Canadians and the United Nations Human Rights Committee
by Nicole Barrett and Basia Walczak
Canada’s human rights legacy has historically allowed Canada to “punch above its weight” in the international community. The country’s international achievements include leading roles in the creation of the UN Declaration of Human Rights, the Convention on the Rights of the Childand the Ottawa Land Mines Treaty, to name a few. In March 2016, Prime Minister Justin Trudeauaffirmedthe significant role Canada has played in promoting human rights, development, and security in support of the UN’s mission.
With the rise of authoritarianism in our globalized, inter-connected world, Canada’s involvement in international institutions, such as the United Nations, is now more important than ever to protect the human rights principles that Canadians hold dear. On June 17, 2020, Canada lost a second bid for one of the rotating seats on the UN Security Council, following an initial lossten yearsprior. As Canada looks to reassert itself at the UN, it should now shift its focus to the UN treaty bodies, which play a pivotal role in protecting and promoting human rights around the world.
In particular, the Human Rights Committee (“the Committee” or “HRC”), presents a timely opportunity for Canada to continue its leadership role in human rights. In September 2020, at the 38thMeeting of State Parties to the International Covenant on Civil and Political Rights (“ICCPR” or “the Covenant”), States will elect nine experts to the 18-person Committee. Ideally, those elected will be diverse, highly-qualified and independent and the Committee will be gender-balanced, as discussed further below. Given the strong contributions of past and present Canadian HRC members, human rights supporters the world over are lobbying for continued Canadian presence on the Committee.
Monitoring Civil and Political Rights
There are ten UN Committees that monitor the implementation of specific sets of human rights protected by international treaties. The Human Rights Committee, one of the oldest treaty-based monitoring bodies and arguably the most influential,is made up of independent experts tasked with monitoring State parties’ compliance with the International Covenant on Civil and Political Rights (“ICCPR” or “the Covenant”). The HRC operates with assistance from the Office of the High Commissioner for Human Rights (“OHCHR”). Most of the ICCPR provisions are familiar to Canadians as they overlap with, and indeed inspired, the Canadian Charter of Rights and Freedoms. One of the core ICCPR provisions, for example, is the protection of gender equality, detailed in Articles 2 and 3 of the Covenant and further elaborated in the Committee’s General Comment 28 (2000).
The Human Rights Committee has three main functions. First, it reviews country compliance with the ICCPR through reports and constructive dialogues in Geneva with Statesthat have signed the Covenant. These “state parties” submit reports detailing their implementation of Covenant rightsapproximately every four years and respond to concerns (called “list of issues”) identified by the Committee. After reviewing the State report and discussing the critical human rights issues raised, the Committeeresponds to the State reports with recommendations or “Concluding Observations,” which offer constructive advice on how the state can improve its human rights record.
Second, the Committee considers individual complaints of violations of civil and political rights submitted by rights holders under the Optional Protocol to the ICCPR. As its name suggests, the Protocol is not compulsory, but once a State becomes a party to the Optional Protocol, anyone within the State party’s jurisdiction can make a written complaint to the Human Rights Committee once domestic remedies have been exhausted. Articles1, 2, 3, and 5 of the Protocol set out admissibility requirements whereas Article 4contains basic procedural requirements the complainant must meet to have their case heard by the Committee.
Third, the Committee develops General Comments, which codify international law and offer best practices on topical human rights issues. The General Comments help governments and civil society interpret treaty provisions. The Committee’s most recent General Comment 37,adopted on July 24, 2020, covers the right to peaceful assembly. The prior General Comment 36on the right to life, was wide-ranging and celebrated for specifying that environmental degradation, climate change and unsustainable development were “serious threats” to present and future generations’ enjoyment of the right to life.
Who should sit on the Human Rights Committee?
Article 28 of the ICCPR requires Human Rights Committee members to have “recognized competence in the field of human rights,” recognizing the “usefulness” of those with legal experience. Committee members are to serve impartiallyrather than as representatives of their governments. The 2014 General Assembly Resolution 66/268’s on strengthening and enhancing the effective functioning of the human rights treaty body system, highlighted the critical importance of ensuring the independence and impartiality of treaty body members after it became apparent that some Committee members were following dictates from their government. On July 7, 2020, civil society organizations (“CSO’s”) made a joint submission to the General Assembly reiterating that State parties to the human rights treaties ought to vote only for candidates who meet all of the criteria set out for membership, in response to the not-uncommon practice of some countries to nominate individuals without requisite expertise and independence from their respective governments to serve as treaty body experts. Likewise, the UN High Commissioner for Human Rights, Michelle Bachelet, recently stated that expert members on the treaty bodies should meet the highest criteria of professionalism and independence.
The review of the treaty body process has emphasized the importance of diversity in the membership of treaty bodies, encouraging States to consider gender distributionwhen they vote for and nominate expertsin treaty body elections. Although recent studies indicate an upward trend in increasing gender parity in treaty bodies, only five out of 18 womenpresently serving on the Human Rights Committee are women. There were nowomen members of the Committee until 1983. A quick review of the current list of nominees for the nine vacancies on the Human Rights Committee raises concern, as only six candidates of the 15 running for elections in 2020 are women, one of them – a current Committee member – is Canadian.
