Five wishes for a world of human rights
Remarks delivered by Alex Neve
Senior Fellow, Graduate School of Public and International Affairs, University of Ottawa
at the relaunch of the University of Toronto’s International Human Rights Program
November 21, 2023
First, I would like to add my own acknowledgement that I am a visitor this evening in Dish with Two Spoons Territory, having traveled here from Ottawa, in unceded Algonquin territory. Being aware of and respectful of the First Nations who have lived in those territories for generations despite policies of dispossession, racism and genocide, is even more pointed and important at this time, as the long histories of dispossession of two other peoples from their lands, in Israel and Palestine, against a backdrop of occupation and insecurity, has spiraled into a situation of staggering violence and disregard for some of the most fundamental international norms of human rights and humanitarian protection. I pause, I reflect, and I commit to action that is dedicated to reconciliation, to protecting rights, and to liberation.
Second, I appreciate the opportunity to share thoughts about the importance of international human rights law and lawyering, from a Canadian point of view, at a time when those norms feel both more vital than ever and under unrelenting assault. Any of us who believe in that international framework, painstakingly built up over the past 75 years, fueled by the determination of activists and communities at the frontline of human rights abuse, as a means of creating the world we all crave and deserve, cannot help but feel a sense of considerable despair.
Be it these past six devastating weeks in Israel and Gaza, and the terrifying spikes in Islamophobia and antisemitism within Canada, be it the toll of Russia’s invasion of Ukraine, or be it Sudan, where staggering human rights abuse is unfolding with very little global reaction, these are not easy times. That is why coming together to reaffirm, redouble and renew our commitment to human rights is so very important. Let us look at this evening as precisely that. Coming together in shared belief in the power and necessity of universal human rights.
I particularly appreciate that the occasion this evening is the relaunch of the International Human Rights Program. This program has been such a trailblazer in Canada when it comes to lifting up the role and the importance of international human rights law. A legal framework that matters so very much, for all of us, but which has far too often been written off as the realm of hope and aspiration rather than obligation and compliance.
I was still in my role at Amnesty International during the recent scandal related to the hiring of Professor Azarova. I watched with dismay as fundamental values with respect to equality, freedom of expression, and academic freedom, all of which go to the heart of the international human rights system and were long associated with IHRP, were undermined.
That this program faded from Canada’s IHR firmament for a number of years, was a loss felt widely not only by students, faculty and staff here at U of T, but within the wider human rights community, including civil society, practicing lawyers, human rights advocates and researchers, across the country and beyond.
This relaunch, therefore, is very significant. To have a renewed IHRP back in play -- ready to demonstrate lessons learned and with a strengthened sense of and commitment to independence from those learnings, ready to rise to whatever human rights requires, regardless of the politics, regardless of the power structures being challenged, and regardless of the company, government or country involved -- matters a great deal.
And while I generally shy away from the throwaway line – now more than ever – I will use it here, as I think it does capture the moment. Now more than ever it is a time for all hands on deck, within civil society, within the legal system, within government and within universities (certainly within law schools in particular), united in a fierce effort to uphold and strengthen human rights.
I’ve been along for the ride with the IHRP for easily more than 25 years off and on. I have taken part in a range of events organized by the program, going back to the mid 1990’s, touching on a wide variety of pressing international human rights concerns that had direct and indirect Canadian dimensions.
Most significantly I was able to work with student research teams who took up projects for Amnesty International on a number of occasions during the years that I served as Secretary General. That included digging into such issues as the role of a Canadian-based property development company that was being sued for their role in building homes in unlawful settlements in the West Bank; documenting the fate of Sri Lankan Tamils deported from Canada; making the case for Canadian ratification of an important UN torture prevention treaty, the Optional Protocol the Convention against Torture; examining the validity of state immunity laws shielding foreign governments from human rights lawsuits in Canadian courts; making the case for the repatriation of Omar Khadr from Guantánamo Bay; and researching the various international human rights obligations implicated by the Canada/US Safe Third Country Agreement.
