Proceedings of the Standing Senate Committee on
Foreign Affairs and International Trade
OTTAWA, Thursday, March 1, 2012
The Standing Senate Committee on Foreign Affairs and International Trade met this day at 10:15 a.m. to study and report on the establishment of a "Charter of the Commonwealth'' as agreed to by the Commonwealth Heads of Government meeting in Perth, Australia, in October 2011 and its implications for Canada.
Senator A. Raynell Andreychuk (Chair) in the chair.
The Chair: Honourable senators, we are ready to proceed with our first session. We were not able to proceed with our witnesses from the Royal Commonwealth Society of Canada; I think there was a misunderstanding in their time calculation. We will sort that out, but we will be asking them to provide us with their written submission in due course, so we will cover their testimony that way.
We will now turn to our second panel. Today we are pursuing the examination on the establishment of a "Charter of the Commonwealth'' as agreed to by the Commonwealth Heads of Government Meeting in Perth, Australia, in October 2011 and its implications for Canada.
In this session, I am delighted that William A. Schabas, Professor of International Law, Department of Law, Middlesex University, has agreed to appear before us. He was in town, which is fortunate for us; we had anticipated a video conference, but this is much better. Thank you, Dr. Schabas, for being here. We do not go through long introductions, Dr. Schabas, so that we can have more time for our witnesses and the exchange, but your curriculum vitae is known to the committee.
For the record, I want to say that you have participated in so much of the development on human rights in Canada and internationally, particularly in looking at structures of the International Criminal Court and the specialized court in Sierra Leone, where you were integrally involved in those processes. You come to us with a great knowledge of instruments and opportunities where a consensus around key values and key issues in countries, regions, and organizations can be helpful or not.
We are looking for the suggestion of a charter of association that has some elements of human rights, social values, and historic values to the Commonwealth. Is this a tool that is helpful? In what form could it be helpful? As you look at it, what recommendations could you give to further the process for the Commonwealth and our study on behalf of Canadians here?
Dr. Schabas, we are delighted that you are here and we look forward to any opening statements you wish to make. Then, as happens in committees, we will have many questions for you.
William A. Schabas, Professor of International Law, Department of Law, Middlesex University, as an individual: Thank you very much, Madam Chair, for the nice introduction. I am so happy that the timing turned out well and that I happened to be here in Ottawa and able to attend in person to testify before this Senate committee.
As you mentioned, I have been following, studying, and writing on human rights law and related issues for many, many years, and I was a professor here in Canada in the 1990s; and, of course, I followed development of the Canadian Charter, as well. I have always been fascinated by the international dimension of human rights and Canada's relationship to the various international institutions.
The Commonwealth was always a bit of an outlier in a way in the area of human rights. The Commonwealth ought to have been a forum for a particularly rich debate about human rights and related issues, yet it always seemed to be stymied in the mission that we might have hoped for.
The main act of international human rights was always Geneva, with the United Nations institutions, which you know very well. We also watched other organizations, such as the companion in a way to the Commonwealth, the Francophonie, which has had its own attempt at dealing with fundamental rights as well, perhaps with similar difficulties to the Commonwealth.
I gave a presentation in 2010 before a body in the Commonwealth, the senior justice ministers or the deputies, the senior professional level, about the issue of capital punishment, where the Commonwealth is a bit behind the curve, actually, compared with international institutions in general. You can see this when there are votes on things like a moratorium on the death penalty in the General Assembly and where the Commonwealth actually does not perform quite as well as the average of states in the world.
It is a curious mixture. When I was there a year and a half ago, in London, the person who followed me had to sell the case. I actually had an easy run of it on capital punishment, because I pitched it at a low level and most of the ministers went along with what I was proposing, which was a modest moratorium. The poor fellow who followed me was trying to get them to reform their criminal law, dealing with gay sex, sodomy legislation. He hit a wall there in the Commonwealth, with some states that insisted that there was no question of the law being reformed to bring it into line with, I think in Canada, where our laws were changed in 1968 or something in this area.
In the Commonwealth, in some areas it is very difficult to make progress on some of the classic contemporary issues of human rights. Developing a new instrument, this proposed charter, is a challenging prospect.
As you know, a draft is now circulating that has emerged from Australia. Apparently the author is Michael Kirby, who is a distinguished Australian judge, someone with a fabulous international profile and who has made great contributions. The draft itself is disappointing in a way because if he were to write down his own ideas about what should be in a draft, it would be more inspiring, more modern and progressive than it actually is.
