7.1.6. International Law

International law is different from a country‘s own domestic law because it does not represent binding and enforceable rules that are imposed by a government over its people. Rather, international law is a series of principles that are agreed to among countries. When Canada signs a treaty with another country (or countries), it is agreeing to abide by the principles set out in the treaty. However, if Canada does not abide by the terms of the treaty, there are very limited avenues by which the other country can seek to enforce it.

This does not mean that international law can have no effect. In Canada, the Supreme Court of Canada has confirmed that customary international law is adopted into Canadian law. It has further stated that the Canadian Charter of Rights and Freedoms should be presumed to provide at least as great a level of protection as is found in the international human rights treaties to which Canada is a party.

The NCI heard international law testimony that raised the following two important issues:

• on the one hand, Canada‘s vaccine measures violated Canada‘s obligations under international human rights law; and

• on the other hand, new developments in international health law may result in Canada becoming, in the event of another declared pandemic, bound to implement intrusive and harmful health measures that arguably violate the principles of international human rights law.

Witnesses

Gail Davidson (Vancouver)

James Corbett (Ottawa)

Canada‘s Vaccine Measures and International Human Rights Law

The premise of international human rights law is to guarantee fundamental rights and freedoms to all individuals in the world. Human rights are inherent rights that people have simply as a result of existing. Some examples of human rights are the right to life itself, and the rights to food, education, work, health, and liberty.

There is a significant body of international law that is intended to guarantee fundamental rights and freedoms and which prohibits the restriction of some rights, while conditionally allowing the temporary restriction of others in specific situations.

The right to health is a human right. A lot of work has been done in international human rights law to ensure that the right to health is properly protected from government actions.

Despite this, the NCI heard testimony that the measures imposed by Canada and its provinces during COVID-19 imposed, promoted, and allowed the suspension or restriction of health rights, as well as other rights that are guaranteed by international human rights law. In particular, Ms. Davidson testified about the measures that were taken to compel and coerce Canadians to submit to COVID-19 vaccination by restricting and suspending the rights of unvaccinated persons (Vaccine Coercion Measures).

Vaccine coercion measures were undertaken by nearly every level of government. Each of the provinces adopted actual vaccine passports, restricting unvaccinated persons from accessing most places. Municipalities adopted bylaws in support. The federal government restricted unvaccinated persons from flying and travelling by train, which is the functional equivalent of a vaccine passport for travel. The federal government also required the use of the ArriveCan app when entering Canada, which was designed to show proof of vaccination in order to avoid a quarantine order.

That these vaccine coercion measures were harmful to Canadians was evident from the abundant testimony of Canadians who suffered job losses, family rifts, social shaming, depression, and isolation as a direct result.

Vaccine coercion measures violated Canadians‘ rights to Informed Consent, right to be free from coercion, and right to be free from medical or scientific experimentation.

The right to Informed Consent, which includes the right to refuse treatment and withdraw consent, is an “essential right“ that is protected by multiple international conventions to which Canada is a party, such as:

• United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT);

• United Nations International Covenant on Civil and Political Rights (ICCPR); and

• United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR).

The NCI reviewed an excerpt from Canada‘s report to the Committee Against Torture in 2020, wherein Canada explicitly sets out the principles of Informed Consent, and found it to be so compelling that it will be reproduced in its entirety here:

For consent [to medical treatment] to be considered valid, it must be provided voluntarily by a person capable of providing consent and it must refer to the treatment and provider who will perform or undertake the treatment. Consent must also be informed, meaning that certain issues must be discussed with the patient prior to consent being obtained, such as material, expected consequences of the proposed treatment, special or unusual risks of the treatment, alternatives to treatment (and their risks), the likely consequences if no treatment is undertaken, and the success rates of different/alternative methods of treatment. The principle of respect for autonomy, at least in part, underpins the right to Informed Consent.

