International Law for Women

a resource for women's human rights advocates

Category: Democracy

  • Canadian legislation could improve women’s right to life

    Canadian legislation could improve women’s right to life

    The United Nations has declared that women’s rights are facing a global backlash affecting both public and private spheres, online and off. So, what is Canada, as a notable human rights leader, doing to progress women’s rights? In the spring of 2025, the Honourable Rechie Valdez became Minister of Women and Gender Equality (WAGE), thus reigniting hope for Canadian women in achieving substantive gender equality. In 2025 parliamentarians introduced several new bills in the Senate and House of Commons that would respect, protect and fulfill women’s human rights, as per international standards. As human rights are interrelated and interdependent, these bills, which focus on the health and safety of women, would operate collectively to reduce morbidity and mortality rates.

    The objective of this two-part article is not to replicate or replace research done by healthcare specialists or advocacy organizations, but rather to provide insight into the international legal framework that applies to the pertinent legislation. This article highlights the international commitments made by Canada to ensure the health of women. But health must be thought of as extending to both physical and psychological states. A woman who is perpetually unsafe or in a state of fear is at risk of compromised health, beyond physical injury resulting directly from violence. To that effect, legislation focused on providing safety for women through protection for victims of gender-based violence, will follow in an upcoming article.

    Vial with specimens
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    Part I – Health:

    The right to adequate health is a global norm in international human rights law. Since 1976, Canada has been a State party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which mandates the right to heath.[i]

    Article 12

    1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

    2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

    (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

    (b) The improvement of all aspects of environmental and industrial hygiene;

    (c) The prevention, treatment and control of epidemic, endemic, occupational and other disease

    (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

    Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) is subject to the principle of non-discrimination. However, women have been significantly underrepresented in health research for decades, thereby creating sex and gender-based disparities in health outcomes. Those disparities in turn create barriers to the enjoyment of other fundamental rights, including the right to education, the right to work, the right to political participation, and the right to life – the foundation of all other rights and fundamental freedoms.

    The right to life, proscribed under Article 6 of the International Covenant on Civil and Political Rights, carries both positive and negative obligations owed by the State party – the negative obligation to respect life by abolishing arbitrary killings, the positive obligations to protect life from threats by third parties, and by fulfilling certain conditions necessary to sustain life.

    The following bills, by remediating historical health inequities, could progress women’s substantive equality by fulfilling conditions necessary for their enjoyment of the right to life with dignity.

    Bill S-204: National Framework on Heart Failure Act[ii]

    An Act to establish a national framework on heart failure

    Sponsored by the Honourable Senator Yonah Martin

    First reading: May 28, 2025

    Second reading: December 9, 2025

    Assigned to the Senate Committee on Social Affairs, Science and Technology for study.

    The preamble of Bill S-204 recognizes that, “…Whereas heart failure is the third-leading cause of hospitalization in Canada — following childbirth and chronic obstructive pulmonary disease (COPD) — and remains a leading cause of death, particularly among women, for whom it is second only to cancer and ischemic heart disease”.

    Bill S-204 would require that the Minister of Health “develop a national framework to support improved access to heart failure prevention, diagnosis, management and evaluation to ensure better health outcomes…”[iii].

    The Heart and Stroke Foundation of Canada reports that heart disease and stroke are the primary cause of premature death for women in Canada, yet two thirds of clinical research on heart disease and stroke have been focused on men. Using the average male body as the prototypical patient ignores the evidence that many conditions present differently in females and some gender diverse persons – heart attacks are one example and those differences are costing women their lives.

    While Bill S-204 does not explicitly name women outside of the Preamble, the Content section,(paragraph 2 (a)), provides that the framework “ensure equitable access across all demographics and regions”. Additionally, Bill S-243, an Act to establish a national framework for women’s health in Canada, if passed would complement Bill S-204.


    Bill S-243: National Framework for Women’s Health in Canada Act[iv]

    An Act to establish a national framework for women’s health in Canada

    Sponsored by the Honourable Senator Danièle Henkel

    First reading December 9, 2025

    Debate at second reading in Senate: As of February 5, 2026

    Bill S-243 provides the support necessary for the Minster of Health to develop a national framework to “support improved health outcomes and health access for women, equitable investment in women’s health research and innovation and health-focused entrepreneurship driven by women”[v].

    (International Legal scope follows “The necessity”)

    a side view of a woman wearing face mask and bouffant cap
    Photo by Tima Miroshnichenko on Pexels.com

    The necessity

    Although women live longer on average than men,[vi] Canadian women spend 24% more time living in poor health and disability than men.[vii] Health issues that exclusively or disproportionately affect women, are significantly under-funded, under-researched, and under-treated. For example, 80% of individuals with an autoimmune disease are women, yet twice as many male participants are used in clinical trials. Furthermore, Harvard Health reports that “70% of those affected by chronic pain are women, whereas 80% of pain research is conducted on males”.(sic)[viii]

    In research and health care, sex matters (although not exclusively). The female body is a complex, dynamic system of inter-related structural and physiological systems including sex-specific hormones and chromosomes, distinct from males and therefore requiring specific research.

    Most research on female health has focused primarily on sexual and reproductive health and maternal, newborn and child health. Only recently have conditions such as endometriosis, adenomyosis, polyendocrine metabolic ovarian syndrome (PMOS), formerly known as polycystic ovarian syndrome (PCOS), premenstrual dysphoric disorder (PMDD), pelvic floor dysfunction and other conditions of the female reproductive system, become more broadly recognized. With scant research, millions of reproductive age women and gender diverse persons suffer in pain for years before even receiving an accurate diagnosis.

    Menopause, additionally, has been ignored in 99% of pre-clinical age-related studies[ix], despite being inextricably linked to aging in females. Menopause is also strongly associated with different types of dementia, including vascular dementia and Alzheimer’s. “Alzheimer’s Disease (AD) is marked by pronounced sex differences in pathophysiology and progression.” According to the Alzheimer’s Society, around twice as many women have AD than men. However, clinical trials in AD include eight times more male participants than female participants.[x]

    Photo by Anna Shvets on Pexels.com

    In Canada women were routinely excluded from clinical trials until 1997. According to Global Data Healthcare, drug interactions, optimum dosage and side effects of pharmaceutical treatments may differ according to the sex of the patient, yet females are underrepresented in phase 1 clinical trials of pharmaceuticals.[xi]

    Trial participation matters because in cancer, for example, “multiple bodily factors contribute to how the disease develops, progresses and responds to treatment, and many of these factors relate to sex. (…) Between 2003 and 2016, females represented less than 10 per cent of participants in lung and pancreatic cancer trials, despite accounting for more than 40 per cent of the diagnoses.”[xii] Additionally, while 20% of all cancer research funding goes to breast cancer, comparatively, funding for gynecological cancers – cervical, ovarian and uterine – are consistently underfunded despite their higher mortality rates. Breast cancer now has a 5-year survival rate of 89%, whereas the ovarian cancer survival rate is only 44%[xiii].