When I looked at the draft, there were cross-references in the version I saw to the various Commonwealth instruments. What it appears to be actually is little more than a codification of old documents adopted within the Commonwealth. It is not an attempt, it seems — we are talking about the draft, of course — to try to do something creative and new with this instrument. It is taking the acquired instruments and norms within the Commonwealth and saying let us see if we can put this now in a more comprehensive document. I think that it would be a disappointing exercise if that were all that came out of this.
It may not be a wise idea to proceed with this at all. It may have seemed like an inspired idea at the time, and it may just be difficult because it is hard within the Commonwealth to advance on some of the hotter issues dealing with human rights. I mentioned two of them. One is capital punishment, where you will not get a consensus on that within the Commonwealth, and the other is dealing with gender equality and what we now call LGBT issues. I think there would be great difficulty, and there may be other matters where this will be hard. It would be counterproductive, I think, to come up with an instrument that only codified the existing norms and did not move them forward.
I think this is the challenge, really, and maybe this is where we can contribute to the Australian reflection on the proposed charter with a little bit of Canadian input. I want to suggest two or three areas where we might devote a little attention and see if it is viable to introduce these ideas into such an instrument.
The first one is an idea that of course Canada was very central in developing, and this is the responsibility to protect. This emerged from the International Commission on Intervention and State Sovereignty in 2001. It has now been of course endorsed in a resolution of the General Assembly that followed the summit of heads of state in government in 2005. I am sure you know all of this, but it is the idea that there is an obligation on states acting individually and then collectively through institutions, including the United Nations but I think also through the Commonwealth, to protect vulnerable populations from genocide, crimes against humanity, war crimes and ethnic cleansing.
That is an idea that I think is fairly well accepted, and it is a shame that it is not in this draft charter. It should be there. If it was going beyond just codifying the earlier pronouncements of the Commonwealth it would seem to me obvious that those ideas belong there, and perhaps we can give a Canadian and Commonwealth gloss on that notion that would be very constructive.
That would be my first suggestion of something that might be looked at.
The second one concerns the rights of Aboriginal peoples and minority rights, which is not in the draft charter. It is a bit surprising actually, considering that it comes from Australia, that that idea is not really developed in the draft charter. I think that is something that might be explored. Again, I do not have any language to propose to you on what that might look like, but I think once creative minds look at the concept, people will find appropriate ways to formulate it. That might be a very useful contribution as well.
It might be helpful, too, in making sure that this charter is balanced and that it does not look like something the old dominions of the Commonwealth are dictating to the majority of the Commonwealth, because this is an area where we have our own difficult history, as does Australia, of course, and New Zealand.
The final idea, which has been also very important in Canadian foreign policy and to which we have devoted a great deal of attention and energy over recent years, is the importance of international justice and accountability. A range of terms get used in this context — the International Criminal Court and other forums of accountability for atrocities. This idea has become central to modern human rights law and, more generally, to our foreign policy. I think something along those lines ought to be reflected as well, some recognition of the importance of this activity.
Those are a few suggestions that emerged in my rather summary reflection on this document. There is an attempt to be poetic and to have inspiring language and all of that, and that is fine, and maybe more can be done with that. Maybe we can recruit a poet or two to actually come up with something more creative, because lawyers and judges do not make good poets, unfortunately, or maybe fortunately. Maybe more could be done there. It would be nice if it were inspiring. It would be a shame if this were just a document that was really a perfunctory exercise that got put on a website and forgotten.
There is an opportunity to do something maybe a little exciting with this, and if we can contribute to that process, so much the better.
The Chair: Thank you. We heard yesterday from Senator Segal, our colleague who was in the Eminent Persons Group that led to that recommendation of the charter, and it was the first recommendation, that it was an attempt to bring together what the Commonwealth was about if there should be new members. That, to me, was not the way I had read their report. I thought it was more what the members wanted to say about themselves. I am pondering the two ways of looking at what a charter could do. On the one hand, the charter seems, if I understand the Eminent Persons Group — translated through the heads of government, now foreign ministers — to try to draw a consensus about the membership, the need for a Commonwealth, period.