Notably, the right to Informed Consent is also protected under Canada‘s domestic law, through the Canadian Charter of Rights and Freedoms, as an essential part of security of the person.

In Canada, a serious abrogation of Informed Consent was accomplished, in part, through coercion of those persons who did not wish to receive a COVID-19 vaccine. Under international law, coercion is akin to torture or ill treatment, which is prohibited. Freedom from torture has been enshrined in the UNCAT and the ICCPR. The right to be free from coercion is arguably a right that cannot be violated under any circumstances. Despite this, Canadians were subjected to a government-led program with the aim of coercing every single Canadian to receive an injection of a COVID-19 vaccine. That the vaccines were an unknown substance whose safety profile was not understood, which have been shown to cause injury to many Canadians, and for which Informed Consent arguably could not be given, has been demonstrated (see section 7.6 of this Report). Those Canadians who did not wish to receive a COVID-19 vaccine but were coerced into receiving this medical treatment—whether it be to keep their job, to conform to family or social pressure, to travel, or for any other reason—had their right to be free from coercion violated.

Ultimately, when a person‘s right to Informed Consent is violated as a consequence of being coerced to take a novel medical treatment with no long-term safety profile, the result is that the person has become a subject of experimentation. Freedom from experimentation became a widely recognized human right after the atrocities of World War II when the international community established the Nuremberg Code. The purpose of the Nuremberg Code was to ensure that no human would ever again be subject to non-consensual experimentation. It is easy to see that the prohibition against non-consensual experimentation is fundamental, because it is essential to each person‘s right to life, freedom from torture, and security of the person.

While the vaccine coercion measures are not comparable to the atrocities that led to the creation of the Nuremberg Code, the Code surely covers all human experimentation and not just when it reaches extreme levels. Nor does the principle require a comparative analysis of just how bad one human experiment was as opposed to another. Any experimentation that is non-consensual and has the potential to cause harm is a serious violation of this human right. This is supported by the fact that the right to be free from experimentation is enshrined in the UNCAT and the ICCPR and is a right that cannot be violated under any circumstances.

The administration of COVID-19 vaccines was an experiment on a nationwide scale. The vaccine coercion measures were justified in many minds by the fact that the COVID-19 vaccines had been approved by Health Canada, creating the perception that their safety had been proven. However, as the NCI has discovered, the approval of the COVID-19 vaccines did not require the manufacturers to demonstrate that they were safe or effective. Instead, the Government of Canada ordered millions of COVID-19 vaccines and created a backdoor approval process to ensure that they became available as quickly as possible. The reality is that the safety of the COVID-19 vaccines was not known at the time that they began to be administered to Canadians, and many Canadians were severely injured and killed as a result. The NCI has determined that the safety of the COVID-19 vaccines was not known, and thus their administration to the population of Canada was the very definition of experimentation.

The vaccine coercion measures were not compliant with international human rights law, were applied to rights that cannot be restricted, were not proportional or temporary in nature, and were not supported by the information and debate necessary to assess their lawfulness.

Other Pandemic Measures and International Human Rights Obligations

The seriousness of the violation of rights caused by the vaccine coercion measures should not overshadow the myriad of other human rights that were violated as a result of government responses to the pandemic.

The Universal Declaration of Human Rights (UDHR) states that all humans have the following rights:

• Equality and non-discrimination (articles 1, 2);

• Movement (article 13);

• Assembly and association (article 20);

• Work and free choice of employment (article 23);

• Education (article 26); and

• Participation in cultural life (article 27).

These rights were all violated, to some extent, by various government measures such as lockdowns, business closures, school closures, border restrictions (interprovincially and internationally), and vaccine passports.

The NCI heard that some human rights are derogable, meaning that they can be violated in certain circumstances. It is generally acceptable to infringe upon derogable rights during an emergency where violations are necessary to protect other rights and maintain the rule of law. However, any such violations must be lawful, legitimate, necessary, proportional, and temporary.