    Furthermore, chronic pain conditions are also impacted by the gender health gap. A data analysis conducted between 2004 – 2018 on over 20,000 individuals with fibromyalgia, found that 88.8% of the sufferers were women and the mean age was 48.[xiv] Fibromyalgia is one of the most underfunded diseases per patient, worldwide. Its root causes are still poorly understood and overlapping comorbidities make it difficult to diagnose and prone to stigmatization. Thus treatment is limited to alleviating the symptoms, which include debilitating widespread chronic pain, fatigue and cognitive dysfunction, without addressing a root cause.

    Other underfunded, female dominant conditions include myalgic encephalomyelitis (formerly chronic fatigue syndrome), headaches, migraine, osteoporosis and eating disorders.[xv] Migraine, for example, is twice as prevalent in females as in males, which is thought to be explained by sex hormones, and therefore a ‘woman’s disease’. That gender bias and stigmatization of migraine is further perpetuated by the funding disparity.[xvi]

    Lack of understanding and lack of funding is a vicious, self-perpetuating circle. Evidently, more must be done to ensure health research into conditions and diseases unique to or disproportionately impacting women. Additionally, with multiple factors affecting women’s health, there is a need for diverse disaggregation of data using both sex and gender[xvii], as well as age and other characteristics, such as ethnicity and socio-economic status. This intersectional data collection would allow healthcare to truly move beyond the ‘one-size fits all’ approach, and even beyond a binary approach.

    Where there is insufficient data or research, there is no adequate treatment or, significantly, prevention for disease. Consequentially, the substantive inequalities in health care create significant barriers from obtaining substantive equality in other rights-based contexts, such as the right to education, to work, to political participation, and the right to life.

    International legal scope

    In 2000 the UN Committee on Economic, Social and Cultural Rights published its General Comment No. 14, clarifying the scope of Article 12 on the right to health, under the International Covenant on Economic, Social and Cultural Rights . Recognizing the structural inequality in health care, the Committee emphasized the need for a national action plan to fulfill women’s right to health. That recommendation was over 25 years ago.

    21. To eliminate discrimination against women, there is a need to develop and implement a comprehensive national strategy for promoting women’s right to health throughout their life span. Such a strategy should include interventions aimed at the prevention and treatment of diseases affecting women, as well as policies to provide access to a full range of high quality and affordable health care, including sexual and reproductive services. A major goal should be reducing women’s health risks, particularly lowering rates of maternal mortality and protecting women from domestic violence.[xviii]

    The Committee articulated the requirement for a gendered perspective. (At the time, sex and gender were frequently conflated as being synonymous.) [xix]

    20. The Committee recommends that States integrate a gender perspective in their health-related policies, planning, programmes and research in order to promote better health for both women and men. A gender-based approach recognizes that biological and socio-cultural factors play a significant role in influencing the health of men and women. The disaggregation of health and socio-economic data according to sex is essential for identifying and remedying inequalities in health.

    According to the WHO’s 2024 report on Health Inequality Monitoring, data “can be said to be disaggregated when they are broken down according to a dimension of inequality.” Therefore, using both sex and gender disaggregated data[xx],as they are not synonymous, would be most conducive to an intersectional approach while fulfilling the UN legal criteria. Additionally, this approach aids the World Health Organization (WHO), the Organization for Economic Co-operation and Development (OECD) and other global NGOs in their research.

    aged happy women making video call online on smartphone
    Photo by Anna Shvets on Pexels.com

    Canada is also a State party to the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), which it ratified in 1981. The CEDAW Committee’s General Recommendation No. 24 (on) Article 12 of the Convention, adopted in 1999, states the following:

    11. Measures to eliminate discrimination against women are considered to be inappropriate if a health-care system lacks services to prevent, detect and treat illnesses specific to women.[xxi]

    The CEDAW Committee provided the following recommendations for government policy that would considers women’s health at all stages of life.

    29. States parties should implement a comprehensive national strategy to promote women’s health throughout their lifespan. This will include interventions aimed at both the prevention and treatment of diseases and conditions affecting women, as well as responding to violence against women, and will ensure universal access for all women to a full range of high-quality and affordable health care, including sexual and reproductive health services.

    To that effect, States have only recently begun to facilitate support for menopause, due in part to the rising number of women living longer. (see Figure 1) Age is one of the protected characteristics increasingly recognized throughout human rights legal instruments. It is reiterated in CEDAW’s General Recommendation No. 27 on older women and protection of their human rights (2010) as “one of the grounds on which women may suffer multiple forms of discrimination”, [xxii] thereby recommending that statistical data on menopause be age and sex disaggregated.

    Figure 1: Absolute numbers of women in menopausal transition (45-60 years) according to world regions between 1951 and 2021 (source: United Nations 2022).

    Additionally, CEDAW recommends the following, according to the principle of non-discrimination.


    30. States parties should allocate adequate budgetary, human and administrative resources to ensure that women’s health receives a share of the overall health budget comparable with that for men’s health, taking into account their different health needs.

    Photo by Pixabay on Pexels.com

    Conclusion:

    The right to health is a collective human right that States have committed to respect, protect and fulfil. Furthermore, it is linked to the right to life, which is necessary for the enjoyment of all other human rights.

    In January of 2025 the World Economic Forum in collaboration with McKinsey Health Institute, a think-tank on global economic healthcare trends, produced the insight report Blueprint to Close the Women’s Health Gap: How to Improve Lives and Economies for All. The key insight was that addressing nine specific conditions could increase the global GDP by $400 billion by 2040. [xxiii]

    On October 22, 2025, an article by the McKinsey Health Institute reported that closing the women’s health gap in Canada could “potentially boost the country’s economy by $30 billion annually by 2040”[xxiv]. As Canadian sovereignty is under attack through financial coercion, this is a catalyst incentivizing the government to support women’s healthcare. Improved healthcare also affects an individual’s overall lifetime earnings, decreasing income disparity, and thereby improving a woman’s individual ability to thrive.

    In 1986 the UN General Assembly adopted the Declaration on the Right to Development (resolution 41/128). It reminded States that the objective of development is for the “constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom”[xxv]. That message has been largely forgotten.

    Although both the right to development and the right to health are subject to progressive development, the world is decades behind in progress for those rights benefiting women equally in comparison to men, contrary to the principle of non-discrimination. To address structural barriers, women’s equality rights must exist not just on paper, but in practice, with State support.

    (Subscribe at the link on the bottom of page for the Part II of this article, on legislation addressing women’s safety.)

    Call to Action

    After reviewing the text of a bill, there are two options to participate in the process of supporting it.

