The Precautionary Principle as a Justification for Limiting Constitutional Rights

Human rights invoked in the international context are often treated as having self-evident content. The focus is on implementation and enforcement. The urge to enforcement is especially strong when...

In this article, we use a case study of 2001 Stockholm Convention on Persistent Organic Pollutants (POPs) to examine role of precautionary principle in international environmental law and policy. Our findings indicate that a major function of principle is to redistribute burden of scientific uncertainty. By lowering threshold of evidence of threats to human health or environment required to trigger deliberations about taking action, precautionary principle speeds up process by which underlying ecological interdependence and scientific uncertainty are translated into policy interdependence and uncertainty. This prompts states to coordinate their policymaking, which reinforces multilateral processes and underlines importance of convening, coordinating, and facilitating roles of international institutions such as United Nations Environment Programme. KEY-WORDS: precautionary principle, persistent organic pollutants (POPs), multilateral environmental agreements (MEAs), scientific uncertainty, management of interdependence. ********** The precautionary principle has emerged as an important yet contentious issue in multilateral environmental agreements. Even as it progressively becomes consolidated into international law and widely acknowledged as an appropriate response to scientific uncertainty, application of precautionary principle internationally has, as some state and nonstate actors claim, generated even more uncertainty. The principle's contentious nature was obvious during negotiations leading to 2001 Stockholm Convention on Persistent Organic Pollutants, (1) which provides an excellent opportunity to examine role of principle not only in that particular regime but also in international environmental law more generally. We thus draw on these negotiations to anchor an analysis of implications of precautionary principle and to explore paradox of uncertainty associated with it. Our findings indicate that a major function of precautionary principle is redistribution of burden of scientific uncertainty. Whereas actors could formerly act as if they were ecologically independent by ignoring weak signals of transboundary damage, such behavior is no longer acceptable. By lowering threshold of scientific evidence of threats of serious or irreversible damage to human health or environment required to trigger deliberations, precautionary principle is speeding up process by which underlying ecological interdependence is recognized and translated into policy interdependence. By triggering deliberations on appropriate response to transboundary threats about which there is scientific uncertainty, precautionary principle translates scientific uncertainty borne by exposed populations into policy uncertainty borne by state and nonstate actors, which then prompts these actors to take a much more coordinated approach to policymaking to manage their ecological and economic interdependence. Thus, institutionalization of precautionary norms and ideas means that segments of what would once have been considered domestic policymaking may, increasingly, be carried out at international level, which reinforces multilateral processes and underlines importance of convening, coordinating, and facilitating roles of international institutions such as United Nations Environment Programme (UNEP). The Precautionary Principle Response to, or Generator of, Uncertainty? The German Vorsorgeprinzip is typically credited as containing conceptual origins of precautionary principle. (2) By 1991, precautionary principle was heralded as the most important new policy approach in international environmental cooperation. (3) Enshrined in 1992 Rio Conference on Environment and Development, principle has also been incorporated into a number of international environmental instruments. …

Introduction What has been the approach to the limitation of constitutional rights? How have the grand formulations with which all are familiar been translated in concrete cases? How, for example, has the guarantee of the right to life been implemented with respect to questions of abortion, euthanasia, and assisted suicide? Freedom of expression and pornography, hate speech, and libel? The right to vote and minimum age, residency, and the relationship of prisoners to the franchise? And how does the resolution of these debates correspond to the idea that the underdeterminacy of constitutional rights leaves the constitution open to re-negotiation? In order to determine whether any given activity is within an open-ended right's guarantee, the right must undergo a process of delimitation; its scope and content must be constructed. With the notable exception of the US Constitution, most domestic and international charters of rights make explicit the necessity for a process of limitation: they do so by way of a limitation clause that sets out the conditions according to which the limitation of a right will be assessed. These clauses are familiar to students of international instruments , such as the Universal Declaration of Human Rights, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights; of domestic constitutions , such as the German Basic Law, the Canadian Charter of Rights and Freedoms, the South African Bill of Rights, and the Israeli Basic Law; and of statutory bills of rights , such as the British Human Rights Act, the New Zealand Bill of Rights, the Human Rights Act of the Australian Capital Territory, and the Charter of Human Rights and Responsibilities Act of the Australian state of Victoria.

