PACIFIC CULTURE AND HUMAN RIGHTS: WHY PACIFIC ISLAND COUNTRIES SHOULD RATIFY INTERNATIONAL HUMAN RIGHTS TREATIES
P Imrana Jalal, Human Rights Advisor, Pacific Regional Rights Resource Team (RRRT/UNDP) April 2006
ACRONYMS 1. 2. INTRODUCTION REASONS FOR THE CURRENT LOW LEVELS OF RATIFICATION OF HUMAN RIGHTS TREATIES BY PICS 2.1 Resources: Financial and human for ratification, reporting and implementation Substantive: Cultural, political and legal The role of non-governmental organisations (NGOs) The strategic positioning of the United Nations (UN) Other reasons 3 4
7 12 20 21 22 22 22
2.2 2.3 2.4 2.5 3.
THE BENEFITS OF RATIFICATION FOR PICS 3.1 3.2 Historical
The relevance of human rights to The Pacific Plan: development, poverty reduction, the MDGs, governance, democracy and security 23 The relevance of each human rights treaty to the Pacific Indigenous peoples and human rights Summary 29 34 37
3.3 3.4 3.5 4.
A MECHANISM FOR REGIONAL SUPPORT FOR RATIFICATION, REPORTING AND IMPLEMENTATION 4.1 4.2 The treaty body reforms & reporting A Pacific regional mechanism
39 39 41 43
ANNEXES A: PACIFIC ISLAND COUNTRY TABLE OF TREATY RATIFICATION B: REGIONAL HUMAN RIGHTS INSTRUMENTS AND INSTITUTIONS GLOSSARY REFERENCES
45 47 49 52
ACP AusAID APF BOR CAT CEDAW CLR CRC CSO DDRIP EU HCA HIV/AIDS ICCPR ICERD ICESCR ICRMW IMF IWRAW MDGs NGO NZAID OAS OHCHR PIC RRRT SPC TI UDHR UNDP UNICEF UNIFEM WHO Africa, the Caribbean and the Pacific Australian Agency for International Development Asia Pacific Forum for Human Rights Institutions Bill of Rights Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment Convention on the Elimination of All Forms of Discrimination Against Women Commonwealth Law Report Convention on the Rights of the Child Civil Society Organisation Draft Declaration on the Rights of Indigenous Peoples European Union High Court Appeal Human Immunodeficiency Virus / Acquired Immune Deficiency Syndrome International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families International Monetary Fund International Women’s Rights Action Watch Millennium Development Goals Non-Governmental Organisation New Zealand Agency for International Development Organisation of American States Office of the United Nations High Commissioner for Human Rights Pacific Island Country Pacific Regional Rights Resource Team Secretariat of the Pacific Community Transparency International Universal Declaration on Human Rights United Nations Development Programme United Nations Children’s Fund United Nations Development Fund for Women World Health Organisation
“Human rights empower us as members of the human family to participate as equals in the process of decision-making irrespective of who or what we are. Development seeks to make these circumstances more inclusive by extending them to the entire community.”
Ratu Joni Madraiwiwi, Vice President, Republic of the Fiji Islands
This discussion paper attempts to explore the reasons for the current low levels of ratification of international human rights treaties in Pacific Island Countries (PICs) and the added value for PICs to ratify them. It will also explore how ratification of these instruments will not only promote, protect and defend human rights nationally, but will also contribute to the strengthening of The Pacific Plan and development goals, including indigenous rights The development challenges facing the region are considerable and undermine the potential of the success of The Pacific Plan. However, the added value of ratification of human rights treaties is extensive. The realisation of human rights is critical to the success of the Plan, and therefore to development, poverty reduction, the Millennium Development Goals (MDGs), governance, democracy and security envisaged in it. The international human rights treaty system offers substantial benefits to the Pacific region. Ratification provides added value by providing a legal regime of accountability and enforceability for regional development plans, filling the lacunae in them. It also enables the realisation of human rights through monitoring of compliance with the treaties, thereby encouraging adherence to the rule of law. Ratification improves the public standing of PICs and their governments and encourages a fairer and equitable system of aid, technical support and global justice. It also involves participation of civil society and citizens in the development process and thereby acts as a catalyst for the reduction of poverty. The Pacific region has by far the lowest ratification rates worldwide of the seven core international human rights treaties.1 Among the 14 Pacific Island Forum island member states, three have ratified at least three of these international treaties, nine have ratified two (on women’s rights and on child rights) and two have only ratified one treaty (on children’s rights).2
The International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Covenant on Civil and Political Rights (ICCPR); the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CRC); and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW). 2 See Annex A for Pacific Island country ratification chart. Note, the information may not be definitive as the Office of the UN High Commissioner for Human Rights website has conflicting information.