    Bill S-204: National Framework on Heart Failure Act

    Bill S-243:National Framework for Women’s Health in Canada Act

    Write a letter to your Member of Parliament (recommended for everyone):

    • Expressing your opinions, personal experiences, recommendations, or legal arguments for or against a bill
    • Find your MP here: https://www.ourcommons.ca/members/en/search
    • Your contact information must be included, as this determines your riding and legitimizes your communication

    Write a letter to a Senator that represents your province:

    • Expressing your opinions, personal experiences, recommendations, or legal arguments for or against a bill
    • Find your provincial Senators here: https://sencanada.ca/en/senators/  
    • Your contact information must be included, as this determines your riding and legitimizes your communication

    Submit a brief to a Senate Committee

    (recommended for organizations and knowledgeable individuals):

    “Senate committees regularly invite individuals, experts, groups and organizations, lobbyists, public servants and ministers of the Crown to appear before them as witnesses to receive information relevant to a bill they are considering or a special study they are undertaking. There are two ways to participate in a committee’s study: by giving oral evidence (testimony) or by submitting a brief (written evidence).”

    Click to access cmtes_how-to-participate-in-a-senate-study_final_2021oct_en.pdf

    [i] International Covenant on Civil and Political Rights, 1966, United Nations.  https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights 

    [ii] National Framework on Heart Failure Act, Bill S-204 – First Session, Forty-fifth Parliament, Senate of Canada; 2025.
     https://www.parl.ca/legisinfo/en/bill/45-1/s-204  

    [iii] Para. 3 (1) Development; National Framework on Heart Failure Act, Bill S-204 – First Session, Forty-fifth Parliament, Senate of Canada; 2025. https://www.parl.ca/documentviewer/en/45-1/bill/S-204/first-reading

    [iv] National Framework for Women’s Health in Canada Act; Bill S-243; 1st Session, 45th Parliament, Senate of Canada; 2025. https://www.parl.ca/legisinfo/en/bill/45-1/s-243

    [v] Para. 2 (1) Development; pg. 2, National Framework for Women’s Health in Canada Act; Bill S-243; 1st Session, 45th Parliament, Senate of Canada; 2025. https://www.parl.ca/DocumentViewer/en/45-1/bill/S-243/first-reading 

    [vi] Differences across the lifespan between females and males in the top 20 causes of disease burden globally: a systematic analysis of the Global Burden of Disease Study 2021; Volume 9, Issue 5, May 2024; The Lancet; Vedavati Patwardhan, PhDa∙ Gabriela F Gil, MPHb ∙ Alejandra Arrieta, MIDPb ∙ Jack Cagney, MScb ∙ Erin DeGraw, MPHb ∙ Molly E Herbert, MScb ∙ et al.
     https://www.thelancet.com/journals/lanpub/article/PIIS2468-2667(24)00053-7/fulltext

    [vii] McKinsey Health Institute; Closing the women’s health gap: Canada’s $37 billion opportunity. (October 22, 2025). https://www.mckinsey.com/mhi/our-insights/closing-the-womens-health-gap-canadas-37-billion-dollars-opportunity 

    [viii] Harvard Health Publishing; Women and pain: Disparities in experience and treatment (Nov. 9, 2017) https://www.health.harvard.edu/blog/women-and-pain-disparities-in-experience-and-treatment-2017100912562 

    [ix] Gilmer, G., Hettinger, Z.R., Tuakli-Wosornu, Y. et al. Female aging: when translational models don’t translate. Nature Aging , 1500–1508 (Dec. 5, 2023). https://doi.org/10.1038/s43587-023-00509-8

    [x] GlobalData Healthcare; Women are underrepresented in trials for conditions that predominately affect them; June 26, 2023.  https://www.clinicaltrialsarena.com/analyst-comment/women-underrepresented-trials-conditions/?cf-view   

    [xi] Ibid.

    [xii] We can’t defeat cancer without acknowledging the differences between men and women; Isy Godfrey; October 24, 2023; The Institute of Cancer Research.  https://www.icr.ac.uk/research-and-discoveries/cancer-blogs/detail/science-talk/we-can-t-defeat-cancer-without-acknowledging-the-differences-between-men-and-women 

    [xiii] Cancer-specific stats 2025; Canadian Cancer Society in collaboration with the Government of Canada. https://cdn.cancer.ca/-/media/files/research/cancer-statistics/2025-statistics/2025_cancer-specific-stats.pdf?rev=659842a56b7748129ca562088cc7e971&hash=BF1A42D8561EC68D584500DD0F2FAF23&_gl=1*6gg2kk*_gcl_au*MTI4ODA2NjE5MS4xNzY5ODI3Mjc1

    [xiv] Exploring gender differences, medical history, and treatments used in patients with fibromyalgia in the UK using primary-care data: a retrospective, population-based, cohort study. The Lancet Rheumatology; Vo. 4, Sup. 1, September 2022, Page S20; Cardiff U.K.  https://www.sciencedirect.com/science/article/abs/pii/S266599132200296X 

    [xv] Mirin AA. Gender Disparity in the Funding of Diseases by the U.S. National Institutes of Health. J Women’s Health (Larchmt). 2021 Jul;30(7):956-963. doi: 10.1089/jwh.2020.8682. Epub 2020 Nov 27. PMID: 33232627; PMCID: PMC8290307. https://pmc.ncbi.nlm.nih.gov/articles/PMC8290307/

    [xvi] Casas-Limón J, Quintas S, López-Bravo A, Alpuente A, Andrés-López A, Castro-Sánchez MV, Membrilla JA, Morales-Hernández C, González-García N, Irimia P. Unravelling Migraine Stigma: A Comprehensive Review of Its Impact and Strategies for Change. J Clin Med. 2024 Sep 3;13(17):5222. doi: 10.3390/jcm13175222. PMID: 39274435; PMCID: PMC11396411. https://pmc.ncbi.nlm.nih.gov/articles/PMC11396411/#sec5-jcm-13-05222 

    [xvii] It “is important to highlight is the divergent terminology of sex and gender which, conventionally, are mistakenly used as synonyms. Sex refers to the biological and genetic features of individuals, whereas gender is intended as the social perspective of human beings concerning expressions, behaviors, and social roles. The latter is considered a personal choice and can generate a nonbinary range of gender identities.” Tokatli, M. R., Sisti, L. G., Marziali, E., Nachira, L., Rossi, M. F., Amantea, C., Moscato, U., & Malorni, W. (2022). Hormones and Sex-Specific Medicine in Human Physiopathology. Biomolecules, 12(3), 413. https://doi.org/10.3390/biom12030413

    [xviii] E/C.12/2000/4: General Comment No. 14 on the highest attainable standard of health (2000), The Committee on Economic, Social and Cultural Rights https://www.ohchr.org/en/documents/general-comments-and-recommendations/ec1220004-general-comment-no-14-highest-attainable

