Band 41, Heft 1

Thank you for the opportunity to address the very timely topic of international human rights law from the Canadian perspective. As my title suggests, my analysis of this topic sits at the intersection of law and politics, as so much of international law necessarily does. I will proceed in three parts. First, I will provide a sketch of the political context, drawing from recent events and trends, to describe a conflicted official government approach to international human rights. Next, I will examine the formal legal status of international human rights law in Canada, drawing selectively from key Supreme Court of Canada decisions. This will be far from a comprehensive account. Finally, I will discuss the recent adoption of the newest international human rights treaty, the disability convention, and discuss calls to promote access to justice at the international level for breaches of Convention norms domestically. Notwithstanding important efforts to advance the status of international human rights law in Canada, my overall observation is that, in both law and politics, the Canadian approach to international human rights is predominantly inward looking.

When I was asked to give this talk it occurred to me that it might be interesting to think aloud about some of the changes in constitutional law—and in writing about constitutional law—that have occurred since I came to Canada. I am a New Zealander by birth, but I was teaching at the Faculty of Law of Monash University in Melbourne, Australia, when I came to the Osgoode Hall Law School on a one-year visit in the summer of 1970. During that visiting year, the faculty decided to offer me a permanent appointment. This was done over the objection of one of my colleagues, R. J. Gray, who claimed that my lectures would require simultaneous translation, and that I would not meet the height requirements for Canadian citizenship. Anyway I was persuaded to stay (and three years later I became a Canadian citizen).

In 2012, the WTO Appellate Body issued three reports which clarified the framework governing technical regulations under Articles 2.1 (non-discrimination) and 2.2 (unnecessary obstacles to trade) of the WTO Agreement on Technical Barriers to Trade (“TBT Agreement”): U.S. - Clove Cigarettes; U.S. - Tuna Dolphin II; and U.S. - COOL.