@prefix vivo: . @prefix edm: . @prefix ns0: . @prefix dcterms: . @prefix dc: . @prefix skos: . vivo:departmentOrSchool "Law, Peter A. Allard School of"@en ; edm:dataProvider "DSpace"@en ; ns0:degreeCampus "UBCV"@en ; dcterms:creator "Hunter, Rebecca Winesanker"@en ; dcterms:issued "2009-07-06T22:41:55Z"@en, "1999"@en ; vivo:relatedDegree "Master of Laws - LLM"@en ; ns0:degreeGrantor "University of British Columbia"@en ; dcterms:description """A fundamental tension exists today between the increasing willingness of states to participate in international efforts to protect fundamental human rights, and their desire to retain control over internal laws and procedures. Canada, as an active participant in international human rights regimes, has assumed numerous international obligations which have not for the most part been directly incorporated into Canadian law. Canadian law has traditionally drawn a distinction between the international obligations which Canada has undertaken as a party to international treaties, and the individual domestic rights which may be enforced in Canadian courts. In recent years, however, this distinction has become blurred. At present, the international human rights instruments to which Canada is a party have an uneasy place in Canadian law. Many courts in Canada are unfamiliar with the provisions of these instruments. In recent years the Supreme Court of Canada has increasingly demonstrated a willingness to refer to international conventions, particularly as aids in interpreting the Charter of Rights and Freedoms, but the articulation of the impact of international human rights law on domestic law remains less than clear. Canada has accepted the competence of international treaty bodies to adjudicate upon individual complaints alleging violations of international human rights obligations by Canada, yet Canada's responses to the views and requests of these treaty bodies has been inconsistent. The result is a lack of clarity regarding Canada's policies on implementation of its international human rights obligations. Questions are increasingly being raised in relation to the domestic impact of Canada's international posture on human rights. It is time that the Government of Canada recognize that there are serious issues that need to be addressed and reflect upon what steps might be taken to achieve a more rational, effective approach to the assumption and implementation of international human rights obligations. Four areas which the Government should examine in this regard are the pressing need for informed public debate, changes to the ratification process, the positions advanced before domestic courts, and the need to improve the credibility of the international treaty body process."""@en ; edm:aggregatedCHO "https://circle.library.ubc.ca/rest/handle/2429/10288?expand=metadata"@en ; dcterms:extent "12623628 bytes"@en ; dc:format "application/pdf"@en ; skos:note "CANADA'S INTERNATIONAL POSTURE ON HUMAN RIGHTS CONSEQUENCES IN THE DOMESTIC DOMAIN BY REBECCA WINESANKER HUNTER B.A., Oberlin College, 1972 LL.B., University of Toronto, 1975 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS OF THE DEGREE OF MASTER OF LAWS THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA November 1999 © Rebecca Winesanker Hunter, 1999 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of L. f\\UJ The University of British Columbia Vancouver, Canada Date /vVt/e^W 1° , r?9? DE-6 (2/88) 11 ABSTRACT A fundamental tension exists today between the increasing willingness of states to participate in international efforts to protect fundamental human rights, and their desire to retain control over internal laws and procedures. Canada, as an active participant in international human rights regimes, has assumed numerous international obligations which have not for the most part been directly incorporated into Canadian law. Canadian law has traditionally drawn a distinction between the international obligations which Canada has undertaken as a party to international treaties, and the individual domestic rights which may be enforced in Canadian courts. In recent years, however, this distinction has become blurred. At present, the international human rights instruments to which Canada is a party have an uneasy place in Canadian law. Many courts in Canada are unfamiliar with the provisions of these instruments. In recent years the Supreme Court of Canada has increasingly demonstrated a willingness to refer to international conventions, particularly as aids in interpreting the Charter of Rights and Freedoms, but the articulation of the impact of international human rights law on domestic law remains less than clear. Canada has accepted the competence of international treaty bodies to adjudicate upon individual complaints alleging violations of international human rights obligations by Canada, yet Canada's responses to the views and requests of these treaty bodies has been inconsistent. The result is a lack of clarity regarding Canada's policies on implementation of its international human rights obligations. Questions are increasingly being raised in relation to the domestic impact of Canada's international posture on human rights. It is time that the Government of Canada recognize that there are serious issues that need to be addressed and reflect upon what steps might be taken to achieve a more rational, effective approach to the assumption and implementation of international human rights obligations. Four areas which the Government should examine in this regard are the pressing need for informed public debate, changes to the ratification process, the positions advanced before domestic courts, and the need to improve the credibility of the international treaty body process. iii TABLE OF CONTENTS ABSTRACT ii TABLE OF CONTENTS iii ACKNOWLEDGEMENT vi I i INTRODUCTION •. 1 CHAPTER 1 INTERNATIONAL HUMAN RIGHTS AND STATE SOVEREIGNTY: CONFLICTING OR COMPLEMENTARY? 6 The Meaning and Status of \"State Sovereignty\" 7 Current Paradigms of World Order: Where Are We on the Continuum? 15 The Principle of \"Subsidiarity\" 18 The Doctrine of the \"Margin of Appreciation\" 22 \"Derogations\" and \"Reservations\" 31 Conclusions 37 CHAPTER 2 ' DOMESTIC IMPLEMENTATION OF INTERNATIONAL HUMAN RIGHTS OBLIGATIONS: WHAT IS CANADA U P To? 42 Canada's Entry into the International Human Rights Arena 44 Assuming International Human Rights Obligations: The Treaty-Making Process in Canada 49 The Place of International Human Rights Law in Canadian Courts 54 A Recent Illustration: The Convention on the Rights of the Child and Domestic Immigration Practices 60 The Positions the Government Advances Before the Courts 71 / iv Canada Is Not Alone in Facing These Issues 75 Conclusion 79 CHAPTER 3 iNDivrouAL COMPLAINTS TAKEN TO INTERNATIONAL TREATY BODIES: How HAS CANADA FARED BEFORE THE HUMAN RIGHTS COMMITTEE A N D THE COMMITTEE AGAINST TORTURE? 80 The Human Rights Committee 81 (i) Extradition by Canada to a state in circumstances where the fugitive will potentially face the death penalty 84 (ii) Deportation from Canada of long-time permanent residents 97 (iii) Prisoners' rights: the right to be tried without undue delay; treatment during detention 101 (iv) The right of an individual convicted of a criminal offence to benefit from legislation which is enacted subsequent to the commission of the offence, and which provides for a lighter penalty 104 (v) Freedom of religion and \"reasonable accommodation\" requirements: Dismissal from employment of a Sikh for refusal to wear a hard hat at the worksite 107 (vi) Laws promoting or requiring the use of a particular language: restrictions against the use of English for commercial purposes (Bill 101 as amended by Bill 178) 110 (vii) The right of persons belonging to ethnic minorities to enjoy their own culture in community with other members of their cultural group 115 (viii) Political and economic status of indigenous communities 118 (ix) The availability of public funding for religious schools 123 The Committee against Torture 126 Observations 133 Canada's Responses to the Views and Requests of International Treaty Bodies 141 V CHAPTER 4 THE UNITED KINGDOM AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS: A LESSON FOR CANADA? 155 The United Kingdom's Ratification of the European Convention 157 An Overview of the European Human Rights Regime 160 How the United Kingdom has Fared before the European Court of Human Rights and How it has responded to Judgments of the Court 164 The Uneasy Place the European Convention has had in the Domestic Law of the United Kingdom: How the UK Courts have treated the Convention 170 The Human Rights Act: \"Bringing Rights Home\" 177 Lessons for Canada 183 CHAPTER 5 CONCLUSIONS: TOWARD A MORE RATIONAL AND EFFECTIVE APPROACH TO CANADA'S ASSUMPTION AND IMPLEMENTATION OF ITS INTERNATIONAL HUMAN RIGHTS OBLIGATIONS 187 BIBLIOGRAPHY 194 APPENDIX 206 / vi ACKNOWLEDGEMENT I wish to thank Professors Douglas Sanders and Karin Mickelson for their guidance and for the invaluable comments they provided to me throughout the preparation of this thesis. I also wish to acknowledge the Law Foundation of British Columbia for the fellowship awarded to me for the purpose of pursuing this graduate work. Finally, I would like to express my thanks to my husband John and my children Claire, Gillian and Rob, for their continual encouragement and support. 