the legislation of that mechanism for them to have force.
Treaties have their own rules of interpretation that may well be different from the rules of domestic statutory interpretation. In determining what a treaty means, one should look to international law, not domestic law, to the Vienna Convention on the Law of Treaties and not the local Interpretation Act.
Statutes come replete with extensive explanation. At the time statutes are going through Parliament, there are official reports as well as wide media coverage. The proceedings of Parliament are the subject of public interest and debate. Parliamentarians are elected officials who seek a public mandate by justifying the legislation they have passed, or criticising the legislation their opponents passed and promoting the legislation they intend to pass.
Treaty negotiations are, in contrast, sometimes secret. When public, they are rarely followed by the media. Some treaties have travaux preparatoire, reports of debate that explain the result. But others do not, purposely, to allow the treaty to speak for itself. Treaty negotiators tend to be civil servants who make a point of acting discreetly, rather than publicising their work. They are appointed rather than elected.
Both Canada and Zimbabwe have treaty transformation systems. Treaties are not incorporated into domestic law until legislated. One might well ask, in these systems, why worry about treaties at all? One might well say: Before they are legislated, treaties are not law; when and if they are legislated, we can always look at the legislation, without the need to consider the treaty.
Customary international law is the behaviour of states that they regard as binding. We are now up to 191 states. Looking at the behaviour of 191 states and their legal attitude to that behaviour is no mean task. How many states have to accept a practice as binding, for how long in order for the practice to become customary international law? These are questions for which there are no firm answers.
Indeed, determining what customary international law is has become such a daunting effort that it is almost always beyond the reach of lawyers and courts engaged in determining a particular issue. We are left to look at prior pronouncements of what customary international law has become, that is to say international jurisprudence and the opinions of legal scholars.
The notion of the general principles of law recognized by the community of nations is a conundrum. Must general principles be adjectival law or can they be substantive law? Are general principles limited to the manner in which the law operates, such as the principle against retroactivity, or do they include substantive principles such as the prohibition against murder? That is a pretty basic question, but international law scholars have no firm and decided answer.
What is the difference between customary international law and the general principles of law? Both require acceptance by the community of nations. The language suggests that one can be a principle only without practice as long as the principle is recognized. But if a principle is recognized in theory only, without a practice and especially if there is a contrary practice, is it truly an accepted principle?
International jurisprudence presents its own difficulties. There is no doctrine of precedent or stare decisis at international law. So international case law is not clear cut authority the way that domestic case law can be. Even a unanimous judgment of the World Court, the International Court of Justice, is not a binding precedent at international law, though it is highly persuasive.
The reasons for rejecting the doctrine of precedent at international law are tied to the absence of an international parliament. There is no legislature to overrule the judiciary, if the judges rule contrary to popular will or have got things wrong, or circumstances have changed. Particularly because circumstances globally can change quickly, the absence of the doctrine of precedent gives later courts a flexibility to move on as the world moves on.
And of course legal scholars can often disagree. There are many divisions of opinion in the academic world. The world of international legal scholarship in this way is no different from other branches of academia. If one can find an expert to say international law is this, it may be just as easy to find an expert to say international law is that, its very opposite.
These difficulties are inherent in the structure of international law. But there also practical difficulties. International law is often taught at law schools as an option. Many lawyers go through law school without any exposure to international law at all. Many judges have never come across international law before it is argued before them.
It is quite common for judges to know or to have known parliamentarians, to be familiar with their work. It is rare for judges to know or have known treaty negotiators. Often, a judge becomes aware of a treaty for the first time when it is presented in court in argument.
Human rights law also presents a set of jurisprudential or ideological difficulties. It is sometimes argued, especially for economic, social and social rights that they are not justiciable, that they are goals or ideals and not true laws.
It is also said against human rights that they are political, not legal. The charge is levied that human rights criticisms are made to embarrass governments; it is urged that courts should stay away from human rights to avoid the political realm.
Finally, we sometimes hear that human rights are the vocabulary of Western cultural imperialism. It is said that the language of human rights is in substance the language of foreign domination, the contemporary form in which the old colonial language of white man’s burden is expressed.
Well, given all that, what is the point? Why bother with international human rights law in domestic litigation at all?
I have had extensive experience litigating international human rights law in Canada, and I can tell you that it is difficult. I have been met with incomprehension and indifference. And, I appreciate that, whatever those difficulties are, the difficulties in Zimbabwe for a litigant wanting to invoke international law are likely to be far more troubling. But I would say that those difficulties, whether they be Canadian or Zimbabwean, are worth trying to overcome.
