Canada Stakes Out Its Bid for Election to the UN Human Rights Council

Canada has announced its candidacy for a seat on the United Nations Human Rights Council to begin in 2028. According to Canadian Minister of Foreign Affairs Mélanie Joly, Canada wants to reaffirm its “leadership in championing human rights around the world” given that human rights are under attack globally.

When setting up the UN Human Rights Council in 2006, the UN General Assembly decided that all Council members would be required to live up to “the highest standards in the promotion and protection of human rights.” Canada has a vaunted international reputation for human rights, but closer examination reveals a murkier record. Human rights experts and advocates have long pointed out gaps, blind-spots, and implementation half-measures that challenge Canada’s standing as a human rights champion.

Canada’s global leadership on human rights depends on the measures it takes to respect, protect, and fulfil human rights at home and abroad. This column outlines the process for election of Human Rights Council members and sets out gaps and possibilities for Canadian global leadership through ratification or accession to human rights treaties.

[Photo credit: Palace of Nations Human Rights Geneva, by Vaassil]

How are countries elected to the Human Rights Council?

Canada’s unsuccessful 2020 bid for a seat on the UN Security Council has led the federal government to seek a more visible presence in UN bodies. Canada has publicly staked out its UN Human Rights Council ambitions years in advance of the General Assembly vote in the fall of 2027.

Each fall, the 193 members of the General Assembly vote in a secret ballot to elect members for upcoming vacancies on the Council. Members are elected to three-year terms based on regional representation (13 African States, 13 Asia-Pacific States, six Eastern European States, eight Latin American and Caribbean States, and seven Western European and other States). In the months prior to the vote, each candidate submits a letter, or “note verbale,” announcing its candidacy. Candidates may also make voluntary pledges as to how they propose to fulfil their mandate.

Canada was last elected as a member of the Council in May 2006 for its inaugural years, 2006-2009, as one of seven members from the region of Western European and Other States. Western Europe includes the United Kingdom (UK). “Other States” include the United States (US), Australia, New Zealand and Israel. Council members are not eligible for immediate re-election after two consecutive terms.

Canada’s election to Council membership in 2028 will largely depend on how many other countries of the region throw their hats into the ring. Canada will probably be the only North American candidate. If the US is re-elected for another term for 2025-2027, it will be ineligible for another consecutive term in 2028.

A significant factor will be whether the regional group of Western European and Other States runs a
“closed slate” of candidates in 2027. For example, this year, 2023, the group of Western European and Other States is able to nominate two candidates. So far, the only candidates are France and Netherlands.

Leading human rights organizations, including the Geneva-based International Service for Human Rights (ISHR) and Amnesty International, have argued that the practice of closed slates makes a “mockery” of the elections and undermines the quality of the Council by ensuring that the General Assembly has no choice but to elect the regional slate. In practice, closed slates have repeatedly resulted in the election of countries with severe and unchecked human rights violations.

Canada as a champion of universal human rights

Minister Joly says one of Canada’s goals is to be part of a movement to prevent countries with poor human rights records from gaining seats on the Council. “Some actors are trying to use this forum not to advance human rights, but to suppress them,” she notes.

Several rights-violating countries, including China and Russia are currently seeking election or re-election to the UN Human Rights Council this year. China is currently a Council member. Russia was a member from 2021 until it was suspended by the General Assembly in 2022 after its full-scale aggression against Ukraine.

China, Russia, and other like-minded States actively resist implementing international human rights norms as envisioned by the Universal Declaration of Human Rights (UDHR) and other UN human rights instruments. These countries seek positions on UN bodies and advocate resolutions that aim to minimize or disparage international scrutiny of their conduct or, as in the case of China, to reinterpret or redefine human rights in their own national self-image.

Many would include Western countries such as the US among the persistent violators. The US has ratified few UN core human rights treaties. Successive governments and courts have allowed the continuation of systemic discrimination against Black people, minorities, Indigenous Peoples, women, and LGBTQI persons. Inadequately-addressed domestic gun violence results in violations of the right to life and bodily security of thousands every year. The US also resists accountability for alleged atrocity crimes related to its wars in Afghanistan and Iraq.

Canada’s human rights reputation may seem enviable compared with the records of some members of Council that have been elected in seeming defiance of the requirement of the highest standards of human rights promotion and protection. However, Canada is not free of permeation by systemic human rights violations and persistent discrimination against Indigenous Peoples, minorities, and others, including allegations of genocide against Indigenous Peoples. Canada’s Minister of Foreign Affairs acknowledges that Canada approaches its candidacy with both “ambition” and “humility,” acknowledging that “we continue to work to address our own challenges.”