    [xix] “Gender interacts with but is different from sex. The two terms are distinct and should not be used interchangeably. It can be helpful to think of sex as a biological characteristic and gender as a social construct. Gender and Health, questions and answers”; 24 May 2021; https://www.who.int/news-room/questions-and-answers/item/gender-and-health

    [xx] “Gender interacts with but is different from sex. The two terms are distinct and should not be used interchangeably. It can be helpful to think of sex as a biological characteristic and gender as a social construct. Gender and Health, questions and answers”; 24 May 2021; https://www.who.int/news-room/questions-and-answers/item/gender-and-health

    [xxi] CEDAW General Recommendation No. 24: Article 12 of the Convention (Women and Health)

    Adopted at the Twentieth Session of the Committee on the Elimination of Discrimination against Women; 1999 (Contained in Document A/54/38/Rev.1, chap. I)

    [xxii] Paragraph 2; General recommendation No. 27 on older women and protection of their human rights UN. Committee on the Elimination of Discrimination against Women; 2010; CEDAW/C/GC/27; https://digitallibrary.un.org/record/711348?ln=en&v=pdf

    [xxiii] World Economic Forum. (2025, January). Blueprint to Close the Women’s Health Gap: How to Improve Lives and Economies for All. https://www.weforum.org/publications/blueprint-to-close-the-women-s-health-gap-how-to-improve-lives-and-economies-for-all/

    [xxiv]  Closing the women’s health gap: Canada’s $37 billion opportunity. McKinsey Health Institute; October 22, 2025. https://www.mckinsey.com/mhi/our-insights/closing-the-womens-health-gap-canadas-37-billion-dollars-opportunity 

    [xxv] Declaration on the Right to Development; UNGA 41/128, adopted December 4, 1986. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-right-development 

  • Does Canada’s Online News Act interfere with freedom of expression under international law?

    Does Canada’s Online News Act interfere with freedom of expression under international law?

    Women of diverse ages and ethnicities discussing thoughtfully around a laptop

    During a time of radical political transformation of the global landscape, knowledge is power – yet for Canadians, freedom of expression has been impaired since Bill C-18, the Online News Act, reached royal assent on June 22, 2023[i]. Freedom of expression is a core value of democracy and therefore must be carefully guarded.

    The Act proposed a regime whereby digital intermediaries, including search engines and social media platforms, would be regulated by the Canadian Radio-television and Telecommunications Commission (CRTC) and must bargain with eligible Canadian news businesses to provide compensation when their news content is shared via links on these intermediaries. The intention is for tech giants to contribute to the sustainability of the Canadian news market. However, in an ongoing dispute between the Government of Canada and U.S. based non-State actor Meta Platforms Inc., Meta has argued that they already provide significant value through referral traffic for those news publishers and therefore refuse to pay compensation. In protest Meta has been blocking content from legacy Canadian news agencies from being seen or shared by platform users for over two years now, as many Canadians have noticed. Google intended to take similar measures but reached an agreement with the Government of Canada in November 2023[ii]. Regardless of which entity is at fault, State or non-State actor, the implementation of Bill C-18 and its resulting dispute is in effect breaching international human rights standards, specifically freedom of expression.

    As the Minister of Canadian Heritage, whose department is responsible for Bill C-18, is aware, Canada acceded to the International Covenant of Civil and Political Rights (ICCPR) and its Optional Protocol in 1976. Article 19, paragraph 2 of the Covenant provides that

    “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

    Article 19 makes clear that freedom of expression extends to everyone, not just the press, and that it concerns both imparting and receiving information. But Canadians are currently unable to receive news from reliable sources while using popular social media platforms. Therefore, our right to receive information is impaired. We are also unable to comment on news articles, therefore impairing our right to impart information. Additionally, our right to political participation is impaired, all of which are essential to both democracy and women’s rights.

    While there are certain permissible restrictions on freedom of expression, according to Art. 19 para. 3[iii] of the ICCPR, this situation does not meet the criteria. These restrictions are not necessary for the respect or reputation of others, for the protection of national security, of ordre public, or for public health or morals. And although the restrictions Canadians face resulting from Bill C-18 are not restrictions de jure, they are restrictions de facto.

    Would a court consider the same criteria for restrictions in fact, as it does for restrictions in law? According to the Government of Canada’s analysis on Section 2 (b), “3. Does the law or government action at issue, in purpose or effect, restrict freedom of expression?”[iv]:

    ii) Effect:

    Even if a purpose is compatible with section 2(b), an individual may be able to demonstrate that the effect of the government action infringes their section 2(b) right. In this situation, the individual must show that their expression advances one or more of the values underlying section 2(b), e.g., participation in social and political decision making, the search for truth and individual self-fulfillment (Irwin Toy Ltd., supra; Ramsden, supra). While more recent Supreme Court decisions still refer to this principle of showing the effect of government action, the Court does not appear to apply with a great deal of vigor the requirement that an individual show an advancement of values, tending instead to easily find a restriction of section 2(b).

    If a court concludes that the government action, in either purpose or effect, infringes section 2(b), it will then consider whether the limit on free expression is justifiable under section 1.

    Therefore, regardless of the purpose of the government action, a court may find the effect of a government action to infringe upon our freedom of expression.

    What is the effect of this restriction on freedom of expression?

    In an era rife with misinformation and disinformation, citizens are urged to fact-check information through well-respected news agencies with high journalistic standards before sharing content online. However, fact-checking through trusted news agencies Instagram or Facebook accounts is attempted in vain. Visits to news accounts read “People in Canada can’t see this content – In response to Canadian government legislation, news content can’t be viewed in Canada”.

    The impairment of our ability to fact-check runs contrary to Canada’s commitment to counter the spread of misinformation and disinformation. In a fast-paced world it is not always convenient nor efficient to fact-check information through a Google search, which is why so many people rely on “instant” information through platforms like Instagram. Furthermore, direct site visits to news publishers can often be blocked by pay walls, making it more difficult to discern the facts from a credible source.

    Countering the spread of misinformation was particularly crucial during the height of the COVID-19 global pandemic, however, alternative news agencies were more accessible than highly credible sources. Unfortunately this same effect has taken place throughout wars and major elections.

    In that respect, “…as part of a series of reports on coordinated inauthentic behaviour, Meta reported that, in 2021, it had removed 52 networks found in 34 countries that had ‘engaged in coordinated efforts to manipulate or corrupt public debate for a strategic goal, while relying centrally on fake accounts to mislead people about who’s behind them’.”[v] The 2022 Report of the UN Secretary General – Countering disinformation for the promotion and protection of human rights and fundamental freedoms – concluded that “States bear the primary responsibility to counter disinformation by respecting, protecting and fulfilling the rights to freedom of opinion and expression, to privacy and to public participation.”[vi]

    The right to political participation

    According to research on Trust in Media published in July 2024 by Pollara Strategic Insights, 33% of Canadians and 57% of Gen Zs use social media as their primary news source[vii]. One important difference between receiving information on a dedicated news app from receiving it on a social media app is the ability of the reader to directly engage in democratic dialogue in a social media feed. This direct access to democratic engagement is particularly important to women and others from marginalized groups.