1. Promoting human rights One reason is to give voice to the victim. International human rights are the assertion of the rights of victims against perpetrators. Asserting those rights in court can have a therapeutic effect to the victim, even if the litigation ultimately fails.
Promoting human rights means bringing truth to power. A court case brings that truth to court, whether it is officially endorsed by a judgment or not.
A lawyer wants to give voice to the concerns of his or her client. The lawyer can not control the result; but at least he or she should leave the client with the feeling that the client’s complaint has been heard. Where human rights have been violated, it is the language of international human rights that is most likely to articulate the reason why the client is in court.
When victims assert international human rights, it means that they are no longer alone. All those who believe in those rights, who reject the victimization, wherever in the world they may be found, become the partners of the litigants in the struggle against the violation. Litigation founded on international human rights is a call to legal arms heard round the world.
There have been a few governments that are oblivious to opinion both at home and abroad. I would put Albania under Enver Hoxha and North Korea even today in that category. But virtually every government, including those that are repressive at home, care about their profile abroad.
Human rights advocacy does not have to happen in court. But a court hearing is a platform that attracts attention. That platform can and should be used. If the case succeeds, the human rights complaint is vindicated. If the case fails even though the human rights violation is established, that failure itself becomes an indictment against the regime, a focus for pressure to change.
There are two courts in which every litigant argues, the court of law and the court of public opinion. It is possible to lose in a court of law and win in the court of public opinion. A victory in the court of public opinion may, ultimately, be more important than a victory in a court of law, because public opinion can lead to a change in the law that will benefit many and more permanently than a victory in a court of law would do.
If a government is responsive to public opinion, then public shaming will motivate the government to respect human rights. Even governments unresponsive to public opinion cannot afford to be completely oblivious to what others think of it. If there is not at least a tiny minority who are prepared to consent to the behaviour of a government, the government can not survive.
In general, international law sets out rights of states against other states. International human rights law is different. It sets out rights of individuals against states. International human rights law belongs to people, not governments. Unless individual human beings assert human rights against governments, respect for those rights will wither and die. It is essential, to keep respect for human rights alive, that the beneficiaries of those rights assert those rights, both outside court and in court.
Individuals are both the beneficiaries of international human rights law and those responsible for respect for this law. I would humbly suggest that arguing international law in court where it is relevant is more than just tactically sound. There is an obligation to do so. To ignore international human rights law where it is relevant is to ignore a legal duty that falls on each of us.
2. Working with international remedies In some cases, arguing international law in domestic courts is a prelude to arguing international law before international instances. These international instances invariably will require exhaustion of domestic remedies. If a litigant has not tried to argue international law in domestic courts, the litigant may well be excluded from arguing the case internationally. The litigant’s case may be ineligible for international consideration for no other reason than that the international law arguments were not attempted at home. International law must be invoked domestically to lay the groundwork for a subsequent international appeal.
There is an interplay between domestic and international remedies. Invoking domestic remedies can make international remedies work. And invoking international remedies can make domestic remedies work. Unless remedies for international human rights violations are sought domestically, the aid which international remedies can give will never be brought to bear.
The international arena provides both standards and mechanisms that can help domestically. Once the international standards are invoked domestically, the international remedies can be engaged in aid.
3. Strengthening the case In every court case, there is value in an additional argument. There may be a line of authority or a set of principles in international law that are available nowhere else.
International law is not just a repetition of domestic law with the word “international” tacked on. It often provides a new perspective, a different way of looking at the issue.
The fact that a principle is international may, at the end of the day, may not be so important as the persuasive force of the principle. International law is often a treasure trove of arguments which lawyers can mine.
A global perspective is an inevitable component of international law. International law will state an issue often in a broad and simple way. An international law principle often provides an insight into the issue at hand because of the formulation, the fact that it represents an agreement of all humanity.
Domestic law becomes quickly encrusted with arcane legal technicalities. International law tends to avoid these technicalities, because it leaves implementation of its principles to domestic systems. International law is often clearer law.
There is a value in comparison. When we look at international law, we look at what others are doing, not just international instances, but also other states. International law is a form of comparative law, comparing how other states address the same legal issue that is before the court, when applying international law principles. Using international law means tapping into the collective wisdom of humanity when addressing a legal problem. It would be foolish to ignore the solutions the best legal minds around the world have devised when addressing the legal problem that is before the court.
