Punting Terrorists, Assassins and Other
Undesirables: Canada, the Human Rights
Committee and Requests for Interim
Measures of Protection
Joanna Harrington’
The author critically analyzes the derisory manner in
which Canadian courts have regarded Canada’s international
human rights treaty obligations. More specifically, relying on the
recent Canadian judicial pronouncements in Ahani v. Canada,
the author questions the usual justifications put forth by domestic
courts to disregard requests for interim measures of protection
made by the Human Rights Committee.
As a human rights adjudicative body of last resort, the
Human Rights Committee was established by states via the
International Covenant on Civil and Political Rights (“ICCPR”)
and provides safeguards for the protection of individual rights
and liberties when domestic remedies have been exhausted.
Simply because the ICCPR cannot be enforced in the manner
that domestic measures can does not make the ICCPR any less
binding.
In its annual reports and its views in individual cases, the
Human Rights Committee has made it clear that the failure of a
state to respect a request for interim measures is a serious breach
of that state’s obligations under the ICCPR regime. Additional
support for the proposition that interim measures are binding can
be found in the landmark LaGrand Case, which was heand
before
in various
Caribbean cases heard by the Judicial Committee of the Privy
Council,
the International Court of Justice, and
Consequently, for not providing adequate protection of
human rights by respecting the request for interim measures
made by the Human Rights Committee, and for not considering
the cases where other legal venues have found requests for
interim measures binding on states, Canada acts in bad faith with
respect to its international human rights treaty obligations.
L’auteur analyse de fagon critique Ia maniere ddrisoire par
laquelle les tribunaux canadiens ont consid6r6 les obligations du
Canada decoulant des traits intemationaux des droits de la per-
sonne. Se basant sur le rtcent arret Ahani c, Canada, l’auteur
remet en question les justifications habituelles employhts par les
tribunaux domestiques pour ne pas tenir compte des demandes
de mesure de protection temporaire formulhes par le Cotitd des
droits de l’homme.
ttabli par le Pacte international relatifaux droits civils et
politiques (aPtRDCP*) en taut que corps judiciaire de deriamr
instance en matike de droits de la personne, le Comit6 des droits
de l’homme prdvoit certsaines garanties de protection des droits et
libertus individuels lorsque tuns les recours domestiques ont 6t6
6puishs. Le fait que l’on ne puisse faire respecter le PIRDCP au
mme titre que d’autres rfgles domestiques n’enl~ve rien ,i sa
force contraignante.
Par ses rapports annuels et ses interventions dans divers
cas individuels, le Comit6 des droits de l’hommc a clairement
tat de faire suite t une detnande de
fait savoir que le defaut d’un
mesure de protection temporiire constite une grave violation
des obligations de l’tat sous le PIRDCP. L’argument selon le-
quel les mesures temporaires de protection ount force contrai-
gnante peut t”ouver appui dans l’arret LaGrand, entendu par Is
Cour intemationale de justice, ansi que plusieurs decisions des
Caraibes rendues par le Comitd judiciaire du Conseil priv&
Par consluent, en ne founmissant pas de protection ad-
quate des droits de In personne par le non-respect des demandes
de mesure temporaire formulhts par le Comit des droits de
l’honme, et en ne tenant pas compte des decisions et juridictions
ayant reconu I’aspect contraignant de ces demaundes de protec-
tion temporaire, le Canada agit de mauvaise foi face At ses obli-
gations internationales relatives aux droits de Ia personne.
Assistant Professor, Faculty of Law, University of Western Ontario. E-mail: jharrin2@uwo.ca.
Thanks are due to Nevinne Hassan (UWO Class of 2003) for her capable research assistance, funded
with appreciation by the Faculty of Law and the Law Foundation of Ontario. I am also grateful to my
colleagues Chi Carmody, Michael Coyle, Grant Huscroft, and Mark Perry, and to the anonymous
reviewers, for their comments on an earlier draft.
McGill Law Journal 2003
Revue de droit de McGill 2003
To be cited as: (2003) 48 McGill LJ. 55
Mode de r6f6rence : (2003) 48 R.D. McGill 55
MCGILL LAW JOURNAL / REVUE DE OROIT DE MCGILL
[Vol. 48
Introduction
I. The Case of Ahani v. Canada
II. Bringing a Complaint to the Human Rights Committee
A. Functions of the Human Rights Committee
B. Human Rights Committee Requests for Interim
Measures of Protection
Ill. Effects of Interim Measures Requests
A. The Position of the Human Rights Committee
B. Turning to the International Court of Justice for Guidance
C. The View of the Privy Council on Interim Measures
IV. Further Criticisms of the Ahani Decision
Conclusion
57
58
61
61
66
67
67
72
77
82
2003]
J. HARRINGTON –
INTERIM MEASURES OF PROTECTION
Introduction
After a nine-year battle in Canada’s courts, Mansour Ahani, the alleged Iranian
assassin, terrorist, and Convention refugee,’ lost his bid to remain in Canada. On 16
May 2002, the Supreme Court of Canada dismissed Ahani’s application for leave to
appeal the decision of the Ontario Court of Appeal and finally paved the way for his
deportation to Iran on grounds of terrorism and national security! In so doing, both
courts enabled the government of Canada to ignore once again the requests made by an
international forum for a stay of proceedings while a claim against Canada is currently
pending before that forum, thereby frustrating the very purpose of the right of individual
petition that was granted by states such as Canada to operate at the international level.
The forum in question in Ahani’s case is the Human Rights Committee, the
United Nations (UN) body established by one of the world’s most important human
rights treaties, the International Covenant on Civil and Political Rights,’ and
authorized by that treaty to monitor its implementation within the states that have
consented to be bound by its terms. After having lost on the merits of his case in an
earlier judgment by the Supreme Court of Canada,’ Ahani lodged a petition (or
“communication”) with the Human Rights Committee alleging that Canada was in
violation of its obligations under the ICCPR by deporting him to a country where he
might face a risk of torture or death. He also invoked the Committee’s Rules of
Procedure,’ asking the Committee to exercise its power to make what is known as a
request for interim measures of protection. Interim measures are essentially the
international law equivalent of a domestic interlocutory injunction issued to avoid
irreparable harm to a party while a case is pendente lite. The Committee made such a
request, asking Canada to refrain from deporting Ahani while his case was pending,
but Canada declined to abide by this request, prompting Ahani to make one last but
unsuccessful visit to court to force Canada to respect the Committee’s request for
interim measures of protection.
Under the Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.TS. 150, Can.
T.S. 1969 No. 6 (entered into force 22 April 1954).
‘Ahani v. Canada (A.G.) (2002), 58 O.R. (3d) 107,91 C.R.R. (2d) 145 (Ont. C.A.), leave to appeal
to S.C.C. refused, [2002] S.C.C.A. No. 62 (Q.L.) [Ahani (Ont. C.A.)].
19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23
March 1976, accession by Canada 19 May 1976) [ICCPR].
4 Ahani v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 57, 2002
SCC 2 [Ahani (S.C.C.)].
‘Revised Rules of Procedure of the Human Rights Committee, UN Doc. CCPR/C/3/Rev.6, reprinted
in Report of the Human Rights Committee, UN GAOR, 56th Sess., Supp. No. 40, UN Doc. A/56/40,
vol. 1 (2001) annex I.B at 168 [Rules of Procedure]. See also Compilation of Rules of Procedure
Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/3 (2001) [Rules Compilation]. Both
documents are available online: Office of the UN High Commissioner for Human Rights (Treaty
Body Database)
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Judicial consideration of the domestic effect of an interim measures request by an
international forum such as the Human Rights Committee is novel in Canada and
worth further examination. In light of the Supreme Court of Canada’s refusal to grant
leave, this article will focus on the judgment of the Ontario Court of Appeal. It will
also examine the jurisprudence of the Human Rights Committee on the legal import
of its requests for interim measures, before examining a landmark judgment by the
International Court of Justice and a series of constitutional law cases from the Judicial
Committee of the Privy Council that support the principle that interim measures
requests must carry some connotation of obligation if they are to fulfill their function
of ensuring some efficacy to the final outcome of the proceedings.
I. The Case of Ahani v. Canada
We begin with an overview of the Ahani case. Mansour Ahani is a citizen of Iran.
He came to Canada in October 1991 and was granted Convention refugee status in
April 1992. By June 1993, the government of Canada had declared him a terrorist and
a danger to national security. According to the Canadian Intelligence Security Service
(CSIS), Ahani was a trained assassin who worked with the Iranian Ministry of
Intelligence Security (MOIS), an organization that CSIS considered responsible for a
wide range of terrorist activities, including the assassination of Iranian political
dissidents. CSIS also reported that Ahani had travelled to various destinations in
Europe shortly after his refugee hearing in 1992 to meet with a MOIS agent and
possibly take part in an assassination plot. In response to these reports, Canada
commenced deportation proceedings against Ahani.
Deportation of a non-national from Canada on national security grounds is
essentially a four-part process.’ The process begins with the filing by the Solicitor
General and the Minister of Citizenship and Immigration of a security certificate
under section 40.1 of the Immigration Act,’ claiming in Ahani’s case that he should be
removed from Canada because of his membership in a terrorist organization and
because he had engaged or would engage in terrorism. With the filing of the
certificate, Ahani was immediately arrested and detained in custody, where he would
remain for eight years. The next step required the Federal Court of Canada (Trial
Division) to determine whether the certificate was reasonable, which it so held in
6 The issue has been raised, but not fully discussed, in two other cases. See Bhatti v. Canada
(Minister of Citizenship and Immigration) (1996), 120 FT.R. 123, 35 1mm. L.R. (2d) 192 and Singh v.
Canada (Minister of Citizenship and Immigration) (1991), 140 ETR. 213.
See Ahani (Ont. C.A.), supra note 2 at paras. 6-9.
6 The constitutionality of this four-part process was upheld in Suresh v. Canada (Minister of
Citizenship and Immigration) ((2002), 208 D.L.R. (4th) 1, 2002 SCC I [Suresh]), which was decided
concurrently with Ahani (S.C.C.) (supra note 4).
R.S.C. 1985, c. 1-2. Ahani launched an unsuccessful challenge to the constitutional validity of
section 40.1. See Ahani v. Canada, [1995] 3 EC. 669, 32 C.R.R. (2d) 95 (T.D.), aff’d (1996), 37
C.R.R. (2d) 181,201 N.R. 233 (EC.A.), leave to appeal to S.C.C. refused, [199712 S.C.R. v.
2003]
J. HARRINGTON –
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Ahani’s case after hearing evidence led by CSIS to show that Ahani was a threat to
Iranian dissidents.” This led to the third step in the deportation process, namely, the
holding of a deportation hearing before an immigration adjudicator who subsequently
found that reasonable grounds did exist to believe that Ahani was a member of a
terrorist organization and that he had engaged or would engage in terrorism.’ As a
result, a deportation order was issued on 28 April 1998.
The minister then took the fourth and final step in the deportation process,
advising Ahani that she intended to issue a “danger opinion” under paragraph
53(l)(b) of the Immigration Act, indicating that Ahani constituted a danger to the
security of Canada. At the minister’s invitation, Ahani made written submissions. He
denied that he was an assassin and further claimed that he would be at risk of torture
in Iran for having made a refugee claim and for having disclosed information to
Canadian authorities about his work with MOIS. These submissions, together with
other relevant documents, were considered and ultimately rejected by the minister,
who issued the opinion that Ahani was a danger to Canada on 12 August 1998.2 The
minister also rejected Ahani’s claim that he would be at risk of torture upon
deportation to Iran, concluding that his deportation would only expose him to a
“minimal risk of harm” and that the danger to the security of Canada outweighed this
minimal risk.”