1 CANADA'S INTERNATIONAL POSTURE ON HUMAN RIGHTS: CONSEQUENCES IN THE DOMESTIC DOMAIN INTRODUCTION No one would quarrel with the notion that states should enthusiastically endorse international instruments which promote principles such as \"universal respect for and observance of human rights and fundamental freedoms\". Most would applaud states' involvement in international efforts to recognize individual human rights and prevent their infringement. If participation in the arena of international human rights were a matter as simple and straightforward as that, there would be little reason for concern. However, over the past three decades, it has proven to be anything but a simple matter. States which have ratified international human rights instruments and acceded to their individual petition procedures find themselves struggling to reconcile the obligations they have assumed internationally with their desire to retain control over their domestic legal process. This is the situation Canada finds itself in. Canada has been a good joiner. Though its initial venture into the international human rights arena was not without reservations, it has become an enthusiastic participant in the process, and has with pride developed an excellent reputation internationally with respect to human rights law. Along the way, some of the concerns that were expressed when Canada made its foray onto the international human rights stage, concerns with the vague and imprecise terminology contained in international instruments, the uses to which the language might be put, and the influences which the instruments might have on the future interpretation of obligations, seem to have been dismissed, in favour of ensuring a reputation as a promoter of fundamental human rights. r 2 The consequences for Canada's domestic legal process are only slowly emerging. The potential domestic impact of Canada's international posture on human rights has never been the subject of informed public debate in Canada. Even many in the legal community have yet to familiarize themselves with Canada's international human rights obligations. But awareness is growing, and increasingly individuals are not only filing petitions (including requests for interim measures) with international treaty bodies, alleging violations by Canada of its international obligations, but are also challenging Canada's legislation and administrative decisions in the domestic courts, on the basis of Canada's international obligations. These challenges are not only raising difficult legal questions regarding the domestic status of international human rights treaties, but are also testing the dividing line between national rules and international governance. Many of these challenges concern matters which go to the heart of the concept of state sovereignty, the right of the state to exercise control over its borders and to protect its own citizens. Some of the challenges, for example, concern decisions which Canada has taken to remove individuals from the country pursuant to immigration procedures. Other cases concern decisions to extradite individuals to countries where they may be subject to the death penalty. Faced with interim measures requests from international treaty bodies to delay removal of individuals from Canada for what might be lengthy periods of time, Canada has been reluctant, and in some cases unwilling, to abide by these requests. Faced with allegations in the domestic courts that by deporting or extraditing these individuals Canada is violating the international conventions to which it is a party, the Government has taken refuge in its dualist system and has relied on the well-established legal principle that an unincorporated international treaty has no direct application within Canadian law. While this principle is still good law, the courts are increasingly ready to apply unimplemented treaties 3 indirectly through statutory interpretation of domestic legislation, and the Supreme Court of Canada has recently signalled its willingness to use creative means to ensure that domestic law is interpreted in conformity with international human rights obligations. Gradually, questions are being raised and criticism directed at Canada in relation to its international posture on human rights. There are those who call Canada a human rights violator and accuse Canada of not living up to its international obligations and of taking inconsistent positions internationally and domestically. There are others who are astonished that Canada has taken on obligations which potentially restrain government action on the basis of something other than domestic legislation, and question whether this poses a threat to state sovereignty and to the integrity of the state's domestic legal process. What appears as inconsistency and confusion in the Canadian approach to these matters is illustrative of a fundamental tension that exists in Canada, as well as in other nations, between the state's increasing willingness, in this age of globalization and internationalisation, to be part of an international effort to protect fundamental human rights around the world, and the state's desire to retain control over what it views as domestic concerns. This thesis will explore this tension, and will examine Canada's participation in the arena of international human rights, its impact on Canada's domestic legal process, and ways in which Canada might develop a more rational and effective approach to international human rights obligations. The thesis is divided into five chapters. Chapter 1 provides a theoretical framework for understanding the relationship between the concept of state sovereignty, in particular the desire of the state to retain control over its internal legal process, and the active participation of the state in the realization and international protection of fundamental human rights. The chapter examines the 4 evolving concept of state sovereignty and current paradigms of world order. It also undertakes an analysis of practices in the international human rights arena which touch upon the interplay of state sovereignty and the achievement of international standards. By examining the application of the principles of subsidiarity, the margin of appreciation, derogations and reservations, the chapter explores to what extent the existing international human rights system accommodates state sovereignty. Chapter 2 takes a critical look at Canada's performance in the domestic implementation of its international human rights obligations. To gain an understanding of apparent inconsistencies in Canada's behaviour, the chapter examines the history of international human rights in Canada, the process by which Canada assumes international human rights obligations, and how issues concerning the relationship between international human rights law and domestic law are unfolding before Canada's courts. Chapter 3 examines the optional individual complaint procedures to which Canada has acceded under international human rights conventions. A detailed examination is undertaken of the conclusions (\"views\") reached by international treaty bodies on individual complaints against Canada concerning alleged human rights violations, and Canada's responses to the views and requests of the treaty bodies. There is a useful comparison to be made between the impact of Canada's international human rights obligations on the Canadian domestic legal process, and the effects which the United Kingdom's participation in the European human rights regime has had on the domestic legal process in the UK. Chapter 4 explores this comparison and examines whether the current debate in the UK offers Canada any insights into its own situation. 5 The final chapter, chapter 5, provides the writer's conclusions with respect to what consequences Canada's international posture on human rights is having in the domestic domain, and offers suggestions which might assist the Government of Canada in developing a more effective approach to the assumption and implementation of international human rights obligations. The research for this thesis was completed on November 15,1999, and accordingly the thesis does not include any reference to events occurring after that date. 6 CHAPTER 1 INTERNATIONAL HUMAN RIGHTS AND STATE SOVEREIGNTY: CONFLICTING OR COMPLEMENTARY? The term \"state sovereignty\" often conjures up the image of states rigidly adhering to the notion that they can behave as they please, particularly within their own borders, without interference. The concept of \"human rights\" is frequently referred to in juxtaposition to \"state sovereignty\"; states are seen as the violators of fundamental human rights and \"sovereignty\" is perceived as a tool used by states to shield those violations committed within state territory. A good deal of debate has taken place in recent years with respect to the meaning and status of \"sovereignty\", whether state sovereignty is eroding and a new world order emerging, and whether or to what extent the principle of state sovereignty is incompatible with or an obstacle to the realization of and the international protection of fundamental human rights. \"Some time ago, sounding sovereignty's death knell came into academic vogue.\"1 Scholars have spoken about the end of sovereignty, the decline of sovereignty, the erosion of sovereignty and the extinction of the nation-state.2 These notions of the demise of state sovereignty are frequently accompanied by theories and models relating to the replacement of state sovereignty or the state-centric system with a global community or a new world order system. From the perspective of new world order proponents, state sovereignty is seen as the major impediment to the achievement of international human rights 'Michael Ross Fowler and Julie Marie Bunck, Law, Power, and the Sovereign State (Pennsylvania: The Pennsylvania State University Press, 1995) at 1. i 2These are by no means the only terms resorted to in describing changes in state sovereignty: \"State sovereignty today is 'diffusing,' 'shifting,' 'dimirushing,' 'maturing,' 'pooling,' 'leaking,' 'evaporating' --and all this is happening, it would seem, at once.\": Sohail H. Hashmi, ed., State Sovereignty: Change and Persistence in International Relations (University Park: Pennsylvania State U.P., 1997) at 3. Writers have also referred to the \"unbundling\" and the \"transformation\" of sovereignty. See, e.g., Saskia Sassen, Losing Control? Sovereignty and Globalization (New York, Columbia University Press, 1996) at 29-30. 7 standards and as a concept that has run its course and is obsolete. This chapter examines the evolving concept of state sovereignty in the context of the international human rights movement, and whether the existing international human rights system possesses the capacity to accommodate state sovereignty but at the same time to move gradually toward the realization and protection of fundamental human rights. The Meaning and Status of \"State Sovereignty \" (i) Historical Roots There is a good^ deal of lack of clarity surrounding the term \"sovereignty\".3 The origin and history of the concept of sovereignty is closely linked to the evolution of the state and to the development of centralized authority in early modern Europe.4 The establishment of the norm of sovereign statehood is usually associated with the historic Peace of Westphalia which ended the Thirty Years War in 1648: Westphalia's norm of sovereign statehood set new standards for each of the.. .faces of sovereignty: it made the sovereign state the legitimate political unit; it established that the basic attributes of statehood - the existence of a government with control of its territory were now.. .the criteria for becoming a state; and, as it came to be practiced, it meant that there were no legitimate restrictions on a state's activities within its territory. Such a sweeping transition in sovereignty, affecting so 3The English word \"sovereignty\" originally derived from the French word \"souverain\", meaning a supreme ruler not accountable to anyone except perhaps to God. See Ivo D. Duchacek, Nations and Men: International Politics Today (New York: Holt, Rinehart and Winston, 1966) at 47, referred to in Fowler and Bunck, supra note 1 at 4. \"Joseph A. Camilleri and Jim Falk, The End of Sovereignty? The Politics of a Shrinking and Fragmenting World (Great Britain: Edward Elgar Publishing Limited, 1992) at 15. Many historians say that the concept developed as an instrument for the assertion of royal authority over feudal princes in the construction of modern territorial states. Disorder was seen as a serious obstacle to a stable society and could only be overcome by governments that could maintain the capacity to provide order through the exercise of sovereignty. See Gene M. Lyons and Michael Mastanduno, eds., Beyond Westphalia?.State Sovereignty and International Intervention (Baltimore, Md.: The Johns Hopkins University Press, 1995) at 5. 