While the absence of precedent at international law makes it harder to get a grip on that law, it also provides counsel with opportunities for inventive legal argument. Domestically, the law may well be frozen, except for the opening that international law gives. Internationally, the law is never frozen.
The absence of precedent in international law may work to a litigant’s advantage. When precedent is against the litigant, turning to international law may provide a means for avoiding the weight of adverse precedent.
That is not to say that at international law anything goes. International law evolves according to principle and not just randomly. But there remains considerable scope for the persuasive force and the ingenuity of counsel, more scope than domestic law alone may well provide.
Before an international mechanism, a case rises or falls on international law. International law consists of lex lata and lex ferenda, the law as it is now, and the law in the making. Only lex lata, the law as it is, now can sustain a legal victory at an international instance.
Domestically, lex ferenda, international law in the making may be enough. Domestic law may be stricter than international law; but it may also be broader. International legal developments, even though they have not coalesced into a new rule of international law, may be enough to trigger a domestic law development.
4. Strengthening international law Arguing international law means playing in a global arena. The ramifications of international law judgements in a domestic court are widespread. When the judgement is positive, that has a positive effect throughout the whole world. Of course, when the judgment is negative, that judgment may drag the whole world down. That makes arguing international law a high stakes game. Litigants, when invoking international law, can work to promote the best and avoid the worst.
Using international law to win a case in court is a two stage process. First the lawyer has to argue and win the point on international law. Then the lawyer has to argue and win the point on domestic law. The lawyer needs to convince the court not just that the client’s position at international law is correct, but also that international law applies in domestic law.
If a client wins at the first stage, on international law, but loses on the second stage, the application of international law to domestic law, the client, ultimately has lost the case. But this first stage victory is nonetheless important. It is the first stage decision on international law that has global implications, much more so than the second stage decision on domestic law.
It may be important to argue international law in court, even if the ultimate decision on domestic law is lost. In some cases, the effort may just be damage limitation, to prevent a deterioration in international human rights law the other side is trying to effect. In other cases, the effort may aim at and achieve progress in the development of international human rights norms. That achievement is something in which both lawyer and client can take satisfaction even if the case is ultimately lost on domestic law grounds.
A litigant arguing international law is not just arguing his or her case. He or she is also arguing for the worth of international law. That, in my view, is an argument worth raising.
When international law is ignored or flouted, it is the rule of law that is undermined. We need an international legal order as much as a domestic legal order. Indeed, we can not have a domestic legal order without an international legal order since the very existence of states is an international law concept.
The cause of international law is not just the cause of the litigant in a particular case. It is the cause of law, period.
International law is not just something that happens at the United Nations or the World Court. International law is not just found at Geneva and the Hague. It is found everywhere. It is at the foundation of the legal structure of all humanity, in Harare, in Winnipeg, even in the Eastern Highlands. By segregating international law to specific institutions and places, we ignore and deny its true nature.
The life of international law, like the life of domestic law, is experience. Each new case brings to bear a new experience, a new set of facts. Not only the litigant may benefit from international law. International law itself may benefit from being tested by a new set of facts. A new experience brings a new perspective to the law which can help the law to develop. We invoke international law not just so that international law can help us, but also so that we can help international law.
While I appreciate the value of continuing legal education seminars, the bar, realistically, is going to learn international law if they need to know it to argue their cases. The same is true for the bench. The judiciary will come to know international law if they need to know it to decide the cases in front of them.
By arguing for international law, lawyers learn the law themselves and sensitize the judiciary to the importance of international law. That sensitization may not happen in every case where international law is argued. But it will happen eventually. If the judges start to see that international law is being argued systematically in their courts, they will make it their business to learn international law, just in order to do the work put in front of them.
International law in domestic courts can be used in three ways. It can be used to launch an action that would otherwise have no legal foundation. It can be used to bring an additional argument to an action that would otherwise not be as persuasive. Or it can be used to provide additional authority for a proposition that otherwise would not be as well grounded.
In this last instance, there may be a temptation to resist recourse to international law, because the proposition on which the litigant relies and at least some authority for it are there anyways. Raising international law means understanding it and explaining it. There may be a temptation to say it is shorter and simpler to do neither.
But that is a temptation that should be avoided. Citing international law has a value beyond the particular proposition or case. It serves to sensitive the bar and bench to international law generally. Recourse to international law needs to be normalized. The sources of international law need to be familiar. Those objectives can be more easily achieved if recourse to international law is sought in every single instance where it is relevant.