Ahani then challenged the minister’s decision in the Federal Court,” and
ultimately the Supreme Court of Canada,”‘ requesting a new deportation hearing and
raising several constitutional issues similar in substance to those raised in the case of
Suresh v. Canada (Minister of Citizenship and Immigration), a case involving the
deportation on national security grounds of an alleged fundraiser for the Sri Lankan
Tamil Tigers. Like Ahani, Suresh also claimed that he faced a risk of torture upon
deportation to the receiving state.
Both cases were decided on 11 January 2002 by the Supreme Court of Canada,
which used the Suresh case to establish the applicable analytical framework. Applying
the Suresh framework to Ahani’s case, the Court concluded that there was no basis to
interfere with the minister’s decision to deport. While the Court acknowledged that
“the issue of deportation to risk of torture engages s. 7 of the Charter and hence
possesses a constitutional dimension,” it also held that the minister’s decision was
requiring the consideration of “issues … largely outside the
“largely fact-based’
“0 Re Ahani (1998), 146 ET.R. 223,42 1mm. L.R. (2d) 219.
“Referred to in Ahani (Ont. C.A.), supra note 2 at para. 11.
2 Ibid. at para. 13.
‘ Ibid.
” Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 73 C.R.R. (2d) 156, 252 N.R.
83 (EC.A.), aff’g (1999), 170 ETR. 153.
‘Ahani (S.C.C.), supra note 4.
6 (1999), 173 F.T.R. 1, 65 C.R.R. (2d) 344, aff’d [20001 2 F.C. 592, 183 D.L.R. (4th) 629 (C.A.),
aff’d Suresh, supra note 8.
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realm of expertise of reviewing courts,” and therefore deserving of “considerable
deference”. 7 The issues required to be considered, according to the Court, were “the
human rights record of the home state, the personal risk faced by the claimant, any
assurances that the claimant will not be tortured and their worth and, in that respect,
the ability of the home state to control its own security forces, and more:’ The Court
concluded that there was ample support for the minister’s decision that Ahani was a
danger to the security of Canada.” It also held, based on the following considerations,
that there was no basis to interfere with the minister’s decision:”0 First, the Court
determined that the minister’s decision on the question of the risk of harm to Ahani
was “unassailable”,’ drawing attention to the advice given to the minister, which
noted that Ahani’s risk submissions were found to be suspect during the hearing
prescribed by section 40.1 of the Immigration Act. Second, the Court observed that
these submissions referred to conditions in Iran that were applicable to opponents of
the regime and not to persons such as Ahani. Finally, it noted that Ahani was in
contact with the Iranian government after his refugee hearing.”2 The Court also
concluded that beyond there being no basis to interfere with the minister’s decision,
Ahani had been accorded adequate procedural protections during the danger opinion
process.’ Ahani’s deportation was set to go ahead.
Having exhausted all his domestic remedies,’ Ahani filed a complaint with the
Human Rights Committee, alleging that his deportation to Iran would violate
Canada’s obligations under the ICCPR, specifically the right to life (article 6), the
right to be free from torture and other forms of serious ill-treatment (article 7), the
right to be free from arbitrary detention (article 9), and the right to a fair trial (article
14). Ahani also requested and received from the Committee a request for interim
measures; in essence, a request from the Committee to Canada asking Canada not to
deport Ahani until it had an opportunity to consider Ahani’s claims, especially those
relating to torture, ill-treatment, or even death as a consequence of the deportation.
Canada refused the Committee’s request, prompting Ahani to return to court to
seek an injunction to restrain his deportation while his case was pending for
” Ahani (S.C.C.), supra note 4 at para. 17. See Part I of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
‘Ibid.
9 bid at para. 18.
‘0 Ibid. at para. 22.
Ibid. at para. 19.
Ibid. at para. 20.
Ibid. at para. 26.
“‘ It is a well-established rule of customary international law that local remedies must be exhausted
before international proceedings may be instituted. See Interhandel Case (Switzerland v. United
States of America) (Preliminary Objections), [1959] I.CJ. Rep. 6 at 27, 27 I.L.R. 475. See also Ian
Brownlie, Principles of Public International Law, 5th ed. (Oxford: Clarendon Press, 1998) at 496-
510.
” Ahani (Ont. C.A.), supra note 2 at para. 18.
2003]
J. HARRINGTON –
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consideration by the Human Rights Committee. By two votes to one, the Ontario
Court of Appeal denied Ahani’s request, primarily on the basis that neither the ICCPR
nor its Optional Protocol’ (the side-agreement to the ICCPR specifically providing
for the right of individual petition) was incorporated into Canadian law. As stated by
and so Ahani
Laskin J.A. for the majority, “neither has any legal effect in Canada’
could not, as Laskin viewed it, “use s. 7 [of the Charter, in particular the principles of
fundamental justice] to enforce Canada’s international commitments in a domestic
court” Laskin J.A. also noted that “neither the Committee’s views nor its interim
measures requests are binding on Canada as a matter of international law, much less
as a matter of domestic law,”‘ and he therefore concluded that it would be “an
untenable result””‘ to “convert a non-binding request, in a Protocol, which has never
been part of Canadian law, into a binding obligation enforceable in Canada by a
Canadian court, and more, into a constitutional principle of fundamental justice.”” In
short, according to Laskin J.A., Ahani’s right to remain in Canada had ended with the
Supreme Court of Canada’s decision on the merits of his claim and he was “not
entitled to any more than that”‘ He buttressed his conclusions by invoking the
memory of the events of 11 September 2001, noting that Canada has many
international obligations to balance, “not the least of which … is to ensure that it does
not become a safe haven for terrorists”
II. Bringing a Complaint to the Human Rights Committee
A. Functions of the Human Rights Committee
Since few lawyers in Canada are aware of the right to bring individual complaints
against Canada before the Human Rights Committee, an explanation of the
Committee’s creation, role, and the nature of its functions is in order. This explanation
must begin with the adoption of the ICCPR” (referred to as “CCPR” in UN
26 Optional Protocol to the International Covenant on Civil and Political Rights, 16 December
1966, 999 U.N.T.S. 302, Can. T.S. 1976 No. 47 (entered into force 23 March 1976) [Optional
Protocol].
” Ahani (Ont. C.A.), supra note 2 at para. 31.
2& Ibid.
“‘Ibid. at para. 32.
Ibid. at para. 33.
3 Ibid.
32 Ibid. at para. 41.
“Ibid. at para. 48.
Supra note 3. For the leading commentary on the ICCPR, see Sarah Joseph et al., The
International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford:
Oxford University Press, 2000). For earlier works, see Manfred Nowak, CCPR Commentary: UN
Covenant on Civil and Political Rights (Kehl: N.E Engel, 1993); Dominic McGoldrick, The Human
Rights Committee: Its Role in the Development of the International Covenant on Civil and Political
Rights (Oxford: Clarendon Press, 1994); P.R. Ghandhi, The Human Rights Committee and the Right
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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documentation), one of the most important treaties of general application to be drafted
by states under the auspices of the UN.”
Adopted by the member states of the UN General Assembly in 1966, the JCCPR,
along with its sister treaty, the International Covenant on Economic, Social and Cultural
Rights,’ essentially codifies into law the rights found in the Universal Declaration of
Human Rights,” a non-binding’ declaration adopted by the UN General Assembly in
1948 in reaction to the horrors of World War U and the Holocaust. Both treaties came
into force in 1976, after each received the required ratifications and accessions39 from
thirty-five states.’ The ICCPR has since been ratified by 149 of the 190 states in the
UN,” and, given the extent of its ratification record, it can be said with confidence that
the rights it protects “represent the basic minimum set of civil and political rights
recognized by the world community “‘ Specifically, the ICCPR contains an absolute
prohibition on torture and cruel, inhuman, or degrading treatment or punishment (article
7).
Canada acceded to the ICCPR on 19 May 1976. By acceding to or ratifying the
ICCPR, a state accepts a binding obligation under international law to respect and to
ensure to all individuals within its territory and jurisdiction the rights guaranteed by
the treaty and to take the necessary steps to adopt such measures as may be necessary
to give effect to these rights (article 2). The wording of this obligation makes it clear
that the citizenship of the individual is irrelevant to the guarantee of the treaty right,
of Individual Communication: Law and Practice (Brookfield, Vt.: Ashgate, 1998). For commentary
from a Canadian perspective, see Anne F. Bayefsky, International Human Rights Law: Use in
Canadian Charter of Rights and Freedoms Litigation (Toronto: Butterworths, 1992); William
Schabas, International Human Rights Law and the Canadian Charter, 2d ed. (Scarborough, Ont.:
Carswell, 1996).
” The ICCPR was one of twenty-five treaties to be singled out by the Office of the Secretary
General of the UN as being basic to a comprehensive international legal framework. See UN,
Millennium Summit Multilateral Treaty Framework: An Invitation to Universal Participation (New
York: UN, 2000).
16 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46 (entered into force 3 January 1976)
[ICESCR].
37GA Res. 217 (IIl), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) 71.
The Universal Declaration of Human Rights is “not a legal instrument,” although “some of its
provisions either constitute general principles of law or represent elementary considerations of
humanity” (Brownlie, supra note 24 at 574-75).
” The effect of ratification and accession is the same; a state becomes bound to the particular treaty
to which it has ratified or acceded. Ratification is the means by which a state expresses its consent to
be bound by a treaty after the treaty’s signature and adoption. Accession is the means available for a
state to become bound to a treaty when, for whatever reason, it did not sign the treaty. See Anthony
Aust, Modem Treaty Law and Practice (Cambridge: Cambridge University Press, 2000) at 81, 88.
“* See ICCPR, supra note 3, art. 49; ICESCR, supra note 36, art. 27.
” See “Status of Ratifications of the Principal International Human Rights Treaties”, online: Office
of the UN High Commissioner for Human Rights
2 McGoldrick, supra note 34 at para. 1.34.
2003]
J. HARRINGTON –
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much like those rights in Canada’s Charter” that are written to benefit everyone”
rather than every citizen.’ As for the obligation “to respect and to ensure”, this
wording in article 2 suggests that the protection of ICCPR rights is primarily a
domestic matter for a state. Ratification of the ICCPR, however, also indicates a
state’s acceptance of the supervisory mechanisms written into the treaty that monitor
the treaty’s implementation, and the supervisory body established for this purpose is
the Human Rights Committee.’
The Human Rights Committee is a treaty-based body established in 1976 whose
composition, status, functions, and procedures are set out in part IV of the ICCPR. It
must not be confused with the far more political UN Commission on Human Rights, a
separate and distinct body with a very different role.’ As prescribed by the provisions
of the 1CCPR, the Human Rights Committee is an independent body comprised of
eighteen individuals ‘8 chosen from various legal systems and geographical regions.
The Committee meets three times a year to consider both reports ” and complaints-
known in ICCPR parlance as “communications” —submitted by state parties to the
ICCPR. The expertise of the Committee members varies. It can be noted, however,
that two current judges of the International Court of Justice (or World Court) have
served on the Human Rights Committee: Thomas Buergenthal of the United States
(1995-1999) and Rosalyn Higgins of the United Kingdom (1985-1996). Three
43Supra note 17.
See e.g. ibid., s. 7.