8 many areas, would not be seen again until the European Community came into being in 1950.5 It has been said that \"[i]n the history of sovereignty one can skip three hundred years without omitting noteworthy change. Westphalia['s]...norm of sovereign statehood has remained intact up to the present\".6 Most contemporary formulations ofthe concept of sovereignty are based on philosophical and theoretical positions advanced in sixteenth and seventeenth century Europe.7 There were, however, different approaches to \"sovereignty\" which developed during that era, and the ambiguities that exist today in the definition of \"sovereignty\" are apparent in the theories which form the historical basis for contemporary formulations of the concept.8 5Daniel Philpott, \"On the Cusp of Sovereignty\" in Luis E. Lugo, ed., Sovereignty at the Crossroads? Morality and International Politics in the Post-Cold War Era (Lanham, Md.: Rowman & Littlefield Publishers, Inc., 1996) at 43. Most standard international law texts give 1648 as the advent of the modern law of nations. See Harold Hongju Koh, \"Why Do Nations Obey International Law?\" (1997) 106 Yale L.J. 2599 at 2607. 6Lugo, ed., ibid, at 43. It should be noted, however, that Westphalia did not produce a single model of the sovereign state, though the sovereign state was the important entity. Alternative models, involving limited or conditional sovereignty, developed, e.g., dependencies, protectorates, and vassal states. For a discussion of the \"range of governmental entities considered by international law as possessing some degree of international personality, if not full sovereignty\", see Hurst Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania Press, 1990) at 16 ff. 7Camilleri and Falk, supra note 4 at 15. 8A number of political thinkers significantly shaped the theory of sovereignty, among them Bodin, Hobbes, Locke, Rousseau, and Kant. Bodin perceived \"sovereignty\" as the supreme power over citizens and subjects, unrestrained by law, although he did view that supreme power as being subordinate to the laws of God and Nature. Hobbes discarded all limitations on sovereignty; in his view no authority outside the state could sit in judgment on the state. Locke saw society and the state as existing to preserve individual rights; the rights of life, liberty and estate were limitations on the authority of the state and sovereign power resided ultimately with the people. Locke built on the theory of Hugo Grotius \"whose development of natural law qualifies him as the father of modern international law.\": See Jerome J. Shestack, \"Role of the Lawyer in Human Rights Issues\" in Global Law in Practice (The Hague: Kluwer Law International, 1997) at 30. Shestack goes on to say that the legal philosophy of Grotius and the enlightenment philosophers was \"submerged and overridden by 19th and 20th century positivist doctrine which sacrificed human rights to the altar of the state...\" (at 31). Rousseau attempted to fuse the sovereignty of the people with the sovereignty of the state; \"the people\" were 9 (ii) \"Sovereignty \" as an Evolving Concept \"Sovereignty\" remains a central but ambiguous notion in international relations discussions today. It has been said that \"[t]hough the frequency of its use has waxed and waned, sovereignty has never strayed far from the center of discourse about international relations... Yet, despite its regular use, sovereignty remains a somewhat misty concept clouded by a fog of contested assumptions and unresolved questions.\"9 In contemporary international relations discourse the term \"sovereignty\" is defined generally as \"the right of a state to control its domestic and foreign affairs without external interference.\"10 As a concept of international law, \"sovereignty\" is said to have three major aspects: external, internal and territorial: The external aspect of sovereignty is the right of the state freely to determine its relations with other states or other entities without the restraint or control of another state. This aspect of sovereignty is also known as independence. It is this aspect of sovereignty to which the rules of international law address themselves primarily... The internal aspect of sovereignty is the state's exclusive right or competence to determine the character of its own institutions, to ensure and provide for their operation, to enact laws of its own choice and ensure their respect. The territorial aspect of sovereignty is the complete and exclusive authority which a state exercises over all persons and things found on, the ultimate repository of sovereign rights. Kant reasserted the principle of constitutional government; in Kant's theory, each citizen shared in the law of the sovereign by being involved in making the law, but the law, administered by the executive, was binding on all citizens. See Camilleri and Falk, supra note 4 at 18 - 23. 9Fowler and Bunck, supra note 1 at 3 and 32. 10See Peter A. Toma and Robert F. Gorman, International Relations: Understanding Global Issues (Pacific Grove, California: Brooks/Cole Publishing Company, 1991) at 25. Note: The United Nations Charter sets out the concept in similar terms. Article 7 begins as follows: ''Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state...\" Non-intervention is often described as the flip-side of sovereignty. See, e.g., Robert O. Matthews and Cranford Pratt, eds., Human Rights in Canadian Foreign Policy (Kingston and Montreal: McGill-Queen's University Press, 1988) at 291. The authors also point out that the principles of sovereignty and non-intervention are incorporated not only in the UN Charter but also in all regional organizations. 10 under or above its territory... [Sovereignty in international law is the sum total of all three aspects..^ nearly all international relations are bound up with the sovereignty of states...11 It is the \"internal\" aspect of \"sovereignty\" which has become the principal subject of reflection and concern in international human rights discourse. Some of the confusion regarding sovereignty results from the multiple meanings attached to the term, as seen in the definition of \"sovereignty\" referred to above: In international relations discourse, scholars, diplomats, politicians, and government officials often casually refer to sovereignty without identifying the sense in which they are using the term.. .As once stated of the similarly elusive term 'the balance of power,' the concept of sovereignty has been used not only in different senses by different people, or in different senses at different times by the same people, but in different senses by the same person in rapid succession.12 The lack of clarity in current discussions of the notion of sovereignty is due not only to its multiple meanings, but also to the existence of varying assumptions underlying the term. Some of the confusion may be attributable to a misunderstanding of the original theories on which contemporary formulations are based. One writer has stated, for example, that the concept of sovereignty associated with the notion of absolute power or authority of governments and states rests on an inaccurate reading of Bodin and his followers: Bodin was not concerned with elaborating a principle of absolute power of governments (or of monarch) in the sense of limitless or even arbitrary power...he was concerned with the centralization of public authority in the monarch and doing away with competing power groups or authorities such as the church and the nobility. This n M . Sorenson, ed., Manual of Public International Law (1968) at 523, referred to in Henry Burmester, \"National Sovereignty, Independence and the Impact of Treaties and International Standards (1995) 17 Sydney L.Rev. 127 at 128. Towler and Bunck, supra note 1 at 4. 11 centralized authority was not conceived of as being unlimited.13 Louis Henkin has expressed the view that, \"as applied to states in the international system, 'sovereignty' is a mistake, indeed a mistake built upon mistakes, which has barnacled an unfortunate mythology\".14 Henkin says as follows: A political idea describing the locus of ultimate legitimate authority in national society, 'sovereignty' has been transmuted into an axiom of the inter-state system, which has become a barrier to international governance, to the growth of international law, and to the realization of human values. 1 5 It is the perception of \"sovereignty\" as absolute sovereignty, i.e., the idea that the state is unlimited in its prerogative, unchallengeable, inviolable, that leads to the conclusion that state sovereignty is incompatible with and inevitably collides with the realization of and the protection of international human rights, that it has become dysfunctional or obsolete, and that it requires replacement. One writer has postulated that there are two lines of thought associated with concepts of sovereignty. It is either \"viewed as something absolute that may be won or lost or something variable that may be augmented or diminished\".16 This has been described as the \"chunk\" and \"basket\" theories of sovereignty:17 One school of thought views sovereignty as a chunk of stone which cannot be enlarged or chipped away; it is monolithic and indivisible. The other school of thought views the 13Jost Delbrueck, \"International Protection of Human Rights and State Sovereignty\" (1982) 57 Indiana L.J. 567. '\"Louis Henkin, \"Human Rights and State 'Sovereignty'\" (1995/96) 25 Georgia J. IntT & Comp. Law 31. 15Henkin, ibid, at 31. 16Fowler and Bunck, supra note 1 at 64. 