6. Comparing international and local recourse
There is also the sheer convenience of relying on international law at home rather than abroad. It is a lot easier to argue a case in your local court house than in Geneva or New York. Though international law may be unfamiliar, the rest is everyday, commonplace. You know how to find the court house; you can appear in person with minimal travel expenses. You know the people; you are accustomed to the procedures. There is a comfort and ease in dealing with a local court which can not be replicated by international tribunals.
If we restrict international law to international institutions, then few lawyers will bother. The whole venture will just seem too strange, too remote, too arcane. If we want to make international law user friendly, we want to make it accessible in local courts.
International instances can be convoluted. The procedures are murky. Delays are unconscionable. A petitioner has to clear an admissibility stage before the petition is considered on its merits.
In the UN system, the petitioner is competing for attention with human rights violations from around the world. The UN human rights bureaucracy which provides the support to the expert committees is understaffed and overworked.
At the UN, there is no oral hearing. Committee members of the various petition mechanisms can be lobbied, but it is often impractical to do so.
The Committees themselves are a mixed bag. Some committee members are truly independent experts. Others are not. They may have received their appointments because of their connections with the governments that lobbied for their appointments. They adopt the political coloration of their own governments.
International mechanisms. just because they are far away and little is known of them, end up being idealized. But the day to day reality is that the UN mechanisms are far less efficient than all but the most hapless court systems.
Though the UN system could be better than it is, it would make sense, even in an ideal legal world, to rely on domestic application of international law as the first recourse. The International Criminal Court, which exists for the prosecution of war crimes, crimes against humanity and genocide, has a model of complementarity. Priority is given to domestic prosecution. This notion of complementarity makes sense for the promotion of all human rights both in principle, because human rights belongs to everyone, everywhere, and practically, because the job of protecting human rights is so massive it needs the active involvement of courts around the world.
International mechanisms hear legal argument only, and do not hear evidence. A dispute of fact becomes difficult or impossible to resolve internationally. Resolution of factual disputes is the bread and butter of local courts. If facts are at all in issue, the best, indeed, it may be, the only way to resolve the dispute is recourse to domestic courts.
International instances, for the most part, do not provide for appeals. They are one shot efforts. Domestic courts offer layers of appeals. Appeals allow for mistakes to be corrected, for impulsive first thoughts to be replaced by sober second thoughts. Invoking international law in domestic courts is valuable for the consideration and reconsideration it offers.
Domestic courts provide enforcement. International instances do not. An international decision is hortatory only. Enforcement is left ultimately to the violating government or to a later domestic court decision. A favourable court decision can require the government to obey its decision whether it wants to or not.
International mechanisms often do not allow for interventions by interested non-governmental organizations. Domestic procedures typically do.
Interventions in domestic courts can be a powerful tool for advancing the cause of international human rights. A lawyer does not have to wait for the client with the right set of facts. A case that someone else has already brought before the courts can serve the purpose.
A lawyer does not have to wait for his or her case to reach the level of the final court of appeal. He or she can apply to intervene in a case that the highest court of appeal is already considering.
It is often difficult to get a case considered by the highest court of appeal, because there are so many candidates. It is relatively easier to get intervener status at the highest court of appeal. Once a court has decided to hear a case, it normally welcomes all the help that counsel can provide.
Interventions allow for a focus on international law. It is not necessary to deal with every issue the case raises.
Interveners are expected not to repeat the parties. Interveners invoking international law can often make a distinct contribution because of the rarity with which international law is otherwise invoked.
7. Interpreting domestic law
International law provides aid in interpreting legislation which implements treaties. Where treaties are legislated, the treaties serve as a guide to the interpretation of that legislation. The intent of Parliament, in legislating treaty language, is to ensure respect for the treaty. That respect can best be achieved by implementing the treaty according to its accepted global meaning.
This interpretative rule holds especial importance for legislation implementing international human rights treaties, because one can find that legislation in the constitutions of both Canada and Zimbabwe. Canada has a Charter of Rights and Freedoms in its constitution. Zimbabwe has an extensive Bill of Rights in its constitution. The languages of both constitutions can be traced to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Using international law to interpret domestic constitutions gives international law constitutional force. International law leapfrogs statute law to become the supreme law of the land.
International law can also be a useful guide to interpreting even that legislation which does not set out treaty language or concepts, but does not contradict it either. An example would be legislation relevant to the subject matter of a treaty which provides a discretion. An argument can be made that the discretion must be exercised consistently with the treaty.
One of the general principles of law recognized by the community of nations is pacta sunt servanda; treaties ought to be respected. Domestic legislation should be interpreted to allow for respect for treaties, even if not legislated.