    The impairment of the right to impart information undermines the enjoyment of the right to political participation. Arguably, sharing opinions on social media that are pertinent to political issues, regardless of the content of one’s opinions, is an exercise not only of the freedom of expression but also of the right to political participation and democratic engagement. This assertion is affirmed by the Public Service Alliance of Canada:

    “Expressing political opinions or sharing political content on social media is a form of political expression and is protected by the Charter”[viii].

    The 2024 article Tweeting, talking, or doing politics? Testing the influence of communication on democratic engagement in Science Direct says, “The act of citizens being both politically and civically engaged is a known benefit to society, which is collectively known as ‘democratic engagement.’”[ix]

    Social media has become one of the most powerful political tools of the 21st century. Therefore, without the ability to access, read, share, and participate in political dialogue on issues that concern us and shape our lives, Canada could be found in violation of the right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights (ICCPR)for failing to reach an agreement with social media giant Meta Platforms Inc.

    In June of 2023 up to 5% of Canadians social media users were included in a test for whom Meta blocked news content; they continue to experience this block, which has been extended in application to 100% of Canadians since August 2023. This block has impaired Canadians’ right to freedom of expression and the right to meaningful political engagement at the time of a generational crisis. We cannot defend our civil, political, economic, social and cultural rights without the guarantee of freedom of expression aligned with international standards.

    The international responsibilities of trans-national corporations

    Although Meta is directly responsible for the infringement on Canadians’ human rights, the State is indirectly responsible. Human rights must be respected, protected and fulfilled through the regulation of non-State actors. And although Meta its headquartered in the United States, the U.S. is also a party to the ICCPR, whereby an affected member State may file a complaint with the UN Human Rights Committee.

    Transnational corporations (TNCs), including Meta, have an obligation to respect human rights in the countries where they conduct business. This obligation is outlined in the United Nations Guiding Principles on Business and Human Rights (UNGPs). In a statement released by Meta on March 16, 2021, a corporate human rights policy was launched stating that it “sets out the human rights standards we will strive to respect as defined in international law including the United Nations Guiding Principles on Business and Human Rights (UNGPs)”[x].  Meta stated that “(w)e will report our most critical human rights issues, like risks to freedom of expression, to our Board of Directors.”[xi]

    According to the United Nations Guiding Principles on Business and Human Rights, Article 13:

    The responsibility to respect human rights requires that business enterprises:

    1. (a)  Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur;
    2. (b)  Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

    Meta’s Corporate Human Rights Policy also states that they commit to implementation of the Global Network Initiative (GNI) Principles on Freedom of Expression and Privacy. The GNI Principles in turn recognize the indivisibility and interdependence of human rights and therefore that “the deprivation of one right adversely affects others”[xii]. The Principles further state that “freedom of opinion and expression supports an informed citizenry and is vital to ensuring public and private sector accountability. Broad public access to information and the freedom to create and communicate ideas are critical to the advancement of knowledge, economic opportunity and human potential.”[xiii] This supports the assertion that adverse impacts on the right of freedom to receive and impart information may also adversely affect the right to political participation.

    “Not only does Meta control a huge chunk of the internet’s physical infrastructure, it also controls who can see what, when and where. That gives it enormous power, even as the contours of the legal obligations to its users remain unclear.”[xiv]  It is notable that compliance of TNCs with human rights norms is an evolving area of international law, but in the interest of public perception and accountability, they ought to put human rights above profits by paying their fair share to Canadian news agencies. Conversely, Canada ought to put human rights above profits, despite the 2025 tariff crisis. At a time when the world is experiencing a decline in democracy, with Canada having slid down from a liberal democracy to an electoral democracy on the V-Dem Index in recent years[xv], and women’s rights facing a fierce backlash worldwide, including in Canada, perhaps profit loss is not the most meaningful cost.

    Ironically, the Online News Act is said to be “An Act respecting online communications platforms that make news content available to persons in Canada”[xvi], but it has done just the opposite, and it must be addressed. Can the Liberals, led by Prime Minister Mark Carney, take action to foster an effective remedy to the benefit of all Canadians impacted by this ongoing human rights violation?

    Respectful engagement is welcomed through the comment section that follows the footnotes.

    [i] https://www.parl.ca/legisinfo/en/bill/44-1/c-18  Accessed October 3, 2025.

    [ii] Thibeault, Cochran, Major; Federal government reaches deal with Google on Online News Act; November 29, 2023; CBC News;  https://www.cbc.ca/news/politics/google-online-news-act-1.7043330

    [iii] Article 19, para. 3: The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

    [iv] Analysis; 3. Does the law or government action at issue, in purpose or effect, restrict freedom of expression?; Section 2(b) – Freedom of expression; the Canadian Charter of Rights and Freedoms; Charterpedia; Canada’s System of Justice; Government of Canada; https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2b.html; website accessed October 7, 2025

    [v] United Nations General Assembly; Countering disinformation for the promotion and protection of human rights and fundamental freedoms; pg. 15/19; Report of the Secretary General; A/77/287; 12 August 2022; footnote 92: See www.theverge.com/2020/3/16/21182726/coronavirus-covid-19-facebook-google-twitter–youtube-joint-effort-misinformation-fraud  

    [vi] United Nations General Assembly; Countering disinformation for the promotion and protection of human rights and fundamental freedoms; pg. 17/19; Report of the Secretary General; A/77/287; 12 August 2022

    [vii] Page 6 (infographic); (2024) Trust in Media: How Canadians feel about news outlets. Pollara Strategic Insights.  https://www.pollara.com/wp-content/uploads/2024/07/Trust-in-Media-July-2024-final.pdf
    (Accessed Sept. 4, 2025)

    [viii]  Your rights on social media during an election; Sept. 1, 2021; Public Service Alliance of Canada. https://psacunion.ca/your-rights-social-media-during-election  (Accessed Sept. 4, 2025)

    [ix] Tweeting, talking, or doing politics? Testing the influence of communication on democratic engagement; Sherice Gearhart, Bingbing Zhang, and Oluseyi Adegbola; Telematics and Informatics Report, Vol. 16, December 2024, 1000167; https://www.sciencedirect.com/science/article/pii/S2772503024000537  (Accessed Sept. 4, 2025)

    [x] https://about.fb.com/news/2021/03/our-commitment-to-human-rights/  (Accessed Sept. 6, 2025)

    [xi] https://about.fb.com/news/2021/03/our-commitment-to-human-rights/  (Accessed Sept. 6, 2025)

    [xii] Page 1; Principles on Freedom of Expression and Privacy; Global Network Initiative; last updated May 2017; https://globalnetworkinitiative.org/wp-content/uploads/2018/04/GNI-Principles-on-Freedom-of-Expression-and-Privacy.pdf  (Accessed Sept. 6, 2025)

    [xiii] Ibid, page 3.