4 See e.g. ibid, ss. 3, 6.
Article 28 of the ICCPR (supra note 3) provides: “There shall be established a Human Rights
Committee … ” On the Committee generally, see the texts cited supra note 34. See also Torkel
Opsahl, “The Human Rights Committee” in Philip Alston, ed., The United Nations and Human
Rights: A Critical Appraisal (Oxford: Clarendon Press, 1992) at 369-443; Henry J. Steiner,
“Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?”
in Philip Alston & James Crawford, eds., The Future of UN Human Rights Treaty Monitoring
(Cambridge: Cambridge University Press, 2000) at 15-53.
4′ The UN Economic and Social Council established the Commission in 1946. See Howard Tolley,
The U.N. Commission on Human Rights (Boulder: Westview Press, 1987). A similar warning against
confusing the two bodies was included in Ahani (Ont. C.A.) (supra note 2 at para. 39), although there
is an incorrect reference to “Commission” instead of “Committee” (ibid. at para. 37).
8 Article 28(2) of the ICCPR (supra note 3) provides that the members of the Human Rights
Committee must be “persons of high moral character and recognised competence in the field of
human rights.’ They need not be legally trained, although consideration must be given “to the
usefulness of the participation of some persons having legal experience’ Many members have been
former judges and professors of law, or diplomats with legal training. Once elected, the Committee
members “serve in their personal capacity:’
49 Ibid., art. 40.
” Ibid., art. 41. The competence of the Human Rights Committee to consider
interstate
communications is, however, dependent on the state parties making a specific declaration to that
effect.
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Canadians have also served on the Committee, including the late Ontario Court of
Appeal Justice Walter Tarnopolsky (1976-1983).5
The Human Rights Committee
is also authorized by states to consider
communications from individuals claiming to be victims of violations of the 1CCPR
who have exhausted their domestic remedies, but only if the state concerned has
elected to ratify an additional treaty: the ICCPR’s first Optional Protocol” which
specifically provides for this right of individual (as opposed to state) petition under
international law. As of 6 November 2002, 102 of the 149 state parties to the ICCPR
had either ratified or acceded to the Optional Protocol, including Canada,”3 thereby
granting the right of individual petition to over a billion people in the world. As a
result, the Human Rights Committee has not been bereft of individual complaints for
its consideration,’ and in fact, Canada ranks second in the tally of individual
communications lodged with the Committee against a particular state.”
This in turn has led to the development of a body of jurisprudence on the ICCPR,
consisting of the views adopted by the Human Rights Committee in the various
See Walter S. Tamopolsky, “The Canadian Experience with the International Covenant on Civil
and Political Rights Seen from the Perspective of a Former Member of the Human Rights
Committee” (1987) 20 Akron L. Rev. 611. The other two Canadians are Laval University law
professor Gis~le C&6-Harper (1983-1984) and former diplomat and past Chief Commissioner of the
Canadian Human Rights Commission Maxwell Yalden (1997-present).
‘2 Supra note 26. A second optional protocol, known as the Second Optional Protocol to the
International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, 15
December 1989, GA Res. 44/28, UN GAOR, 44th Sess., Supp. No. 49, UN Doc. A/44/49, vol. 1
(1989) 206,29 I.L.M. 1465 (entered into force I1 July 1991), supplements the Covenant’s provisions
on the right to life by prohibiting the death penalty.
” Canada acceded to the Optional Protocol on 19 May 1976. It entered into force with respect to
Canada on 19 August 1976.
‘, The Human Rights Committee registered its one thousandth communication in July 2001. See
“Executive Summary”, in Report of the Human Rights Committee, UN GAOR, 56th Sess., Supp. No.
40, UN Doc. A/56/40, vol. 1 (2001) 12.
” See “Statistical Survey of Individual Complaints Dealt With by the Human Rights Committee
Under the Optional Protocol to the International Covenant on Civil and Political Rights (6 November
2002)”, online: Office of the UN High Commissioner for Human Rights
equate to finding Canada in violation of the ICCPR. As of 6 November 2002, Canada was the state
party concerned in 107 of the 1132 communications registered with the Human Rights Committee.
Forty-nine of these cases, however, were later declared inadmissible, 23 were discontinued, and 17
are “living cases”. Only 18 of the 107 cases against Canada have proceeded to a determination on the
merits, with Canada being found in violation of the ICCPR in 9 of these 18 cases (ibid). Jamaica is
the state that has logged the highest number of communications, with a total of 177 cases out of 1132
(ibid.). In January 1998, Jamaica withdrew its acceptance of the right of individual petition under the
Optional Protocol. See further, Natalia Schiffrin, “Jamaica Withdraws the Right of Individual Petition
Under the International Covenant on Civil and Political Rights” (1998) 92 Am. J. Int’l L. 563.
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individual complaints.’ While there is some debate as to whether or not the Human
Rights Committee can be properly described as a judicial authority,”‘ it does decide
cases in an adjudicative fashion, providing both the state and the individual
complainant with an opportunity to fully present their case. It later makes a reasoned
ruling on the issues in the complaint, and while its views do not bind the state
concerned, they do acquire persuasive authority from the personal standing of the
members of the Human Rights Committee and their judicial qualities of impartiality,
objectivity, and restraint. 8 Moreover, the fact that views are not legally binding in the
literal sense does not mean that they are without legal consequences. If the
Committee, as the body competent to do so by the terms of the ICCPR, has found a
violation, then under article 2 of the ICCPR the state has a legal obligation to provide
an effective remedy for that violation. To this end, a standard paragraph now appears
in the Committee’s findings of a violation that reads:
Bearing in mind that, by becoming a State party to the Optional Protocol,
the State party has recognised the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant to
Art. 2 of the Covenant, the State party has undertaken to ensure to all
individuals within its territory and subject to its jurisdiction the rights
recognised in the Covenant to provide an effective and enforceable remedy in
case a violation has been established, the Committee wishes to receive from the
State party, within ninety days information about the measures taken to give
effect to its views, 9
56 A summary of the communications examined and the official text of the views adopted are
included in the annual Report of the Human Rights Committee, reproduced since 1978 as “Supp. No.
40″ of the Official Records of the UN General Assembly. The Committee’s first report in 1977 can be
found in Supp. No. 44. Views are also obtainable online (Treaty Body Database, supra note 5).
” See e.g. the decision of the Judicial Committee of the Privy Council in Tangiora v. Wellington
District Legal Services Committee, [200011 W.L.R. 240, [2000] 1 N.Z.L.R. 17 (P.C.) [Tangiora cited
to W.L.R.J, cited in Ahani (Ont. C.A.), supra note 2 at paras. 92, 94, Rosenberg J.A., dissenting.
Judge Rosalyn Higgins describes the Human Rights Committee as a “quasi-judicial monitoring body”
but questions how important it is that the ICCPR have such a body rather than a court. See Rosalyn
Higgins, “Role of Litigation in Implementing Human Rights” (1999) 5:2 Australian Journal of
Human Rights 4 at II (Aust LII).
58 Tangiora, ibid. at 244H. See also Ahani (Ont. C.A.), ibid at para. 94, Rosenberg J.A, dissenting.
‘Elizabeth Evatt, “The Impact of International Human Rights on Domestic Law” in Grant Huscroft
& Paul Rishworth, eds., Litigating Rights: Perspectives from Domestic and International Law
(Oxford: Hart, 2002) 281 at 301, n.124. See also Markus G. Schmidt, “Follow-Up Mechanisms
Before UN Human Rights Treaty Bodies and the UN Mechanisms Beyond” in Anne F. Bayefsky, ed.,
The UN Human Rights System in the 210 Century (Cambridge, Mass.: Kluwer Law International,
2000) at 234-35 [Bayefsky, The UN Human Rights System]; Anne E Bayefsky, The UN Human
Rights Treaty System: Universality at the Crossroads (Ardsley, N.Y: Transnational, 2001) at 31
[Bayefsky, Universality at the Crossroads].
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B. Human Rights Committee Requests for Interim Measures of
Protection
Under article 39, the state parties to the ICCPR have expressly granted the Human
Rights Committee the power to write its own rules of procedure.’ Included within the
first set of rules to be adopted by the Committee was rule 86.6″ Rule 86 stipulates that
the Committee “may, prior to forwarding its views on the communication to the State
party concerned, inform that State of its views as to whether interim measures may be
desirable to avoid irreparable damage to the victim of the alleged violation,” and
further stipulates that “[i]n doing so, the Committee shall inform the State party
concerned that such expression of its views on interim measures does not imply a
determination on the merits of the communication.” Similar provisions can be found
in the procedural rules for many international courts, commissions, and committees,62
and so it is hardly surprising that the Human Rights Committee would recognize the
need for such a rule to protect the interests of the parties and to facilitate the proper
conduct of the proceedings pendente lite. State practice also supports the existence of
the rule, since few states fail to comply with a duly communicated rule 86 request,63
Canada being an exception.
Nevertheless, while the rule may be commonplace, its use is not. Requests for
interim measures of protection are not issued as of right, nor as a matter of course. As
the Committee has made clear in its views in Stewart v. Canada and Canepa v.
o Rules of Procedure, supra note 5.
Ghandhi, supra note 34 at 57.
The likely precedent for rule 86 is article 41 of the Statute of the International Court of Justice, 26
June 1945, Can. T.S. 1945 No. 7, online: International Court of Justice
Interim measures have been requested in the European human rights regime since 1957, but were not
codified until 1974 (see European Court of Human Rights: Rules of Court, 38 I.L.M. 208, r 39). The
equivalent provisions in the Inter-American human rights regime are article 63(2) of the American
Convention on Human Rights (22 November 1969, 1144 U.N.T.S. 123, O.A.S.T.S. 1970 No. 36, 9
I.L.M. 673 (entered into force 18 July 1978)) and article 25 of the Rules of Procedure of the Inter-
109th Sess.,
American Commission on Human Rights
OASIser.LIVII.4 rev 8 (2001), 40 I.L.M. 752). Other UN committees have since adopted similar
rules. See e.g. Committee Against Torture, Rules of Procedure, UN GAOR, 1998, UN Doc.
CAT/C/3/Rev. 3, r. 108(9), reprinted in Rules Compilation, supra note 5 at 135.
Inter-Am. Comm. H.R.,
(OAS,
63 While reports by the Human Rights Committee do not state how many of these requests have
been honoured, “the success rate”, according to Professor Bayefsky, “is reportedly more than 90%”
(Bayefsky, Universality at the Crossroads, supra note 59 at 30). Professor Byrnes also reports that
“[i]n general, these requests appear to have been observed by states parties” (Andrew Bymes, “An
Effective Complaints Procedure in the Context of International Human Rights Law” in Bayefsky, The
UN Human Rights System, supra note 59 at 147).
‘4 “Communication No. 538/1993″ in Report of the Human Rights Committee, UN GAOR, 52d
Sess., Supp. No. 40, UN Doc. A/52/40, vol. 2 (1997) annex VI.G (views adopted on 1 November
1996), UN Doc. CCPRICI58/D/538/1993 [Stewart].