A domestic legislature always has the power to legislate directly contrary to the intent of a treaty. But where that has not happened, where there is scope for appreciation, the domestic rule of legislative interpretation should be that Parliament intended and wanted that international law would be respected, that the state would honour its international obligations.
Yet another reason to invoke international law is the direct reception of customary international law into common law. In Canada, customary international law is part of the common law. There is no need for incorporation by legislation. It is as much part of the common law as the law of torts or contracts.
Indeed, customary international law has, I would argue, a special status in the common law, because of the significance of jus cogens, peremptory norms of international law. The Vienna Convention on the Law of Treaties defines a peremptory norm of general international law as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
Peremptory norms are at the pinnacle of the hierarchy of international law. Not even a treaty can derogate from a peremptory norm of international law. When customary international law is incorporated into the common law, as it is in Canada, that puts peremptory norms of international law at the pinnacle of the common law. Insofar as any other principle of the common law and a peremptory norm of international law conflict, it is the peremptory norm of international law that must prevail.
For Zimbabwe, as I understand it, customary international law does not have the direct reception it does in Canada. It nonetheless has persuasive force in interpreting domestic laws. Ignoring customary international law means ignoring a means of persuading the court.
8. The legal value of human rights
In my view, all human rights are justiciable – economic, social and cultural rights as much as political and civil rights. The legal character of the two sets of rights is substantially the same. There is no legal justification for treating them differently.
This is a subject on which I have written extensively and I will not repeat the whole argument here. But I can refer you to chapter 15 of my book “No More: The Battle against Human Rights Violations” as well as an article I wrote in the International Commission of Jurists Review.
I reject the notion that human rights are inherently political. There is no doubt that they are often politicized. But that is an abuse of those rights. In order to avoid the politicization of human rights, we must invoke human rights properly, rather than refuse to invoke them at all.
Finally, I also reject the cultural relativism of human rights. Human rights are universal or they cease to be about humanity. Human rights are not for some people; they are for all.
Again here, I have written elsewhere on this topic. I draw your attention to the concluding chapter of “No More”.
In what follows, I want to go through some of my own personal experiences in litigating international law. I hope, by recounting these case, to give you a taste of both the difficulties and the rewards of arguing international law in domestic courts. The cases I want to talk about are Imre Finta , John Ross Taylor and James Keegstra , Charles Ng and Joseph Kindler , Glen Burns and Atif Rafay , Manickavasagam Suresh , Louise Gosselin and Houshang Bouzari .
1. Imre Finta
The case of Imre Finta shows the value of having intervened in a case even where the decision itself ends up being bad, because the intervention provides a platform from which a change in the law can be promoted. I intervened in the Supreme Court of Canada for the League for Human Rights of B’nai Brith Canada, regrettably without much immediate effect. That decision led to immunity for war criminals and criminals against humanity in Canada.
The Court declared the prosecution law constitutional. But the Court also interpreted it in such a way that prosecutions became impossible and, in fact, they ceased. From the date of that decision to this date, there has never been another war crimes prosecution in Canada.
The majority in the Finta case in March 1994 imposed a number of crippling conditions on prosecutions. The worst was the ruling that antisemitism was a defence to the Holocaust, that racial prejudice is a defence to mass killings. With that finding, prosecutions became forlorn and were abandoned.
Imre Finta was in charge of the concentration camp in Szeged Hungary. Jews were sent from the Szeged camp to Auschwitz by box cars. He pleaded in his defence that he was entitled to round up the Jews and ship them out to Auschwitz because he thought that Jews were the enemy. Because Finta was tried by a jury, the issue for the judge was whether or not that defence could be put to the jury. Were the jury entitled to acquit on that ground?
The trial judge Callaghan ruled that the defence could be put to the jury because it had an air of reality to it. The defence had an air of reality to it because there were newspaper articles written at the time in the local Nazi Hungarian papers that Finta would have read saying just that, that Jews were the enemy. Both the majority of the Ontario Court of Appeal and the majority of the Supreme Court of Canada held that this ruling of the trial judge was legally correct.
Canada is subject to the American Declaration of Rights and Duties of Man, by virtue of its membership in the Organization of American States. After the Finta decision, I petitioned the Inter-American Commission on Human Rights on behalf of the League for Human Rights of B’nai Brith Canada, submitting that Canada had violated the declaration by providing an immunity to war criminals.