All PICs have accepted the Convention of the Rights of the Child (CRC); all but Tonga, Palau and Nauru have accepted the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); only Solomon Islands has accepted the International Covenant on Economic, Social and Cultural Rights (ICESCR), while Nauru is the only signatory to ICCPR in the Pacific. Fiji, Nauru, Papua New Guinea, Solomon Islands and Tonga have all accepted the Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The non-ratification of a treaty does not prevent a country from being assessed against the standards contained in them. In other words, the global community, including bilateral and trading partners, will assess PICs against the standards contained in the treaties whether or not PICs ratify them. It is quite common for instance for another country, an international, regional or national body, whether intergovernmental or nongovernmental, to state that a country is in violation of the standards contained in ICCPR and the rule of law, notwithstanding that no PIC has ratified that convention. The fact that neither Fiji nor Solomon Islands had ratified the ICCPR did not prevent the world from condemning both countries for flagrant violations of civil and political rights and the rule of law during the political and constitutional crises in Fiji in 1987 and in both countries in 2000. Non-ratification of labour conventions did not prevent neighbours from condemning Tonga for its alleged treatment of striking civil servants in 2005. However, ratification demonstrates a state’s honest intention to abide by the provisions of a treaty, even if it falters from time to time, and enables it to obtain assistance to comply with the treaty. Ratification of the core international human rights treaties is widely regarded to be a basic requirement for promoting and protecting human rights at local and national levels because it is able to put forth implementation obligations for states parties, including legal, policy and institutional reform as well as programmatic and other measures, in order to ensure that international norms and standards derived from the treaties are properly reflected and can be enjoyed by all. Currently, almost all PICs provide some basic constitutional human rights guarantees in the area of civil and political rights and a very few also secure limited economic, social and cultural rights. However, The Pacific Plan’s focus on human rights is an acknowledgement that PIC citizens are still left vulnerable without all the proper protections and ratification is the only global method for state accountability for them.
The Pacific Plan & human rights
The Pacific Plan, endorsed by Pacific Island Forum members in October 2005, consistently refers to human rights, particularly under its third pillar (that of the goal of good governance). The Plan aims to envision, step-by-step, a region that is “respected for the quality of its governance, the sustainable management of its resources, the full observance of democratic values, and for its defence and promotion of human rights”.3 The link between effective implementation of its 15 strategic objectives and the need for protection of human rights is explicitly stressed in the Plan. Human rights are frequently referred to because they complement the strategic objectives, ensuring a
Pacific Plan Task Force, The Pacific Plan (Suva: Pacific Islands Forum Secretariat, 2005), p.3
stable environment that will provide equal opportunities and subsequent prospects for development for PICs and their citizens. More specifically, Initiative 12.5 instructs Pacific Plan member states to “where appropriate, ratify and implement international and regional human rights conventions, covenants and agreements; and support for reporting and other requirements.”4 This initiative is not listed for agreement in principle or for further analysis, but for immediate implementation as a regional priority (2006-2008). This initiative is meant to contribute to the achievement of Strategic Objective 12 which is “improved transparency, accountability, equity and efficiency in the management and use of resources in the Pacific”.5 Respect for, promotion and protection, and realisation of human rights is also intrinsically connected to the achievement of all Strategic Objectives in the Plan, but in particular to those of reduced poverty (4), improved health (6), improved education and training (7), improved gender equality (8), recognised and protected cultural values, identities and traditional knowledge (11), improved transparency, accountability, equity and efficiency in the management and use of resources (12), improved political and social conditions for stability and safety (13); and increased national ownership and commitment to regional approaches, plans, policies and programmes (14). All but one (14) of these strategic objectives is directly connected to provisions contained in the seven core human rights conventions. The conventions however have the advantage of imposing a legal obligation for compliance which is missing in the Plan (discussed later in this paper). Ratification of conventions therefore provides a further opportunity for the success of the Plan at national levels. Although it is not explicitly stated to be so, there are clear links between The Pacific Plan and the MDGs as they share many goals in common. The realisation of human rights is also essential to the achievement of the eight MDGs, which all Pacific Island Forum member countries have committed themselves to achieving. Ratification will thus assist in the success of the plan, as well as enabling PICs to achieve their MDG targets.