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Canada’ (both concerning the deportation of long-term residents from Canada
because of extensive criminal records), the granting of a request for interim measures
is only justified when the consequences of the state’s action will cause irreparable
damage to the individual concerned in the enjoyment of his or her rights.’ While it
may be difficult to determine what, in general, constitutes irreparable damage, the
irreversibility of the
Committee has held
consequences, in the sense of an individual’s inability to secure his or her rights,
should there later be a finding of a violation of the ICCPR’ A request for interim
measures will therefore be refused in cases where compensation would be an
adequate remedy or in deportation cases where the author of the communication
would be able to return should there be a favourable finding on the merits. ‘
that the essential criterion
is the
This latter situation is exemplified by the facts of Canepa, where the applicant,
having claimed that his deportation to Italy would make his rehabilitation impossible
and would interfere with his right to family life, was refused an interim measures
request because he had failed to establish that his deportation would bar his re-entry to
Canada in the event that a violation was found. In contrast, individuals sentenced to
death and awaiting execution who claim that they were denied a fair trial typically
fare much better in seeking requests for interim measures where, given the irreparable
consequences of the death penalty, the Human Rights Committee will use rule 86 to
ask the state party concerned to issue a stay of execution. The Committee has also
used rule 86 in a similar fashion in cases of imminent deportation or extradition where
it is alleged that irreparable harm to life or physical integrity will occur once the
individual is surrendered.”
III. Effects of Interim Measures Requests
A. The Position of the Human Rights Committee
As to the legal status of an interim measures request, states such as Canada
consider such requests to be non-binding,” and in the past many commentators
65 “Communication No. 558/1993” in Report of the Human Rights Committee, UN GAOR, 52d
Sess., Supp. No. 40, UN Doc. A/52/40, vol. 2 (1997) annex VLK (views adopted on 3 April 1997),
UN Doc. CCPRIC/59/D/558/1993 [Canepa].
Stewart, supra note 64 at para. 7.7; Canepa, ibid at para. 7.
67Stewart, ibid.
Ibid.
See e.g. Cox v. Canada, “Communication No. 539/1993” in Report of the Human Rights
Committee, UN GAOR, 50th Sess., Supp. No. 40, UN Doc. A/50/40, vol. 2 (1995) annex X.M (views
adopted on 31 October 1994), UN Doc. CCPR/C/52/D/539/1993.
‘ Whether binding or not, some states respond with greater respect for requests for interim
measures than Canada. Australia, for example, has responded to requests with which it disagrees by
making an application to have the interim measures request withdrawn. See A.R.J. v. Australia,
“Communication No. 692/1996″ in Report of the Human Rights Committee, UN GAOR, 52d Sess.,
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assumed this was the case.” After all, the very wording of rule 86 suggests that
interim measures, when requested, are merely desirable rather than binding, although
it must be acknowledged that many international instruments adopt language with a
diplomatic flavour to avoid offence to the susceptibilities of states. Nonetheless, a
state arguing for non-binding effect might also bolster its position by observing that
no mention is made of any requests for interim measures in the text of the treaty, thus
arguing that rule 86 has only the status of a rule of procedure drawn up by the
Committee and that as such, it cannot be considered to give rise to a binding
obligation on the state parties. Support for this position can be found in the 1991
judgment of the European Court of Human Rights in the case of Cruz Varas v.
Sweden, where a closely divided court found that “[i]n the absence of a provision in
the Convention for interim measures an indication given under Rule 36 [the European
equivalent of rule 86] cannot be considered to give rise to a binding obligation on
Contracting Parties:”‘ The drafting history of the European Convention on Human
Rights,’ however, shows that the contracting parties have twice declined to include a
provision on interim measures in the treaty text: the first time when the original 1950
text was drafted and the second time when the convention system was restructured in
the 1990s by Protocol 11.” Moreover, the court in Cruz Varas acknowledged that state
practice revealed an almost total compliance with rule 36 indications,’ lending weight
Supp. No. 40, UN Doc. A/52/40, vol. 2 (1997) annex VI.T (views adopted on 28 July 1997) at para.
5.1, UN Doc. CCPRC/60/D/692/1996; G.T v. Australia, “Communication No. 706/1996″ in Report
of the Human Rights Committee, UN GAOR, 53d Sess., Supp. No. 40, UN Doc. A/53/40, vol. 2
(1998)
1997) at para. 4.2, UN Doc.
CCPR/C/61/D/706/1996.
(views adopted on 4 November
annex XI.U
” Ghandhi notes, “[I]t is clear that the Committee’s views on the desirability of interim measures is
not binding on the State Party concerned” (Ghandhi, supra note 34 at 58); McGoldrick notes,
“[lI]nterim measures indicated by the HRC are non-binding as a matter of law and depend totally on
the co-operation and good faith of the State party concerned” (McGoldrick, supra note 34 at para.
4.128); Robertson and Merrills note, “Although interim measures are not binding, they have a moral
force .. ” (A.H. Robertson & J.G. Merrills, Human Rights in the World: An Introduction to the Study
of the International Protection of Human Rights, 4th ed. (Manchester: Manchester University Press,
1996) at 57).
” (1991), 201 E.C.H.R. (Ser. A), 14 E.H.R.R. 1, 108 I.L.R. 283 [Cruz Varas].
73 Ibid. at para. 98. However, this must now be reconsidered in light of the court’s judgment in
Mamatkulov and Abdurasulovic v. Turkey (App. Nos. 46827/99 and 46951/99 (6 February 2003),
online: European Court of Human Rights
binding, released while this article was going to press.
” Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950,
213 U.N.T.S. 222, Eur. T.S. No. 5 (entered into force 3 September 1953) [European Convention on
Human Rights].
” Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, restructuring the central machinery established thereby, 11 May 1994, Eur. T.S. 155
[Protocol 11]. See Hannah R. Garry, “When Procedure Involves Matters of Life and Death: Interim
Measures and the European Convention on Human Rights” (2001) 7:3 European Public Law 399 at
407-09.
” A statistical survey undertaken in 2000 shows that this is still the case (Garry, ibid. at 417).
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to the argument that such requests have developed a customarily binding nature. This
would also accord with the legal character given by states to other procedural rules
adopted by international fora, such as the rules determining the form and due dates for
the delivery of submissions.
This movement towards recognizing the binding nature of interim measures
requests is reflected in the jurisprudence of the Human Rights Committee. Since the
mid-1990s, the Committee has taken an increasingly stronger stance on the issue of
the effect of interim measures requests, and what were once seen as mere “failures to
cooperate”” are now viewed as violations of a state’s very obligations under the
ICCPR regime. The capital punishment case of Bradshaw v. Barbados,”9 where an
execution warrant was issued after the receipt of a rule 86 request, illustrates the more
robust view of the Committee, although the actual execution had yet to occur, and the
decision concerned the inadmissibility of Bradshaw’s communication due to his
failure to exhaust domestic remedies.’ According to the Committee, by ratifying the
ICCPR and the Optional Protocol, Barbados had accepted a legal obligation to make
their provisions effective, although it recognized that the ICCPR was not part of the
domestic
the courts.’
Nevertheless, “[t]o this extent,” held the Committee, there was “an obligation for the
State party to adopt appropriate measures to give legal effect to the views of the
Committee as to the interpretation and application of the Covenant in particular cases
arising under the Optional Protocol”‘ The Committee added that “[t]his includes the
Committee’s views under rule 86 of the rules of procedure on the desirability of
interim measures of protection, to avoid irreparable damage to the victim of the
alleged violation.”
law of Barbados, which could be applied directly by
One week later, after Trinidad and Tobago executed death row prisoner Glen
Ashby the day after receiving a rule 86 request and then subsequently declined to
provide an explanation for its actions, the Committee adopted what it described as “a
formal decision on the matter during a public meeting held on 26 July 1994,
expressing its indignation at the State party’s failure to comply with the request under
rule 86, calling upon the State party to ensure that situations similar to that
“Report of the Human Rights Committee, UN GAOR, 48th Sess., Supp. No. 40, UN Doc. A/48/40
(1993) at para. 796.
” “Communication No. 489/1992” in Report of the Human Rights Committee, UN GAOR, 49th
Sess., Supp. No. 40, UN Doc. A/49/40 (1994) annex X.L (decision adopted on 19 July 1994), UN
Doc. CCPR/C/51/D/489/1992 [Bradshaw].
, For a similar holding, see Roberts v. Barbados, “Communication No. 504/1992″ in Report of the
Human Rights Committee, UN GAOR, 49th Sess., Supp. No. 40, UN Doc. A/49/40 (1994) annex X.P
(decision adopted on 19 July 1994), UN Doc. CCPR/C/51/D/504/1992.
” Bradshaw, supra note 78 at para. 6.3.
“Ibid.
I2Ibid.
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surrounding the execution of Mr. Ashby do not recur.”‘” This special two-page
decision, published in the Committee’s annual report to the UN General Assembly,
was used to emphasize the Committee’s “indignation at the failure of the State party’s
authorities to comply with the Committee’s request,”” while also noting that “the
attitude displayed by the State party [had] no precedent in the Committee’s practice in
capital cases under the Optional Protocol … “” The Committee further “recall[ed] that
the State party, upon ratifying the Optional Protocol, undertook to cooperate with the
Committee under the procedure, and emphasise[d] that the State party [had] failed to
comply with its obligations, both under the Optional Protocol and under the
Covenant.”‘ Four years later, the Committee adopted an almost word-for-word replica
of this special two-page decision, after Sierra Leone executed twelve of the eighteen
authors of the very first communication to be lodged against it, six days after the
communication’s registration and the dispatch of a request for interim measures.
Then, in October 2000, the Human Rights Committee adopted its strongest
position to date with respect to the status of requests for interim measures, using the
opportunity afforded by the adoption of views in Piandiong v. The Philippines” to
spell out its position. This case was brought by three men on death row who claimed
they had been denied a fair trial. As in previous death penalty cases, the Committee
made a rule 86 request shortly after receiving the communication, asking the
Philippines not to carry out the death sentences while the case was under
consideration. The Philippines responded to this request by informing the Committee
that the executions would go ahead as scheduled, since it was of the opinion that the
three men had received a fair trial. Then, as in Ahani, counsel for the three men filed a
petition with the Philippine Supreme Court seeking an injunction, but this was
refused, and later that day the three men were executed by lethal injection. The case
then proceeded towards a determination on the merits of the claims made in the
communication.
In views later adopted on 19 October 2000, the Human Rights Committee stated
that “it [could not] make a finding of a violation of any of the articles of the
“Report of the Human Rights Committee, UN GAOR, 49th Sess., Supp. No. 40, UN Doc. A/49/40,
vol. 1 (1994) at para. 411.
” Ibid.
“Ibid.
Ibid. at 86. This position was confirmed in the Committee’s recent views on the merits of the Glen
Ashby case, released after the Ahani decision. See Ashby v. Trinidad and Tobago, Communication
No. 580/1994, UN Doc. CCPR/C/74/D/580/1994 (views adopted on 21 March 2002, reported on 19
April 2002), online: Treaty Body Database, supra note 5 [Ashby].
“7 “Decision of 4 November 1988 of the Human Rights Committee concening the execution of
persons in Sierra Leone” in Report of the Human Rights Committee, UN GAOR, 55th Sess., Supp.
No. 40, UN Doc. A155/40 (2000) annex X.
88 “Communication No. 869/1999″ in Report of the Human Rights Committee, UN GAOR, 56th
Sess., Supp. No. 40, UN Doc. A/56/40, vol. 2 (2001) annex X.R (views adopted on 19 October 2000),
UN Doc. CCPR/C/70/D/869/1999.