The Commission held a hearing on the petition at its headquarters in Washington D.C. in October 1999. The situation was ironic, because the other party, our adversary was the Government of Canada, who were our allies in the Finta litigation in Canada. Abroad they had to defend what before the Supreme Court of Canada, they denounced.
The Commission did not make final ruling, but attempted to negotiate a settlement. And, indeed, our petition was partially settled.
By that time, the Rome Treaty establishing the International Criminal Court had been finalized. The Treaty was negotiated in July 1998. Canada had ratified the Treaty and needed to legislate implementation. That legislation was to be used, in part, to deal with the problems posed by the Finta decision.
In the result, that legislation has a specific provision dealing with the concern set out in the B’nai Brith petition to the Inter-American Commission on Human Rights. There is now in the Crimes against Humanity and War Crimes Act a subsection removing the defence of racial prejudice . Obviously, the Finta case should never have been decided the way it was in the first place. But given what happened, the presence of B’nai Brith in that case became first a launching pad for a petition to the Inter-American Commission on Human Rights and then a lever to promote repeal of the gravamen of the Finta decision.
2. John Ross Taylor and Jim Keegstra John Ross Taylor and James Keegstra were two hate promoters convicted under different Canadian statutory provisions who used the Canadian Charter of Rights and Freedoms to challenge their convictions. Keegstra was convicted under the Criminal Code. Taylor was convicted for contempt of court for disobeying an order of a human rights tribunal.
The conviction Taylor was challenging was his second. The first, before the Charter, led to his being sentenced to a year in jail. Taylor in 1981 had challenged that conviction before the Human Rights Committee established under the International Covenant on Civil and Political Rights. The Committee in 1983 rejected the complaint on the ground that Canada had a duty under the Covenant to prohibit incitement to hatred.
When the cases of Taylor and Keegstra came to the Supreme Court of Canada, they were heard together. I represented the League for Human Rights of B’nai Brith Canada in Taylor. Mark Sandler represented the organization in Keegstra. We relied in our arguments on the prohibition against incitement to hatred in the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination, as well as on the Human Rights Committee decision in the Taylor case.
These cases were decided in December 1990 by narrow majorities, of four to three. But the majorities relied on the international law standards and the Taylor decision made by the United Nations Human Rights Committee to uphold the Canadian laws despite the Charter challenge. The Court restated a principle that it had asserted earlier that “a value enjoying status as an international human right is generally to be ascribed a high degree of importance under section 1 of the Charter.”
3. Ng and Kindler and Burns and Rafay I argued the cases of Charles Ng and Philip Kindler in the Supreme Court of Canada for Amnesty International in 1990. It was the first time Amnesty had argued a case in court anywhere in the world. Ng and Kindler were death penalty fugitives from the US. The Canada US extradition treaty allows Canada to ask the US for assurances, in return for extradition, that the death penalty would not be sought or imposed. In the case of Ng and Kindler, Canada refused to request assurances. The issue for the Supreme Court of Canada was whether the Canadian Charter of Rights and Freedoms required Canada to ask.
AI argued from international law that the Charter required Canada to ask. The AI argument failed and, in 1991, Ng and Kindler were both returned to the US without assurances.
Their counsel petitioned the UN Human Rights Committee and the Committee asked Canada to postpone removal until the Committee heard the substance of the complaints. But by the time this request for stay reached Canada, Ng and Kindler had already been removed. Eventually the Committee did hear the complaints in the two cases. Ng won and Kindler lost, not on the illegality of the death penalty as such, but on the manner in which they were to be executed. Ng was from California and Kindler from Pennsylvania. The Committee decided that the manner of intended execution of Ng in California was cruel, inhuman and degrading. There was no similar finding for the manner of execution of Kindler in Pennsylvania.
So, there the issue sat, until the case of Sebastian Burns and Atif Rafay. Burns and Rafay were also American death penalty fugitives. However, unlike Ng and Kindler, they were Canadian citizens. The British Columbia Court of Appeal found that this distinction made a difference. Even if Canada was not required to request assurances for everybody, they were required to request assurances when the fugitive was a Canadian.
When the matter went to the Supreme Court of Canada, Amnesty International intervened again. I argued for AI that Ng and Kindler should be revisited. The international scene had moved on, and so should the Court.
This time it was the Government of Canada which was trying to invoke international instances to buttress its case. The case was argued in March 1999. While the case was being argued the first time, the United Nations Human Rights Commission in Geneva was taking place. Anti-death penalty states were promoting a resolution encouraging states to abolish the death penalty. Canada attempted to attach a rider to this resolution allowing for extradition to the death penalty. The anti-death penalty states did not want to lose Canada from the coalition. So, they were reluctant to reject the Canadian position.