On the other hand, in that charter there are all the things that you are talking about, the human rights. Would it be better to compile, or take stock, of what membership is and the viability and the need for a Commonwealth as one instrument, and then to set a process of how to modernize both the human rights and the social values issues in a modern instrument, or treaty, or consensus, or policy even within the Commonwealth that reaches toward the standards that individually the nations have signed on to in the UN, in their own respective areas? For example, the African Union has a Charter of Rights that is built on very much the declaration. Canada has its own Charter of Rights and belongs to others.
Is it putting two concepts together that will present a difficulty for CHOGM and, therefore, we might suggest separating the two; or do you think that the emphasis should be on the future and on rights? You seem to be a little more lukewarm on the all-embracing charter that looks at our past.
Mr. Schabas: My concern is that this will be little more than a bureaucratic exercise in taking the norms that already exist and the principles that are already set out in a series of documents and we will just rework them, really. This is always the challenge, when you are adopting documents by consensus.
I do not think there is any doubt that that is the only way this would be acceptable, namely, to have a consensus. However, you do want to move it forward because consensus cannot be a static concept, either. If you take old documents and then rework them and say, "We all agree on that so there is our consensus,'' you are not making any progress, either. I think that that is not a desirable outcome.
I am intrigued at the idea that this is a document that is kind of the membership criteria, or something, for new members, because the new members can see what the Commonwealth represents already. The Commonwealth has always been a bit of an ambiguous institution in terms of what its role is or what it does, and it is one that has changed and evolved over the years. It has evolved in terms of its attitude towards human rights as well.
When I did the study last year on the death penalty, I saw a lot of potential there within the Commonwealth, but a challenge as well. The difficulty here is how to exploit that potential. In some areas, the Commonwealth behaves, the individual states behave, better than they talk on some of these issues. Some of the talk can sound quite harsh in a human rights forum like the Human Rights Council or the General Assembly of the United Nations, but the behaviour is not, in some cases. It is not as negative and not as consistent with the discourse. Maybe that is why it is important to try to get the discourse to move forward and reflect some of the behaviour of states. That is just a dynamic process.
I think it should be a dynamic exercise. My fear is that it is too static the way it is conceived.
Senator Downe: Could you elaborate on the "lots of potential'' comment that you made? It is early in our study and in my reading, but I tend to share your concern that this is some type of bureaucratic exercise trying to justify the existence of the Commonwealth and trying to push these objectives that a host of other multinational institutions are already doing. There is nothing really new here.
Concerning the rule of law, promotion of democracy, and so on, there are dozens of groups around the world now doing that. The Commonwealth served a purpose 40 or 50 years ago from which they are trying to evolve into something else; what is it? Could you elaborate more on this potential that you see?
Mr. Schabas: I highlighted some issues — that is, the three themes that I thought were missing in the draft — that we might find ways to incorporate in some way into the language of this charter. We have had our own Canadian approach on these issues where we have made a contribution, and we have an opportunity within the Commonwealth to do so because we are more influential there, perhaps. It is a privileged environment for Canada and for some of our ideas, for example, dealing with Aboriginal peoples, international justice and the responsibility to protect. We might be able to move things forward there. However, if we are just duplicating what goes on within the UN or within regional organizations, the concern is that it comes out worse. This has always been the concern when people reformulate, especially in the area of human rights, but on broader issues as well. When you reformulate declarations, you end up sliding backwards rather than moving forwards.
What we probably want to do is identify some particular issues, not try to have anything comprehensive, because that is done somewhere else and that should not be the goal. The idea of the responsibility to protect has a notion of a collective commitment to human rights that goes beyond the country's borders to work collectively. The Commonwealth does this. It is a good environment for that idea. I think that could prosper. I do not expect that we will make any progress in this document on those other issues that I mentioned, the rights of gays and lesbians or capital punishment. That is too hard. The meeting would explode and you could rip up the project. There are some issues, such as Aboriginal peoples, where we could probably make some interesting progress. However, we would have to be creative and look for some way to give something unique so that five years from now people would say, "On those rights, something significant happened when the Commonwealth adopted the document.'' It will have an influence beyond the Commonwealth, too, as a progressive development of rights and freedoms, which would be very good.
Senator Downe: You know obviously a lot more than many of the members of this committee, including myself, but can you point to any examples in the last few years where initiatives of the Commonwealth have evolved and assisted these countries?
