Good morning. I am very pleased to have this opportunity to speak to you today. In the time that is allocated to me, in the next 12 or 15 minutes, I would like to do two things: first, talk about the Hague Convention on International Child Abduction; and second, address the issue of diplomatic protection within international law and Canadian law, along with the present day notion of duty to protect.
First of all, let me speak to the Hague Convention. Last Tuesday, one of the witnesses gave a good overview, and in particular spoke about his basic idea of the status quo and the reinstatement of the status quo with regard to child abduction. For my part, I would like to make three brief comments this morning concerning The Hague Convention.
First—this is an issue of general public international law—there is what is called the principle of reciprocity concerning international treaties in general. Here is what that means. In principle, since Canada is a participant in The Hague Convention, we have requirements with regard to other participants in the international treaty. However, Canada is not, strictly speaking, obligated to meet obligations under The Hague Convention regarding countries that are not participants in the treaty, including a number of Islamic countries such as Saudi Arabia.
With regard to non-member states, Canada might want to respect the obligations contained in the Hague Convention, whether out of goodness of heart or based on an erga omnes obligation, as this is known in international law jargon. However, Canada is not obliged to do so and insist on respecting the Hague Convention to justify a lack of action in a case involving children abroad. Simply put, that often appears to be an excuse, a smoke screen.
That brings me to my second point concerning The Hague Convention, i.e., the explicit exception to the status quo principle contained in article 13 of the convention, which states the following:
Notwithstanding the provisions of the preceding article, [...] is not bound to order the return of the child if [...] b) [...] there is a grave risk that his or her return [maintaining the status quo] would expose the child to physical or psychological harm [...]
Essentially, that means that the principle of status quo is not absolute. In a case involving children abroad, it is all very well for Canadian officials to invoke The Hague Convention out of the goodness of their hearts, but they should do so properly, by alluding to the general principle of status quo, but also—and this to me is crucial—by referring to that major exception that is in article 13 concerning the risks to the child.
This brings me to my third point with regard to The Hague Convention. To make it as simple as possible, I would say that treaties in international law, like provisions in domestic law, are not used or interpreted in a vacuum; they must be used within a given context. For us, that means that The Hague Convention must be interpreted, if we choose to do so, in light of the International Convention on the Rights of the Child—the most important piece of legislation in international law on the protection of children. Its guiding principle is the notion of a child's best interest. Consequently, all decisions affecting children should be made by keeping in mind their best interest. In concrete terms, I would suggest that the basic principle of The Hague Convention on the status quo is adequate, but it must be understood and applied together with the notion of the child's best interest. In my opinion, that means that the article 13 exception concerning the risks to the child should be taken into account.
The issue should be taken with the utmost seriousness. You will agree with me that the best interest of children depends on it.
Obviously I'll be glad to come back to all three points during the discussion.
The second part of my presentation deals with diplomatic protection. At the outset, I would like to point out that diplomatic protection is a concept of international public law that applies when states have to deal with the files of their citizens abroad. Diplomatic protection has long been enshrined in international law. It was first articulated in 1924, in the Mavromatis case.
Does international law contain a right to diplomatic protection? The answer is yes. To whom does that right belong? It belongs to the state, and not to its individual citizens. In other words, it is a traditional position in international law. A state's own nationals are not entitled to an enforceable diplomatic protection before an international judicial body. However, if that right does not exist in international law, could a Canadian citizen still invoke the right to diplomatic protection? That is where things get a bit complicated. The answer is yes, in accordance with the sovereign state's domestic laws, in this instance, Canadian domestic law.
Here is how, in the Barcelona Traction case, the International Court of Justice explained the situation:
The municipal legislator may lay upon the State an obligation to protect its citizens abroad, and may also confer upon the national a right to demand the performance of that obligation, and clothe the right with corresponding sanctions.
In other words, a national from a sovereign state can claim the right to diplomatic protection before a national tribunal, pursuant to domestic law, not international law. In the case of Canada, that would be pursuant to Canadian law and the Canadian Charter of Rights and Freedoms.
With regard to Canadian domestic law, as was explained to you last Tuesday, diplomatic protection and issues of international relations in general fall within the royal prerogatives of the Crown. Generally speaking, the government has full leeway in the matter. Nevertheless, do Canadian citizens have the right to diplomatic protection? That was perhaps not the case in the past, but it certainly is today. That is the position that I and others defend, in light of the Canadian Charter of Rights and Freedoms and recent judicial decisions, particularly in the cases of Abdelrazik, Ronald Smith and Omar Khadr. Canada is not the only country to defend that position. Germany and, more recently, South Africa have recognized the national right to diplomatic protection.
Canada—and this will certainly be confirmed by the Supreme Court in the second phase of the Khadr case— has the duty, no less, to protect its citizens abroad, and therefore to grant diplomatic protection. Obviously, certain conditions have to be met, in particular having exhausted all local recourse. The duty to protect is based on the Canadian Charter of Rights and Freedoms. Under those conditions, the government does not have carte blanche within those proceedings. It must respect its minimal obligations to protect its citizens abroad.
Unlike my colleague from the University of Ottawa, Amir Attaran, I do not think it necessary to adopt a new law on the protection of Canadians abroad. As was confirmed this morning, that is also the position defended by Amnesty International. That could be done, but it is not necessary. How come? Because we have the Canadian Charter of Rights and Freedoms, an act that is above all other legislation and that already includes the duty to protect. It needs to be articulated. The Supreme Court will certainly help us clarify that duty to protect those Canadian citizens abroad whose lives, security or freedom are endangered. Those terms are an obvious reference to section 7 of the Canadian Charter of Rights and Freedoms.
Is the duty of diplomatic protection an obligation of means or an obligation of result? Given the legal foundation that is the Canadian Charter of Rights and Freedoms, many of us think that the duty to protect is today an obligation of result. It is more than doing one's best: the appropriate recourse has to be obtained under the circumstances. The result is often quite simple. It is a question at the very least of making a request and deploying all efforts possible to repatriate the Canadian citizen facing problems abroad.
I would like to clarify the following: I am not claiming that the Canadian Charter, as the legal foundation for Canadians' right to diplomatic protection, is applicable on foreign soil. It can be, but under exceptional circumstances. There is no doubt that the Canadian Charter applies on Canadian soil. The decisions of the federal government concerning cases dealing with the treatment of Canadian citizens abroad are made in Canada, in Ottawa. According to that logic, there is absolutely nothing that justifies the government's exemption from the application of the Canadian Charter of Rights and Freedoms as part of its decision-making. In my opinion, it is therefore not an issue of extraterritorial application of the Canadian Charter of Rights and Freedoms. The charter applies in Canada to people who make decisions regarding diplomatic protection in Canada.
Lastly, when I say that there is a duty to protect Canadian citizens abroad under the Canadian Charter, and that that dictates the measures to take to ensure the well-being of our citizens and that there is an obligation to achieve results, this causes no conflict with foreign law. It is basically a question of national law that concerns our federal government, that is the decisions and measures taken by Canadian authorities under Canadian law and not under foreign law.
Allow me to conclude on this point. I would say unreservedly that invoking foreign law to justify the inaction and insufficient action of Canadian authorities in cases of diplomatic protection is too often used as a pretext. This is a dilatory measure, as one would say in the legal field, and it should be denounced as such.
Thank you for your attention. I will be pleased to answer all your questions during this discussion.
Thank you.