17Fowler and Bunck, ibid. 12 concept of sovereignty as a \"basket of rights and duties\" rather than a monolithic chunk. According to the \"basket\" theory, sovereignty is not something that must be possessed in full or not at all; sovereign rights and duties are inherently variable, not static; sovereignty is divisible; and the contents of the basket change. When sovereignty is viewed as variable and divisible, the idea that state sovereignty is not necessarily incompatible with international human rights and that the two concepts can be viewed as complementary rather than conflicting, begins to make sense. Beginning in the eighteenth century, \"the notion that the principle of sovereignty was an inherently limited one tended to be dismissed or forgotten in actual interstate relations\".18 Assumptions concerning sovereignty and international relations developed to include the notions that the state system is committed exclusively to state values and that the international system may not address what goes on within a state.19 However, particularly since the end of the Second World War the notion that states are entitled to do as they please within their territorial jurisdiction, has been undergoing modification.20 This change has taken place partly within the context of the international human rights movement. The human rights movement reflects the notion that states are obligated to meet certain standards in how they treat their nationals even within their own territory and that nonnational bodies as specified in the treaties are entitled to comment or take action on human rights issues. This is a revolutionary change.. .but (one) which 18Delbrueck, supra note 13 at 570. 19Henkin, supra note 14 at 32. 20Major human rights developments prior to World War II were the 1864 Geneva Convention, asserting soldiers' rights to medical attention; the Treaty of Versailles, protecting certain minority rights; the creation of the International Labour Organization, protecting labour rights; the League of Nation's defense of rights of individuals in mandated territories; and the 1926 Convention outlawing slavery. These developments have been described by one writer as the \"major pre-World War II exceptions to state sovereignty\": Phillippa Strum, \"Rights, Responsibilities, and the Social Contract\" in Kenneth W. Hunter and Timothy C. Mack, eds., International Rights and Responsibilities for the Future (Westport: Praeger, 1996) at 32. 13 still confronts a tradition of three centuries.21 Ali Khan, in an article entitled \"The Extinction of Nation-States\", argues that while territorial sovereignty has played a key role in the development of the international legal order, two prominent forces challenge the nation-state's traditional sovereignty — economic interdependence and the universal recognition of human rights: Economic interdependence creates a global market in which most nation-states can no longer exercise complete sovereignty. The logic of the global market dictates interdependence, not independence... The universal recognition of human rights, meanwhile, transforms both the relationship between states and the relationship between governments and their people. The international law of human rights aspires to subordinate the nation-state to the will of the people Accordingly, governments have less legal authority to invoke the concept of sovereignty to justify policies that violate fundamental rights of citizens. Moreover, matters that historically belonged to domestic jurisdiction may now be lawfully examined in international fora of human rights.22 Louis Henkin has expressed the view that \"[hjuman rights law has shaken the sources of international law, reshaped its character, enlarged its domain...[It] is a revolutionary penetration of the once-impermeable state.\" His thesis is that there have been \"important derogations\" from certain traditional assumptions \"deemed implicit in international'sovereignty'\". In particular, he says,\".. .the 21David P. Forsythe, Human Rights and World Politics (Lincoln, Nebraska: University of Nebraska Press, 1983) at 198. 22Ali Khan, \"The Extinction of Nation-States\" (1992) 7 American U. J. Int'l L. & Pol'y 197 at 199. Mr. Khan's view is that the idea of the Grotian nation-state is becoming \"increasingly dysfunctional\" and that it will eventually be replaced by the concept of the Free State whose citizens will shift their allegiance from the nation-state to the World Community. Note: In addition to human rights and economic law, a third major development in international law in the post-War period was decolonization. This is not now seen as infringing on state sovereignty but was so seen by opponents. See Usha Sud, Decolonization to World Order (New Delhi: National Publishing House, 1983), at 36: \"...the colonial powers were apprehensive and quite hesitant to accept specific provisions regarding the non-self-governing territories, even in the formative period of the United Nations Charter, since they were fully aware that once they surrendered the right of exclusive concern for their colonies to cooperative and international concern, they could not alter it even if they wished to in the near future\". 14 international system, still very much a system of independent states, has moved beyond state values, towards human values\".23 One commentator has postulated that \"sovereignty\" today has little to do with the traditional notion of complete autonomy of the state without legal limitation. The \"new sovereignty\" comprises not territorial control or governmental autonomy but reputation or status in the international system: [F]pr all but a few self-isolated nations, sovereignty no longer consists in the freedom of states to act independently, in their perceived self-interest, but in membership in reasonably good standing in the regimes that make up the substance of international life. To be a player, the state must submit to the pressures that international regulations impose... Sovereignty, in the end, is status ~ the vindication of the state's existence as a member of the international system. In today's setting, the only way most states can realize and express their sovereignty is through participation in the various regimes that regulate and order the international system.24 While most of the fundamental rules of international relations continue to rest on the premise of state sovereignty,25 the content of the concept of sovereignty and the perception of the rights and duties which sovereignty entails have changed. In the area of international human rights, this change allows for progress toward the achievement of the implementation of human rights standards without the need for sweeping changes to the state system or the end of sovereignty. 23Henkin, supra note 14 at 32-39. 24Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, Massachusetts: Harvard University Press, 1995) at 27. And see, for a further example, Strum, supra note 20 at 33: \".. .one can reasonably assert that nations have formally accepted a social contract under which a government's respect for the rights of individuals is a major aspect of its legitimacy within the world community of nations... [E]njoyment ofthe rights of membership in the international community is predicated, at least in part, on the acceptance of specific responsibilities in the human rights area\". 25Jack Donnelly, \"State Sovereignty and International Intervention: The Case of Human Rights\" in Lyons and Mastanduno, eds., supra note 4 at 118. 15 Current Paradigms of World Order: Where are We on the Continuum? Closely connected with contemporary discussions about state sovereignty, particularly where questions concerning sovereignty's demise are posed, are debates about varying visions of world order. One writer has analysed the current paradigms of world order by organizing them into three categories: (i) the statist or realist paradigm, with its Hobbesian and Grotian variants, which accepts the legitimacy of the nation-state; (ii) the pluralist or polyarchist paradigm, with its Mitranian and Kantian variations, which recognizes both the state and international institutions; and (iii) the centralist or globalist paradigm, with its Stoic and Marxist versions, which works with the idea of a central authority or system.26 The realists view the state as the sole legitimate political authority, and acknowledge the existence of international institutions but only \"as the product of the will of states expressed in treaties that they may abrogate\".27 They view the essential task of political authorities in the international arena as maintaining security, and see the future world order as continuing to be a state system, with some modifications due to increasing transnational relations. Statists see human rights as mainly a matter of sovereign national jurisdiction and only a peripheral concern of international relations.28 \"The highest goal...is the autonomy of State actors protected through maximum adherence to the norm of nonintervention\".29 The pluralist approach is that both nation-states and international institutions of political authority must be included in a world order. Their approach assumes the unfolding of new forms of 26Justin Cooper, \"The State, Transnational Relations, and Justice: A Critical Assessment of Competing Paradigms of World Order\" in Lugo, ed., supra note 5 at 6. 27Cooper, ibid, at 7. , 28Donnelly, supra note 25 at 121. 29Richard Falk, Human Rights and State Sovereignty (New York: Holmes & Meier Publishers, Inc., 1981) at 36. 16 political authority and the modification rather than the elimination of the nation-state. What has been labelled the Mitranian functionalist or modernist paradigm emphasizes the development of new actors alongside the traditional nation-state, and assumes that there will be \"a plurality of rule-making structures and institutions that can be described as a 'polyarchy' and that usually will include some altered form of the nation-state in addition to institutions at the international level\".30 The models that fall within this category are sometimes called \"internationalist\" models. Internationalists accept the centrality of states and of sovereignty in international relations, and see the international community as a society of states supplemented by non-state actors.31 Centralists or globalists reject the nation-state in favour of a central structure of global scope. One of the elements of the globalist approach is the concept that there is a need to institute common standards of justice based on the \"universal moral community of humanity\".32 This approach is based on the presumption of radical change and transformation of the international system, although the idea of a world polity is based on a state model. This model is sometimes referred to as a \"cosmopolitan\" model; individuals are seen more as members of a single global political community (cosmopolis) than as citizens of states.33 While these paradigms of world order are described as \"competing\" paradigms,34 they seem to represent a continuum. The models in the continuum place varying degrees of emphasis on the respective roles of the nation-state and other actors in the world order. They are also based on 'Cooper, supra note 26 at 10-11. Donnelly, supra note 25 at 121. 'Cooper, supra note 26 at 8. 'Donnelly, supra note 25 at 121. 'Cooper, supra note 26 at 11. 