bout de papier, Vol. 31, No. 2 (2021), pp. 39–40
BY JENNIFER TUNNICLIFFE
VANCOUVER, UBC PRESS, 2019,
PAPERBACK/HARDCOVER
ISBN 978-0-7748-3818-4, 336 pp
THAT CANADA IS A GLOBAL LEADER in the promotion and defence of human rights is widely acknowledged, perhaps more so outside of Canada than within. That Canada’s reputation in this field was once not just unhelpful, but downright obstructionist, is less well known. Thanks to a new publication by Professor Jennifer Tunnicliffe of McMaster University, Resisting Rights, readers can learn much more about the regrettable tale of Canada’s policy towards the drafting of the initial United Nations human rights instruments.
Tunnicliffe’s focus is on the drafting of the international bill of rights, comprising the Universal Declaration of Human Rights (UDHR), approved by the United Nations General Assembly on December 10, 1948, and the two International Covenants on political and civil rights, and economic, social and cultural rights, adopted in 1966. In a detailed examination, Resisting Rights highlights the scepticism and uncertainty of various Canadian governments towards the UN’s efforts to draft and approve these fundamental human rights texts. Fears that these instruments would undermine the sovereignty of Parliament, exacerbate federal-provincial tensions, embarrass Canada for its treatment of minorities, especially its Indigenous Peoples, and entrench “communistic” economic and social rights in Canadian law combined to produce an exuberantly cautious policy on the international bill of rights.
The “headline” conclusions in Resisting Rights are not new revelations. As Tunnicliffe herself notes, the story of Canada’s abstention on the UDHR in a UN committee has been told before, notably by fellow Canadian William Schabas, a renowned international human rights expert. Moreover, Canada’s hesitant policy in the early years of the UN’s defining of human rights will not come as a surprise to anyone familiar with Canadian history. The slow evolution from British colony to true independence, as well as the existential struggle to maintain national unity in the face of constant and turbulent federal-provincial waters, were critical factors influencing Canadian foreign policy, including in the area of international human rights. Then, there were the preoccupations of the Cold War which dominated Canadian foreign policy considerations in the aftermath of the Second World War, pushing other issues, such as setting new human rights standards, to the margins.
Professor Tunnicliffe is, nonetheless, to be applauded for her exhaustive research on this subject and for the very readable style of her prose. Resisting Rights is both a useful academic study on a topic that merits further examination and a welcome contribution to the debate on Canada’s reputation internationally. On that debate, the divisions resemble the “glass half empty versus half full” argument. Some observers, Professor Tunnicliffe included, believe that Canada’s international reputation on human rights is exaggerated at best, and unwarranted at worst. Others argue that, while Canada could and should do more on human rights, both domestically and internationally, this fact should not detract from the leadership role Canada has played and continues to play in the promotion and protection of human rights.
Ironically, Resisting Rights gives credence to both viewpoints. There is, undoubtedly, solid evidence to support Tunnicliffe’s main conclusion — that Canada was initially leery of the development of international human rights standards, and that, even by the 1970s, its policies were hardly exemplary. However, Resisting Rights also documents how Canadian human rights policy came to evolve. It is here that the genesis of a more positive, activist government stance emerged. Influenced by changing domestic attitudes, by an emerging civil society movement, and international pressure from allies, Canada’s position on the UDHR initially, and the two Covenants subsequently, gradually moved from one of scepticism and concern to one of full support.
An excellent example relates to the change in the government’s attitude with respect to federal-provincial concerns. One of the main reasons for Canada’s lacklustre support for the international bill of rights was its view that many of these rights fell within provincial jurisdiction. Tunnicliffe notes the significance of the Privy Council’s decisions in the 1930s regarding the ILO Labour Convention cases which had, in the view of the King and St. Laurent Liberal governments, constrained its ability to implement international rights falling within provincial jurisdiction. Faced with a reactionary government in Duplessis’ Quebec and staunch defenders of the British parliamentary tradition in Ontario, Alberta and elsewhere, it is no surprise that the Canadian governments of the era were hesitant to show leadership in this field.
As Resisting Rights insightfully illustrates, however, that hurdle was eventually overcome. When the (first) Trudeau government was considering ratification of the International Covenants, it developed a modus operandi of federal-provincial cooperation which, while hardly perfect, was effective enough to see Canada become party to the instruments. The consultative model was continued and eventually expanded to include the three territories. From the 1980s onwards, the effectiveness of the consultative process grew. It became a significant reason that Canada moved from a reactive and cautious participant in the negotiation of international human rights issues to a leadership role. Nowhere was that more evident than in the elaboration of the UN Convention on the Rights of the Child. Not only was there an ad hoc federal-provincial-territorial working group established to guide the work of the Canadian delegation; provincial representatives from Ontario and Quebec joined the delegation and made positive contributions to the text of the Convention.
The story told in Resisting Rights, therefore should be seen from a positive angle. Rather than a reason for embarrassment, that story is quintessentially Canadian. How many times has this country, from pre-Confederation times to the present, adopted and pursued morally questionable policies, only to eventually come to our senses and do the right thing? The examples of our mistakes are unfortunately many, from our treatment of First Nations to racist immigration policies. And yet, we have managed to muddle through. How? The same way that Resisting Rights discusses the change to Canadian policy on the international human bill of rights. By talking, listening, consulting, reviewing and educating.
The impact of that very Canadian process was significant and far-reaching. During the late 1990s, arguably the real heyday of Canadian foreign policy, Foreign Minister Lloyd Axworthy worked closely with civil society and like-minded states to advance the Human Security agenda. The Ottawa Landmines Convention, the International Criminal Court, the Responsibility to Protect and UN Security Council resolutions on the protections of women and children in armed conflict were but the most noteworthy results of an ambitious agenda primarily aimed at protecting individuals from the excesses of states. And none of these achievements would have happened without Canadian leadership.
Even when we get things wrong, we eventually come to our senses. The UN’s Declaration on the Rights of Indigenous Peoples is a good example of how Canada, both as a society and a government evolve. While supporting the elaboration of the Declaration, Canada initially opposed the use of the term “peoples”, preferring the neo-colonialist word “populations”, because of concerns over the right of self-determination. Those, and preoccupations over the level of consultation required before approving major economic projects, led the Harper government eventually to vote against the Declaration when it was adopted by the UN. Yet today, the Trudeau government has not only accepted the Declaration but has introduced legislation to implement many of its provisions, even though the Declaration does not bind states to do so. That step puts Canada at the forefront internationally in realizing these fundamental rights. Not even the Nordic countries or New Zealand have gone this far.
That is not to say that Canada should rest on its laurels. Resisting Rights is most useful as a study in how modern preconceptions, in this case, Canada’s international human rights record, do not withstand the cruel microscope of historical analysis. We can and should do better. Just as Canadian politicians and public servants learned from the mistakes made with respect to the international bill of rights, we should constantly review our policies and positions on defending human rights internationally. Through reviews, parliamentary study and consultations with civil society, we will do what we Canadians usually manage to do — the right thing.
Originally published in bout de papier, Vol. 31, No. 2 (2021), pp. 39–40. Read the rest of this issue →
