John Peters Humphrey Speech to the Ontario Section of the Canadian Bar Association

By Kyle McDowell

The independence of the legal profession is undeniably paramount in the administration of a fair and just legal system. Judicial independence is critical in ensuring that legal disputes be decided fairly, impartially, and in accordance with the law.[1] John Peters Humphrey was invited by the Canadian Bar Association to speak to members of the Bar as a law professor and international official, about initiatives taking place internationally to protect the independence of the legal profession. Naturally, as an expert in international humanitarian law and a principal drafter of the Universal Declaration of Human Rights, Humphrey discussed the relationship between human rights and the independence of the legal profession. Humphrey’s speech was delivered to members of the Ontario Section of the Canadian Bar Association on April 4, 1974 in Hamilton. This speech was given after the American Civil Rights Movement and before the creation of the Canadian Charter of Rights and Freedoms. His speech is historically important in that it provides insight into the state of the legal profession and international human rights law at the time the speech was delivered.

On the question of what was being done to protect the independence of the legal profession, Humphrey stated that “very little if anything is being done.”[2] However, he ultimately decided that he would speak about the International Commission of Jurists, which, he believed, was “one of the best international agencies for ensuring that lawyers continue to exercise their traditional functions.” The International Commission of Jurists was founded in 1952. At the time of this speech, the Commission was comprised of 40 member jurists from the five continents, though Humphrey notes that no communist country was represented. Today, the Commission is composed of 60 eminent judges and lawyers from all regions of the world. The Commission ensures the “progressive development and effective implementation of international human rights and international humanitarian law; secure the realization of civil, cultural, economic, political and social rights; safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession.” [3] The latter reason is why Humphrey, a Commission member himself, is presenting this speech to the Bar.

In addition, Humphrey addresses how international law has changed with time. Previously, human rights were thought to be domestic jurisdiction of states, and that the sole responsibility of international law was to govern relations between states. In the aftermath of the Second World War, Humphrey explains, governments and jurists around the world recognized the universality of basic human rights and the responsibility of the international community to protect these rights. Today, international law’s subjects are not only states, but also individual men and women. Moreover, Humphrey mentions advancements in customary law as well as the signing of various treaties, such as the Genocide Convention, which have improved protections of human rights across borders.

Perhaps the most important development in human rights has been the Universal Declaration of Human Rights, the principle source of law establishing internationally recognized standards of humanitarian law. This United Nations declaration, which Humphrey assisted in the drafting process, was a resolution of the General Assembly in 1948. It is a part of customary international law and is therefore binding on all states. The issue, however, is the development of effective enforcement tactics.

As Humphrey notes, some lawyers “say that there is no such thing as international law.” He argues that it does, in fact, exist – albeit practiced differently than domestic law. In identifying the methods by which countries are forced to comply with international human rights law, Humphrey cites: the Security Council as an international body possessing the ability to apply sanctions; the threat of expulsion from the United Nations; as well as various supranational courts (European Court of Human Rights) and conventions (International Convention on the Elimination of All Forms of Racial Discrimination). Humphrey acknowledges that creating effective international procedures might not occur within his lifetime. Not surprisingly, little has developed beyond the various forms of sanctions to punish countries for human rights violations. He does, however, cite the aforementioned bodies as well as the force of public opinion. He argues that even authoritarian governments, like the Soviet Union, are susceptible to this force – as he believes that the “organization of shame” is an important factor in relatively successful enforcement procedures.

For much of Humphrey’s speech, he discusses the elements of international human rights as described above. At a later point, he returns to the International Commission of Jurists. He argues that the Commission was becoming an “international ombudsman” and he acknowledges the necessity of the legal profession’s independence. He cites various cases in which some professional associations are powerless, and the integrity of the legal profession is jeopardized. He argues that there are “very few countries in the world where human rights are better respected than” in Canada. Interestingly, he does not acknowledge Canada’s own human rights infractions nor the plight of its Indigenous peoples.

In his conclusion, he reminds his audience that Canada’s role in ensuring independence for the legal profession as well as protecting human rights globally continues. He reiterates the necessity of an independent legal profession as a method of ensuring balance of power between the individual and the state. Moreover, he petitions the members of the Bar to “learn that what happens in the rest of the world is our business and hat we share responsibility with our colleagues in other countries for doing something about it.”

[1] Canadian Judicial Council, “Why is Judicial Independence Important to you?”, May 2016, https://www.cjc-ccm.gc.ca/cmslib/general/Why%20is%20Judicial%20Independence%20Important%20to%20You.pdf.

[2] MG 4127 C.18 F.371 – Speech to the Ontario Section of the Canadian Bar Association, John Peters Humphrey Fonds, McGill University Archives.

[3] International Commission of Jurists, “About,” accessed February 20, 2017, https://www.icj.org/about/.

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