The year 2017 marked the ten-year anniversary of the Health Services case, a precedent-setting decision by the Supreme Court of Canada that ruled collective bargaining is protected by the Canadian Charter of Rights and Freedoms. This article explores the impact and legacy of BC Health Services, and finds that while workers’ constitutional rights have been expanded under the Charter over the past decade, governments nevertheless continue to violate these rights. It concludes that the legacy of the case is not an enhanced level of protection for these rights to be enjoyed fully, but rather that the default option has been and will continue to be a financial penalty for the state in instances in which they violate workers’ rights. 
 KEYWORDS labour rights; Canadian Charter of Rights and Freedoms; human rights; health services

Limitation and amendment of rights A fundamental distinction exists between the amendment of a constitutional right and its limitation. The amendment of a constitutional right requires an amendment of the constitution, while a limitation of the right is possible with no constitutional change. The distinction stems from the more basic distinction between the right’s scope and the extent of its protection. An amendment of a right entails a change – a narrowing or expansion – of its scope; such a change, in turn, affects the persons and institutions governed by the right, its content, or its application in terms of time and place. Thus, for example, a constitutional amendment would be a change in a constitutional provision – which currently applies to any person – according to which the provision would, from now on, apply only to citizens. Such a change is possible only through the mechanism of a constitutional amendment. Here, the proportionality of the constitutional change does not play a role. A statutory provision which intends to lead to such a change in the constitution is unconstitutional regardless of its proportionality. Conversely, a limitation of a constitutional right only narrows the ability to realize the right without changing the right’s actual boundaries. These limitations are constitutional only if they are proportional, as required by the limitation clause. The distinction between a constitutional change (which requires a constitutional amendment) and the limitation of a constitutional right (through a proportional sub-constitutional law) is not always self-evident. The proper criterion to distinguish between the two should be objective in nature and not require an inquiry into the subjective intent of the law’s creators. Naturally, the application of such an objective test may lead to substantial difficulties. Take, for example, the Canadian Supreme Court case of Quebec Protestant School Boards . There, the court was asked to examine the constitutionality of a Quebec statute that limited the acceptance of English-speaking students who studied English outside Quebec into English-speaking schools in Quebec, in an alleged violation of the Canadian Charter of Rights and Freedoms. The Canadian Supreme Court held that the proposed change – through a statute – to the constitutional right cannot be considered a mere limitation whose constitutionality need be determined by the provisions of the limitation clause. Rather, the change should be seen as a complete denial of the constitutional right without following the rules required by the Charter for a constitutional amendment. Therefore, the court invalidated the statute and declared it unconstitutional; importantly, it did so without even examining whether the proposed change was as per the limitation clause. The court then added the following clarification: An Act of Parliament or of a legislature which, for example, purported to impose the belief of a state religion would be in direct conflict with Section 2(a) of the Charter, which guarantees freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by Section 1. The same applies to [the Quebec provision] in respect to Section 23 of the Charter. A more recent ruling by the Canadian Supreme Court emphasized that only a “complete denial” of the constitutional right would not be considered a mere “limitation” and therefore not examined through the lens of the limitation clause. The decision was heavily criticized. Hogg argued that there is no rational basis to differentiate between a right’s “denial” – whether partial or complete – and a right’s limitation. In his opinion, any denial (partial or complete) should be considered a limitation whose constitutionality should be determined by the limitation clause. It is hard to support such an approach. With all the difficulties arising from the distinction between a constitutional change of a right and its limitation, these difficulties should not deter us from using this analytically sound, constitutionally vital, distinction.

This chapter is about the interpretation of section 1 of the Canadian Charter of Rights and Freedoms. Section 1 allows ‘limits’ to constitutional rights insofar as they are reasonable and justified in a free and democratic society. It asks the state for moral justification when a right has been infringed by state action. Moral justification has formal and substantive aspects; therefore the application of section 1 deploys a formal framework of proportionality nestled within a thin conception of liberal democratic political morality. The chapter also addresses the relative moral importance of the notion of ‘rights’, as well as the relevance of institutional considerations. It concludes that the section 1 framework follows a standard model of moral justification and cannot be significantly improved upon.