I am concerned about the consensus model. I accept your argument totally that Canada, for a host of reasons, is a major player in this group. However, I am concerned, if we need consensus from everyone, that the smaller, weakest country that is opposed to some of the initiatives that we would undertake in Canada can stop the whole train, if you will. Is it better to do one-on-one engagement, or is it better to try to do something as a group in the Commonwealth? I do not think anyone objects to the objectives, but I am wondering: What are the results?
Mr. Schabas: I do not know that I can give you an example of how that works in the Commonwealth. I watched the consensus process in other contexts, for example, in the United Nations, or in a related development, which was the adoption of the Rome Statute of the International Criminal Court. The final result, after a few years of negotiating, was far beyond what anyone had actually expected. You can actually get some exciting results that come out of that process.
There is always a concern that a consensus document or a consensus approach leads to the lowest common denominator, but actually the results can be quite dynamic. I am sort of out of my depth in terms of how to do that; you would have to ask some of the skilled diplomats who know how to do that. All I know is that you can get those results and that a collective enthusiasm can build up if people are committed to the project.
With the Rome Statute of the International Criminal Court, I think there was always concern that there were people in the middle of it who were trying to sabotage it, but, in the end, they were not. The consensus worked and took on a life of its own. That happened more recently with amendments to the Rome Statute dealing with the crime of aggression. The Canadian involvement in that was very helpful. We played a constructive role as a stimulus, working quietly but very positively to help it advance. I think that kind of chemistry could work. You can get out of what appears to be a flawed, discouraging process of trying to get agreement by consensus. Interesting things do result, but you need the skills of diplomats, and it is beyond my expertise to make that happen.
Senator Wallin: I think I will take the flip side, but we may be heading in the same direction as my colleague Senator Downe. We had discussions yesterday that there would be no way to impose, legally speaking, any forms of behaviour or activity or to either entreat people to join or expel them for bad behaviour because it would be too complicated to do that. In a sense, we are talking about a mission statement or a set of goals or a charter, whatever it might be. Make the other case as to why we do not need this at all, for the points that my colleagues have raised. Could we not meet every once in a while attached to other international bodies that meet and have a day where Commonwealth countries that are so inclined gather? I am trying to get the larger frame here. Tell me why it should not happen.
Mr. Schabas: Many of these ideas that are in the charter are being very adequately dealt with in other fora, particularly within the UN but also within the regional organizations. The Commonwealth is a body with a history that exists for historical reasons and that brings together states that historically had this common imperial background, but it has now enlarged slightly by bringing in members who you might say are friends of the Commonwealth but are not part of that tradition, like Rwanda and Mozambique, for particular reasons. Maybe the Commonwealth could expand that way, and maybe we will just clutter up the world with too many organizations and meetings doing too much of the same thing. I think that is an interesting decision about the Commonwealth, whether it goes forward into new territories or whether it remains essentially what it is and fulfills the functions it has played in the past. I see it as an opportunity, but you asked me to state the case for the opposite. The job will get done even if the Commonwealth does not do it.
Senator Wallin: One thing Senator Segal expressed yesterday was that, regardless of how mild the rhetoric may be or the language of the charter, it will imply certain standards and behaviours on the part of members, which will then lead to bureaucracies for enforcement any way you look at it, and that a lot of these countries simply cannot afford that. It is all well and good for us, with the Department of Foreign Affairs, to have a section that is hived off looking at that, but in some small Commonwealth country, answering to make sure they are meeting the checklist of behaviour in line with the values laid out will just become a bureaucratic exercise.
Mr. Schabas: I guess anything like this is an unpredictable. The consequences are unpredictable. There are many examples, and I suppose if I thought about it I could provide you with a list of them, of attempts to make new documents. The Commonwealth has had its share. The UN has loads of resolutions and declarations and so on that no one pays much attention to. I have students who write doctoral theses about them, but no one actually reads that material. A lot of this is an exercise. The argument that it will be an exercise that ultimately will be a bit sterile, bureaucratic and fruitless does apply to many things we do at the international level. One hopes that sometimes one of these things catches fire.
I was reviewing earlier this week, as part of a project I was working on, Nelson Mandela's memoir, Long Walk to Freedom. He talks there about the inspiration the South African freedom, the anti-apartheid movement, received from the Atlantic Charter, which was adopted in August of 1941 on a ship in what is now Canadian waters but at the time was Newfoundland. Roosevelt and Churchill met on a ship. He talks about how that document inspired them to create the African National Congress and so on — not to create it, but to move it. I forget exactly what he was saying about what it did, but he was clearly identifying that as an inspiring document.
Bear in mind that a charter of the Commonwealth will have an importance that no other document adopted by the Commonwealth has. Just the title of it, if that remains, puts it in a very privileged position, and it could provoke very interesting developments. People in many member states of the Commonwealth might look to that and say, "We get our mandate from that document.''
You asked me to be negative, but now I find myself tilting to the positive. This is unpredictable, but it is worth the effort.
Senator Wallin: You did exactly what I wanted. Thank you.
Senator D. Smith: I want to throw a couple of things out and get your reaction on them. Your emphasis on the responsibility to protect is a valid one, and Aboriginal and minority rights. Quite frankly, it would not bother me if we just put in section 15 of our own charter. I was an MP 30 years ago and very involved in that particularly with regard to physical and mental disabilities. That might be in the old dominion category of thinking.
The third one might be more challenging, the importance of international justice for atrocities. I agree with you. We were talking yesterday about a few instances. South Africa, to their credit, did withdraw at the height of apartheid there. They withdrew or they would have been booted out. The Commonwealth never did anything to Idi Amin when he was doing all those crazy things, even cannibalism.
In any event, one of my thoughts was that there are a lot of words in this that are kind of in the platitude category. I do not know if that weakens it. I think the fundamental things are bona fide democracy and minority and human rights enforced by the rule of law. Quite frankly, if those were the only elements in there, I would feel good about it. Maybe I could get your reaction to that.
The other thing I might dangle out there is that you were talking about experts and stuff like that, but if some night you are laying awaking meditating, thinking or in a state of yoga or a trance, and some words come to you, do not be shy about sending them in to us. We can look at them. We are very open-minded people. Obviously you have skill sets here that are very relevant to this and you are identifying those three categories as relevant. I do not know if you have any thoughts on the things I tossed out there, but maybe you have some comments.
Mr. Schabas: In general, I agree with you on what the priorities are. You seem to lean towards a much more succinct document than the one that the Australians have prepared, and maybe that is the way to move on this.
I am working on a project now on the Universal Declaration of Human Rights, which is referenced in the preamble of the draft charter. This is a document that a Canadian, John Humphrey, contributed very substantially to in a very important way. It is a marvelous document that was adopted at a special time and in a special environment in the world in 1948, and it remains current and useful. The Americans — Eleanor Roosevelt — were always arguing it was too long. It is about 1,700 words, which is 30 articles. By today's standards, that is a short document. However, there is a tendency in all these documents to make them long, partly because now we have more and more NGOs and interest groups, and everyone wants their little piece to be included. Therefore, maybe one of the ways to move on this is to campaign for a short, succinct document that you can put on a piece of paper or a pocket card that you can carry in a wallet or something. Perhaps that would appeal to people. Maybe trying to keep it concise is a way to do it.
Senator D. Smith: I resist the platitudes. I do not disagree with them, but they do not go towards the fundamental things that we think should be in the criteria if you are in the Commonwealth.
Mr. Schabas: It is a very interesting idea. If you had to set it out, you can do it much more succinctly than it is done there. The problem with people trying to be poetic is that they write long preambles with a lot of clichés in them.
Senator Raine: Thank you. I find this very interesting. I wonder if you could expand on the charters of the Francophonie and the Organization of American States. First, how are they different one from the other? What are the differences between the three organizations? How could a charter establish those differences? Second, how do they develop their charters? Are they legally binding?
Mr. Schabas: A charter in international law has usually been reserved for a kind of constitutional document for an organization, and that is not what is being proposed here. This is more of a declaration or a manifesto type of document. The paradigm for this would be the Charter of the United Nations, of course, which does not actually say a great deal about the content of the United Nations at all; it is an organizational instrument. It is like a constitution. It really only has a few provisions at the beginning that talk about the purposes and the principles of the United Nations. That would be the Charter of the Organization of American States, which is along similar lines. These are more constitutional documents of an organization.
The term itself can be used in whatever way we choose. In Canada, we chose to use the term "Canadian Charter'' for the part of our Constitution that deals with fundamental rights. We did not have to do that; there were many other options.
I do not know the thinking behind why this should be called a charter. It is not the same thing as many other charters. It probably resists too much of a comparison with the charters of other organizations. This is more of a kind of manifesto — a touchstone that we would look to for the guiding principles of the organization. That would then be used, for example, in the case of a struggle about whether to expel or suspend a member. It would be turned to. The grounds for suspension or expulsion would be a serious breach of the principles in the charter.