Canada’s human rights score-card: Treaty ratification

In 2027, Canada can expect an invitation to the regular September pledging event organized by the ISHR in Geneva. In preparation for the event, in around June, ISHR prepares a score card on each of the State candidates known at the time.

NGOs will engage in advocacy with UN member States to seek support for the election of only the best candidates based on their human rights performance, including their ISHR score cards. The ISHR measures include the candidate countries’ ratification of the nine core UN human rights treaties and their complaint mechanisms.

How does Canada stack up? Canada has ratified (or acceded) to seven of the nine core UN human rights treaties. It is worth listing them:

• International Covenant on Civil and Political Rights (ICCPR), plus the Optional Protocol (OP) on the death penalty and the OP on the individual communication procedure (which allows people in Canada to complain to the UN treaty body about violations of the ICCPR after they have exhausted the domestic remedies);
• International Covenant on Economic, Social and Cultural Rights (ICESCR), but not its Optional Protocol for an individual communications procedure;
• International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), but not its individual communication procedure under Article 14 of the Convention.
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), plus its individual communication procedure under Article 22, but not the Optional Protocol (OPCAT) that would provide for spot checks of Canadian prisons and other institutions;
• Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), plus the Optional Protocol on an individual communication procedure;
• Convention on the Rights of the Child (CRC), plus its two Optional Protocols prohibiting the sale of children and child soldiers, but not its Optional Protocol on an individual communication procedure (OP3-CRC);
• Convention on the Rights of Persons with Disabilities (CRPD), including its Optional Protocol on an individual communication mechanism.

Canada has also ratified the Genocide Convention and has endorsed the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Canada is also a State Party to the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees.

From a global perspective, Canada’s level of ratification of UN human rights treaties is fairly high, but many other countries surpass Canada. There are significant gaps in Canada’s treaty protection of the rights of Canada’s most vulnerable people.

For example, even though Canada has ratified the Convention against Torture, it has been under scrutiny for torture and ill-treatment of prisoners and detained refugee claimants and migrants. Despite years of recommendations by treaty bodies and the Council’s Special Procedures, other countries, and human rights organizations, Canada has not yet ratified the Optional Protocol to the Convention against Torture (OPCAT) which would allow spot-checks of Canada’s institutions.

Canada has also not ratified the International Convention for the Protection of all Persons from Enforced Disappearance (ICPPED or CED), although in 2017 it said it was consulting with other levels of government with a view to potential accession. Five years later, Canada has not yet announced a timeline for necessary consultations with federal, provincial, territorial and municipal governments or Indigenous Peoples. This is despite decades of concern about a persistent pattern of inadequate investigation of cases of missing and murdered Indigenous women and girls, and the shocking 2021 revelations of hundreds of unmarked suspected graves of children at Canada’s historic Indian Residential Schools. The fate and whereabouts of numerous children who had disappeared from the schools have never been revealed. Canada may have acquiesced to international crimes of enforced disappearance through an entrenched pattern of allowing impunity for disappearances of Indigenous children, women and men.

Abuses of migrant workers in Canada have received criticism from Amnesty International, the Canadian Council for Refugees and other researchers. At Canada’s 2018 UPR, more than a dozen countries recommended that Canada ratify the UN Convention on Migrant Workers (CMW). While Canada has indicated some provisions to protect migrant workers’ rights, Canada has not indicated it will consider ratifying the Convention.

Canada has dramatically reduced child poverty in Canada since 2015, but children’s poverty remains high, particularly among Indigenous and racialized children. Canada has notoriously used repeated court challenges to resist implementing orders of the Canadian Human Rights Tribunal to compensate Indigenous children for discrimination in child-welfare and health care delivery. The Canadian government has not ratified the individual communication mechanism (OP3-CRC) that would allow children access to the UN Committee on the Rights of the Child once their domestic remedies have been exhausted.

Adults, too, suffer disproportionately from poverty, lack of affordable housing, and health care when they are Indigenous, racialized, older, or live with disabilities, including women and men and persons of diverse gender identities. Those who suffer disproportionately from poverty also lack access to justice and remedies through lack of domestic legal protection including legal aid.

In this light it becomes conspicuous that Canada has not ratified the OP-ICESR to allow people in Canada to complain to the Committee on Economic, Social and Cultural Rights after exhausting their domestic remedies.

It is also striking that the burdens resulting from Canada’s gaps in human rights protection fall disproportionately on Indigenous and racialized persons. Yet, Canada has not accepted ICERD’s individual communication mechanism in Article 14 that would allow people in Canada to complain to the UN CERD Committee after exhausting their remedies at home.

It is important to note that while Canada is a party to the Organization of American States (OAS), it has not ratified any of the treaties within the Inter-American Human Rights System. However, Canada is subject to the provisions of the OAS American Declaration on the Rights and Duties of Man (ACHR) ACHR) and to the jurisdiction of the Inter-American Commission on Human Rights (IACHR), which can recommend changes.