Most frequently, I worked with several student teams over the years looking at the troubling gap in Canada when it comes to effective domestic compliance with and implementation of our country’s international human rights obligations. Students helped us look at that historically, documenting how federal and provincial governments described their understanding of the standing of those commitments at the time Canada was adhering to various human rights treaties. Students painstakingly evaluated the processes set up among federal, provincial and territorial governments to engage with international bodies reviewing Canada’s human rights record. They looked at the arguments made by Canadian governments seeking to explain or excuse the country’s evident shortcomings when it comes to implementing IHRL obligations, particularly the rather tired canard that it is all the fault of federalism. They researched how international human rights obligations are handled in other federal countries, and they looked at how other public policy issues are handled within Canada’s federal structure. And they made a range of thoughtful recommendations for reform.
IHRP’s three priorities
In relaunching, the IHRP has set out three vital areas of work: climate justice, corporate accountability and the rights of Indigenous peoples. All with a focus on Canada’s role and responsibility, whether the resulting harms are taking place here or abroad.
There is of course a resonance across those three areas, such as when a Canadian extractive company, mining in Guatemala or exploring for oil and gas in Colombia, disregards the rights of Indigenous peoples in whose territory it is active, employs security forces responsible for human rights abuses against perceived opponents of its operations, and causes environmental harms through pollution and contributes to the climate crisis through excessive carbon emissions.
The climate crisis, corporate human rights harms, and disregard for the rights of Indigenous peoples are unquestionably among the most serious human rights challenges we face, both globally and absolutely in Canada. The solutions do not, of course, lie only in the law, far from it. But human rights legal obligations and ensuring respect for those obligations is central to those three struggles, areas where existing international human rights documents are certainly directly relevant but also where new standards and instruments are being negotiated or considered.
Respecting and upholding the rights of Indigenous Peoples
16 years ago, the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples, after more than 20 years of negotiations. As I expect we all know that was likely Canada’s most shameful international human rights moment, being one of only four countries to vote against the Declaration. It took close to ten years and a change of government, but that opposition did give way to full support, to the extent that the Declaration was legally incorporated into Canadian law in 2021 and an action plan for its domestic implementation released earlier this year.
There remains skepticism that the Declaration’s provisions, such as the crucial rights protections related to free, prior and informed consent in the context of major resource development projects such as pipelines, mines and hydroelectric dams, will be given their due regard when lined up against powerful economic interests. As such, there are myriad ways in which the standing and significance of the Declaration within Canada’s legal system will be examined, advanced and contested in years to come. IHRP students, working with Indigenous legal scholars, lawyers and communities, can make important contributions to that process.
Business, trade and human rights
12 years ago, the Human Rights Council adopted another groundbreaking new instrument, the UN Guiding Principles on Business and Human Rights. Like the Declaration on the Rights of Indigenous Peoples, not a full-blown treaty, but still enormously consequential. And there has been an ongoing, very important discussion in Canada about how best to ensure that Canadian companies live up to the responsibilities that are laid out in the Guiding Principles.
A potentially important step forward was taken in 2018 when the federal government agreed to establish the Canadian Ombudsperson for Responsible Enterprise, tasked among other functions with a mandate of encouraging companies to follow the Guiding Principles. The CORE was to be given subpoena and document disclosure powers to carry out effective and independent investigations when there were allegations that a company was breaching those human rights responsibilities. When push came to shove, however, the government backed away from those promised powers, creating an Ombudsperson that conducts reviews, not investigations, and cannot force companies to answer questions or hand over documents.
So, we turn back to the international arena. A growing number of states, while appreciative of the Guiding Principles, are clearly cognizant that they are insufficient and do not have the legal backbone needed to stand up to what can often be immense corporate power. As such, an effort is underway at the UN Human Rights Council to negotiate a new treaty. Canada is, to put it diplomatically, yet to show enthusiastic support for any such treaty. I can readily imagine IHRP students digging into research and legal analysis making the case for Canadian support.