In the early days of 2020, lockdown orders appeared to be an acceptable breach of certain human rights, since Canadians were led to believe that the emergence of the COVID-19 virus had created an emergency pandemic. Businesses and schools closed, seniors‘ homes went into lockdown, and hospitals closed services in order to free up resources in preparation for the onslaught of COVID-19 patients that were expected.

However, within a few short months, it became clear to doctors and hospital workers that there was no onslaught of COVID-19 patients needing critical care. It became clear that the risks of severe outcomes were age-stratified, meaning that the virus posed a serious risk only to the elderly and those with multiple co-morbidities who were in poor health. Despite this knowledge, Canadian governments continued to impose restrictions that violated human rights arbitrarily against entire populations.

Around mid-2020, therefore, and perhaps late 2020, the restrictions ceased to be proportional to the threat posed by the virus to the public at large. Nor were the measures temporary. Prior to the introduction of the COVID-19 vaccines, lockdowns and closures were triggered based on test-case numbers published by the public health authorities. Ignoring the fact that the NCI heard testimony that the case numbers were outright false in at least some cases, the tests themselves have been shown to the NCI to be unreliable in detecting actual rates of active infections.

When the COVID-19 vaccines became available, the government‘s message was that the restrictive measures would only stop once everyone became vaccinated. The measures then became focused on unvaccinated people, singling them out for discrimination and poor treatment. Governments and the media actively demonized unvaccinated individuals as being responsible for the continuation of the restrictive measures. This continued despite the fact that as early as the fall of 2021, the public health authorities knew that vaccinated people were continuing to contract and transmit the virus to others.

Ultimately, the violation of human rights caused by the measures may have been justifiable under international law in the early days of the pandemic. However, the continued violations of Canadian human rights year over year do not satisfy any definition of temporary.

The various governments of Canada should have disclosed the information necessary to justify the measures that violated human rights and opened up opportunities for debate.

Canada Has a Duty to Investigate and Provide Redress for Human Rights Violations

As a party to various human rights treaties and a member of the United Nations, Canada has an obligation to protect human rights and prevent violations thereof. Where violations of human rights are alleged, Canada has an obligation to take action against those responsible and to provide victims with access to effective remedies.

The NCI heard that Canada has a vaccine-injury compensation program. However, of the many vaccine-injured Canadians that testified, precious few had been accepted into the program. A large number were in the process of being approved and had been waiting for months or more. Many were unable to access the program at all as a result of a refusal by doctors to diagnose their injury as vaccine-related.

Canada has failed in its duty under international law to provide effective remedies to those harmed by the various pandemic measures.

Canada has also not undertaken any meaningful investigation into the violation of human rights that occurred as a result of the pandemic measures. A full public inquiry into Canada‘s pandemic measures—properly funded, independent, and with the power to compel testimony, is still needed.

Once a proper inquiry and investigation has occurred, Canada must identify those responsible for human rights violations and hold them to account. The number of victims is large, and to date, remedies have been effectively denied.

Looming Obligations for Canada to Implement International Health Law

The NCI heard testimony that there are significant developments underway under the auspices of an international organization called the World Health Organization (WHO) which have the potential to impact Canada‘s ability to (1) define a pandemic; (2) declare a pandemic; and most importantly (3) control its response to the next pandemic.

Canada‘s ability to control its own response to a pandemic is critical to ensuring that public health measures are in line with its laws, including the Constitution. Additionally, and from a more practical point of view, it is vital that Canada retain its ability to develop localized responses based on its own circumstances, as opposed to broad-brush measures dictated from an unelected foreign source that has no accountability to the Canadian people.

The WHO was founded as a specialized agency in 1948 with the noble goal to promote health and the attainment of the highest level of health of all peoples. Its purpose is to act as the directing and organizing authority on international health work. Canada is a member of the WHO.