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International Covenant on Civil and Political Rights,” but concluded that the
Philippines had “committed a grave breach of its obligations under the [Optional]
Protocol by putting the alleged victims to death before the Committee had concluded
its consideration of the communication.”‘ Four paragraphs from the text of the
Committee’s views provide the rationale for the Committee’s finding that a state party
will be in breach of its obligations under the Optional Protocol by disregarding a duly
communicated rule 86 request. These four paragraphs read as follows:
By adhering to the Optional Protocol, a State party to the Covenant
recognizes the competence of the Human Rights Committee to receive and
consider communications from individuals claiming to be victims of violations
of any of the rights set forth in the Covenant (Preamble and Article 1). Implicit
in a State’s adherence to the Protocol is an undertaking to cooperate with the
Committee in good faith so as to permit and enable it to consider such
communications, and after examination to forward its views to the State party
is incompatible with these
and to the individual (Article 5(1), (4)). It
obligations for a State party to take any action that would prevent or frustrate
the Committee in its consideration and examination of the communication, and
in the expression of its Views.
Quite apart, then, from any violation of the Covenant charged to a State
party in a communication, a State party commits grave breaches of its
obligations under the Optional Protocol if it acts to prevent or frustrate
consideration by the Committee of a communication alleging a violation of the
Covenant, or to render examination by the Committee moot and the expression
of its Views nugatory and futile. In respect of the present communication, the
authors allege that the alleged victims were denied rights under Articles 6 and
14 of the Covenant. Having been notified of the communication, the State party
breaches its obligations under the Protocol, if it proceeds to execute the alleged
victims before the Committee concludes its consideration and examination, and
the formulation and communication of its Views. It is particularly inexcusable
for the State to do so after the Committee has acted under its rule 86 to request
that the State party refrain from doing so.
The Committee also expresses great concern about the State party’s
explanation for its action. The Committee cannot accept the State party’s
argument that it was inappropriate for counsel to submit a communication to
the Human Rights Committee after they had applied for Presidential clemency
and this application had been rejected. There is nothing in the Optional
Protocol that restricts the right of an alleged victim of a violation of his or her
rights under the Covenant from submitting a communication after a request for
clemency or pardon has been’rejected, and the State party may not unilaterally
impose such a condition that limits both the competence of the Committee and
the right of alleged victims to submit communications. Furthermore, the State
party has not shown that by acceding to the Committee’s request for interim
measures the course of justice would have been obstructed.
9 bid. at para. 7.4.
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Interim measures pursuant to rule 86 of the Committee’s rules adopted in
conformity with article 39 of the Covenant, are essential to the Committee’s
role under the Protocol. Flouting of the Rule, especially by irreversible
measures such as the execution of the alleged victim or his/her deportation
from the country, undermines the protection of Covenant rights through the
Optional Protocol.”
These four paragraphs were reproduced in the Human Rights Committee’s annual
report to the UN General Assembly in November 2001 under the heading “Breach of
Optional Protocol Obligations”,
thereby putting all UN member states, including
Canada, on notice as to the severity with which the body created by states to supervise
them now viewed a state’s failure to abide by a request for interim measures. Any act
that has the effect of preventing or frustrating consideration by the Committee of a
communication alleging a violation of the ICCPR, or that renders such examination
by the Committee moot and the expression of its views nugatory and futile, will be
seen as a serious breach of the Optional Protocol and as a failure to demonstrate even
the most elementary good faith required of a state party to the ICCPR regime? In
light of these developments and the ready availability of this information on the
internet, it is disturbing that no mention is made of this line of jurisprudence from the
Human Rights Committee in the Ahani decision, and more disturbing that Canada
continues to simply decline to abide by a rule 86 request rather than, at a minimum,
making an application to have the request withdrawn. It is also disturbing that Canada
routinely accepts the Committee’s rules of procedure on relatively minor issues, such
as the form and due date for its submissions, but disregards the procedure developed
by the Committee for the preservation of an individual’s life or physical integrity.
B. Turning to the International Court of Justice for Guidance
Equally surprising is the absence of any mention in Ahani of the landmark
judgment by the International Court of Justice (ICJ)” on the very topic of orders for
provisional measures (the ICJ equivalent to requests for interim measures). On 27
June 2001, the ICJ issued its judgment on the merits in the LaGrand Case,’ involving
90Ibid. at paras. 5.1-5.4.
9′ Report of the Human Rights Committee, UN GAOR, 56th Sess., Supp. No. 40, UN Doc. A/56/40,
vol. 1 (2001) at paras. 128-30.
9′ As summarized most recently in Ashby, supra note 86 at para. 10.9.
9′ The ICJ, based in the Netherlands, is the international community’s principal judicial organ.
Created in 1945, it is in essence a continuation of the Permanent Court of International Justice that
was established in 1920. Together they are known as the World Court.
LaGrand Case (Germany v. United States of America) (2001), 40 1,L.M. 1069, online:
International Court of Justice
Aceves, “Case Report: LaGrand (Germany v. United States)” (2002) 96 Am. J. Int’l L. 210; Martin
Mennecke & Christian J. Tams, “LaGrand Case (Germany v. United States of America)”, Case
Comment (2002) 51:2 I.C.L.Q. 449 [Mennecke & Tams, “LaGrand Case”]; Gino J. Naldi,
“International Court of Justice Declares Provisional Measures of Protection Binding” (2002) 118 Law
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a claim brought by Germany against the United States concerning the application of
the Vienna Convention on Consular Relations.” This is the first time in the World
Court’s eighty-year history that it has given a definitive ruling on whether or not
orders for provisional measures have binding effect. The Court replied strongly in the
affirmative, partially as a result of principles applicable to other fora involved in the
peaceful settlement of international disputes, thereby making the decision worthy of
further review.
The LaGrand Case arose from the conviction and execution in the state of
Arizona of the LaGrand brothers, two German nationals. Although permanent
residents of the United States since childhood, Walter and Karl LaGrand had never
secured American citizenship and were in fact German citizens by birth and
parentage. They were arrested in Arizona in 1982 on suspicion of armed robbery and
murder, and subsequently convicted and sentenced to death. At no point during either
their arrest or trial, however, were the LaGrands ever notified of their right as foreign
nationals to receive consular assistance, nor was the German consulate ever informed
of their arrest as required by article 36 of the Consular Convention, a multilateral
treaty to which both Germany and the United States are parties.”
Ten years later, Germany found out that two of its nationals were sitting on
Arizona’s death row and supported the unsuccessful efforts by counsel to reopen the
case, relying on treaty non-compliance as a ground. Subsequent efforts to resolve the
matter on a diplomatic level also failed and on 24 February 1999, Karl LaGrand was
executed. Then, on 2 March 1999, on the eve of Walter LaGrand’s scheduled
execution, Germany lodged its case with the ICJ, instituting proceedings against the
United States for violations of the Consular Convention and requesting the court to
issue an “order indicating provisional measures” to stop the execution. The next day,
on its own motion and without oral hearings, the ICJ issued an order for provisional
measures requesting the United States to “take all measures at its disposal to ensure
that Walter LaGrand is not executed pending the final decision in these proceedings
.. Walter LaGrand, however, was executed later that same day and on schedule.
Q. Rev. 35; Howard S. Schiffman, “The LaGrand Decision: The Evolving Legal Landscape of the
Vienna Convention on Consular Relations in US Death Penalty Cases” (2002) 42 Santa Clara L.R.
1099. See also Jennifer Lynne Weinman, “The Clash Between US Criminal Procedure and the Vienna
Convention on Consular Relations: An Analysis of the International Court of Justice Decision in the
LaGrand Case” (2002) 17 Am. U. Int’l L. Rev. 857; “Symposium: Reflections on the ICJ’s LaGrand
Decision” (2002) 27 Yale J. Int’l L. 423.
“‘ 24 April 1963, 596 U.N.T.S. 261, Can. T.S. 1974 No. 25 (entered into force 19 March 1967)
[Consular Convention].
% The United States acknowledged that the required notifications did not take place (LaGrand,
supra note 94 at para. 67).
9 Case Concerning the Vienna Convention on Consular Relations (Germany v. United States of
America) (Provisional Measures), Order of 3 March 1999, [1999] I.CJ. Rep. 9 at para. 29, 38 1.L.M.
308, 118 I.L.R. 37. For commentary on the order, see Michael K. Addo, “Vienna Convention on
Consular Relations (Paraguay v. United States of America) (“Breard”) and LaGrand (Germany v.
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With both brothers dead, one might argue the case was moot.” Germany, however,
opted to proceed with the case, alleging violations of international law by the United
States with respect to both Germany’s interest in the diplomatic protection of its
nationals and the obvious interests of the executed brothers. Germany also submitted
that the United States had violated a legal obligation to comply with the order of
provisional measures issued by the court. This particular submission met with
vigorous opposition from the United States, which contested its very admissibility on
the grounds that Germany’s last minute appeal to the ICJ had not given the United
States an opportunity to contest the provisional measures or to comply with them. The
ICJ acknowledged that Germany’s timing was open to criticism, but nevertheless
recognized the irreparable prejudice that appeared to be imminent at the time
Germany made its request and so held that Germany was entitled to challenge the
United States’ failure to comply with the provisional measures order.
As for the merits of the claim, by a clear majority of thirteen votes to two, the ICJ
held that its orders indicating provisional measures are binding on states.99 The court’s
authority for issuing orders for provisional measures derives from article 41 of the
Statute of the International Court of Justice” (the treaty that established the court).
Article 41, however, does not clearly state that interim orders have binding effect. The
English version of article 41 reads as follows:
that
1. The Court shall have
circumstances so require, any provisional measures which ought to be taken to
preserve the respective rights of either party.
indicate if it considers
the power
to
2. Pending the final decision, notice of the measures suggested shall forthwith
be given to the parties and to the Security Council.”‘
The United States argued that the three words italicized above would have to be
replaced with “order”, “must” or “shall”, and “ordered”, respectively, for article 41 to
be understood as implying that provisional measures have mandatory effect.” The
ICJ, however, interpreted the original French text of article 41 as having this possible
United States of America), Applications for Provisional Measures” (1999) 48 I.C.L.Q. 673; Martin
Mennecke & Christian Tams, “The Right to Consular Assistance Under International Law: The
LaGrand Case Before the International Court of Justice” (1999) 42 German Yearbook of
International Law 192. This was not the first time the ICJ had indicated provisional measures to
suspend an execution. See Case Concerning the Vienna Convention on Consular Relations (Paraguay
v. United States of America), Order of 9 April 1998, [1998] I.CJ. Rep. 248, 37 I.L.M. 812, 118 I.L.R.
1 [Paraguay]; Eva Reiter, “Interim Measures by the World Court to Suspend the Execution of an
Individual: The Breard Case” (1998) 16 Nethl. Q.H.R. 475.
The previous case before the ICJ involving similar facts had been withdrawn after the execution.
See Paraguay, ibid.
‘” LaGrand, supra note 94 at para. 109. The court’s discussion of provisional measures is at paras.
92-109.
‘0, Supra note 62.
oIbid. [emphasis added by ICJ in LaGrand, supra note 94 at para. 1001.
“LeGrand, ibid.
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J. HARRINGTON – INTERIM MEASURES OF PROTECTION
meaning and so, faced with two equally authentic texts not in total harmony, the court
turned to a consideration of the object and purpose of the statute and article to
determine the meaning to be adopted.”