17 varying perceptions of \"sovereignty\" which influence the conclusions regarding how much revision of the system is required in order to achieve the desired goals. One might ask, at what point on this continuum are we today, and at what point on the continuum do we strive to be? The answer to the first of these questions may vary considerably both according to the individual state or the particular \"global\" issue which is the subject of examination. However, one way of gaining some insight into these questions is by examining specific aspects of the present practice in the arena of international human rights where the operating principles touch upon the interplay of \"state sovereignty\" and the achievement of international standards.35 Such areas include applications of the principle of \"subsidiarity\", utilization of the concept of the \"margin of appreciation\", and derogations and reservations. An examination of these areas demonstrates that generally speaking we occupy a space toward the centre of the continuum. States remain the most prominent actors in the system of international relations. Sovereign states serve as the foundation of the system, but a web of structures has been erected on top of and around that foundation. In the field of human rights, these new structures are engaged in the slow and difficult task of defining the limits of sovereignty and the limits of interference with sovereignty. 35These areas are examined primarily by reference to developments under the European Convention on Human Rights and the United Nations' International Covenant on Civil and Political Rights. The implementing bodies established pursuant to the European Convention have developed the most sophisticated body of jurisprudence of any of the existing international human rights systems. These developments are particularly worthy of study. As discussed in chapter 4, from Canada's perspective the impact which the European Convention on Human Rights has had on the United Kingdom can provide some valuable insights. The Human Rights Committee, under the ICCPR, has produced interesting interpretations of various provisions of the Covenant both through General Comments and through Views issued on individual communications alleging violations by states. As discussed in chapter 3, Canada has ratified both the ICCPR and the Optional Protocol allowing individual communications to be heard by the Human Rights Committee. 18 The Principle of \"Subsidiarity\" Most human rights norms set out in international human rights instruments are addressed to states. That is, states parties to the instrument undertake to respect certain rights and secure to the individuals within their jurisdiction those rights which the instrument recognizes. The concept underlying the principle of subsidiarity is that \"in a community of societal 'pluralism' the larger social unit should assume responsibility for functions only insofar as the smaller social unit is unable to do so\".36 The principle is derived from Christian theological sources concerned with Church governance and appears as a theme in many federal systems.37 The European Union Treaty (Treaty of Maastricht) expressly includes the principle of subsidiarity as a basic Community principle. Article 3(b) of that treaty provides as follows: ...In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member States and can therefore, by reason of the scale or effect of the proposed action, be better achieved by the Community. One writer has expressed the view that the expression \"subsidiary character\", when employed to describe a human rights treaty, is incorrect or at least misleading, as the concept - developed 36Herbert Petzold, \"The Convention and the Principle of Subsidiarity\" in R.St.J. Macdonald, F. Matscher and H. Petzold, eds., The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff Publishers, 1993) at 41. 37Dinah Shelton, \"Subsidiarity, Democracy and Human Rights\" in Donna Gomien, ed., Broadening the Frontiers of Human Rights: Essays in Honour ofAsbjorn Eide (Oslo: Scandinavian University Press, 1993) at 43. And see Philpott, supra note 5 at 55: \"Through several papal encyclicals, one principle in particular has become prominent, the principle of subsidiarity... (To quote Pius XI in Quadragesimo anno), subsidiarity is the principle 'that one should not withdraw from individuals and commit to the community what they can accomplish by their own expertise and industry,' nor 'transfer to the larger and higher collectivity functions which can be performed and provided for by lesser and subordinate bodies'\". 19 primarily from Christian teaching on the State - means something else.38 Another has said that \"[i]ts meaning... is notoriously vague...\"39 Nevertheless, in the context of characterizing a human rights treaty, the notion which the term is intended to convey is that the protection of fundamental rights is primarily the task of the national legal system and that the international human rights system is not intended to replace this, but intervenes only to supplement and correct; and the ...(international) institutions do not act in place of the protective machinery provided for in domestic law, but exercise their power of review only after domestic remedies have been exhausted (without success)...40 While the principle of subsidiarity is not referred to expressly in such human rights treaties as the European Convention on Human Rights or the International Covenant on Civil and Political Rights, it is evident from various provisions of these treaties that their rules were not designed to take the place of national human rights provisions and procedures but were designed as \"supplementary and ultimate\" remedies and were intended to be complementary to the remedies provided by national regimes.41 This can be seen, in particular, in three categories of human rights treaty provisions: (i) provisions requiring states to provide an effective remedy before a national authority; (ii) provisions requiring individuals to exhaust domestic remedies before resorting to international complaint mechanisms; and (iii) provisions allowing for the awarding of compensation at the international level. Both the Convention and the Covenant bind the States Parties to secure to everyone within 3 8F. Matscher, \"Methods of Interpretation of the Convention\" in Macdonald, Matscher and Petzold, eds., supra note 36 at 76. 39Philpott, supra note 5 at 56. 40Matscher, supra note 38 at 76. 41Petzold, supra note 36 at 43. 20 their jurisdiction the rights which the treaties recognize.42 It is left to the States Parties to determine the manner in which they will ensure implementation of the provisions of the treaties. Both treaties require the Contracting Parties to afford individuals an effective remedy before a national authority.43 Again, the States Parties are left a certain amount of discretion as to how they will comply with the obligation to provide an effective domestic remedy. The availability of the optional individual complaint procedures in both regimes is conditional upon the individual having first exhausted domestic remedies.44 In both regimes, states are not required to answer before the international institution unless they have first had an opportunity to rectify matters through their own legal systems. It is not always a straight-forward issue as to whether an individual has exhausted available domestic remedies; the matter is determined at a 42Article 1 of the Convention provides that \"The Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention\". The Covenant states that \"Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights and freedoms recognized in the present Covenant, without distinction of any kind...\". 43Article 13 of the Convention provides that everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwimstanding that the violation has been committed by persons acting in an official capacity. Article 3 of the Covenant contains a similar but more detailed provision: 3. Each State Party to the present Covenant undertakes:(a)to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b)to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c)to ensure that the competent authorities shall enforce such remedies when granted. 44Article 26 of the Convention provides that \"The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken\". Under the First Optional Protocol to the Covenant, the Human Rights Committee will not consider a communication from an individual unless the individual has exhausted all available domestic remedies. The exhaustion of domestic remedies is not required where the application of the remedies is unreasonably prolonged. 21 preliminary stage by the international treaty body assessing the complaint.45 Finally, the Convention, which empowers the European Court of Human Rights to award compensation to the victim of a violation, provides in Article 50 that \"just satisfaction\" can only be awarded if full redress is not available under domestic law. The notion of subsidiarity is also evident in the approach adopted by international human rights implementing organs with respect to the scope of their review. The jurisprudence of the European Court of Human Rights and the Human Rights Committee and other treaty-monitoring bodies with complaint mechanisms makes it clear that it is not the role of these international institutions to take the place of the competent national authority with respect to the interpretation of domestic law, nor is it their function to sit as \"fourth instance\" tribunals. Their task is not to review the correctness of an individual decision but rather to review whether the state's actions or the principles applied in reaching a decision in the domestic forum are compatible with the obligations assumed pursuant to the human rights treaty.46 The principle of subsidiarity is also demonstrated in the manner in which the international institutions assess states' regulatory conduct, in particular in relation to rights and freedoms which are subject to limitations. The notion of subsidiarity forms the basis of the doctrine of the \"margin of appreciation\" which has been extensively applied by the European Court of Human Rights in allowing a certain amount of latitude to the Contracting States in delineating \"the boundary between 45See Chapter 3 for a discussion of the admissibility conditions in the individual petition procedures of the Human Rights Committee under the International Covenant on Civil and Political Rights and the Committee against Torture under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 46See Petzold, supra note 36 at 49-50; and see Dominic McGoldrick, The Human Rights Committee: Its Role in the Development ofthe International Covenant on Civil and Political Rights (Oxford: Clarendon, 1991) at 158. 