The IACHR, Canada’s Senate Committee on Human Rights, human rights scholar Bernard Duhaime and others have for years recommended that Canada ratify the ACHR and provide the Inter-American Court of Human Rights (IACtHR) with jurisdiction to make binding decisions on complaints about Canada’s violations. European countries have improved their citizens’ rights protection by ratifying the European Convention on Human Rights and submitting to the binding jurisdiction of the European Court of Human Rights. Experts have found no reasonable obstacles to preclude Canada’s doing the same with the ACHR and the IACtHR.  

Why treaty ratification is important

Ratification or accession to treaties are the keys to Canada’s implementation of human rights and its legitimacy as a global human rights leader.

Canada’s federal structure is often cited as a reason for slow and uncoordinated progress towards treaty ratification or accession. At international law, all levels and branches of government are responsible for upholding international human rights norms within their areas of jurisdiction. Yet, Canadian federalism has provided opportunities for federal and provincial governments to shift responsibility and delay the implementation of existing obligations as well as consultations towards ratification or accession.

Canada has set up several bodies to coordinate on human rights issues among the federal, provincial and territorial governments. The Continuing Committee of Officials on Human Rights (CCOHR), composed of officials from federal, provincial, and territorial governments has a mandate to maintain “consultation and collaboration among governments in Canada with respect to adherence to and domestic implementation of international human rights instruments” and to facilitate Canada’s reporting to international human rights bodies. The CCOHR is overseen by a Senior Officials Committee Responsible for Human Rights (SOCHR), composed of relevant Assistant Deputy Ministers. The specific composition and activities of these committees is not publicly available. They have no public meetings. They provide no public reports.

In November 2020 the federal and provincial and territorial governments created a Forum of Ministers on Human Rights. It meets every two years, most recently in June 2023. However, its mandate and activities are unclear. On 20 June, the Forum announced its general conclusions in a press release. Regarding accession to treaties, it said:

Ministers agreed to continue intergovernmental collaboration on the consideration of Canada’s accession to additional international human rights treaties, in particular the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, known as of Belém do Pará; the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT); and the International Convention for the Protection of all Persons from Enforced Disappearance (CED).

This statement says no more about OPCAT and the Convention on Enforced Disappearance than the ministers said after their November 2020 meeting. In June 2023, the Ministers added a commitment to consider the Convention of Belém do Pará. To be effective, Canada’s CCOHR, SOCHR and the responsible ministers must do more than create new committees and protocols and rehash old promises. People in Canada need expeditious, transparent action to implement international human rights norms.

While since November 2020 there has been a general Protocol for Follow-up to Recommendations from International Human Rights Bodies, there appears to be no publicly available protocol or standards to expedite consultations towards treaty ratification or accession.

Former Secretary-General of Amnesty International Canada, Alex Neve, recently identified key reasons for Canada’s gaps in human rights implementation, several of which also apply to Canada’s slow progress towards ratification or accession of treaties.

Canada’s division of powers means that federal, provincial and territorial governments must all be consulted as to the consequences of ratification for their own laws and policies. This results in “ambiguity, turf guarding, buck passing and finger pointing,” says Alex Neve.

He also cites a lack of clarity about who is responsible for decisions about human rights: “Responsibility rests everywhere,” he says, “meaning it effectively rests nowhere.” Alex Neve also points to the lack of consideration of the role of Indigenous and municipal governments in implementation of human rights obligations. The same can be said of consultations about Canada’s ratification of treaties.

Treaty ratification or accession by Canada is also important to ensure Canada’s legitimacy to take global leadership on human rights. Universal ratification of treaties builds international consensus on human rights, but Canada rarely recommends to other States that they ratify treaties that it has not itself joined. Canada cannot credibly champion human rights for others when it demonstrates unwillingness to join core UN and regional human rights treaties by slow-walking domestic consultations or not considering them at all.

Filling the gaps: Canada’s priorities for its candidacy for the Human Rights Council

Canada needs to lead the way towards world-wide protection of human rights by joining all of the core UN treaties and protocols as well as the American Convention on Human rights. In addition, all levels and branches of government must give priority to setting a clear timeline for eliminating human rights gaps over the next several years to match Canada’s announced priorities for its Human Rights Council candidacy: Protection of human rights defenders, anti-racism and freedom of religion or belief, rights of Indigenous Peoples, gender equality, online rights protection, and climate change. The timeline must include full consultation with Indigenous Peoples and civil society organizations.

An overview of Canada’s implementation record on these six priorities is worth examining in light of comments of UN and Inter-American human rights bodies and civil society organizations. These will be the topics of future columns.