The precautionary principle is accepted in India as a fundamental tool to promote sustainable development and is employed within Indian environmental governance to promote better health and environmental decisions. Scientific uncertainty is at the core of the precautionary principle. The application of the precautionary principle is an open-ended issue. This article seeks to add to the limited empirical studies on the understanding, appreciation and application of the precautionary principle by key environmental actors, as differing legal responses and decisions may be irreversible before conclusive scientific knowledge and evidence become available. Building on researcher’s unique Indian data, and drawing on the theoretical insights developed by Charles Weiss, an explanatory environmental framework addresses the uncertainty of science by assembling a scale of legal standards arranged in a hierarchy of levels of increasing certainty familiar to lawyers and the judiciary. Reported Indian cases from the Supreme Court and the National Green Tribunal are selected to illustrate levels of scientific certainty or uncertainty and corresponding legal standards of proof constituting acceptable bases for legal decisions in practical context especially the precautionary principle. The article suggests India should develop a framework of guidelines that would provide an effective roadmap for decision-makers applying the precautionary principle.

The COVID-19 pandemic has highlighted the challenges governments face in balancing civil liberties against the exigencies of public health amid the chaos of a public health emergency. Current and emerging pandemic response strategies may engage diverse rights grounded in civil liberties, including mobility rights, freedom of assembly, freedom of religion, and the right to liberty and security of the person. As traditionally conceived, the discourses of civil rights and public health rest on opposite assumptions about the burden of proof. In the discourse of civil and political rights of the sort guaranteed under the Canadian Charter of Rights and Freedoms, the onus rests on government to show that any limitation on rights is justified. By contrast, public health discourse centers on the precautionary principle, which holds that intrusive measures may be taken—lockdowns, for example—even in the absence of complete evidence of the benefits of the intervention or of the nature of the risk. In this article, we argue that the two principles are not so oppositional in practice. In testing for proportionality, courts recognize the need to defer to governments on complex policy matters, especially where the interests of vulnerable populations are at stake. For their part, public health experts have incorporated ideas of proportionality in their evolving understanding of the precautionary principle. Synthesizing these perspectives, we emphasize the importance of policy agility in the COVID-19 response, ensuring that measures taken are continually supported by the best evidence and continually recalibrated to avoid unnecessary interference with civil liberties.

I INTRODUCTION The Bill of Rights of the United States Constitution served as both a model and anti-model (1) for the constitutionalization of citizens' rights in the democracies emerging after the fall of communism in Central and Eastern Europe (CEE). The U.S. Bill of Rights served as a model at a general, abstract level, similar to the way in which it provided an example to Western European countries after the Second World War, thereby informing the new constitutionalism in Europe. (2) In contrast to traditional European constitutionalism, this approach was influenced by three ideas that had long been commonplace in U.S. constitutionalism. First, a constitution cannot confine its scope to the regulation of the vertical and horizontal separation of powers; it is incomplete without an explicit written statement of citizens' rights that cannot be transgressed by any agent to whom the Constitution applies. (3) Second, the provisions of the constitutional charter of rights apply directly to all state bodies4 regard less of statutory implementation; these constitutional rights are cognizable and enforceable by courts. Third, to be meaningful and truly paramount, constitutional rights should be a basis for declaring subconstitutional provisions invalid in cases of inconsistency. These three principles, whose U.S. pedigree is undisputed, have generally been accepted in the constitutional designs of transitional postcommunist states. (5) The attractiveness of these principles is not surprising: After a period of sham constitutions and charters of rights, constitution-makers in postcommunist countries needed firm doctrinal bases to convince their audiences-societies liberated from authoritarian regimes marked by high degrees of legal and constitutional nihilism--that their democratic and institutional commitments were genuine. Hence the appeal to a conception of constitutional rights that is as robust as possible--with rights having a firm textual anchor, being directly applicable to the people, and overriding lower laws in cases of inconsistency--becomes extremely appealing. Yet the U.S. Bill of Rights is also an anti-model. When it comes to specific provisions of constitutional design as opposed to general, postcommunist constitution-makers have been much more inspired by post-Second World War European (continental) constitutionalism, with the German, French, and Italian constitutions serving as the more obvious prototypes of constitutional rights formulations than the U.S. example. Some reasons for this are obvious: The postcommunist GEE societies have much more in common with regard to tradition, culture, and social structure with Western Europe than with the United States. These similarities naturally extend to constitutional and legal culture as well. One obvious difference between the United States and Western Europe is the relatively low status of, and trust in, the judiciary in Europe, in contrast to the elevated position and prestige of the bench in the United States. (6) This institutional difference has a strong effect upon the character of a constitutional charter of rights. The abstract nature and ambiguous language found in provisions of the U.S. Bill of Rights is seen by many U.S. lawyers as a virtue. (7) This high level of generality is well suited to a legal environment led by powerful and revered judges, endowed with the duty to translate vague and general statements into specific articulations of fights. Conversely, the lower the prestige and authority of judges collectively, the greater the emphasis constitution-makers place on framing constitutional rights as specifically as possible, with as narrow a margin of discretion for interpretation. Since judges, including judges of constitutional courts, are viewed with less trust in GEE countries than in the United States, it was clear to many drafters that the European approach to a constitutional charter of rights--attempting to enumerate all possible restrictions upon constitutional fights in the constitutional text, rather than leaving the task to judges (8)--was preferred. …