The General Assembly has recently been reviewing the treaty body processgiven the challenges in the scope, complexity, and increasing workload of the various committees. Resources allocated to the treaty bodies have not kept pace with their expansion and increasing workload. On June 2, 2020, in her opening remarksof the 2020 Treaty Body Review Process, the UN High Commissioner stated that the treaty bodies needed regular budget resources in order to meet their mandates. Incredibly, these top-level international positions are unpaid, although travel costs are covered. Certainly, the pool of candidates could increase if committee positions were compensated, which would also help address awkward equity and access questions presented by the current arrangement.
The Canadian Contribution to the Human Rights Committee: Reflecting Back
Over the 44 years of the life of the Human Right Committee, three Canadians have served: Walter Tarnopolsky, Max Yalden and Marcia Kran, who is currently up for renomination for a second term. Their varied life and professional experiences have made significant contributions to the Committee’s demanding mandate.
Walter Tarnopolsky (HRC member 1997 – 1983)
Walter Tarnopolsky, born in 1932 in Gronlid, Saskatchewan, is considered a pioneerin the development of human rights and civil liberties in Canada. He worked as a judge, Dean and law professor. Tarnopolsky taught law at the University of Saskatchewan, University of Windsor, Osgoode Hall Law School of York University, and the University of Ottawa. He served as a Vice-President of York University and Dean of Law at the University of Windsor, prior to being appointed to the Court of Appeal for Ontario. He served on the Court of Appeal until his death in 1993.
Tarnopolsky was well aware of the Committee’s influence and highlighted one of the major problems faced by the Committee: how to compare the human rights performance of countries with very different standards of economic development. Tarnopolsky settled on the view that the same standard should apply to all states, regardless of wealth or development.
Today, the prestigious Tarnopolsky prize is awarded annually to a resident of Canada who has made an outstanding contribution to domestic or international human rights.
Max Yalden (Committee member in 1996 – 2004)
Max Yalden, born in 1930 in Toronto, Ontario, had a 50-year career in public service. Yalden served as a diplomat, Commissioner of Official Languages, and Chief Commissioner of the Canadian Human Rights Commission. He was an outspoken advocate for many human rights issues including Canada’s treatment of Indigenous peoples. A staunch protector of minority rights, Yaldenworked tirelessly to ensure that the Canadian Human Rights Act created a “fence of protection” for minorities in Canada. At age 79, Yalden published TransformingRights: Reflections from the Front Lines, chronicling Canada’s human rights record.
As a member of the UN Human Rights Committee from 1996 to 2004, Yalden strongly advocated for the interdependence of human rights and embrace of the broadest possible range of rights: fundamental rights, political rights, and social rights. He encouraged a framework where these rights would reinforce one another, irrespective of the size, culture, or political outlook of states.
Marcia V.J. Kran (Committee member from 2017 – 2020)
For 13 years, Canada was absent from the Human Rights Committee. In 2016, lawyer and former UN professional Marcia V.J. Kran was elected to the Committee.
Kran, born in Morris, Manitoba, began her legal career as a Crown Attorney in Manitoba and then served at the Canadian Department of Justice in Ottawa and the Open Society Justice Initiative in Budapest. Kran embarked on an impressive UN career as a senior official at UN Development Programme and the UN Office of the High Commissioner for Human Rights In 2005, she wasawarded the Tarnopolsky Prize.
Throughout her UN career, Kran has advocated for human rights and worked in and advised numerous countries on pragmatic reforms to apply human rights in law, policy and practice. Having lived and worked in many countries, Kran is uniquely placed to understand the reforms required to improve human rights protections on the ground. As a current HRC member, she focuses on national implementation of Committee recommendations. Kran currently serves as the Committee’s Rapporteur on Follow Up to Concluding Observations, leading the evaluation of the extent to which individuals are able to exercise their civil and political rights following State interaction with the Committee.
The HRC is about to gain nine members for its 2021-2024 term. With authoritarianism gaining traction globally in countries such as China, Russia, Brazil, India andthe United States, to name a few, the next Committee members are crucially important to ensure the integrity of the UN treaty body. This rise of authoritarianism is particularly concerning for human rights globally as social sciences studies have found thatauthoritarian regimes are less likely than their democratic counterparts to participate and co-operate with international institutions and comply with international law. Authoritarian practices also undermine the rule of law, a concept of universal validity and recognition, by rejecting principles such as state accountability and rights-based limits on state power. With this in mind, the roles of international treaty-based bodies, such as the Human Rights Committee, become pivotal in both upholding and protecting core international human rights norms.
In times of global flux, it is vital to elect professionals to international institutions who believe in democratic principles and human rights values and are truly independent from their governments. Onlyimpartial and independent committee members can provide an objective assessment of whether States are fulfilling their human rights obligations. Given the strong track record of Canadians on the HRC, promoting Canadian membership on the Human Rights Committee and other UN treaty bodies should be a priority. The world needs professional, independent and human rights-focused voices in our international institutions now more than ever.
Nicole Barrett is an Assistant Professor and Director of the International Justice and Human Rights Clinic at the WUniversity of British Columbia’s Allard School of Law.