I would urge as well adding trade policy and trade deals into the mix, an area where human rights are given passing consideration at best but where it needs to be central and meaningful. Five years ago, suggestions that unlawful West Bank settlements be exempted from the Canada-Israel Free Trade Agreement were rebuffed. Similarly, the recommendation that all trade agreements go through a thorough human rights impact assessment has failed to gain traction. Clearly a space in which IHRP could make tremendous contributions.
Human rights and the climate crisis
The climate crisis and other major environmental challenges have, until quite recently, been seen by many, even within the human rights movement, as being outside the world of human rights. After all, the primary IHRL instruments, starting with the Universal Declaration, make no specific reference to the environment, though it is obviously integral to a number of core human rights, including life, adequate housing and healthcare.
But that has been changing, rapidly. The UN Human Rights Council and General Assembly have both recently adopted resolutions explicitly recognizing the right to a healthy environment, and two years ago the Human Rights Council established a Special Rapporteur on Human Rights and Climate Change. A number of legal cases have been launched, at national level (including several before Canadian courts), regional human rights bodies and at the UN, raising a wide array of human rights arguments in efforts to push for more concerted action – from governments and companies – to address the climate crisis. A tremendously important arena in which IHRP students will, I have no doubt, become passionately engaged, drawing on the many existing human rights protections that are fully implicated by the climate crisis as well as making contributions to strengthening and implementing newer standards that explicitly take up a safe and healthy environment as an internationally protected human right.
Canada: Human rights champion?
These three themes challenge us as Canadians to acknowledge that we are not the stirring human rights champions that we have often portrayed ourselves to be and how we have often been seen and praised by the rest of the world.
An opportune moment, in fact, just three weeks out from the 75th anniversary of the UDHR, to remind ourselves that our first human rights foray on the world stage was, at best, tentative.
We regularly celebrate the role played by Canadian law professor John Humphrey, who played an integral role in crafting the UDHR’s poetic words, part of a relatively small drafting group drawn from Lebanon, China, France and the United States. The focus on John Humphrey’s role which was, in fact, not in any way on behalf of Canada but simply by virtue of the fact that he was the head of the UN’s tiny Division for Human Rights at the time, leaves the impression somehow that Canada was an enthusiastic proponent of this groundbreaking new instrument.
Yet when the first of two consequential votes on adoption of the UDHR took place in 1948, Canada did not vote yes. Instead, Canada abstained. That did turn around by the time of the final General Assembly plenary vote a short time after. One assumes that the 1948 equivalent of going viral generated the pressure to get on board. But let that sit with you for a moment, 75 years ago, our first significant vote for human rights at the UN, and Canada temporarily moves to the sidelines.
You are likely wondering what the source of that ambivalence was. As they say, plus ça change, plus c'est la même chose. Canada’s initial hesitation about supporting the UDHR in 1948 was all about federalism, with Ottawa doubtful and concerned that provincial governments would be supportive, leaving it difficult if not impossible for Canada fully to live up to the UDHR’s promises.
Sounds a lot like 2023. All the more reason, 75 years on, to redouble our efforts and leave that initial naysaying far behind.
Five wishes for human rights
Let me move on to sharing five items at the top of my human rights wish list. These are some of the high-level changes in approach and attitude that I believe are crucial if international human rights are truly to move from being a cruelly unfulfilled promise to a lived reality the worldover. These will, I hope, guide and propel IHRP’s work.
Universality: rights for everyone
In many respects the greatest and most unforgivable of the UDHR shortcomings lies in the utter failure to live up to the stirring assertion in its first article: All human beings are born free and equal in dignity and rights. All human beings. But that is not our world. The rights of some are privileged. The rights of far too many are dismissed, overlooked or ignored.