    [xiv] Facebook, Meta and the power of tech; Piper, Arthur; International Bar Association; Nov. 24. 2021; https://www.ibanet.org/Facebook-Meta-and-the-power-of-tech  (Accessed Sept. 4, 2025)

    [xv] Pages 52, 60, 62; Nord, Marina, David Altman, Fabio Angiolillo, Tiago Fernandes, Ana Good God, and Staffan I. Lindberg. 2025. Democracy Report 2025: 25 Years of Autocratization – Democracy Trumped? University of Gothenburg: V-Dem Institute. https://www.v-dem.net/documents/61/v-dem-dr__2025_lowres_v2.pdf

    [xvi] https://www.parl.ca/legisinfo/en/bill/44-1/c-18  Accessed October 3, 2025.

  • How the SAVE Act could affect Millions of US women

    How the SAVE Act could affect Millions of US women

    A photo depicting the silhouette of a woman's hand dropping a voting ballot into a ballot box.

    “Today is a dark day in politics.”[1] The League of Women Voters denounced the passage of the SAVE Act in the US House of Representatives on April 10th as a dangerous step backwards for democracy, possibly disenfranchising millions of women. And ultimately what happens in the United States does not affect only the United States. However, the Act could still be rejected by the Senate.

    On January 3, 2025, U.S. Republicans introduced an act to the 119th Congress which could prevent millions of American citizens from exercising their constitutional right to vote. The SAVE Act (Safeguard American Voter Eligibility Act; H.R. 8281) will adversely affect the integrity of the upcoming midterm elections and will decide which party controls the US House of Representatives and Senate. But among the voters potentially affected by the SAVE Act would be approximately 69 million women, according to the Center for American Progress[2] because their birth certificates could not be used as proof of citizenship. The proposed Act creates barriers for anyone who has undergone a name change since birth, thus affecting married women who have taken their husband’s name, among others.

    The Trump Administration’s stated objective of the SAVE Act is, ironically, election integrity, aimed to keep non-citizens from voting in US elections. It would, however, potentially keep millions of citizens from exercising their right to vote. “Kansas briefly experimented with a SAVE-like documentary proof of citizenship requirement, and it was an expensive disaster. The law blocked over 30,000 potential registrants in just two years — approximately 12% of all voter registrations during the period — and Kansas officials conceded in court that over 99% of affected voters were U.S. citizens.”[3]

    To achieve this, the Administration is having voting registries routinely purge their electoral databases “to prevent election fraud”, thus requiring citizens to re-register in person to provide proof of US citizenship. The SAVE Act does not specifically state what documents would be required as proof of citizenship[4], thereby creating ambiguity for those that the law would affect. To trace this out – a birth certificate, while affirming the place of its holders’ birth, for obvious reasons, does not have a photo of the holder; the birth certificate could, hypothetically, be a stolen document presented by anyone of a vaguely similar description and is therefore insufficient on its own. Logically, additional government issued identification, must be provided; however, a driver’s license is not acceptable as non-citizens have them too, and only approximately 50% of Americans have passports. Valid identification would have to include a current photo and description of its holder, to provide a means of visual confirmation for the electoral registries when presented in person. However, and this is the tricky part, that photo ID would have to match the name of the birth certificate. This would prove difficult for anyone who has changed their name, thereby capturing the demographic of married women. A Pew Research Center 2023 survey estimates that 80 % of married women have taken their husband’s last name[5].

    “Married women make up over a quarter of the electorate, so impeding them from registering to vote has a potentially significant impact on election outcomes.”[6]

    In consideration of the proposed SAVE act women should prepare themselves accordingly by gathering or obtaining all relevant government issued documents and proof of citizenship available including birth certificates, marriage certificates, change of name certificates, passports, driver’s licenses, and any other government issued identification. Secure them in a safe and accessible location. Stay informed of all notifications of upcoming elections (AP news provides a calendar), which begin in April of 2025, and verify that you are registered. Be prepared to provide proof of citizenship again when voting. Finally, vote!

    The political motivation of the SAVE Act is undeniable. According to the Brennan Center for Justice approximately 34% of women could be turned away from the polls[7]. This means a significant number of women will not have any control over who they choose to represent their rights and interests, including on core women’s issues like safe and accessible abortions and other forms of health care.

    What’s at stake?

    One of the general principles of a democracy is that one citizen is entitled to one vote. Therefore, putting laws in place that are not of adequate quality (clear and unambiguous) and are proportionate (to the reality that there were only 30 cases of non-citizen voting found[8], according to the Brennan Center for Justice nationwide study), creates an unreasonable obstacle to the political rights of American citizens.

    For advocates of women’s rights ensuring that every woman who is an American citizen can vote is integral not only to her rights, but also to maintaining the ability for the exercise women’s collective rights. As women’s rights are in sharp decline across the globe our political involvement is more crucial than ever. The truth is that we often don’t know what threat might be next, especially following the overturning of Roe v Wade. We see women and those who help women, such as doctors, being criminalized for maintaining autonomy over our own bodies and our own lives. We see the rise of “menism” and blatant sexism affecting younger generations of boys and men, while older generations of men seek to push our progress back by decades. This is not the time to be complacent and to trust the system. This is the time for vigilance and the anticipation of threats ahead of their implementation. To that effect, some women are already politically active, fighting for all women.

    The best option to the challenges of facing voter suppression is to stop the SAVE Act from passing in the Senate. Every American citizen can write to their Senator and express their opinion on any proposed Act of legislation. Let’s ensure that they are aware of the United States’ international legal obligations and vote accordingly. And with criminal penalization, including up to five years of prison time, those who work the polls are dissuaded from allowing those with name changes to vote.

    The United States is just one Member State of a larger context designed to protect all of humanity – the United Nations – to which the State may answer to if it violates its international legal commitments. Therefore, women and others engaging in political activism may rely on the above international obligations of the United States in writing to their congressional representatives or senators. To avoid harm to the international reputation of the United States, to its standing as a democracy, and to avoid UN sanctions, the executive ought to adhere to the binding obligations of the nation State.

    Respectful engagement is welcomed through the comment section that follows the footnotes.