Hands Off Cain asked me to come to Geneva in April 1999 to lobby states to beat back the Canadian attempt. I participated in a public forum and private discussions arguing against the official Canadian position. In the end, Canada shifted its wording so that it became meaningless, and of no real help to it in the litigation.
Burns and Rafay ended up being reargued one year later, in May 2000. This time the Court accepted the AI argument. International law still had not abolished the death penalty. But there had sufficient movement towards abolition on the international scene for it to have an impact on Canadian law.
The Court held that the Canadian Charter of Rights and Freedoms required Canada, unless there were exceptional circumstances, to seek assurances that the death penalty would not be sought or imposed before extraditing a person to the United States. To the Court, the case of Burns and Rafay did not present exceptional circumstances.
Canada then sought and received death penalty assurances from the US. Burns and Rafay were duly extradited.
The issue in the case of Suresh was the return of a person who was both a security risk and a refugee to potential torture. Suresh had been recognized as a refugee from Sri Lanka. He had also been determined to be a security risk as a Tamil Tiger fund raiser. He was removable from Canada because he was a security risk. But the country of probable removal was his country of nationality, Sri Lanka. Suresh legitimately feared that he would be tortured on return to Sri Lanka.
The Refugee Convention allows for return of refugees who are security risks. The Convention against Torture prohibits return to torture of anyone. The issue became, which treaty prevailed?
This was a pure international law question. The answer to the question did not necessarily determine the answer to the question on domestic law, whether the Canadian Charter of Rights and Freedoms prohibited the removal of a security risk to torture. But the international law question had to be answered before the domestic law question could be addressed.
The Canadian Bar Association intervened in this case at the Supreme Court of Canada and I acted as their counsel. Our position was that the absolute ban on removal to torture in the Torture Convention must prevail.
Shortly before the case was argued, the Committee against Torture established under the Convention against Torture considered in Geneva Canada’s periodic report to the Committee on compliance with the Convention. Canada was scheduled for questioning on its report, and Amnesty International sent me to Geneva to lobby the Committee. Canada sought from the Committee support for its position that the Convention against Torture allowed removal to torture of a refugee who is a security risk. Amnesty International asked the Committee to come to the opposite conclusion.
The Committee does not hear formally from non-governmental organizations at its meetings. Committee members rather just meet with representatives of non-governmental organizations outside of the Committee meetings. I proceeded to have a sequence of these meetings with Committee members on the Amnesty International position.
The Committee, in its concluding observations, supported the position of both Amnesty International and the Canadian Bar Association that return to torture is never, in any circumstances, excusable. I was able to rely on those observations when presenting my argument in the Supreme Court of Canada.
The Court accepted the international law argument that the Canadian Bar Association and Amnesty International put forward, that, at international law, no one under any circumstances can be removed to torture, and duly cited the concluding observations of the Committee against Torture when the Committee considered the most recent Canadian periodic report.
The Court nonetheless imposed a caveat for Canadian law, the same one imposed for extradition to the death penalty. In undefined “exceptional circumstances” deportation to torture is possible. But if murdering your parents and sister for the inheritance, the alleged facts in the Burns and Rafay case, was not an exceptional circumstance, one would have to wonder what would be.
The case of Suresh was sent back for a determination whether or not he should be removed as a security risk. The Court ruled that the procedure followed previously in deciding on his removal had been unfair to him.
Between 1984 and 1989 Quebec gave those on welfare under 30 one third subsistence if they did not work or go to school. If they did work, but could not earn subsistence levels, or went to school, welfare brought them up to subsistence levels. The idea was to encourage the young to work or go to school. If they did neither, they starved.
Louise Gosselin was living in Quebec; she was under 30 before 1989 and unable to find work or go to school. So, she was stuck. She went to Court to ask the Court to order the government to pay her subsistence welfare, despite the Quebec legislation. Gosselin relied on the Canadian Charter of Rights and Freedoms guarantee of the right to security of the person.
Canadian courts have consistently ruled that international human rights law is to be used as an aid in interpreting the scope of rights in the Canadian Charter of Rights and Freedoms. The Charter is presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.
Given this rule of Charter interpretation, the right to security of the person in the Canadian Charter of Rights and Freedoms could be presumed to provide protection as least as great as the right to an adequate standard of living in the International Covenant on Economic Social and Cultural Rights. The question became, how great was that protection?