All human beings means all Palestinians, certainly including the 2.2 million Palestinians trapped in the open air prison of Gaza. All human beings means the people of Yemen and the people of Sudan, whose struggles and plight seem forgotten and disregarded. All human beings means refugees and migrants compelled to take dangerous journeys across the Mediterranean, across the Rio Grande, out into the Bay of Bengal and, until earlier this year, across the Canada/US border, to seek safety and protection of their rights, but increasingly turned away and turned back. All human beings means Indigenous women who continue to be disproportionately killed across Canada and yet are met with callous politics when family members plead for their discarded bodies to be retrieved from landfill sites. And all human beings means trans youth, whose rights and safety are being erased by dog whistle assertions of parental rights.
All human beings means just that, all: regardless of race, sex, gender identity, religion, social class, disability or immigration status, and certainly regardless of the country where you were born or where you live.
A world in which all rights matter
The companion to the failure to deliver human rights universally to all people is the intransigent unwillingness to recognize that universal also means all rights. Article 2 of the UDHR, “everyone is entitled to all the rights and freedoms set forth in this Declaration.” All the rights and freedoms. Yet many governments, including regrettably many governments in Canada, federal and provincial, explicitly insist that some rights, namely those enshrined in the International Covenant on Civil and Political Rights, are real rights, while others, those laid out in the International Covenant on Economic, Social and Cultural Rights, are of a lesser standing and status. CP rights – to be protected from torture, to have a fair trial, to enjoy freedom of expression or religion – belong in court, are the domain of judges and should be enforced with legal sanction and penalty. ESC rights – to healthcare, to adequate housing, to food security and clean water – are goals to aspire to and should be left to government policy debates and budget exercises rather than courtrooms and legal briefs.
No surprise therefore that when our Charter of Rights was adopted 41 years ago, only CP rights made the cut. Not a word with respect to ESC rights and government lawyers consistently argue, almost always accepted by courts, that Charter protection such as section 7’s guarantees of life and security of the person, should not be interpreted to include the basic levels of housing, income support or healthcare needed to sustain life or keep someone secure. Remember that when anyone asks you why IHRL matters in Canada given that we can turn to the Charter to safeguard our rights. The Charter only covers half of the rights promised to us internationally.
There are promising signs of change, such as the fact that the recent National Housing Strategy Act, enacted in 2019, “recognizes that the right to adequate housing is a fundamental human right affirmed in international law.” That is a first with respect to express recognition of an internationally enumerated ESC right in domestic law. We need to build on that. And, of course, recognition, while very welcome and long overdue, is empty without enforcement and compliance, which I come to in wish #4.
No exceptions or excuses
Protecting human rights is not just when it is easy to do so, when it is convenient, when it isn’t overly expensive, or when it is popular. And the obligation to protect human rights does not go out the window when society faces threats and challenges, such as in times of war or when national security is imperiled. Yet that is precisely the world we live in, particularly when national security is in the frame. We saw that during the devastating years of the professed war on terror, which more accurately was a war on human rights, launched after the 9/11 terrorist attacks. Justifying torture, secret detention, disappearances, discrimination and unfair trials in the name of security was, of course, a full out disaster for rights and justice. Neither did it forge a safer and more secure world.
That is certainly the backdrop to the devastation raining down destruction and suffering on the people of Gaza. The Hamas terrorist attacks and abduction of hostages in southern Israel on October 7th were heinous and abhorrent and there must be a response, but not at the expense of some of the most fundamental international legal norms around civilian protection and human rights, and a military campaign that has led UN experts and legal scholars to talk of the obligation to prevent genocide.
I travelled to NE Syria at the end of August with a civil society delegation that sought and was able to access camps and prisons in which over 50,000 foreign nationals, more than half of them children, have been locked away without charge, trial or any means of challenging their detention for 5 years and longer. Swept up because they were in NE Syria at the time when ISIS was, thankfully, defeated by Syrian Kurdish forces with backing from the US and allies. In NE Syria for a whole host of reasons – ranging from being a seven-year-old child who was born there, a woman who was trafficked there, a young man who had gone there to join in the struggle against the Assad regime and, yes, militants and radicals responsible for unspeakable ISIS atrocities. Yet we forego a strong justice-based response that holds those responsible for crimes accountable and ensures that those who were themselves victims of those abuses or played no role in carrying them out, are protected and freed. Around two dozen Canadians, half of them under the age of 14, remain there, trapped, imprisoned and abandoned. Women have been told that while their children can return to Canada, the women cannot, an unspeakably cruel policy that would countenance ripping families apart.