    [1] https://www.lwv.org/newsroom/press-releases/dangerous-step-backward-our-democracy-league-women-voters-responds-passage (Accessed April 10th, 2025)

    [2] https://www.americanprogress.org/article/the-save-act-would-disenfranchise-millions-of-citizens/. (Accessed March 20, 2025)

    [3] https://responsivegov.org/research/the-save-act-how-a-proof-of-citizenship-requirement-would-impact-elections/. (Accessed March 24, 2025)

    [4] https://www.cbsnews.com/news/save-act-voter-registration-citizenship-married-women-name-change/ (March 21, 2025)

    [5] https://www.pewresearch.org/short-reads/2023/09/07/about-eight-in-ten-women-in-opposite-sex-marriages-say-they-took-their-husbands-last-name/. (Accessed March 24, 2025)

    [6] https://responsivegov.org/research/the-save-act-how-a-proof-of-citizenship-requirement-would-impact-elections/ (Accessed March 24, 2025)

    [7] https://newrepublic.com/article/186160/republican-war-women-extends-voting-rights. (Accessed March 24, 2025)

    [8] https://www.brennancenter.org/our-work/research-reports/noncitizen-voting-missing-millions. (Accessed March 24, 2025)

  • Canadian sovereignty and the United States’ threat to human rights

    Canadian sovereignty and the United States’ threat to human rights

    United States’ President Donald Trump has been espousing aspirations of territorial acquisition, including of Canada. If the United States succeeds Canada , whether through economic coercion or annexation by use of force, Canada would effectively be withdrawing from all of its own treaty obligations. This poses a grave threat to the human rights of all Canadians.

    If Canada loses its status as a sovereign subject under international law the legal effect would be withdrawal from human rights treaties including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities. This would additionally entail withdrawal from the Optional Protocol to the ICESCR and the Optional Protocol to the CEDAW, the Optional Protocol to the Convention on the Elimination of Discrimination Against Persons with Disabilities and from the Second Additional Protocol to the International Covenant on Civil and Political Rights, which abolishes the death penalty in member States.

    Furthermore, the U.S. has formally submitted intent to withdraw from the Constitution of the World Health Organization (WHO) and the Paris Climate Agreement, both of which indirectly affect human rights, specifically the right to health, and will take effect one year from January 2025.

    Regardless of one’s status, if you are living in Canada, you are benefiting from these international human rights and obligations. Perhaps the most important of them is the International Covenant on Economic, Social and Cultural Rights (ECOSOC). This ensures that our government provides such essentials as the right to adequate health care, the right to food, the right to water, the right to adequate housing , the right to safe, healthy, just and favourable work conditions, the right to join trade unions, the right to social security, the right to a reasonable period of paid leave before and after childbirth, the right to child protection against economic and social exploitation, the right to work and earn a living, the right to education, the right to benefit from any scientific, literary, or artistic production of which you are the author, and much more.

    Canada must remain sovereign!

    Although most human rights treaties do not contain termination or withdrawal clauses, the logic is simple – if Canada is succeeded by the United States, Canada ceases to exist as a separate sovereign legal entity under international law, becoming a de facto part of the United States and ipso facto, acceding to the U.S.’s treaty rights and obligations. And because consent is a general principle of international law, the U.S. cannot be legally bound by multilateral treaties of the predecessor State, which it never ratified.

    Article 15 of the 2005 Vienna Convention on Succession of States in respect of Treaties (VCST), which codified customary international law in this matter, provides for the scenario of State succession:

    Article 15 – Succession in respect of part of territory

    When part of the territory of a State, or when any territory for the international relations of which a State is responsible, not being part of the territory of that State, becomes part of the territory of another State:

    (a) treaties of the predecessor State cease to be in force in respect of the territory to which the succession of States relates from the date of the succession of States; and

    (b) treaties of the successor State are in force in respect of the territory to which the succession of States relates from the date of the succession of States, unless it appears from the treaty or is otherwise established that the application of the treaty to that territory would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation.


    The real threat of annexation, which implies an illegal situation, inherently evokes dialogue around State security and sovereignty over natural resources – water, oil and gas being among those that the Trump administration has alluded to. Unfortunately President Trump has routinely flouted U.S. constitutional law and will undoubtedly demonstrate the same blatant disregard for compliance with international law, as has already been indicated by unilaterally renaming the Panama Canal, the Gulf of Mexico, and with suggesting “acquiring” Greenland, Canada and Gaza, all despite territorial sovereignty. Whether through economic coercion or by use of force President Trump aims to extend his power and legacy through territorial expansion. However, if Canada consistently refuses to recognize the U.S. as sovereign over our territory then we at least have some hope through international legal procedures. For the respect of our fundamental human rights and freedoms, this is a scenario that hopefully Canadians will never face.

    (Originally published on LinkedIn, February 2025)

  • States of Emergency and Habeus Corpus

    States of Emergency and Habeus Corpus

    Innocent Latina woman behind bars in a jail cell, wearing orange, lit from the left with a ray of sunlight

    The balance of power between the Executive, the Legislative and Judiciary is a crucial element of a functioning democracy. However, this balance is no longer certain in the United States in the face of an Executive branch that disrespects Constitutional rights and has proven itself willing to defy Supreme Court orders[i]. Recent political developments in the United States have concerned Americans desperately invoking Constitutional rights and freedoms in acts of resistance. But when domestic law fails to protect human rights, may certain rights and freedoms – guaranteed under international human rights law – be invoked by American citizens and other persons within its jurisdiction? This article will attempt to illuminate this question by examining two interrelated issues – State obligations pertaining to states of emergency and habeus corpus.

    Deployment of the National Guard:

    Since the Trump administration took Office in January of 2025, the President has exercised the right of the Executive to deploy the National Guard first in L.A., then Washington D.C, followed by Chicago, and then Memphis. Deployment of a National Guard is interrelated, though not synonymous with, invoking a state of emergency; the former is typically used as a supporting mechanism to the latter, generally used in emergency domestic crisis situations such as natural disasters, insurrections or civil unrest. Legal experts fear that normalizing the deployment of the National Guard in U.S. cities is testing the limits of presidential power and the use of military force, thereby also testing the resilience of democracy. Declaring a “crime crisis” in cities like Washington D.C. has allowed the President to instate the National Guard there for up to 30 days. Recognizing the temporal limitation, President Trump stated that “if I have a national emergency, I can keep the troops here as long as I want”[ii]. Declaring a national emergency would unlock a set of 120 exceptional statutory powers to the Executive branch, including the authority for the freezing of assets and restricting of telecommunications.[iii]

    States of Emergency:

    Because the invocation of a State of Emergency authorizes such exceptional powers and is ideally used only under threat from foreign powers, it is governed under international law to protect human rights. But invoking a state of national emergency or public emergency is frequently also used by authoritarian Heads of State under false pretexts as justification for breaches of human rights, which is why there are strict requirements – where there is a right of the State there are also obligations.  According to international law these derogations are permissible only to the extent that they are “strictly required by the exigencies of the situation”. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) provides for such obligations.