According to the ICJ, the object and purpose of its statute is to enable the court to
fulfil the functions provided therein, including “the basic function of judicial
settlement of international disputes by binding decisions … …0, Viewed within this
context, article 41 operates so as “to prevent the Court from being hampered in the
exercise of its functions because the respective rights of the parties to a dispute before
the Court are not preserved.”” It follows, according to the ICJ, that
the power to indicate provisional measures entails that such measures should be
binding, inasmuch as the power in question is based on the necessity, when the
circumstances call for it, to safeguard, and to avoid prejudice to, the rights of
the parties as determined by the final judgment of the Court.’ 6
As a result, “[tlhe contention that provisional measures indicated under Article 41
might not be binding would be contrary to the object and purpose of that Article.””‘
This conclusion admittedly rests on the interpretation of article 41, a provision not
the
applicable to the work of the Human Rights Committee, but nevertheless
inspiration for rule 86. The ICJ, however, also made note of “a related reason”, to
which the court expressly attached importance,”‘ and that points to the binding
character of interim orders generally.”‘ This related reason was “the existence of a
principle””‘ that had been recognized by the court’s predecessor, the Permanent Court
of International Justice, as early as 1939, and which was seen at that time as being
“universally accepted by international tribunals and likewise laid down in many
conventions … “”‘ This principle was that “the parties to a case must abstain from any
measure capable of exercising a prejudicial effect in regard to the execution of the
decision to be given, and, in general, not allow any step of any kind to be taken which
might aggravate or extend the dispute”‘ 2 In light of its rationale and long-standing
acceptance, this principle could well extend to other international fora used for the
settlement of disputes between states, or between states and individuals where the
state has consented to the right of individual petition, even when the final outcome of
‘Ibid. at para. 101.
“4 ibid. at para. 102.
“05 Ibid.
106 Ibid.
“7 Ibid.
… Ibid. at para. 103.
“9 A point also made in William A. Schabas, “The ICJ Ruling Against the United States: Is it Really
About the Death Penalty?” (2002) 27 Yale J. Int’l L. 445 at 449.
“o LaGrand, supra note 94 at para. 103.
.. Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Order of 5 December 1939,
P.C.I.J. (Ser. A/B) No. 79 at 199 [Electric Company], quoted in LaGrand, ibid.
“‘ Electric Company, ibid., quoted in LaGrand, ibid.
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the state versus individual process is a non-binding view, since that is the form of
outcome to which the state has consented.
The ICJ then went on to note, almost by way of postscript, that the preparatory
work for article 41, while not proving conclusive as to the binding force of such
orders,”‘ did show that the linguistic choices made in drafting article 41 were
motivated by concern for the fact that the court did not have the means to assure the
execution of its decisions.’ As emphatically stated by the ICJ, however, “the fact that
the Court does not itself have the means to ensure the execution of orders … is not an
argument against the binding nature of such orders.”‘ ‘ An order is no less binding
because we lack the means for its enforcement, particularly in international law,
which by its very nature lacks the means of enforcing compliance other than through
moral suasion and diplomacy, a point that was overlooked by the majority of the
Ontario Court of Appeal in Ahani.
In short, the ICJ held in LaGrand that, at the very least, the court’s orders for
provisional measures are not mere exhortations to states, but legally binding
obligations. It did not equivocate on this point, nor did it narrow the application of its
holding to- death penalty cases, nor even danger to life cases. Instead, it gave a final
and binding judgment that attributes legal effect to all its orders for provisional
measures, irrespective of content and context.’6 The court also dismissed the
arguments made by the United States at the merits stage that such a position was not
borne out by the text of the court’s enabling statute, the drafting history, the weight of
and the subsequent practice of states. Instead, the court
academic commentary,’
preferred a purposive interpretation that took into account the overall function of
international dispute settlement. In its view, the court could only exercise its role as a
dispute settlement organ if it had the power to protect, by way of a kind of interim
injunction, the rights of the parties that formed the subject of the dispute-an
approach supported by a long-recognized principle that parties must abstain from
measures that would aggravate a pending dispute.
.. LaGrand, supra note 94 at para. 104.
Ibid. at para. 107.
“s Ibid.
“”This point is also made in Mennecke & Tams, “LaGrand Case”, supra note 94 at 454.
“‘ See e.g. Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny (Boston:
Kluwer Law, 1983); Rudolf Bernhardt, ed., Interim Measures Indicated by International Courts
(Berlin: Springer-Verlag, 1994). But see Jerome B. Ellind, Interim Protection: A Functional
Approach (The Hague: Martinus Nijhoff, 1981). See also Lawrence Collins, “Provisional and
Protective Measures in International Litigation” (1992) 234 Rec. des Cours 9. For the earliest work on
interim measures under international law, see E. Dumbauld, Interim Measures of Protection in
International Controversies (The Hague: Martinus Nijhoff, 1932).
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C. The View of the Privy Council on Interim Measures
Equally supportive of this principle of international law are the views”‘ of the
Judicial Committee of the Privy Council in a series of domestic constitutional law
cases from the Commonwealth Caribbean to the effect that the interests of justice and
due process require a state to respect requests for interim measures while a case is
pending before the Human Rights Committee. During the decolonization movement
of the 1960s, many former British colonies, including the island states of the West
Indies, marked their emergence as independent states with the adoption of a written
constitution.”9 These constitutions invariably contain a bill of rights,2 the content of
which draws inspiration from domestic sources of law’2′ and from international
the European Convention on Human Rights.’ The
sources of law, such as
Constitution of the Republic of Trinidad and Tobago Act, 1976,'” for example, clearly
borrows from the Canadian Bill of Rights” of 1960. Having been retained as the final
court of appeal for many of these states, the Privy Council has accumulated some
forty years of experience in interpreting and applying these bills of rights”3 and as a
result, its views should carry some weight.
“‘ This description is chosen deliberately since the decisions of the Judicial Committee, being a
committee of the Privy Council, are technically “delivered in the form of advice to Her Majesty”
(Philip S. James, Introduction to English Law, 12th ed. (London: Butterworths, 1989) at 44). See also
S.H. Bailey & M.J. Gunn, Smith and Bailey on the Modem English Legal System, 3d ed. (London:
Sweet & Maxwell, 1996) at 443.
“, See generally S.A. de Smith, The New Commonwealth and its Constitutions (London: Stevens &
Sons, 1964).
,’ This is in contrast to those of the “senior Members of the Commonwealth” (to use Professor de
Smith’s description of Canada, Australia, New Zealand, and South Africa) that followed the British
pattern of constitutionalism in that a general statement of human rights and safeguards against the
abuse of individual rights were excluded as they were thought to be a matter of ordinary law rather
than constitutional law (ibid. at 170).
2′ See Rose-Marie Belle Antoine, Commonwealth Caribbean Law and Legal Systems (London:
Cavendish, 1999) at 75-77.
‘ Supra note 74. One can in fact find the same provisions in many of these constitutions, starting
with the Nigerian Constitution of 1959 (Nigeria (Constitution) (Amendment No. 3) (U.K.), S.I. 1959-
1772, s. 69 and sch.), which was based on the European Convention on Human Rights (see de Smith,
supra note 119 at 163, 177-80). Although Amendment No. 3 was revoked in the Nigerian
Constitution of 1960 (Nigeria (Constitution) Order in Council, 1960 (U.K.), S.I. 1960-1652), chapter
3 of the newer constitution (ibid., sch. 2) maintained fundamental similarities to the European
Convention on Human Rights and was then used as a model by other states (de Smith, ibid at 183-85,
193).
(Trinidad and Tobago) 1976, Act. 4, reprinted in Albert P. Blaustein & Gisbert H. Flanz, eds.,
Constitutions of the Countries of the World, vol. 18 (Dobbs Ferry, N.Y.: Oceana Publications, 1988)
[Constitution of Trinidad and Tobago].
24 S.C. 1960, c. 44, Part I, reprinted in R.S.C. 1985, App. III.
25ee Nicholas Roberts, “The Law Lords and Human Rights: The Experience of the Privy Council
in Interpreting Bills of Rights” (2000) 2 Eur. H.R.L. Rev. 147 (WL).
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The factual context for the Privy Council’s series of cases on the legal effect of
requests for interim measures is capital punishment. Commonwealth Caribbean states
retain the death penalty and because their constitutions typically contain a savings
clause expressly preserving their pre-independence laws,’ 26 it is not possible to argue
against the constitutionality of the death penalty per se. One can, however, make a
constitutional argument regarding the manner of it being put into effect, a position
bolstered by the landmark judgment of Pratt v. Jamaica (A.G.),’2 in which the Privy
Council held that a delay of more than five years from sentence to execution will
likely render that execution unconstitutional on the ground of inhuman treatment. ‘
This five-year target has since generated additional constitutional appeals to the Privy
Council and, upon exhausting that option, to the Human Rights Committee and its
regional equivalents, the Inter-American Commission on Human Rights and the Inter-
American Court of Human Rights.”9 This in turn eventually brought the issue of
whether a state is obliged to abide by an international human rights body’s request for
interim measures before the Privy Council.
26 See Margaret DeMerieux, Fundamental Rights in Commonwealth Caribbean Constitutions
(Bridgetown, Barbados: University of the West Indies Faculty of Law Library, 1992) at 53-58. See
also Antoine, supra note 121 at 78.
27 [1994] 2 A.C. 1, [1993] 3 W.L.R. 995, [19931 4 All E.R. 769 (P.C.). For commentary, see John
Hatchard, “A Question of Humanity: Delay and the Death Penalty in Commonwealth Courts” (1994)
20 Commonwealth L. Bull. 309; Simeon C.R. McIntosh, “Cruel, Inhuman and Degrading
Punishment: A Re-Reading of Pratt and Morgan” (1998) 8 Caribbean Law Review 1; Barry Phillips,
“Pratt & Morgan v. Attorney-General for Jamaica”, Case Comment (1994) 88 Am. J. Int’l L. 775;
William A. Schabas, “Execution Delayed, Execution Denied” (1994) 5 Crim. L.F. 180. See also
William A. Schabas, “Soering’s Legacy: The Human Rights Committee and the Judicial Committee
of the Privy Council Take a Walk Down Death Row” (1994) 43 I.C.L.Q. 913.
,2 For a detailed study of the evolution of the Privy Council’s case law on capital punishment, see
Sir Louis Blom-Cooper & Christopher Gelber, “The Privy Council and the Death Penalty in the
Caribbean: A Study in Constitutional Change” (1998) 4 Eur. H.R.L. Rev. 386 (WL). See also Roberts,
supra note 125 at 153-60.
.29 Not all Commonwealth Caribbean states are subject to the jurisdiction of these three international
bodies with respect to individual petitions. Only states that have ratified the American Convention on
Human Rights are subject to the jurisdiction of the Inter-American Court of Human Rights. However,
all states that are members of the Organization of American States are subject to the jurisdiction of the
Inter-American Commission on Human Rights through ratification of the Charter of the Organization
of American States (30 April 1948, 119 U.N.T.S. 3, O.A.S.T.S. Nos. I-C and 61 (entered into force 13
December 1951)) and the normative effect of the often forgotten American Declaration of the Rights
and Duties of Man (2 May 1948, O.A.S. Res. XXX, OEA/Ser. L.V/11.82, doc. 6, rev. 1, reprinted in
lan Brownlie & Guy S. Goodwin-Gill, eds., Basic Documents on Human Rights, 4th ed. (Oxford:
Oxford University Press, 2002) at 665). The Inter-American Commission on Human Rights has been
in operation since 1960; the Inter-American Court of Human Rights since 1979. See generally David
J. Harris & Stephen Livingstone, eds., The Inter-American System of Human Rights (Oxford:
Clarendon Press, 1998).
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The Privy Council’s view on the legal effect of such requests has evolved rapidly.
In Fisher v. Minister of Public Safety and Immigration (No. 2),'” decided on 5 October
1998, the Privy Council split three to two on whether the appellant had a legitimate
expectation that the government of the Bahamas would allow a reasonable amount of
time for the completion of the petition process before the Inter-American Commission
on Human Rights. While the majority ruled against such a legitimate expectation, the
minority, comprised of Lord Slynn of Hadley and Lord Hope of Craighead, felt that it
was “hard to imagine a more obvious denial of human rights than to execute a man,
after many months of waiting for the result, while his case is still under legitimate
consideration by an international human rights body.””
