e reception of
international human
rights law
e most signicant ex pansion of international law since the close
of the Second World War has been in the area of human rights. e
second half of the twentieth centu ry saw the proclamat ion and codi-
cation in international l aw of doctrines once recognized only in
the laws of a handfu l of states and the writings of phi losophers. e
leading internationa l human rights instr uments of the period took
the form of multilateral t reaties such as the United Nations Conven-
tion Relating to the Statu s of Refugees and its 7 Protocol,1
the many conventions of the International L abour Organization, the
International Covenant on Civ il and Political Rights 1 (ICCPR),
the International Covena nt on Economic, Social and Cultura l Rights
(ICESCR), the International Convention on the Eli mination of
All Forms of Racial Discrimination (CERD), the Convention on
the Elimination of All Forms of Discri mination Against Women
(CEDAW ), the Convention Against Torture (CAT), and the Con-
vention on the Rights of the Chi ld (CRC). Other signicant state -
ments of international human r ights took the form of non-binding
[] Can TS no .
[] Can TS no .
[] Can TS no .
[] Can TS no .
[] Can TS no .
[] Can TS no .
[] Can TS no .
• The reception of inter national human rights law
instruments, ch ief among them the Universal Declaration of Human
Rights (UDHR).
e development of international human r ights continues in this
century with suc h instruments as the Convention on the Rights of Per-
sons with Disabil ities (CRPD) and the United Nations Declara-
tion on the Rights of Indigenous Peoples (UNDRIP). Alongside
these human rights i nstruments runs a r ich international jurispru-
dence of human rights, elab orated by regional bodies such as the Euro-
pean Court of Human R ights, the Inter-American Court of Human
Rights, the Freedom of Associ ation Committee of the International
Labour Organization, the United Nations Human Rights Committee,
and other UN treaty bodies.
e human rights movement has legitimized and popularized
rights discourse not only in i nternational law but also in domestic legal
systems. is phenomenon has been par ticularly ev ident in Canada,
which, following the constitutional traditions of England, originally
possessed no entrenched rights-protect ing instrument, but has since
adopted one – the Canadian Charter of Rights and Freedoms. In
Canada and other Westminster-model constitutions, rights were once
thought to be best protected by representative assemblies, ordina ry
statutes, judge-made law, and ancient notions of the libert ies of the
subject. e bundle of rights protected by the Westminster model wa s
much smaller tha n that now recognized at international law. But even
if the Westminster model were capable of aording adequ ate protec-
GA Res A (III), UN Doc A /. Judges of the Supreme Court of Canad a have
frequently refer red to the UDHR as a convention or inst rument to which Can -
ada is a signator y or party: see R v Luc as, [] SCR at para ; Canadian
Egg Marketing A gency v Richardson, [] SCR at para ; Delisle v Canada
(Deputy Att orney General), [] SCR at para ; R v A dvance Cutting &
Coring Ltd, SCC at para s –. is is mi staken: e UDHR is a non-
binding resoluti on of the General Assembly of t he United Nations.
[] Can TS no .
GA Res / ( Octobe r ).
Part I of the Constitution A ct, , being Schedu le B to the Canada Act
(UK), , c . S ee B Dickson, “e Ca nadian Char ter of Rights and Freedoms:
Context and Evolution” in G -A Beaudoin & E Mendes, e Canadi an Charter of
Rights and Freedoms, d ed (Toronto: Cars well, ) [Dickson] at – to –.
See J Ajzenstat, “Reconci ling Parliament and R ights: A.V. Dicey Reads the Can-
adian Ch arter of Rights and Free doms” () : Canadian Journal of Political
Science .
Using International Law in Canadian Courts
tion to its own narrow conception of human r ights (and that may be
disputed), it is unclear that it was capable, in C anada at least, of af-
fording meaningful protection to the much broader range of human
rights established since .
Canadians eventually opted to protect rights by const itutional
entrenchment, adopting the Char ter in . e Charter is C anada’s
foremost rights-protecting instrument, but it is not the only one. Be-
fore enactment of the Charter, and still today, rights in Canada were
also protected by federal, provi ncial, and territorial stat utes.
In this na l chapter, I consider the interaction between the inter-
national and Canad ian laws of human rights. I do not purport to
catalogue al l instances of Canadi an courts using inter national law in
interpreting the Cha rter or other domestic human rights l aws. In-
stead, I describe the reception r ules that have developed around inter-
national human rights norms. Inevitably, most of this discu ssion is
devoted to how international human r ights law informs Cha rter in-
terpretation.
11.1 Reception of international human rights law through
ordinary laws
e main instr ument by which human rights are protected in Canada
is the Charter. But human r ights are also protected in Can ada by a
variety of federal, provincial, and ter ritorial bills of rights and human
rights codes, and by certa in other statutes that, while not expressly
addressed at human rights, eec tively form part of Canad a’s overall
human rights regi me. Before moving on to the Charter (the main focus
of this chapter), I oer this brief account of human r ights reception
through ordinar y laws.
See W Schaba s & S Beaulac, Internati onal Human Rights and Canadian La w: Legal
Commitment, Implementation and the Charter, d ed (Toronto: omson Carswell,
) [Schabas & Beau lac]; M Freeman & G van Ert, Inter national Human Rights
Law (Toronto: Irwin Law, ) [Freem an & van Ert] at ch ; A Bayefsky,
International Human R ights Law: Use in Canadian Char ter of Rights and Freedoms
Litigation (Toronto: Butt erworths , ).