    ICCPR – Article 4

    1.     In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

    2.     No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

    [For reference, in brief: art. 6 – the right to life; art. 7 – the prohibition of torture; art. 8 para. 1 & 2 – the prohibition of slavery and servitude; art. 11 – prohibition of imprisonment on the grounds of inability to fulfil a contractual obligation; art. 15 – non-retroactivity of criminal laws; art. 16 – recognition as a legal person; art. 18 – freedom of thought, conscience, and religion]

    3.     Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

    The principle of proportionality is common to derogations and their limitations during States of Emergency and is contingent on the exigencies of the situation.

    The United Nations Human Rights Committee, the UN organ responsible for monitoring the ICCPR issued General Comment No. 29 – States of Emergency (2001)[iv], which interprets and clarifies the scope of Art. 4 in depth. Paragraph 16 states that “In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant”.

    Habeus Corpus:

    Saddened man behind bars in a darkened cell
    AI generated image

    The right to a fair trial, which includes the concept of habeus corpus in the ICCPR (Art. 9 para. 4), is among the most important procedural safeguards in the limitations of derogations as it protects against arbitrary detention.

    Article 9 – ICCPR

    1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

    2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

    3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

    4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

    5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

    The Common Law of States of Emergency and Habeus Corpus:

    Given the increasing acceptance of the usage of common law by judicial bodies in the area of human rights, consider the Advisory Opinion on Habeus Corpus in States of Emergency[v] by the American Court of Human Rights in 1987, in which they opined that “… in serious emergency situations it is lawful to temporarily suspend certain rights and freedoms whose free exercise must, under normal circumstances, be respected and guaranteed by the State. However, since not all these rights and freedoms may be suspended even temporarily, it is imperative that ‘the judicial guarantees essential for (their) protection’ remain in force.” (ACHR OC-8/87) (my emphasis) In other words, to ensure that non-derogable rights are not restricted, the right to an effective judicial remedy, the right to a fair trial, is imperative.

    The application of the provisions of the International Covenant on Civil and Political Rights, of jus commune is particularly complex in the context of the United States for various reasons, however no State is completely immune from the jus commune of human rights law.

    Ratification of and reservations to the International Covenant on Civil and Political Rights:

    The United States of America ratified the International Covenant on Civil and Political Rights in 1992, although acceded to with several reservations and declarations of understandings. It is notable though that the decision on the validity of a reservation is determined by the UN Human Rights Committee (HRC), and not by the State itself. Upon examining the reservations of various States Parties and in response to excessively broad reservations, such as those by the United States, the Human Rights Committee issued General Comment No. 24 (1994)[vi] to clarify the scope of State’s obligations. Paragraph 7 notes that:

    In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.

    In other terms, reservations that are incompatible with the object and purpose of the Covenant will be considered invalid. Additionally, certain rights and freedoms are non-derogable. In the situation of states of emergency, paragraph 10 states that “…some provisions are non-derogable exactly because without them there would be no rule of law. A reservation to the provisions of article 4 itself, which precisely stipulates the balance to be struck between the interests of the State and the rights of the individual in times of emergency, would fall in this category.” And of course, derogations which violate peremptory norms, such as the prohibitions of torture, or arbitrary deprivations of life, would be incompatible with the Convention as well. (Further contributions were made by the International Law Commission’s Guide to Practice on Reservations to Treaties[vii] in 2011)

    Self-executing provisions of the ICCPR:

    Although the U.S. has ratified the ICCPR it has not ratified its Optional Protocol, some of its provisions are self-executing. Article 2 of the ICCPR requires that States give effect to its provisions; failure to do so can invoke the responsibility of the State, specifically provided for in paragraph 2:

    Article 2 – ICCPR

    1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

    2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. (“International Covenant on Civil and Political Rights | OHCHR”)

    3. Each State Party to the present Covenant undertakes:

    (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

    (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

    (c) To ensure that the competent authorities shall enforce such remedies when granted.

    The Dualist State:

    It is also notable that the United States is a dualist State, in which international law isn’t directly implemented into a State’s legal system, but instead requires explicit legislation for the adoption and incorporation into the domestic legal order. In contrast, a monist State views domestic and international law as two parts of a unified legal system, allowing for direct applicability of international legal instruments in force for that State. However, failure to implement a legally binding obligation can invoke the responsibility of the State, if successfully challenged.

    Fear of judicial overreach and loss of sovereignty are the two main arguments for maintaining a dualist approach. However, judicial over-reach hardly seems an issue when the balance of power between the executive, the government and the judiciary is undermined as the executive refuses to comply with court orders, and the impartiality of the judiciary is questioned. As for the argument of loss of sovereignty, if ever there was a time to cede a modicum of control to the international legal order, with the benefits potentially far outweighing the risks – this is it.

    Conclusion:

    To answer the question of whether American citizens can invoke international law in response to potential breaches – the obligations and scope of law are typically clarified only when disputes arise and interpreted by a judicial body, such as the United Nations Human Rights Committee or the International Court of Justice (ICJ). However, international law does provide for other non-judicial mechanisms, and they ought to be explored.

    Autocrats rely on lack of knowledge by its citizens on the rules of international law in order to abuse their power. Therefore, familiarity with the laws of international human rights is imperative to the protection of the rights of both citizens and others within the jurisdiction of the State. Regardless of one’s individual opinions on immigration, homelessness or crime, if an administration can ‘legalize’ the right to deprive other people of their right to liberty, then they can deprive you of yours also. And given the statements made by the current United States Executive regarding “invalid” border treaties and “invisible lines” separating Canada and the United States, we should all take this abuse of power very seriously.

    (originally posted August 26, 2025)

    [i] March 15 2025 deportation of alleged Venezuelan gang members despite a temporary restraining order by Chief Judge James E. Boasberg blocking AEA deportations and for any planes already left to return; https://www.aclu.org/trumps-deportation-flights-under-the-alien-enemies-act [accessed August 26, 2025]; Kilmar Abrego Garcia deported on March 15 from the U.S. in breach of a protected legal status; on April 10th the Supreme Court confirmed an earlier order from a Maryland federal court judge and signed an order that “properly requires the Government to ‘facilitate’ Garcia’s release from custody in El Salvador”. https://abcnews.go.com/US/judge-hearing-arguments-deportation-maryland-man-el-salvador/story?id=120491918 [accessed August 26, 2025]

    [ii] At 1:05; NBC News; August 22, 2025 news conference; https://youtu.be/yubwAW8xnuo?si=M-mHKprQWxXHYqqW .

    Sanchez, Ray; As Trump administration unleashes federal show of force in DC, other US cities on president’s radar push back; August 23, 2025; CNN News; https://edition.cnn.com/2025/08/23/us/us-cities-trump-dc-police

    Trump floats circumventing Congress to maintain control of DC police; Giselle Ruhiyyih Ewing; 08/13/2025 https://www.politico.com/news/2025/08/13/trump-dc-police-congress-00507359

    [iii]  https://www.law.cornell.edu/wex/emergency_powers  Accessed Sept. 18, 2025

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