Three months later, the majority’s view in Fisher (No. 2) was open to challenge in
light of the Privy Council’s decision in Thomas v. Baptiste,’32 where it was held by a
majority of three to two that it would be a breach of the applicants’ domestic
constitutional rights to carry out a death sentence before the final disposal of an
application to the Inter-American human rights regime. Lord Millett, with the
“the
concurrence of Lord Browne-Wilkinson and Lord Steyn,
constitutional importance of the principle that international conventions do not alter
domestic law except to the extent that they are incorporated into domestic law by
legislation” ‘ (noting but without deciding the point that “[i]t is … sometimes argued
that human rights treaties form an exception to this principle”).'” He went on to hold,
however, that the applicants’ claim did not infringe this principle since it was on the
basis of the common law, as affirmed in the due process clause of the Constitution of
Trinidad and Tobago, that he found a “general right accorded to all litigants not to have
the outcome of any pending appellate or other legal process pre-empted by executive
action”” Lord Millen continued:
recognized
The applicants [were] not seeking to enforce the terms of an unincorporated
treaty, but a provision of the domestic law of Trinidad and Tobago contained in
the Constitution. By ratifying a treaty which provides for individual access to
an international body, the government made that process for the time being part
of the domestic criminal justice system and thereby temporarily at least
extended the scope of the due process clause in the Constitution.’30
The above excerpt from Thomas was cited and discussed in Ahani. 7 Laskin J.A.,
in this
to having difficulty understanding the reasoning
however, “confess[ed]
130 [200011 A.C. 434, [1999] 2 W.L.R. 349 (PC.) [Fisher (No. 2) cited to A.C.].
,3′ Ibid. at 452E-F.
132 [20001 2 A.C. 1, [1999] 3 W.L.R. 249 (PC.) [Thomas cited to A.C.]. The decision was delivered
on 27 January 1999 with reasons following on 17 March 1999.
133 Ibid. at 23A-B.
,I’ Ibid. at 23C.
“Ibid. at 23D-E.
‘ Ibid. at 23E-F.
,37Ahani (Ont. C.A.), supra note 2 at para. 55.
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paragraph, and especially in the last sentence,”” and preferred the reasons proffered
by the dissent of Lord Goff of Chieveley and Lord Hobhouse of Woodborough, which
he saw as being “more in line with [Canadian] law.”‘ And yet, the due process clause
contained in section 4(a) of the Constitution of Trinidad and Tobago is in line with
Canadian law. It is in fact a near exact copy of the due process clause in the Canadian
Bill of Rights” of 1960, a point overlooked by the Court of Appeal that raises an
additional argument for further consideration of the interpretation given to this
provision by the Privy Council, given that the Canadian Bill of Rights of 1960 has
never been repealed. Moreover, for anyone concerned with the Privy Council’s
apparent “about face””‘ in its rulings in Fisher (No. 2) and Thomas, it can be noted
that unlike Trinidad and Tobago (and Canada), the constitution of the Bahamas does
not contain a due process clause, a distinction suggested in Thomas’ 2 and later
adopted by the Privy Council in Higgs v. Minister of National Security.'” Higgs also
contains a discussion'” of the very paragraph with which Laskin J.A. had difficulty,
with the Privy Council coming to the conclusion that “the ratio decidendi of Thomas
v. Baptiste is that the due process clause in section 4(a) of the Trinidad and Tobago
Constitution gave the Crown power to accept an international jurisdiction as part of
the domestic criminal justice system'””
Since Thomas and Higgs, the Privy Council has spoken once again on the issue of
interim measures while petitions are pending before international human rights
bodies. In Lewis v. Jamaica (A.G.),” the Privy Council, in a four to one decision,
confirmed that an individual has a constitutional right to a stay of proceedings while a
,’ Ibid. at para. 56. Rosenberg J.A., dissenting, also found “some of the reasoning strained” (ibid. at
para. 99).
‘” Ibid. at para. 56.
“o Section 1 (a) of the Canadian Bill of Rights of 1960 reads as follows:
1. It is hereby recognized and declared that in Canada there have existed and shall
continue to exist … the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the person and enjoyment
of property, and the right not to be deprived thereof except by due process of law…
Section 4(a) of the Constitution of Trinidad and Tobago differs only in its reference to “fundamental
human rights and freedoms” versus the Canadian “human rights and fundamental freedoms” (supra
notes 123, 124).
“‘ The Judicial Committee of the Privy Council is technically not bound by its own decisions
(Bailey & Gunn, supra note 118 at 444; James, supra note 118).
2 Thomas, supra note 132 at 23F-G.
4 [2000] 2 A.C. 228 at 245G-46C, [2000] 2 W.L.R. 1368 (PC.) [Higgs cited to A.C.I. Higgs is
cited in Ahani (Ont. C.A.), supra note 2 at para. 91, Rosenberg J.A., dissenting. For commentary on
Fisher (No. 2), Thomas, and Higgs, see Derek O’Brien & Vaughan Carter, “Constitutional Rights,
Legitimate Expectations and the Death Penalty” [20001 P L. 573.
, Higgs, ibid. at 243H-45E.
42 Ibid. at 245E.
46 (2000), [20011 2 A.C. 50, [2000] 3 W.L.R. 1785 (P.C.) [Lewis cited to A.C.]. For commentary,
see Ivan Hare, “Lewis v. Attorney General of Jamaica” (2001) 60 Cambridge L. 1.
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J. HARRINGTON –
INTERIM MEASURES OF PROTECT/ON
petition is pending before either the Inter-American Commission on Human Rights or
the Human Rights Committee on grounds of due process or its equivalent.’ However,
since this case involved Jamaica, which is a country that does not accept the
jurisdiction of the Inter-American Court of Human Rights, it raised directly the issue
of requests for stays of proceedings from international human rights bodies that
produce non-binding reports or views rather than binding judgments. Their Lordships
held that
when Jamaica acceded to the American Convention and to the International
Covenant and allowed individual petitions the petitioner became entitled under
the protection of the law provision in section 13 [of the Constitution of
Jamaica] to complete the human rights petition procedure and to obtain the
reports of the human rights bodies for the Jamaican Privy Council to consider
before it dealt with the application for mercy and to the staying of execution
until those reports had been received and considered’8
So important was this case that the attorneys-general from Trinidad and Tobago and
the Bahamas were granted leave to intervene, as were five petitioners from Belize, and
yet no mention is made of Lewis in the majority’s judgment in Ahani”” Moreover, it is
important to note that beyond the issue of interim measures, the Privy Council
expressly held
that the reports of international human rights bodies must be
considered by the state’s relevant executive body when they become available and
further imposed a legal obligation to provide an explanation if that body, after
considering the report, decides not to accept the report’s recommendations.”‘
Presumably, Laskin J.A. would prefer the reasons of the dissenting judgment of
Lord Hoffman
in Lewis, who described the above use of due process as a
“philosopher’s stone undetected by generations of judges which can convert the base
metal of executive action into the gold of legislative power,” but noted that “[the
majority] does not … explain how the trick is done.””‘ For Lord Hoffman, there was
still “no explanation of how, in the domestic law of Jamaica, the proceedings before
the Commission constitute a legal process (as opposed to the proceedings of any other
non-governmental body) which must be duly completed.” ‘2
‘ See Jamaica (Constitution) Order in Council 1962 (U.K.), S.I. 1962-1550, sch. 2, reprinted in
Albert P. Blaustein & Gisbert H. Flanz, eds., Constitutions of the Countries of the World, vol. 9
(Dobbs Ferry, N.Y.: Oceana Publications, 1983) [Constitution of Jamaica]. Section 13(a) of the
Constitution of Jamaica provides a “protection of the law” clause, rather than an express due process
clause.
1 Lewis, supra note 146 at 85B-C.
’49 A brief reference to Lewis is found in the dissenting judgment. Ahani (Ont. C.A.), supra note 2 at
4
1
para. 97.
“‘Lewis, supra note 146 at 79E-F, 85C.
‘ Ibid. at 88G, Lord Hoffnan, dissenting.
1I2 Ibid. at 88H.
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IV. Further Criticisms of the Ahani Decision
This division between domestic and international law is a constant theme
throughout the majority’s reasons in Ahani, with Laskin J.A. making repeated
reference to the fact that Canada has neither incorporated the ICCPR nor the Optional
Protocol into its domestic law.” Relying inter alia on the Supreme Court of Canada’s
recent decision in Baker v. Canada (Minister of Citizenship and Immigration),”‘
Laskin J.A. clearly endorses the principle that “international treaties and conventions
not incorporated into Canadian law have no domestic legal consequences … W55 This
position can be criticized for Laskin J.A.’s odd phrasing of “treaties and conventions”,
as if they were two different species of international law,” for his failure to note that
recent Privy Council decisions have called into question whether this principle applies
to treaties dealing with human rights,’7 and for the fact that Baker has been the subject
of academic criticism.” However, the real irritant here is the failure to take into
account the practical realities of the Optional Protocol, with those realities suggesting
that a distinction should be drawn in applying the above principle to treaties creating
international complaint procedures. The Optional Protocol provides for a procedural
right to petition an international forum for its views on a particular claim that rests on
the substantive rights in the ICCPR. If the procedure is allowed to run its course, the
final
legal
consequences. Domestic
incorporate the Optional Protocol into
Canadian law is therefore unnecessary since the principle espoused in Baker and
recognized years ago by the Privy Council in the Labour Conventions Case'” only
applies to treaties “if they entail alteration of the existing domestic law … ,..
result will be a non-binding view with no automatic domestic
legislation to
“‘ The lack of domestic incorporation is mentioned in no less than six paragraphs of the 67-
paragraph decision. See Ahani (Ont. C.A.), supra note 2 at paras. 2, 16, 31, 34, 49, 54, Laskin J.A.
The dissent mentions this point only once (ibid. at para. 73).
[1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 [Baker].
“‘Ahani (Ont. C.A.), supra note 2 at para. 34.
“1L’Heureux-Dub
J. uses the same phrasing in Baker (supra note 154 at para. 69). As explained,
however, by Anthony Aust, Legal Counsellor at the British Foreign and Commonwealth Office,
“there is no consistent practice in the naming of treaties. Whereas Agreement, Convention and Treaty
are perhaps the most common names given to treaties, other terms such as Act, Charter, Covenant,
Pact and Protocol are also used” (Aust, supra note 39 at 333).
“‘ See Thomas, supra note 132 at 23C (a case discussed by Laskin J.A. in Ahani); Lewis, supra note
146 at 84H (a case not discussed by Laskin J.A. in Ahant).
“5 See Stephen J. Toope, “Inside and Out: The Stories of International Law and Domestic Law”
(2001) 50 U.N.B.L.J. 11 at 18-22; William A. Schabas, ‘Twenty-five Years of Public International
Law at the Supreme Court of Canada” (2000) 79 Can. Bar Rev. 174 at 182. But see also Hugh M.
Kindred, “The Use of Unimplemented Treaties in Canada: Practice and Prospects in the Supreme
Court” in Chi Carmody et al., eds., Trilateral Perspectives on International Legal Issues: Conflict and
Coherence (Washington, D.C.: American Society of International Law) [forthcoming in 2003).
‘” Canada (A.G.) v. Ontario (A.G.), [1937] A.C. 326 (P.C.) [Labour Conventions Case].