I mentioned the example of the Atlantic Charter, which was an inspirational manifesto rather than a constitutional instrument, and the example that provided for Nelson Mandela.
"Charter'' is a precious word. I think this may be one of the concerns with this. If it is used for a rather banal document, it is almost an abuse of the word. It suggests something quite inspiring and important in this context, so you would not want to misfire on how it is used.
The Chair: Mr. Schabas, I would like to intervene here. You were saying that the Commonwealth has always been consensus-driven and that is a way, historically, not only in the Commonwealth but other associations, to draw in people who had some interest or some values in common and others that perhaps were not yet matured or that were diverging. One of the things to keep a Commonwealth going is not to have consensus all the time and shy away from action, and have coalitions of the willing within the Commonwealth working on similar needs.
I think of the Commonwealth on small islands. If you look at Vanuatu, Tonga, and Maldives — I am trying to get my Commonwealths straight here — they may wish to work on issues and rights on a different level, at a different speed, and in a different manner. It was rather innovative when the Commonwealth came together to take Canada, New Zealand, and India and say, "Work together.'' Of course, they were drawn to consensus, and it was rather mild.
Is it time to do it the other way?
I think you said the International Criminal Court was started with the United Nations, which turned into the Rome treaty, and it has had an interesting development. You are not bound by it until you ratify it, but it drove an international consensus in a different way. If you are not in it, you will still be affected by that standard.
That was an interesting way to approach human rights development. I am wondering if the Commonwealth is struggling, with all their diversity, to move the agenda in a different way, which would be to go off a consensus model and use another mechanism or tool.
Mr. Schabas: My experience that I referred to from a year and a half ago with the Commonwealth senior legal officials and the debates about capital punishment and other issues again clearly underscore the fact that it is extremely difficult to move forward on certain issues within the Commonwealth, and consensus on those points is out of the question.
I do not think that agreeing to have a consensus document in any way prevents asymmetric developments — to which you are referring — within the organization, either. I do not see anything incompatible about doing both.
The idea of consensus is a strange phenomenon — even consensus documents are — in international relations and international law. The Universal Declaration of Human Rights to which I referred was adopted. There was a vote, and everything was voted on it along the way while it was being developed. That was the old style within the United Nations. Finally, the vote was almost a consensus. I think the Soviet Union, the Soviet bloc, South Africa, and Saudi Arabia finally abstained in the end. However, it was essentially adopted by unanimity rather than by consensus in the strict sense.
I think the diplomats will tell us that consensus is a very effective way to reach agreement on a document that has some coherence to it. If you vote on other things, you get bizarre results where you have provisions that are incompatible with one another, and you cannot predict that. You cannot be sure about the outcome, and you can get that with a consensus.
I think what you are probably doing is calling into question the wisdom of moving forward with this project at all.
Regardless, I do not see it being adopted in any other way but by general agreement. I think that is a given.
Senator Mahovlich: Thank you. I was just wondering what your thoughts are on getting a poet laureate. Coincidentally, we appointed a poet laureate for the year just yesterday. What if we were to approach him, present him with this charter, have him look at it, and have him come up with his own words to inspire different countries? Do you think that would be a good idea?
Mr. Schabas: Senator Mahovlich, I think it would be worth a try to see what would arise. What would happen then would be the draft would go to a big meeting of diplomats sitting around and they would try to remove all of the poetry from the wonderful poem that had been created.
There would be a concern as well that creative language might have results that are too unpredictable. In this field people are always aware that on the one hand they want to find new formulations, to get away from the clichés and to inspire. At the same time they are nervous that a turn of phrase that may be innocent will have strange consequences.
That being said, I think the opportunity here is to create something original, and maybe this is one way to look for that. I think that is a nice idea. I do not know what the result would be.
Senator Mahovlich: I do not either, but most poets have inspired us over the years.
Mr. Schabas: Some have.
Senator Robichaud: Mr. Schabas, in the executive summary we read that heads of government decided it was important to build a stronger, more resilient, progressive Commonwealth and to make it more relevant to its times and to its people in the future, because some members feared that it was becoming irrelevant. It also mentions the core values: peace, democracy, rule of law, human rights, gender equality, economic development and freedom of expression.