The NCI heard testimony that the WHO is evolving into an organization that is less about promoting health and more about controlling the public health actions of its member countries. The problem with allowing the WHO to dictate health measures within any particular country is that each country may have its own view of what health is and the means by which health is to be promoted. The importance of this has been demonstrated over and over again in the NCI‘s weeks of testimony, which has laid bare a myriad of health problems that were created by Canada‘s pandemic response.

The NCI heard testimony that there are two initiatives currently underway under the WHO:

1. The implementation of a new WHO Convention, Agreement, or Other International Instrument on Pandemic Preparedness and Response (Pandemic Convention); and

2. An amendment of preexisting International Health Regulations.

The Pandemic Convention would be implemented under the WHO‘s Constitution, which grants its governing body the power to adopt conventions or agreements within the competence of WHO. Any such convention or agreement that is ratified will oblige each member of the WHO (including Canada) to adopt the convention—unless they notify the WHO of their objection within 18 months. The NCI heard that this means that the Pandemic Convention will be automatically adopted by Canada unless an official objection or reservation is filed.

The creation of this new Pandemic Convention is not a public process. It is being negotiated behind closed doors and will not be revealed to the public until complete. Some hearings have been conducted to allow input from accredited institutions about what the convention should include, but there is no process in place to allow for people to dispute whether the process itself is necessary.

An initial draft of the Pandemic Convention was unveiled earlier this year, and it contains concerning features such as

• increased tools for surveillance, and

• obligations for states to tackle false, misleading misinformation or disinformation.

Without knowing the details of how these will be defined in the Pandemic Convention, this indicates that the WHO is anticipating measures to violate individual privacy and censor dissenting voices as being a standard part of the next pandemic response. However, these types of measures have been identified by witness after witness in front of the NCI as causing severe harm.

The International Health Regulations are a product of decades of work between countries. Originally developed to address only six specific diseases, sweeping amendments and reform were adopted after the SARS hysteria of 2003 to take into account new and novel diseases that may appear in the future. These most recent changes introduced the concept of a declaration of a “public health emergency of international concern“ (PHEIC). The declaration of a PHEIC is done by the WHO.

A declaration of a PHEIC opens up powers of the WHO—which can include NATO (North Atlantic Treaty Organization) “boots on the ground“ to enforce quarantines and deliver medical aid. It also can create obligations on countries to purchase medical treatments, such as vaccines. The NCI heard that certain studies have concluded that serious conflicts of interest have already been found in respect of the 2009 declaration of a PHEIC for swine flu and the requirement for countries to purchase swine flu vaccines.

The NCI heard that Canada is already under an international obligation to comply and actively assess their compliance with the International Health Regulations.

In addition to Canada‘s existing obligations under the International Health Regulations, sweeping changes are now being proposed that include:

• eliminating the concept of respect for the dignity, human rights, and freedoms of persons from the principles of the International Health Regulations;

• giving WHO greater authority over surveillance and monitoring of health threats;

• giving the WHO the authority to declare an “intermediate public health alert,“ as opposed to a PHEIC;

• granting the WHO the power to change its medical and non-medical recommendations to respond to a PHEIC from non-binding recommendations to binding;

• working with partners to establish a global health certification network, which would verify the vaccination status of travellers; and

• expanding the scope of regulations to cover not just demonstrable, ongoing health emergencies but to cover all risks that have the potential to impact public health.

With the implementation of these two processes, we see an unprecedented attempt at shifting the responsibility for Canada‘s public health to a foreign unaccountable body. And while it is true that Canada is a sovereign nation that ultimately has control over its responses to public health situations, these new processes may provide cover for politicians that are motivated to implement unpopular measures that affect the Canadian people.

The existing international health infrastructure under the WHO and the International Health Regulations explains why Canada and most of the Western world appears to have followed the same plan and implemented the same measures in response to COVID-19. This one-world approach to health responses actually has the potential to cause greater damage. It turns out that in hindsight, the measures enacted were not the correct response. Thus, the danger of coordinating responses under one umbrella is that a disaster could, in fact, be magnified instead of mitigated.

The results of these proposed changes appears to be the concentration of power over public health into fewer hands.

While international coordination of public health measures sounds like a noble and laudable goal, Canada should not cede its sovereignty, nor its ability to manage its own circumstances, to a foreign, unelected body. Because health issues and outcomes vary depending on each region‘s unique circumstances, international coordination of health responses should be voluntary and recommendatory only.

Moreover, it is difficult to reconcile Canada‘s potential new obligations under the Pandemic Convention and the International Health Regulations with Canada‘s obligations under International Human Rights law (discussed above under the section entitled, “Canada‘s Vaccine Measures and International Human Rights Law“).

Recommendations

Based on the information provided in the testimony and other considerations, here are some recommendations on what Canada could do concerning international laws and treaties, especially in the context of the COVID-19 pandemic and potential future health crises:

1. Pandemic Convention: The NCI recommends that Canada register immediate reservation against the Pandemic Convention and the amendments to the International Health Regulations once they are put forth by the WHO to allow time for proper consideration of the initiatives and their potential impact on Canada. At the same time, Canada should conduct a public inquiry and consultation into the benefits and risks of both its current obligations under the WHO, and the proposed Pandemic Convention and proposed amendments to the International Health Regulations.

2. Review and Comply with International Human Rights Law: Canada should thoroughly review its COVID-19 response measures in light of international human rights law. It should ensure that measures taken during the pandemic—such as vaccine measures, lockdowns, and restrictions on movement—consider international human rights standards. If any violations are identified, corrective actions should be taken.

3. Strengthen Informed Consent: Canada should reinforce the importance of Informed Consent, especially in the context of medical treatments like vaccines. It should ensure that individuals have access to comprehensive information about medical treatments, including potential risks and benefits, and have the right to refuse treatment without coercion.

4. Enhance Vaccine Injury Compensation: Canada should assess and improve its vaccine injury compensation program to make it more accessible to those who have suffered harm due to vaccinations. This should include a transparent, streamlined claims process, and increased transparency.

5. Conduct a Comprehensive Inquiry: Canada should initiate a comprehensive and independent public inquiry into its pandemic response measures. This inquiry should have the authority to compel testimony and access relevant information. It should identify responsible parties for any human rights violations and recommend appropriate remedies.

6. Monitor WHO Developments Closely: Canada should closely monitor and participate in negotiations related to the World Health Organization‘s Pandemic Convention and amendments to the International Health Regulations. It should advocate for transparency, respect for national sovereignty, and the protection of individual rights in these international agreements.

7. Protect National Sovereignty: Canada should maintain its sovereignty over public health decisions. While international coordination can be valuable, it should not infringe on Canada‘s ability to tailor its responses to its unique circumstances. Any international agreements should be voluntary and non-binding.

8. Balance Health and Human Rights: Canada should strike a balance between public health measures and human rights. While protecting public health is crucial, measures taken during health emergencies should be lawful, legitimate, necessary, proportional, and temporary. Canada should avoid disproportionately infringing on human rights.

9. Promote Transparency and Debate: Canada should ensure that information relevant to pandemic measures is disclosed to the public, allowing for informed debate and discussion. Public health measures should be debated openly in democratic forums, allowing for diverse perspectives to be considered.

10. Provide Redress for Victims: Canada should ensure that victims of human rights violations, including those resulting from pandemic measures, have access to effective remedies. This includes compensation for losses and harm suffered due to these violations.

11. Engage with Civil Society: Canada should engage with civil liberties organizations, human rights advocates, medical professionals, and other relevant stakeholders, including the public, to ensure that responses to health crises are well-informed and respectful of human rights.

These recommendations are aimed at ensuring that Canada‘s responses to health emergencies uphold international human rights standards, protect individual freedoms, and safeguard national sovereignty, while promoting public health. It‘s important for Canada to strike a balance between these critical considerations in its domestic and international actions.