“0 Ibid. at 347.
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J. HARRINGTON –
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show that individuals in Canada have exercised
Moreover, since current statistics’
this right of petition over the past twenty-five years in over a hundred cases, one may
rightly ask what legal incoherence, from a practical perspective, would the enactment
of domestic legislation actually resolve?
The Ahani judgment raises further concerns about the court’s appreciation of the
very nature of international law. Much of international law lacks an enforcement
mechanism of the kind we are accustomed to seeing in domestic law, but this lack of a
world policeman does not make a treaty any less binding on a state that has
voluntarily agreed to become a party through ratification or accession. Moreover,
using passages on the non-binding nature of the views of the Human Rights
that “[t]he
Committee as his support, Laskin J.A. comes
international community has agreed to binding obligations in other treaties. But in the
Covenant and the Protocol, it made a policy decision to do otherwise “‘ 2 He also states
that “Canada agreed to sign an international covenant and protocol that was not
binding “‘3 This is incorrect. A treaty is an international agreement concluded
between states, whatever its particular designation, and it is an accepted principle of
international law that every treaty in force is binding upon the parties and must be
performed by them in good faith.” Neither the covenant or protocol nomenclature nor
the non-binding nature of the views of the Human Rights Committee make these
treaty commitments any less binding under international law than those in say a trade
agreement.
to the conclusion
Laskin J.A. also states that it is an “undisputed fact” that “neither the Committee’s
views nor its interim measures requests are binding on Canada as a matter of
international law … “‘” and he further states that “the Government of Canada would
have every reason to hold a good faith belief that deporting Ahani now would not
breach its obligations under the Covenant.”” In taking this position, Laskin JA.
lumps together the status of views with the status of interim measures requests,
relying in part on references to weak secondary sources” and overlooking entirely the
current jurisprudence of the Human Rights Committee expressly on the issue of the
status of its interim measures requests under international law. Unfortunately, counsel
161 “Statistical Survey”, supra note 55.
’62Ahani (Ont. C.A.), supra note 2 at para. 37.
,6 Ibid. at para. 49.
“‘See Venna Convention on the Law of Treaties, 22 May 1969, 1155 U.N.T.S. 331, art. 26, Can.
T.S. 1980 No. 37 (entered into force 27 January 1980), confirming the customary international law
position.
‘6’Ahani (Ont. C.A.), supra note 2 at para. 32.
Ibid. at para. 46.
67 Despite the availability of a current and outstanding work on the ICCPR by Sarah Joseph et aL,
published in 2000 by a leading academic press that is well respected in the international law field
(Joseph et aL, supra note 34), Laskin J.A. relies on an excerpt from the Committee’s 1990
introduction to the second volume of its occasional report series and a passage from a text on the
Committee Against Torture published in 1988. See Ahani (Ont. C.A.), supra note 2 at paras. 38, 39.
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for Ahani must bear some responsibility here since the judgment states that Ahani
acknowledged that he could not point to any case law supporting his position. ‘”
Apart from the likelihood that Canada will and should be found to have acted in
bad faith and in breach of its obligations under the Optional Protocol, the Court of
Appeal also fails to acknowledge that Canada’s lack of respect for rule 86 requests has
been the subject of past criticism. In both Kindler v. Canada” and Ng v. Canada,’0 the
two well-known extradition cases that went before the Human Rights Committee after
the Supreme Court of Canada ruled that Canada could extradite a fugitive to the
United States without first requesting assurances that the death penalty would not be
applied,”‘ Canada ignored the Committee’s requests for interim measures and was
later criticized for its “failure to cooperate”.’ 2 Moreover, in Ng the consequences of
this failure to cooperate were far more serious than in Kindler. Laskin J.A. stated:
“The evidence before this court suggests that Canada has always abided by the
Committee’s views”‘” Canada, however, was found to be in violation of its
obligations under the ICCPR in Ng,” but because it had disregarded the interim
measures request and extradited Ng while his petition was pending, all the Committee
could do was ask Canada “to make such representations as might still be possible to
avoid the imposition of the death penalty”‘”3 and “to ensure that a similar situation
[did] not arise in the future”
Canada has also come under criticism for its position on requests for interim
measures under the state reporting process before the Human Rights Committee.
Pursuant to article 40 of the ICCPR, all state parties are required to submit periodic
reports to the Human Rights Committee on the measures they have adopted to give
effect to the rights set out in the ICCPR and on the progress made in the enjoyment of
those rights. These state reports are then individually examined by the Committee at
‘” Ahani (Ont. C.A.), ibid. at para. 30. A review of the facta for the appellant, respondent, and
intervenor Amnesty International revealed that none of the counsel made reference to either LaGrand
or the recent interim measures jurisprudence of the Human Rights Committee.
6 “Communication No. 470/1991” in Report of the Human Rights Committee, UN GAOR, 48th
Sess., Supp. No. 40, UN Doc. A/48/40, vol. 2 (1993) annex XII.U (views adopted on 30 July 1993),
UN Doc. CCPR/C/48/D/470/1991, reprinted in 98 I.L.R. 426 [Kindler].
,70 “Communication No. 469/1991″ in Report of the Human Rights Committee, UN GAOR, 49th
Sess., Supp. No. 40, UN Doc. A/49/40, vol. 2 (1994) annex 1X.CC (views adopted on 5 November
1993), UN Doe. CCPRICI49/D/46911991, reprinted in 98 I.L.R. 479 [Ng].
.For the current position on this point, see United States v. Burns, [200111 S.C.R. 283,2001 SCC 7.
” Report of the Human Rights Committee, UN GAOR, 48th Sess., Supp. No. 40, UN Doc.
A/48/40, vol. 1 (1993) at para. 796.
‘ Ahani (Ont. C.A.), supra note 2 at para. 43.
‘7’ Ng was extradited to stand trial in the state of California, one of the few states (at that time) to
execute by way of cyanide gas asphyxiation. Because this method of execution does not result in a
swift and painless death, the Committee found Canada in violation of the prohibition on cruel and
inhuman treatment in article 7 of the ICCPR.
“‘ Ng, supra note 170 at para. 18.
‘ Ibid.
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one of its thrice-yearly sessions. The Committee later adopts what are called
“concluding observations”, setting out in summary form the Committee’s principal
areas of concern and recommendations with respect to the particular state. In its
concluding observations on Canada’s most recent state report,'” the Human Rights
Committee “expresse[d] its concern that the State party considers that it is not
required to comply with requests for interim measures of protection issued by the
Committee” and “urge[d] Canada to revise its policy so as to ensure that all such
requests are heeded so that implementation of Covenant rights is not frustrated” 7’ It
also expressed concern that Canada was taking the position that compelling security
interests may be invoked to justify the removal of aliens to countries where they may
face a substantial risk of torture or cruel, inhuman, or degrading treatment and
recommended that Canada revise this policy in order to comply with the requirements
of the ICCPR.”
A year later, Canada received further criticism for its policy on interim measures
from the Committee Against Torture, another treaty monitoring body established by
states under the auspices of the UN. In the case of TPS. v. Canada,8 involving the
deportation of a convicted Sikh hijacker (known in Canada to be Tejinder Pal Singh)
on grounds of national security, the Committee Against Torture adopted views stating
that it was deeply concerned about Canada’s failure to comply with its request for
interim measures.”‘ It also took the position that Canada, “in ratifying the [applicable]
Convention and voluntarily accepting the Committee’s competence [to hear individual
complaints] … , undertook to cooperate with [the Committee] in good faith in
applying the procedure … ,’, The Committee Against Torture further held that
“[c]ompliance with the provisional measures called for by the Committee in cases it
considers reasonable is essential to protect the person in question from irreparable
harm, which could, moreover, nullify the end result of the proceedings before the
Committee””3 Ironically, Laskin J.A. compared Ahani to Singh, making note of the
fact that Canada did not accede to the interim measures request in Singh’s case, but
‘” Human Rights Committee, Fourth Periodic Reports of States Parties Due in 1995: Canada, UN
GAOR, 52d Sess., UN Doc. CCPR/C/103/Add.5 (submitted by the government of Canada on 1 April
1997 and published by the UN on 15 October 1997). Canada’s fifth periodic report is due in April
2004.
“‘ “Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant:
Canada” in Report of the Human Rights Committee, UN GAOR, 54th Sess., Supp. No. 40, UN Doc.
A/54/40, vol. 1 (1999) at para. 223 (observations adopted on 6 April 1999).
. Ibid. at para. 235.
“0 “Communication No. 99/1997” in Report of the Committee Against Torture, UN GAOR, 55th
Sess., Supp. No. 44, UN Doc. A/55/44 (2000) annex VIII.A.4 (views adopted on 16 May 2000), UN
Doc. CAT/C/24/D/99/1997 [TPS.].
M81 Ibid at para. 16.1.
82 Ibid. The applicable convention was the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85, Can. T.S. 1987 No.
36 (entered into force 26 June 1987) [UNCAT]. Canada ratified UNCAT on 24 June 1987.
“‘ TPS., ibid.
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failed to take note of the subsequent response from the relevant treaty supervisory
body, the Committee Against Torture.”‘
These reports also make it clear that no exception to a request for interim
measures has been recognized for the deportation of terrorists. While Canada must
not become a safe haven for terrorists, the memory of the events of 11 September
2001 does not justify downgrading long-standing treaty law commitments in the field
of human rights to ineffective exhortations. Nor does it explain why the balance
between Canada’s human rights obligations and its anti-terrorism obligations is not
best achieved by simply keeping Ahani in jail while his case is pending before the
Human Rights Committee, particularly when, by definition, requests for interim
measures are only issued when there is a risk of irreparable harm to an individual’s
life or limb.
Conclusion
The Ahani decision is a most regrettable and undesirable precedent and one that
runs counter to the very principles and spirit of international dispute settlement, a
phenomenon that now extends beyond interstate disputes to include those between
states and individuals where a state has given its consent. By allowing Canada to
disregard requests for interim measures from a body such as the Human Rights
Committee, the Ontario Court of Appeal and the Supreme Court of Canada have, in
essence, gutted the right of individual petition of all utility, since any subsequent
finding of a violation will be impossible to remedy with the individual outside
Canada’s jurisdiction. The Ahani decision is also incorrect on principle given the
existence of a general right to be accorded to all litigants not to have the outcome of
an appellate or other legal process pre-empted by the actions of one of the parties such
that the outcome, albeit in the form of a non-binding view, is rendered meaningless.
By acceding to the Optional Protocol, Canada granted individual litigants the right to
petition and ultimately to receive a non-binding view from the Human Rights
Committee. Notwithstanding any concerns one might have about the inherent
weaknesses of a non-binding view, Canada is therefore acting in bad faith with
respect to its treaty commitments when it engages in acts that have the effect of
preventing or frustrating the consideration of a communication by the Committee and
rendering the outcome nugatory.
As for the fate of Mansour Ahani, newspaper reports reveal that Canada deported
him to Iran in June 2002, ‘ only a week or so after Iran’s Council of Guardians vetoed
84Ahani (Ont. C.A.), supra note 2 at para. 62.
‘g Estanislao Oziewicz, “Suspected Assassin Deported to Tehran;’ The Globe and Mail (21 June
2002) A16.
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proposed
Republic.'” His case remains pending before the Human Rights Committee.
legislation to limit the widespread practice of torture in the Islamic
‘” Human Rights Watch, Press Release, “Iran: Veto on Torture Bill Condemned” (12 June 2002),
online:
