By Catherine Dunne
When I applied to McGill’s International Human Rights Internship Program, I was very interested in working for a Canadian organization. My interest might have been slightly unconventional – after all, the program’s name is characterized by the term “international!” This interest stemmed from the fact that while I was completing my undergraduate degree in International Human Rights, I began to recognize the significant change-making potential that domestic advocacy can have on ongoing human rights abuses within Canada. This made me keen to gain experience working to improve human rights within Canada, hoping it would be relevant experience to bring with me into my career as a lawyer.
One of the most significant takeaways from my time with the HIV Legal Network, however, is that domestic and international human rights work do not happen in silos. Rather, they are interdependent. I became most aware of this fact when drafting legal submissions that the HIV Legal Network was working on to challenge laws that criminalize same-sex intimacy in a Caribbean country. In previous legal research experiences, I have almost always confined my searches to Canadian authorities. When meeting with our counsel for this case, counsel on the case instructed we cite jurisdictions around the world, with the most compelling authorities stemming from other countries in the Caribbean, the United States, the United Kingdom, and Canada.
While citing foreign authorities is one feature of common law legal systems, the proportion of foreign to domestic authorities was new to me. I hypothesized two reasons for this. First, many of the countries cited have made significant human rights advances that the country in this case was fighting for. For instance, in the factum, I cited Lawrence v. Texas, a 2003 decision from the United States Supreme Court that ruled the country’s anti-sodomy laws were unconstitutional; Vriend v. Alberta, a Supreme Court of Canada decision that concerned the rights of individuals to be free from discrimination based on their sexual orientation; and R v. Morgentaler (1988), which asserted that state-enforced “medical” treatment can, such as from conversion therapy, constitutes a violation of one’s right to physical security. Growing up, I have often taken these human rights advances for granted, but cases like those cited reflect ongoing human rights battles around the world, and these precedents are important tools to advance human rights around the world.
My second hypothesis rested on the fact that common law legal systems continue to be based on colonialist and imperialist foundations. In fact, many of the anti-sodomy offences that persist in Caribbean countries were imported directly from the United Kingdom’s legislation, which were rooted in Christian morals. While same-sex intimacy was decriminalized in the United Kingdom decades ago, the discriminatory attitudes that were imported by colonialism continue to have impacts on the legal system of commonwealth jurisdictions. It is only in the past fifteen years that some Caribbean countries founded the Caribbean Court of Justice, marking an intentional break from the Judicial Committee of the Privy Council having the final say on appeals emanating from their court systems.
The significance of the interconnectedness between international and domestic legal systems was highlighted when the United States’ Supreme Court released the Dobbs v Jackson Women’s Health Organization decision. This decision, which overturned Roe v Wade and constitutional protection for abortion throughout the United States, was released while I was working on this factum. Evidently, this was a dark day for women’s and 2SLGBTQ+ rights in the United States. On top of that grief I felt as a woman, and the sadness, anger, and fear I felt for those with a uterus in the US, especially for lower-income and racialized women that would have the most difficulty accessing abortion in the US, I also had a new recognition of what this would mean for human rights around the world. Activists that rely on human rights precedents in other countries would have less to grasp onto with a major country limiting the constitutional right to an abortion. In Clarence Thomas’ concurrence in Dobbs v. Jackson Women’s Health Organization, he advocated that the Supreme Court should reconsider Griswold, Lawrence and Obergefell, the rulings that protect contraception, same-sex relationships, and same-sex marriage. Such decisions could have domino effects around the world on women and 2SLGBTQ+ rights.
These two hypotheses highlight how colonialism and imperialism continue to shape human rights around the world. While drawing from jurisdictions can be useful to advance human rights, in an era where human rights are consistently being challenged in countries like the United States, it makes me question how legal systems and constitutions can protect fundamental human rights without depending on fragile precedents, and how diverse communities can advance their self-determination while protecting human rights.