Surely it is time to recognize that justifying human rights violations in the name of security protects neither. We are not insecure because we have been too lenient when it comes to human rights. Quite the opposite, at the heart of insecurity in our world, lies the failures of universality, and the failure to uphold all rights equally. Meaningful and durable security lies down the road of embracing the universality of human rights like never before.
Take implementation and enforcement seriously
Rights without compliance. Rights without accountability. Rights without remedies. If that is what is on offer, we might as well admit that rights are illusory. It has been probably the most notable shortcoming of these 75 years. The mountain of treaties, declarations, resolutions and principles is impressive and grows, almost daily. Concrete commitments to live up to what is promised, almost nonexistent.
I say almost because there are of course exceptions to that pessimistic view. While we do not have a world-level UN human rights court, there are regional human rights courts for the Americas, Europe and Africa. That should, theoretically, include Canada, but think again. Having joined the Organization of American States over 30 years ago, in 1990, Canada has not yet ratified any of this hemisphere’s human rights treaties and has not accepted the jurisdiction of the Inter-American Court of Human Rights.
There has also been the notable, groundbreaking establishment of the International Criminal Court, which has begun to hold individuals responsible for the worst international crimes – genocide, war crimes, crimes against humanity – accountable. Canada has been a champion, particularly in early days. More recently, that has become uneven – enthusiastically cheerleading the ICC’s investigations into Russian abuses in Ukraine, but strongly opposed to the International Criminal Court’s investigation of abuses by Israeli forces and Palestinian armed groups in Palestine.
Here also is where I circle back to the dismal excuse that federalism stands in the way of effective international human rights implementation in Canada. Indigenous People’s organizations and civil society are tired of that excuse. UN human rights committees and experts are tired of that excuse. And even a number of our allies have called out that excuse during the UN Human Rights Council’s Universal Periodic Review of Canada, including earlier this month. We need to get this right. It matters domestically, as falling short of IHR implementation at home means violations that go unchecked. It matters globally as well, as our human rights diplomacy is obviously weakened if we are pressing other states to comply with international obligations while we are reluctant or unable to do so ourselves.
But all is not lost. A Forum of Ministers on Human Rights has been established, for the first time bringing federal, provincial and territorial ministers together to engage with Canada’s IHR commitments once every two years. That provides an important opening in which IHRP students could play a very active role in shaping a national IHR implementation framework and agenda.
Put human rights first
It may sound rhetorical and naïve, but this is in many respects the most important wish of all. We must start putting human rights first. We live in a world which has never taken seriously the opening paragraph of the preamble of the UDHR: “Whereas recognition of the inherent dignity of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
Human rights are the foundation, not the roof. It is where we are meant to start. But we rarely do. When human rights are asserted, we are far too often told: not now, not yet, we will come to that later; once the trade agreement is signed, once the peace deal is finalized, once the budget is set, the policy framework negotiated or the security arrangements put in place. Then we will turn to human rights.
But that approach not only sells human rights short, it undermines freedom, justice and peace in our world. Russia/Ukraine and Israel/Gaza are such stark and clear examples. Years of appeasing Vladimir Putin, overlooking the egregious human rights violations he was committing and keeping Russian gas flowing to market; or decades of impunity for the wrenching catalogue of war crimes and crimes against humanity committed by Israeli forces and by Palestinian armed groups. Yet we somehow expect first, for peace to prevail, and then subsequently we might turn to human rights?
It all begins with human rights. No matter the challenge. That lies on all our shoulders and within all our hands. We need a renewed IHRP to help us forge that better world.
