The Legitimacy of Interim Measures from the Perspective of a State: The Example of Canada
Forthcoming chapter in Eva Rieter & Karin Zwaan, eds, Urgency and Human Rights: Perspectives on the Legitimacy and Usefulness of Interim Measures in Human Rights Cases (The Hague: TMC Asser Press, 2020)
17 Pages Posted: 9 Mar 2020
Date Written: February 1, 2020
In this contribution, I aim to unpack the illegitimacy critique that animates state refusals to abide by interim measures requests from the human rights bodies that states created by treaty. I use Canada as a case study given its long-standing support for the international human rights system and its acceptance of the right of individual petition before both the Human Rights Committee and the Committee Against Torture. Both Committees have also found Canada to be in breach of its treaty obligations for failing to respect an interim measures request, and Canada has made public its firm disagreement, with the Canadian courts having also considered the question of whether an interim measures request is legally binding. In light of this opposition from a state ordinarily viewed as supportive of the international legal protection of human rights, I also consider changes that could be made at that international level to improve how interim measures requests are made. I view procedural change as being one means to foster greater state confidence in both the legality and legitimacy of interim measures requests so as to ensure their continued availability to address urgent risks of irreparable harm. In brief, the argument that I make is that process matters, with greater transparency and an attention to rigour in how an international body reaches its decision to request interim measures being of particular importance in circumstances where the international body is tasked by the realities of the complaints process to query the findings already made by a national court. I accept that a committee’s final decision is not binding, but that alone does not bar an interim measures request from gaining legal force as a result of the procedural and regulatory role that it serves.
Keywords: international human rights, procedure, interim measures, urgency, legitimacy, transparency, Human Rights Committee, Committee Against Torture, Canada, national reception of international law
JEL Classification: K33, K37
Suggested Citation: Suggested Citation