22 'primary' national discretion and the 'subsidiary' international supervision\". The Doctrine of the \"Margin of Appreciation \" Bodies established under human rights treaties for the purpose of supervising the implementation of international or regional human rights standards constantly deal with issues of law and policy that have traditionally been considered to be matters of domestic jurisdiction. In an effort to balance the object of achieving an effective and uniform standard of protection of human rights, with some recognition of the diversity of political, cultural and social situations in the societies of states parties, the implementing bodies established pursuant to the European Convention on Human Rights have utilized and developed a doctrine known as the \"margin of appreciation\".48 This doctrine 47Petzold, supra note 36 at 59. It is interesting to note the following comments on the inter-American system, suggesting that different considerations should be taken into account in the application of the principle of subsidiarity depending on the circumstances prevailing in particular regions ,e.g., Latin America vs. Europe: \"...in the case of ineffective judiciaries, the principle of subsidiarity, by which the primary responsibility for human rights protection is entrusted to domestic courts (with international organs as secondary actors) should be closely evaluated.. .The principle of subsidiarity should not be applied mechanically to every regional system. Indeed, the democratic and economic development of states should be considered in deciding the level of deference to be given to domestic judicial systems.\": Jose Miguel Vivanco and Lisa L. Bhansali, \"Procedural Shortcomings in the Defense of Human Rights: An Inequality of Arms\" in David Harris and Stephen Livingstone, eds., The Inter-American System of Human Rights (Oxford: Clarendon Press, 1998) at 430-31. 48This doctrine has only very rarely been expressly referred to by the ICCPR Human Rights Committee in its jurisprudence under the Optional Protocol, though some of the components of the concept are apparent in some of the Views of the Committee. See Markus G.Schmidt, \"The Complementarity of the Covenant and the European Convention on Human Rights - Recent Developments\" in David Harris and Sarah Joseph, eds., The International Covenant on Civil and Political Rights and United Kingdom Law (Oxford: Clarendon Press, 1995) at 657. See also Cathal J. Nolan, \"The Human Rights Committee\" in Matthews and Pratt, eds., supra note 10 at 112, where the author refers to the constructive dialogue between the Committee and States, and comments that the \"committee has chosen a middle way between confrontational demands and too ready concession to the self-interest of states\". The Human Rights Committee did rely on \"margin of appreciation\" considerations in the case of Hertzberg and Others v. Finland (61/1979) in which the authors of the communication argued that the Finnish authorities had interfered with their right to freedom of expression and information by imposing sanctions against participating in, or censoring, radio and television programmes dealing with homosexuality. The Committee, in its Views, stated that as there was no universally applicable common standard with respect to public morals, \"in this respect, a certain margin of discretion must be accorded to the responsible national authorities\". See McGoldrick, supra note 46 at 160. Deference in respect of state practices concerning such 23 has provided some flexibility in allowing national authorities an area of discretion or latitude: [I]n many respects, the task of Commission and Court may be defined as that of finding the tenuous passage between the undue interference with the sovereignty and autonomy of national authorities, in particular supreme and constitutional courts, on the one hand, and the effective protection of the rights guaranteed under the Convention, on the other. One of the main instruments employed in this delicate exercise of navigation is the doctrine of'margin of appreciation'...49 A state's law assessed in the abstract might be seen as violating an international convention on human rights, but when considered in the light of other national matters may not. Jurisprudence in this area has developed on a case-by-case basis and there is a good deal of variation in the application of the margin of appreciation. It has tended to be applied broadly in situations involving complex or controversial political, economic or social issues, and in matters concerning national security and crime control.50 Some have recommended that the scope of the margin of appreciation should gradually be narrowed in order to move towards a common European standards approach. Others have argued that it is necessary to retain the concept or a similar concept of deference or discretion, but that the international institution should more clearly articulate its reasons for not intervening.51 One commentator has warned that the wide margin of appreciation granted in certain cases may reduce matters may have since changed. See, e.g., the Views of the Human Rights Committee in Toonen v. Australia (488/1992): \"The Committee cannot accept...that for the purposes of article 17...moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy.\" (Para. 8.6). 49Stefan Trechsel, Preface to Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Dordrecht: Martinus Nijhoff Publishers, 1996) at xiii. 50J.G. Merrills, The Development oflnternational Law by the European Court of Human Rights, 2nd ed. (Manchester: Manchester University Press, 1993) at 158-175; Brice Dickson, ed., Human Rights and the European Convention: The Effects of the Convention on the United Kingdom and Ireland (London: Sweet & Maxwell, 1997) at 221. 51R. St. J. Macdonald, \"The Margin of Appreciation\" in Macdonald, Matscher and Petzold, supra note 36 at 83-124. 24 the supervisory machinery to \"a mechanism for rubberstamping almost anything a Government wants\", and has expressed the view that the \"margin of appreciation\" doctrine should be confined to the establishment of the facts, including the interpretation of domestic law, and that once the facts have been established the determination of whether the facts constitute a violation of the Convention should be made without reference to the opinion of the national authorities of the state concerned.52 Despite the criticisms of how the doctrine has been applied, it may well be that utilization of the \"margin of appreciation\" doctrine or approaches based on similar principles will be a significant contributing factor in the ultimate success of an international human rights regime. It provides a mechanism for the careful consideration of the boundaries between the limits of sovereignty and the limits of interference with sovereignty. It provides some flexibility to allow the participating states the time and the space to adjust to the consequences of participation in the international regime and to move gradually towards incorporation of international standards into their domestic laws and procedures and effective internalization of international norms.53 The origins of the \"margin of appreciation\" doctrine lie in the jurisprudence of the French Conseil d'Etat and other continental institutions in the review of the legality of administrative action and in classical martial law doctrine.54 The doctrine has been developed independently in the Convention jurisprudence without reference to its origins.55 The concept is not expressly referred to 52P. van Dijk and G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, 2nd ed. (Deventer: Kluwer Law and Taxation Publishers, 1990) at 586 and 601-602. See, however, Chapter 4, note 24, regarding a recent position paper of the UK Government, proposing a more flexible margin of appreciation.. 53For a discussion of the concept of \"internalization\" of norms, see Koh, supra note 5 at 2646 ff. 54van Dijk and van Hoof, supra note 52 at 585; Yourow, supra note 49 at 14. 55R.St.J. Macdonald, \"The Margin of Appreciation in the Jurisprudence of the European Court of Human Rights\" in International Law at the Time of its Codification: Essays in Honour of Roberto Ago, Vol. Ill (Milan, 1987) at 187. 25 in the Convention. It was first introduced into Convention jurisprudence in 1958 in the interstate complaint of Greece v. United Kingdom '^Cyprus \"),56 where the Commission considered what its powers were when a state, invoking Article 15 of the Convention, departed from its Convention obligations.57 The Commission was prepared to grant the state \"a certain measure of discretion in assessing the extent strictly required by the exigencies of the situation\". The first detailed expression of the doctrine was set out in the Commission's presentation to the Court in the case of Lawless v. Ireland which addressed the issue of derogation under Article 15 in relation to emergency measures aimed at the IRA in the Republic of Ireland. The Commission argued that the state should be left a wide discretion in connection with Article 15: The concept of the margin of appreciation is that a Government's discharge of these responsibilities is essentially a delicate problem of appreciating complex factors and of balancing conflicting considerations of the public interest; and that, once the Commission or the Court is satisfied that the Government's appreciation is at least on the margin of the powers conferred by Article 15, then the interest which the public itself has in effective Government and in the maintenance of order justifies and requires a decision in favour of the legality of the Government's appreciation.58 The Court upheld the Government's discretion in invoking extraordinary detention powers in the circumstances, though it did not expressly rely on the \"margin of appreciation\" doctrine.59 The Commission and the Court gradually applied the doctrine in connection with articles of the Convention other than Article 15, in situations where no emergency or extraordinary situation 56Comm. Report 2.10.58, Yearbook 2p. 174 (176). \"See below at note 77 ff, for a discussion of derogations. 58Series A no. 3, paragraph 56, referred to in Macdonald, Matscher and Petzold, eds., supra note 36 at 85-86, and in van Dijk and van Hoof, supra note 52 at 586. 59Yarrow, supra note 49 at 19. 