Québec is a distinct society because of its history, its legal system, and its values. Our analysis examines the delicate issue of the relationship between the Canadian Charter of Rights and Freedoms, the Québec Charter of Human Rights and Freedoms, and the Civil Code of Québec, the primary expression of Québec's jus commune, as noted in its Preliminary Provision. As of the nineteenth century, a doctrinal trend born of the desire to protect the integrity of the civil law system grew worried about the "disruptive" influence of the common law on the civil law and, more specifically, on the Civil Code of Lower Canada. The doctrine later expressed reluctance as to the entry of fundamental rights into Québec private law. The charters of rights were, and are sometimes still, perceived as disruptive elements, capable of distorting the Civil Code. We want to show that the influence of human rights philosophy on Québec's jus commune is not only inevitable but desirable. The Civil Code and, more broadly, Québec's jus commune, can only be enriched by respect for fundamental rights.

Women have always been involved in resistance struggles against apartheid in South Africa. Most recently, many women have turned their energies to the process of creating a Bill of Rights for a post-apartheid South Africa.This process has included two conferences in which, as a white Canadian academic with some experience of the struggles around the Canadian Charter of Rights and Freedoms, I was invited to participate. The initial conference, entitled "Putting Women on the Agenda," was the first international feminist legal conference to be held within the country. It was hosted in November, 1990 by a non-partisan human rights organization, Lawyers for Human Rights (LHR) and organized by Susan Bazilli, a Canadian feminist activist who has lived and worked in South Africa for several years. The second conference, "Gender Today and Tomorrow Towards a Charter of Women's Rights", was held in December, 1990. This second conference was part of the first African National Congress (ANC) meetings to take place within South Africa since the ANC was banned in 1956. I was invited to speak at the first conference because since 1987 in Canada, I have been involved in anti-apartheid work, including Lawyers Against Apartheid. I was asked to present a paper on the risks and losses associated with entrenching rights in a constitutional document, relying upon Canadian women's experience with our Charter of Rights and Freedoms. I was then asked to attend as an observer and commentator at the ANC conference, in order to strengthen the link between the two conferences.In this report, I will first situate these conferences in the historical context of the liberation movement in South Africa and efforts to use a constitutional process as part of that movement. I will then share what I know about the forms which the women's movement has taken in South Africa. The next part of my report will focus on the major contributions and resolutions of the two conferences. I will conclude with an update on the status of women's claims within the constitutional process.What I have chosen to report and the manner in which I convey the information have been filtered by my experience as a white and as a non-South African. I hope to inform Canadians about the process which is unfolding in South Africa because it may assist us in thinking about the role of law in liberation movements. I also aspire to be faithful to the letter and spirit of the work of the women involved in these two conferences.

systems of government around a written Bill of Rights, it is natural to look to Canada and to reflect on its experience with its Charter of Rights and Freedoms. The common colonial connections, legal traditions and political cultures make the Canadian approach to judicial review particularly pertinent. Moreover, it is now 15 years since the Charter was entrenched, so a significant body of jurisprudence has been built up that gives a very clear picture of what judicial review has meant to ordinary Canadians and how it has altered the relationship between the courts and the other two elected branches of government. Two features of the Canadian account of constitutional rights stand out from all the rest. In the first place, the nine judges in Ottawa have come to rely on the same set of principles and analytical framework to test the constitutional validity of the various rules and regulations they are asked to review as are used by their brethren in Washington, Tokyo, New Delhi, Strasbourg, Rome, Karlsruhe, etc.' The Supreme Court of Canada has read the Charter in the same way Bills of Rights have been interpreted all over the world, to include two broad principles of rationality (also known as necessity or avoidability) and proportionality (also known as consistency or equality) which politicians and public officials are obliged to respect. For those (sceptics, cynics, etc) who need it, the jurisprudence of the Supreme Court of Canada provides yet another body of hard, empirical evidence that there is a set of neutral (viz formal) principles (of distributive justice), which lie at the core of the concept of constitutional rights, that allow judges to act out their role as 'guardians of the constitution' in an objective, determinate and ultimately very democratic way. If rights, defined as principles and duties, is the theoretical story which runs through the first 15 years of Canadian constitutional law, deference and caution two other characteristically Canadian attributes describe the way it has actually been practised on the Bench. At the same time that Canadian constitutional law teaches that there are universal principles and common ideas that are embedded in all constitutional Bills of Rights, it also makes it very clear that, as a practical matter, it is up to each individual judge to decide how much these principles will actually protect people's basic human rights.2 Chief Justice Hughes' much-cited aphorism that, in the United States, 'The constitution is what the judges say it is,' applies as much above as it does below the 49th parallel.

