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.

Human Rights to Water and Sanitation: Finding Common Ground on the Scope of Obligations

By: Ellen Spannagel

In my work as an intern with Forum for Human Rights, an organization that focuses on international human rights litigation and advocacy and Central Europe, I have been helping with a submission centered on the human rights to water and sanitation. The rights to safe drinking water and sanitation are derived from the right to an adequate standard of living, a right that is enshrined in several human rights instruments that are ratified by Canada, including the ICESCR, CEDAW, CRPD, and the CRC.

In my research, I found that violations of the rights to safe drinking water and sanitation are typically related to violations of other rights, including the right to health (highest attainable standard of health), housing (also part of the right to an adequate standard of living), and the principle of non-discrimination, among others. This bolsters the notion that human rights are interdependent and interrelated: these are rights that can only be upheld so long as the others are upheld.

This theme of interdependence is prominent within United Nations (UN) treaty bodies and throughout the comments of UN Special Rapporteurs. For example, the former UN Special Rapporteur on the Right to Housing, Leilani Farha, has specified that housing that does not provide adequate water and sanitation can give rise to a situation of homelessness, a fundamental breach of the right to housing. The interrelatedness of these rights is also prominent among regional courts. For example, in Öneryildiz v. Turkey, a community was devasted by the explosion of a landfill, and the European Court of Human Rights held that waste disposal, and its impacts on health, were intricately related to the right to life and that there is “positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction.”

While this makes it easy to link rights such as the human rights to water and sanitation to the violations of other rights, it sometimes makes it difficult to identify the specific obligations states have in fulfilling these rights at a normative level. For example, in the recent judgement Hudorovic and Others v. Slovenia, which considered whether Slovenia violated obligations to provide the Roma applicants with adequate access to drinking water and sanitation, the European Court of Human Rights acknowledged that it is “necessary to take into account the vulnerable and disadvantaged position of the Roma population”  in the context of several rights, such as the right to life. However, the court ultimately ruled that that the State had fulfilled their positive obligations to provide access to utilities to the applicants, despite evidence of existing lack of access to adequate water and sanitation. This contradicts the comments made by the former UN Special Rapporteur on the Right to Housing and raises questions about the scope of obligations where a multiplicity of interrelated rights are at play. Questions about the level of access (whether water must be provided directly into the home) and affordability (how much it should cost to remain connected to a public water supply) remain unanswered and highlight whether human rights as they currently exist are best positioned to tackle these issues.

In Europe, water-related issues (access to safe drinking water, access to sewage) and waste issues (uncontrolled dumpsites and landfills) are common situations of environmental racism that particularly affect Roma communities.  When I reflect on the state of affairs where I live, I am immediately reminded of the long-term drinking water advisories in First Nations communities, and its relationship to other issues such as adequate housing and food security.

The human rights to water and sanitation are especially important in the context of the climate crisis. While it is important that international and regional bodies recognize the interdependence of these rights to other rights such as the right to housing, without stricter judicial review, and a more specific framework establishing how these rights should play out on the ground, States will be absolved of responsibilities in ensuring these rights for communities that are structurally disadvantaged. Finding a common ground on the scope of obligations for these various interrelated rights, particularly in situations of persistent structural inequality, will be integral moving forward.

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