26 was in issue.60 By 1973 the Commission had applied the doctrine to Articles 5, 8, 9, 10, 14 and Articles 1 and 2 of the Fourth Protocol; the Court was somewhat slower to apply the margin of appreciation. A considerable body of case law has developed in which the margin of appreciation has been applied to three main groups of articles: Articles 8-11, Article 14 and Article 15.61 The jurisprudence of the Court has developed in large part through the application of the concept of national discretionary margins in interpreting articles of the Convention which contain limitation or accommodation clauses, specifically Articles 8 to 1162 It was in the case of Handy'side v. The United Kingdom that the Court first set forth a detailed analysis of the margin of appreciation, and this articulation has remained the basis for many subsequent applications of the doctrine.63 In that case the Court considered the issue of whether the restrictions placed by the British authorities on the publication of the Little Red Schoolbook (declaring an alternative lifestyle for school children) was a violation of Article 10(2) of the Convention.64 The Court examined whether the interference with freedom of expression was \"necessary\". The British Government took the position that it was 60van Dijk and van Hoof, supra note 52 at 587-88. 61Macdonald, supra note 55 at 189 and 196. 620ne commentator has expressed the view that a significant drawback with the way the European Convention on Human Rights is framed is the number of limitations placed on several of the rights and liberties within it. On the basis of the heavy qualifications of the rights of privacy, thought, expression and assembly, governments may lawfully limit the Convention's protection in numerous ways. See Adam Tomkins, \"Civil Liberties in the Council of Europe\" in CA. Gearty, ed., European Civil Liberties and the European Convention on Human Rights (The Hague: Martinus Nijhoff Publishers, 1997) at 8 - 9. 63Macdonald, supra note 55 at 191. 6 4 Judgment of 7 December 1976, Series A no. 24. Article 10 of the Convention declares that everyone has the right to freedom of expression. The Article contains the following lengthy qualification of the protected right: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for mamtaining the authority and impartiality of the judiciary. 27 \"necessary in a democratic society\" for the protection of morals. The Court equated the term \"necessary\" with \"pressing social need\", and determined that a national judge was better equipped than an international judge to assess pressing social need, particularly in the area of national morality. In coming to its conclusion, the Court stated as follows: The machinery of protection established by the Convention is subsidiary to the national systems safe-guarding human rights... [T]he Convention leaves to each contracting state, in the first place, the task of securing the rights and freedoms it enshrines... [T]he requirements of morals varies from time to time and from place to place.. .By reason of their direct and continuous contact with the vital forces of their countries, a State's authorities are, in principle, in a better position than an international judge to give an opinion on the exact content of these requirements as well as on the 'necessity' of a 'penalty' or 'restriction' intended to meet them. The Court held that it was for the national authorities to make the initial assessment of the reality of the pressing social need and that a \"margin of appreciation\" must be left to the states in that respect. The Court went on to say, however, that \"the domestic margin of appreciation... goes hand in hand with a European supervision\". One of the factors which the Court took into consideration in allowing the state a wide margin of discretion in censorship practices was the absence of a prevailing European consensus as to what constituted \"morality\". Throughout the Court's jurisprudence the factor of consensus or lack thereof in the laws and practices of the States Parties is \"an essential standard which anchors the scope of the supervision\".65 The Sunday Times case is considered a landmark case in the development of the margin of appreciation.66 There, the Court reduced the range of discretion granted to the state in the context 'Yourow, supra note 49 at 46 and 195. 'Macdonald, supra note 55 at 197; van Dijk and van Hoof, supra note 52 at 590. 28 of freedom of expression and the press.67 The Court reached its decision on the basis of a narrowly defined concept of the margin of appreciation doctrine, stating as follows; [I]t is in no way [the Court's] task to take the place of the competent national courts but rather to review...the decisions they delivered in the exercise of their power of appreciation... This does not mean that the Court's supervision is limited to ascertaining whether a respondent state exercised its discretion reasonably, carefully and in good faith. Even a Contracting State so acting remains subject to the Court's control as regards the compatibility of its conduct with the engagements it has undertaken under the Convention.68 In arriving at its decision, the Court again made reference to the concept of a prevailing European consensus or common standard, holding that \"...the domestic law and practice of the Contracting States revealed a fairly substantial measure of common ground in this area. Accordingly, here a more extensive European supervision corresponds to a less discretionary power of appreciation\". The Court held that the alleged pressing social need of upholding the authority of the judiciary was outweighed by the public interest in freedom of expression and therefore not proportionate.69 The points that emerged in the Sunday Times case and which have remained the basis for subsequent developments in the jurisprudence are as follows: • The Court's supervisory role was not limited to determining whether a state had exercised its discretion reasonably, carefully and in good faith. The state's actions had to be justified by reasons \"relevant and sufficient\". 67The House of Lords had upheld an injunction prohibiting the Sunday Times from publishing an article concerning a matter that was before the courts. The United Kingdom Government took the position that the injunction did not violate Article 10 because the aim of the injunction was \"maintaining the authority and impartiality of the judiciary\" which is a permissible limitation on the freedom of expression, as set out in paragraph 2 of Article 10. J^udgment of 26 April 1979, Series A no. 30. 69Donna Gomien, David Harris, and Leo Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter (Strasbourg: Council of Europe Publishing, 1996) at 216. The Court did not accept the state's argument that the same margin of appreciation should apply to both the \"protection of morals\" and the \"authority of the judiciary\" clauses of Article 10(2). 29 The width of the margin of appreciation varied in accordance with the limitation clause invoked by the state. A significant factor in determining the width of the margin of appreciation was whether or not a common standard existed. Even if the state's actions could be said to be necessary, its actions must still be proportional to the aims being pursued. The width ofthe margin of appreciation is influenced by the significance of the right interfered with.70 It is difficult to define the boundaries of the margin of appreciation. Neither the Court nor the Commission has provided a definition, and the doctrine has developed on an ad hoc basis. A core of the \"margin of appreciation\" test can be discerned from judgments in the Silver and Lingens cases. The Silver case summarized the model test to be applied in the use of the margin of appreciation doctrine: (a) the adjective 'necessary' is not synonymous with 'indispensable', neither has it the flexibility of such expressions as 'admissible', 'ordinary', 'useful', 'reasonable' or 'desirable'...; (b) the Contracting States enjoy a certain but not unlimited margin of appreciation in the matter of the imposition of restrictions, but it is for the Court to give the final ruling on whether they are compatible with the Convention...; (c) the phrase 'necessary in a democratic society' means that, to be compatible with the Convention, the interference must, inter alia, correspond to a 'pressing social need' and be 'proportionate to the legitimate aim pursued'...; (d) those paragraphs of Articles of the Convention which provide for an exception to a right guaranteed are to be narrowly interpreted.71 In the Lingens case, the Court added that the Court \"cannot confine itself to considering the impugned...decisions in isolation...[and] must look at them in the light of the case as a whole and must determine, among other things, whether the \"reasons adduced...to justify it [the interference] 'Macdonald, supra note 55 at 198-199. Judgment of 25 March 1983, Series A no. 61. 30 are 'relevant and sufficient'\"72 Finally, it should be noted that the Court appears inclined to leave the national authorities a very wide margin of appreciation with respect to issues of positive obligations.73 It has been said that there are two principal directions that future developments might take: On the one hand, the margin of appreciation has the capacity to promote an expanding European human rights consensus through a series of tightly drawn and principled judgments that balance the sovereignty of the Contracting States with the effectiveness of the Convention. On the other hand, the margin has the capacity to limit the reach of the Strasbourg institutions in the interests of protecting traditional powers and responsibilities of the member States. The margin of appreciation is at the heart of virtually all major cases that come before the Court, whether the judgments refer to it explicitly or not.74 Two writers have likened the use of the margin of appreciation doctrine within the framework of the European Convention to a \"spreading disease\" with respect to the broadening of the scope of its application and the widening of the ambit of the original concept.75 If one reflects on the larger picture, however, the \"margin of appreciation\" can be seen as a highly useful tool in striking a balance between the sovereignty of the states which have consented to participate in the international regime and the gradual realization of an international system of human rights protection. The pragmatic approach has been described as follows: 72Judgment of July 8, 1986, Series A no. 103. For a discussion of these points, see van Dijk and van Hoof, supra note 52 at 589. 73Gomien et al., supra note 69 at 217-218. 74Macdonald, supra note 55 at 207-208. 75van Dijk and van Hoof, supra note 52 at 604-605. A Canadian scholar, in discussing the practice of Canadian courts making references to the European Court's jurisprudence, has pointed out that the Convention used to be confined to Western European States and therefore applied in a relatively homogeneous context, but now that the Convention has expanded to cover all of Eastern Europe, the \"margin of appreciation\" is likely to expand. He relies on this speculation to argue that \"this militates in favour of increasing caution in the application of the jurisprudence of the Strasbourg organs to the Canadian Charter: William A. Schabas, \"International Human Rights Law and the Canadian Courts\" in Thomas A. Cromwell, Danielle Pinard and Helene Dumont, eds., Human Rights in the 21s' Century: Prospects, Institutions and Processes (Montreal: Les Editions Themis and the Canadian Institute for the Aatiiinistration of Justice, 1997) at 36. 