Arriving at San José airport, a few days before the start of my internship, I was asked the purpose of my travel. “Soy una pasante en la Corte Interamericana de Derechos Humanos“. I’m an intern at the Inter-American Court of Human Rights. After a couple of questions on the duration of my stay and local accommodation, the customs agent asked why I had come all the way from Canada to this particular court. Tired and unsure how to answer, I simply said it was the Court, and that I was here to learn. Thankfully this was enough. She turned and beamed at me, saying in Spanish: “It does have a really good reputation, doesn’t it?”
During the following weeks, I continued to notice how present the Court was in public life, and the weight that it carried for many. On my first bus ride, I heard a radio broadcast discussing the Court’s most recent ruling against Nicaragua. One day, leaving the office, a woman walked by with a child – about six years old – and pointed to me and a colleague who were leaving for the day, saying “look, they’re lawyers, isn’t that right?”. The woman then asked the girl if she wanted to be a lawyer, but she said she’d rather be an actress. Fair enough, not everyone is as excited.
Overall, these experiences helped ground me as I was becoming familiar with the Court and its importance in the region. I believed that I was starting the programme with a solid understanding of the Court, having drafted an amicus curiae addressed to the Court the previous summer, and having spent time reading recent decisions before the internship began. However, I quickly realised how little we learn about the Inter-American system in Canada, compared to its centrality in the legal education of many of my Latin American peers.
Canada has been a member of the Organization of American States (OAS) since 1990, but it never ratified the American Convention on Human Rights or recognized the Inter-American Court of Human Rights’ (IACtHR) compulsory jurisdiction. This means that cases can be brought against Canada before the Commission, which is the first step in the Inter-American system, but they cannot be referred to the Court thereafter. And, although Canada can vote on many matters within the OAS General Assembly, only States Parties to the Convention may present candidates and elect judges to the IACtHR.
However, an interesting tidbit is that Canada could theoretically have a sitting judge, and has previously attempted to do so with Madam Justice Bertha Wilson of the Supreme Court. Her name was put forward by Venezuela and Uruguay, but she was defeated by a single vote.
Auditorium of the Inter-American Court of Human Rights
While the Inter-American system is less well known in Canada, Canada’s absence from the system does not go unnoticed. It was mentioned several times during the orientation sessions (and not because of my presence!). One of the fellow interns even asked: “Why are Canada, Jamaica, and other flags on the back wall, behind the Judges’ seats, if they are not part of the Court?”1
The official answer is that the Canadian flag is in the court auditorium to represent all the member states of the OAS. The alternative answer, suggested by the speaker, was that it was a case of ‘wishful thinking’ – a hope that other countries might one day join.
Canada’s interest seems to come in waves. There was a strong push in the early 1990s when Canada joined the OAS, as well as in the early 2000s when the Senate Standing Committee on Human Rights was mandated to study and report on Canada’s possible adherence to the American Convention (2003). The Standing Committee recommended “that Canada take all necessary action to ratify [the Convention], with a view to achieving this goal by July 18, 2008.”2
But this is still not a reality, almost 20 years later.
Reading further, I found that the conversation remains alive, albeit without much evolution. The same concerns continue to surface, most notably the argument that ratification could call into question the right to abortion, since the Convention’s protections for the right to life have been interpreted by some as extending to the unborn. The 2003 Standing Committee acknowledged this concern, but argued it could be managed: Canada could ratify while attaching interpretive declarations and reservations that explicitly preserve its existing abortion laws, rather than leaving them exposed to reinterpretation by the Court.3
At the same time, positives seem to outweigh the measured risks: adherence could allow Canada to reinforce its own standards; deepen protection for many of the issues that Canada shares with IACtHR members, such as the rights of Indigenous peoples and climate change impacts; and strengthen the regional system as a whole.
With many reasons to join, it’s worth asking whether we are missing out by not taking advantage of the offer to sit at the table. This is something I will continue to reflect on, probably beyond the end of the internship.
For now, I’ll close with what I told the customs agent: “I’m here to learn.”
Sources/Notes:
1 Jamaica is a member of the OAS and a signatory of the Convention, unlike Canada, but it has not recognized the compulsory jurisdiction of the Court.
2 Bernard Duhaime, “Ten Reasons Why Canada Should Join the American Convention on Human Rights” (2019) 49 RGD (hors-série) [Revue générale de droit], online: https://soaa.uqam.ca/wp-content/uploads/2019/02/Duhaime_TenReasonsWhy.pdf
3 Canada, Senate, Standing Committee on Human Rights, Enhancing Canada’s Role in the OAS: Canadian Adherence to the American Convention on Human Rights, 37th Parl, 2nd Sess (May 2003) (Chair: Hon Shirley Maheu).