The Quebec Superior Court and the Quebec Court of Appeal both decided that there was a difference between economic social and cultural rights and political and civil rights, and that difference was fatal to the case of Louise Gosselin. At the Supreme Court of Canada, I argued on behalf of the intervener Rights and Democracy and submitted that the sets of rights are legally indistinguishable. Louise Gosselin could not be denied her remedy because the international right on which she relied was an economic and social right and not a political and civil right.
Two of the judges in the Supreme Court, Louise Arbour and Claire L’Heureux Dubé, agreed. However, they were in dissent.
The majority denied Louise Arbour her remedy, but they did not deny the justiciability of economic, social and cultural rights. At the level of the Supreme Court of Canada, surprisingly, the facts were still in issue. Gosselin contended that she did not have access to the program of work or school that would have allowed her to reach a subsistence level of income, that there were not enough places in the programs to meet the needs of all welfare recipients under thirty. The Government of Quebec took the opposite position, that there were enough places available, that everyone who was willing to work or go to school could get a subsistence level of income.
The Trial Judge, Mr. Justice Reeves, had found that there were enough places, but his finding was contrary to the expert evidence. Mr. Justice Robert at the Court of Appeal and Mr. Justice Bastarache in the Supreme Court of Canada relied on that expert evidence to reason that the finding of the Trial Judge should not be followed on this point.
However, the majority at the Supreme Court of Canada accepted the finding of the Trial Judge and relied on that finding to avoid making a determination on the justiciability of economic, social and cultural rights. The majority left open the possibility that a positive obligation to sustain life, liberty, or security of person may be made out in special circumstances, but was not made out in the circumstances of this case.
Though Louise Gosselin herself did not participate in the work and school programs consistently, she was able to access the programs and, during access, received a subsistence level of income. She dropped out for personal reasons that had psychological and substance abuse components. The majority held that her failure to participate in the programs continuously were the result of her personal problems and not the result of flaws in the programs.
Given the majority’s acceptance of the findings of the Trial Judge that there were enough openings in the programs to ensure an adequate standard of living for everyone, evidence of actual hardship was wanting. The majority stated:
“The frail platform provided by the facts of this case cannot support the weight of a positive state obligation of citizen support.”
So, even though Louise Gosselin lost, economic social and cultural rights won. No judgement denied their justiciability. Six judges left the issue open. One judge said yes in theory to justiciability of economic rights, but no in Canada, because of the specific wording of the Canadian Charter of Rights and Freedoms. And two said yes both in theory and in Canadian law.
Houshang Bouzari was a torture victim in Iran who had to pay a ransom directly into state coffers to escape his torturers. He became a permanent resident of Canada and sued the government of Iran in Canada for return of the ransom and damages.
Canadian legislation, the State Immunity Act, holds foreign states immune from civil suit in Canada. But the general immunity rule has a number of legislated exceptions. On Bouzari’s behalf, I argued that the commercial activity exception in the State Immunity Act applied to his case, since he was kidnapped by state agents and tortured in order to remove him from a commercial transaction with a state agency once he had refused to pay a bribe to Mehdi Rafsanjani, the son of the then president Hashemi Rafsanjani. I also argued that the State Immunity Act had an implied exception for violations of peremptory norms of international law.
Insofar as the Act gave an immunity for torture or for violations of other peremptory norms of international law, I further argued that it was unconstitutional, a violation of the Canadian Charter of Rights and Freedoms. Iran did not defend, but the Government of Canada intervened to defend the constitutionality of its legislation.
Bouzari’s claim was rejected by the Ontario Superior Court, and then heard by the Ontario Court of Appeal. The Appeal Court asked for further written argument on the question of the extent of connection the victim has to have to the forum for the court to accept jurisdiction. These submissions were due and filed in February 2004. Judgment is pending.
Houshang Bouzari has used this lawsuit as a launching pad for the creation of a new non-governmental organization, InCat, the International Coalition against Torture. Front and centre in its program of action is a proposal to amend the State Immunity Act to provide an exception to state immunity for violations of torture and other peremptory norms of international law. If he succeeds in his lawsuit, this amendment may not be necessary. But if he fails, the campaign to fill the gap in the law he will have identified has already begun.
The ultimate goal is respect for human rights. Litigating international human rights in domestic courts is a means. International human rights law is an arsenal readily available for every lawyer representing a client who has been a victim of human rights violations. It is an arsenal that it would be foolhardy to overlook.
David Matas practices immigration, refugee and international human rights law in Winnipeg, Manitoba, Canada.