31 [T]he entire legal framework rests on the fragile foundations of the consent of the Contracting Parties. The margin of appreciation gives the flexibility needed to avoid damaging confrontations between the Court and the Contracting States over their respective spheres of authority and enables the Court to balance the sovereignty of Contracting Parties with their obligations under the Convention.76 It may be that the Court should more clearly articulate its reasons for determining that intervention in particular cases is or is not appropriate. Critics, however, should keep in mind that the process of acceptance and incorporation by domestic legal/ political systems of international human rights norms is a slow and incremental one, and that an international institution which demonstrates a sensitivity to the diversity of contracting states and a cautious approach to interference with the states' sovereignty may in the end have the best chance of achieving its ultimate goals. \"Derogations\" and \"Reservations\" Two other areas which are relevant to the scope of international implementation procedures and their relation to state sovereignty are practices in the international human rights arena relating to \"derogations\" and \"reservations\". Most of the general human rights instruments provide for the possibility of making derogations from some of their provisions in exceptional circumstances.77 They are included in these instruments on the basis that \"in view of the stringency of the guarantees of freedoms, a resort to the restrictions intended for normal times would, in the case of an exceptional emergency, not be sufficient to protect the interests of the general public\".78 76Macdonald, supra note 51 at 123. \"Allan Rosas, \"Emergency Regimes: A Comparison\" in Gomien, ed., supra note 37 at 170. 78Torsten Stein, \"Derogation from Guarantees Laid Down in Human Rights Instruments\" in Irene Maier, ed., Protection of Human Rights in Europe: Limits and Effects (Heidelberg: CF. Muller Juristischer Verlag, 1982) at 124 - 125. In the European Convention on Human Rights, for example, Article 15 provides as follows: 32 The principal elements of the derogation provisions are the existence of a \"public emergency\" and the prohibition of utilizing derogation with respect to certain protected rights. As well, these instruments contain provisions prohibiting measures aimed at the destruction of any of the rights recognized by the instruments. Derogation provisions recognize that in certain extraordinary circumstances the suspension of guaranteed rights may be necessary. At the same time it must be kept in mind that such provisions may provide an opportunity for abuse by a repressive government regime.79 Derogation provisions prescribe very strict standards for states that wish to derogate from human rights instruments,80 and a body of case law has developed in respect of derogations which makes it clear that the state's power is not unlimited and will be scrutinized carefully.81 1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3. 4 (paragraph 1) and 7 shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor... Article 4 of the International Covenant on Civil and Political Rights contains a similar provision: 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not chscriminate solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons... 790ne writer has expressed the view that times during which the state perceives there to be a public emergency are precisely those periods when civil liberties are most threatened; thus when it is needed most, much of the human rights treaty unavailable. He views the derogation provisions as one of the major weaknesses of the Convention: See Adam Tomkins, supra note 62 at 8. 80McGoldrick, supra note 46 at 301. 81The European Commission and Court of Human Rights have interpreted the provisions of Article 15 (1) in several cases. These bodies have formulated conditions for reliance by states on public emergency to restrict rights. The emergency must be actual or imminent; its effects must involve the whole nation; the 33 Reservations, unlike derogations, come at the time of entering into obligations. One of the recognized attributes of state sovereignty is the right of entering into international engagements. Negotiating a treaty is a complex process which inevitably involves compromises for all of the states parties.82 A state which is unable to adopt the whole of a treaty text may have the choice of remaining outside the treaty or participating in it but restricting its commitment to treaty obligations by means of entering reservations.83 Article 2(1 )(d) of the Vienna Convention on the Law of Treaties defines a reservation as \"a unilateral statement\" made by a State when signing or ratifying a treaty \"whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State\". Article 19 provides that a State ratifying a treaty may make a reservation unless it is \"prohibited by the treaty\" or \"is incompatible with the object and purpose of the treaty\".84 continuance of the organized life of the community must be threatened; and the crisis or danger must be exceptional. Greece v. The United Kingdom, supra note 56. The Commission and the Court have set forth criteria for evaluating the existence of the conditions. The burden of proof is on the state to establish the existence of these conditions. The Court has made it clear that while the declaration of public emergency which forms the basis of a derogation is a matter for the State to determine, \"states do not enjoy an unlimited power in this respect. The Court, which with the Commission, is responsible for ensuring the observance of the states' engagements.. .is empowered to rule on whether the states have gone beyond the 'extent strictly required by the exigencies' of the crisis.. .The domestic margin of appreciation is thus accompanied by European supervision.\" Ireland v. The United Kingdom, Judgment of 18 January 1978, Series A No. 25. The ICCPR Human Rights Committee, while acknowledging the sovereign right of a State to declare a state of emergency, has also asserted a measure of international supervision over that national determination. There are three separate issues: (i) whether the declaration of the state of emergency is valid (giving rise to the possibility of limiting certain rights); (ii) whether the limitation of rights is necessary in the prevailing circumstances; and (iii) whether the measures taken to limit rights are proportionate to the circumstances. In addition, the onus is on the State party to justify its measures in terms of necessity and proportionality. If the State does not furnish the required justification, the Committee \"cannot conclude that valid reasons exist to legitimize a departure from the normal legal regime prescribed by the Covenant.\" See Silva and Others and Uruguay, referred to in McGoldrick, supra note 46 at 313. 82Chayes and Chayes, supra note 24 at 7. 83Frank Horn, Reservations and Interpretative Declarations to Multilateral Treaties (The Hague: Institute for International and European Law, 1988) at 10. 84This is taken as a statement of customary international law. See Michael O'Flaherty and Liz Hefieman, International Covenanton CivilandPolitical Rights: International Human Rights Law in Ireland (Dublin: Brehon Publishing, 1995) at 15. 34 Human rights treaties do not have as their object the exchange of reciprocal obligations among the contracting states; rather, these treaties create objective rights with corresponding liabilities.85 Some have questioned whether reservations should be permitted at all in the context of human rights treaties, as \"[i]t is hard to see how a State can agree to be bound by a treaty on human rights if it is not in a position to honour its obligations in full, and needs a 'reserved domain' for its own self-protection...\"86 One writer, discussing the United States' habit of making numerous reservations when ratifying human rights treaties, describes the different perspectives on this issue as follows: Human rights advocates have consistently criticized the practice of attaching numerous RUDs [reservations, understandings and declarations] to U.S. instruments of ratification for human rights treaties, claiming that the conditional nature of U.S. adherence demonstrates that the United States does not take its treaty obligations seriously. The central purpose of human rights treaties, they contend, is for states to assume international legal obligations that augment the domestic protection of human rights to conform to international standards. If every state adopted the U. S. approach, and ratified the treaties subject to the caveat that they would protect human rights only to the extent that such rights are already protected under domestic law, global adherence to human rights treaties would accomplish nothing. The treaty makers have consistently responded to these criticisms by arguing that the RUDs, properly understood, demonstrate that the United States takes its treaty obligations very seriously...[In their view] the RUDs, far from signaling a lack of seriousness about treaty compliance, demonstrate the importance that the United States places on ensuring that it can comply with its treaty obligations.87 85Matscher, supra note 38 at 66. 86See Pierre-Henri Imbert, \"Reservations and Human Rights Conventions\" in Maier, ed., supra note 78 at 88. 87David Sloss, \"The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties\" (1999) 24 Yale J. Int'l L. 129 at 177 and 179. The perspective justifying reservations to human rights treaties was expressed clearly by a United States Senator, in defending the RUD package in relation to the ratification of the ICCPR in 1992: \"Others have raised the legitimate concern that the number of reservations in the administration's package 35 While there are some human rights treaties that expressly prohibit reservations,88 most do not. Some contain express provisions on the subject.89 Others are silent on the subject of reservations. The International Covenant on Civil and Political Rights contains no provision with respect to the effectiveness of reservations.90 The right to make reservations to the Covenant has, however, been restricted by the ICCPR Human Rights Committee which in 1994 adopted General Comment No. 24 on issues relating to reservations.91 Where human rights treaties are silent on the subject of might imply to some that the United States does not take the obligations of the covenant seriously...[I]t is possible to place a wholly different interpretation on the a