In the charter that is proposed, do you think that it would make the Commonwealth more relevant?
Mr. Schabas: Senator Robichaud, I think I expressed myself at the beginning of my testimony about the draft, which I think does not actually make a very significant step forward or contribution, but I do think the potential is there for that to happen.
There is certainly space on the international scene for institutions like the Commonwealth to make useful contributions. There are special relationships relating to history and shared experience that could be very positive.
I would not be dismissive of it, although I would not rule out the fact that the Commonwealth could wither away as a useful or interesting international institution. That could happen over the coming years, but there is still enough energy left in it to keep trying to move it. We have occasionally new members that seek to join it and the common vision that comes from the culture and the shared experience, and to some extent the shared language, although you could exaggerate that, but it is an odd organization.
I notice in the materials now they boast about how many people there are in the Commonwealth, which is now over two billion, I guess, but more than half of them are in India, I think. Maybe we should just let India run everything, and we will all be appendages of it.
Then it has this strange thing of the dominions, Canada, New Zealand, Australia and so on, and the smaller countries that are still living with underdevelopment and those issues, and also political regimes that are not comparable to the modern democracies that we see in the developed former dominions of the Commonwealth. There is also this strange relationship that we have the mother country that goes right back to the beginning. The mother country once ran everything from London, and now we have these other centres that play very distinct roles, like Canada and Australia and other countries.
It is sitting there as an organization with the possibility to do things, but I think it is not settled whether it will go forward or become increasingly marginal and irrelevant over time.
Senator Robichaud: If we were then to recommend the charter that is before us that is proposed by the Eminent Persons Group, without making the major changes as you have suggested, we would be missing an opportunity, would we not?
Mr. Schabas: I believe that we should exploit the opportunity. The Eminent Persons Group recommended the charter, but I do not think the Eminent Persons Group recommend the Australian draft. I think we could endorse the idea of the charter, but at the same time express reservations about it if it is confined to what the Australian draft really is.
I think you will find appropriate language to say that because, as I mentioned at the very beginning, the author of the Australian draft is a very distinguished person. I would not want to be too dismissive of what he contributes and what he could do.
It would be very useful to find appropriate language to indicate that this draft is really just a starting point and that it is inadequate, if that is all it is, it would be an inadequate contribution and not worth the effort.
The Chair: One of the difficulties of the Commonwealth is still that at its inception it was Australia, New Zealand, Canada, U.K. and the others, and there is some distance both in the parliamentary assembly, where Senator Smith and I have worked for many years, and at the heads of government between the emerging democracies that came out of Africa and the island states and the traditional, older democracies.
Is this not an opportunity, whether you call it a charter or not, to talk about the equality of nations as opposed to the dependency that was there and is there still some distance and friction about? I have heard in other countries, why was it an Australian who is taking credit for drafting the charter? Why is it not one of the other countries, an island state or Africa? Senator Segal points out that in the Eminent Persons Group there was balance.
There are those issues about the equality of nations putting upon newer nations our older values, and the message does not come through that there are universal values there. Is there an opportunity to inject something about the newer states and their equality but also their responsibilities?
Mr. Schabas: Thank you, Senator Andreychuk. I think that is a very interesting idea. Maybe one way to move this forward is to express the idea that we might solicit some competing drafts. I do not think anyone appointed Australia to come up with the draft. While we appreciate their contribution and their effort, I think it is a legitimate point that we might get a very different result. If we are talking about poetry, if we got four poets together, they would not resemble each other; there would be four different poems and different meters.
Senator Mahovlich: You do not want a committee.
Mr. Schabas: No, I know. I have never heard of a poem written by a committee. However, if you had an African draft and one from a Pacific island state and one from the Caribbean, you might get very creative approaches to it, and it might be better. That would be a wonderful symbolism for the Commonwealth, without wanting to disparage the Australian contribution, that the draft charter would actually emerge from an unpredictable corner of the Commonwealth. I think it has the potential to be a very attractive result.
The Chair: Professor Schabas, you have done exactly what I thought you would do. I feel I was privileged to be at one of your lectures or seminars. You have taken us through a lot of areas that I think we have been studying. You have given us a lot in a short time. I hope we will be able to do justice to the request to study the feasibility of the charter from a Canadian perspective, and certainly with your wealth of knowledge you have assisted us.
Thank you very much.
Mr. Schabas: Thank you.
(The committee adjourned.) |