Historically, the Supreme Court of Canada has avoided direct intervention in health care policy-making. This posture changed dramatically with the release of the Chaoulli decision in June 2005. In a narrow four-to-three decision, the Supreme Court struck down Quebec laws prohibiting the sale of private health insurance on the basis that they violate Quebec's Charter of Human Rights and Freedoms. Three of the four judges in the majority also found the provisions violate section seven of the Canadian Charter of Rights and Freedoms. In a blistering dissent however, the three judges in the minority found that the insurance restriction violated neither the Quebec nor the Canadian charters. The result makes further Charter challenges to similar laws in other provinces inevitable, but the question of whether they will or should succeed remains contested. In September 2005, a conference was convened at the University of Toronto to discuss the legal implications of the Chaoulli decision. Some of the top Canadian scholars in the fields of health law and health policy were brought together to exchange ideas and to chart the potential legal course for Canada in the decision's wake. Access to Care, Access to Justice contains all the papers given at this conference. Edited by Colleen Flood, Lorne Sossin, and Kent Roach, the collection explores the role that courts may begin to play in health care and how this new role is of crucial importance to the Canadian public and their governments. As litigators for those who favour more freedom to provide private health care and aggrieved patients marshal their legal resources, provinces across the country are considering their options. Some are seeking guidance on how to better insulate themselves from review; others may welcome such challenges as a way to revisit the provisions of the Canada Health Act. The contributors to Access to Care, Access to Justice examine how the future of Canadian health care is likely to be determined both in the courts and in the legislatures and scrutinize how these changes will affect Canadians.

The fundamental human rights recognized by the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms supersede other rules of law. As such, any legislative measure conflicting with their content can be invalidated by Canadian tribunals. Yet, to ensure parliamentary sovereignty, both Charters feature an override mechanism, the “notwithstanding clause,” that can be invoked by a legislator to withdraw a given law from judicial scrutiny under charter rights. Beyond formal and substantive requirements, according to Quebec prominent doctrinal trends and National Assembly, in what circumstances, and to what end, can the legislator invoke a notwithstanding clause? A review of leading academic conceptions of charter rights in Quebec reveals a distinctive theoretical approach to notwithstanding mechanisms than that of leading Anglo-Canadian authorities. Quebec leading doctrinal trends, distinctly, seem to conceive that legislative overrides can be legitimately made preemptively by a legislature when dealing with matters of collective interests, such as social objectives and national identity, which, in the name of greater good, should not be fettered by private interests. This distinctive reality is also sharply reflected in legislative practice: as Quebec invoked the notwithstanding clause of the Canadian Charter 61 times (in addition to 45 references to the notwithstanding clause of the Quebec Charter) compared to 3 times in the rest of Canada over the same period, overwhelmingly for considerations of social objectives or national identity. This situation could be explained by a distinctive conception of parliamentary sovereignty and of power dynamics between elected legislature and appointed judges in Quebec.

Since the arrival of the Canadian Charter of Rights and Freedoms, there has been much discussion of applying the United States' experience with its Bill of Rights to the inter pretation of the Canadian Charter. It is the author's thesis, however, that Canadians ought to study the European and United Nations jurisprudence in the area of human rights documents as these documents more closely resemble the Canadian Charter than does the American Bill of Rights. Some illustrative fundamental rights cases from the United Nations and Europe are discussed. Further, the appendices include the full texts of the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Canadian Charter of Rights and Freedoms for comparative purposes.