International Law and Civil Liberties: Emerging Synergies

Kassandra NeranjanBy Kassandra Neranjan

While the International Human Rights Internship with the CCLA allowed me to conduct research into the areas explored below, the views expressed in this blog are my own.

Working at the Canadian Civil Liberties Association (CCLA), I found myself immersed in constitutional conundrums regarding criminal justice and equality rights. Although assessing these queries required frequent consultations with my constitutional law textbooks, my work was not limited to evaluating solely Canadian law.

Critical to equality rights litigation are the acts of demystifying and unearthing all relevant state obligations that support those rights, be it domestic or international. Fundamentally, international obligations are those commitments states make abroad in international fora, but are to be upheld domestically for the benefit of their peoples. Supreme Court judgments have exemplified this phenomenon by increasingly assessing Canada’s international legal obligations as intrinsic to interpreting its domestic legislation (with some caveats and limitations, nonetheless). In this vein, the nexus of constitutional law and international law is incredibly meaningful for furthering the rights and freedoms of those in Canada by developing a more rigid legal basis to draw from.

Socioeconomic rights are some of the most contentious in international law. Borne from an eastern bloc during the Cold War, its substance is often misconstrued with the inaccurate pretense of being diametrically opposed to civil and political negative rights. But the positive rights associated with socioeconomic rights, such as those to housing, sustenance, clean water, living wages etc. have been argued to allow for the flourishing of civil and political rights providing a more complementary relationship between the two. Canada is a signatory to the chief international text enshrining socioeconomic rights: The International Covenant of Economic Social and Cultural Rights. However, as a monist state, Canada’s international obligations do not become immediately embedded in its domestic law. It must separately enact such legislation in Parliament. Boldly, constitutional scholars have argued that the Canadian Charter of Rights and Freedoms, which possesses a preponderance of negative civil and political rights, was enacted as a red herring to prevent Canadians from demanding positive obligations from the federal government under the guise of a ‘comprehensive’ text of endowed liberties. How socioeconomic rights obligations internationally can domestically manifest becomes a critical question for civil liberties and constitutional law to find synergies for protecting Canadians’ freedoms.

Imaged above is the South African Constitutional Court which has interpreted socioeconomic rights and core obligations of the state in numerous cases

As a student with an interest in international law, I jumped at the opportunity provided by the CCLA to research the application of international socioeconomic rights domestically in other jurisdictions.

In litigating for civil liberties, legislation and policies are often found that may appear legally sound but their effects have the dire consequences of depriving individuals of access to essential resources, that could otherwise be protected under socioeconomic rights. Consequently, socioeconomic rights provide a novel avenue for civil liberties protection. How these socioeconomic rights can be ascertained and protected domestically when they exist as international obligations however, continues to be the topic of much debate in international and constitutional law dialogues. Indeed, South Africa and India lead these conversations with the creative endeavours their courts have taken to protect social and economic rights – but this has not been met without adversity. Moreover, often the most marginalized in a society are left to bear the brunt of whatever inaction may thereafter proceed.

The intersection of international law bolstering civil liberties is one that is growing in reputation, prominence, and need. Finding opportunities to hold states accountable that have not been exhausted in court, but are feasible in application requires a delicate balance and abundance of ingenuity. It was incredibly fulfilling to research and prepare recommendations and assessments to advance such conversations and hopefully support the protection of Canadians’ rights in the near future.

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