2. REASONS FOR THE CURRENT LOW LEVELS OF RATIFICATION OF HUMAN RIGHTS TREATIES BY PICS
The ratification of international human rights instruments has not been a high priority for most PIC governments, even if it is critical to development in the region. Most PICs have limited human and financial resources and do not have the esoteric knowledge or technical capacity to fulfill treaty obligations, especially the smaller PICs. The priorities of PICs are generally limited to issues that are either pressing, of utmost importance to individual countries and to the region (sustainable development, fisheries) or where there is pressure from the larger developed and highly influential
Pacific Plan Task Force (2005), p.18 Ibid
countries like the US and Australia (global warming, international crime, security and anti-terrorism).6 PICs are also generally more inclined to ratify and implement conventions which do not upset internal powerful stakeholder groups like Churches and customary chiefs. Ratification of international instruments also requires ensuring that customary norms like Melanesian kustom and fa’a Samoa do not infringe on or conflict with new laws and human rights in general. Although this is not a requirement of ratification it is perceived to be so. It is also perceived that ratification and implementation may take away resources already in short supply from what PIC governments regard as more important needs. The reasons for the current low levels of ratification are best described under the following categories: 2.1 2.2 2.3 2.4 2.5 Resources: Financial and human for ratification, reporting and implementation Substantive: Cultural, political, economic and legal The role of non-governmental organisations (NGOs) The strategic positioning of the United Nations Other reasons
2.1 Resources: Financial and human for ratification, reporting and implementation Ratification and pre-ratification
Generally, the act of ratification is an executive act requiring the deposit of an instrument of ratification at UN headquarters. There is no internal legal protocol which must precede ratification. Vanuatu is the only country that requires ratification through Parliament.7 Previously many PICs simply ratified a convention without much consultation with various line government departments or civil society stakeholders and groups; the decision to ratify was made by Foreign Affairs or by Offices of the Attorney-General, or by one or more highly influential and well-placed government officials. As ratification is an executive act, this has enabled governments to ratify without significant government and civil society consultation, despite organisations such as UNICEF encouraging fuller consultation and in some cases with the assistance of state-supported CRC committees. The process preceding ratification is now much more complex due to greater levels of knowledge, a better understanding of the requirements of reporting and implementation, cultural objections to the content of the conventions and criticism from various government departments and citizens on the need for consultation prior to ratification. The new internal protocols (mainly unofficial) require consultation with various stakeholders, both government and non-government, and wide public support
Huffer, Dr E., Baseline survey on the status of Pacific Island countries' ratification of main human rights instruments and their possible reservations, traditional governance practices that could support human rights, and the work of other agencies and organisations in promoting human rights in the Pacific (Unpublished paper prepared for UNDP GOLD, Suva, 2003), p.7 7 Vanuatu Constitution, Section 26
for ratification. The many obstacles faced by PIC women’s groups in recent years in advocating to get CEDAW ratified is an example of the long and drawn-out consultation, advocacy and lobbying process. It took over 10 years of advocacy for CEDAW to get ratified in Fiji and even longer in the Solomon Islands. If the consultation process also involves assessing the extent to which laws, policies and practices are not in compliance with a convention, the process is even more costly and time consuming. It is doubtful whether CEDAW would have been ratified by various PICs had there not been additional financial and technical resources provided by women’s groups, NGOs, the Pacific Women’s Bureau of the Secretariat of the Pacific Community (SPC), RRRT, UNIFEM, donors and development agencies in support of the CEDAW consultation process and subsequent ratification. Some PICs also mistakenly believe that they need to comply with conventions by passing new laws before the act of ratification. This can be exceedingly off-putting even though it is an erroneous assumption. States do not have to comply with conventions before ratification. The process of compliance begins after ratification. Although it may be perceived to be so, the logistical act of ratification itself is not an onerous or difficult responsibility as many organisations are able to assist in this process.8 The process requires the instruments and documents of ratification to be deposited in various UN agencies, mostly located in either New York or Geneva. All PICs have ratified at least one convention and are therefore familiar with the practical requirements for ratification. However, the impact of ratification depends on who does it. Ratification in the Pacific, with the exception of Vanuatu and governments that are dependent on other states for foreign policy, follow a method of ratification that theoretically allows relevant government ministers to bypass Parliament. For instance, when a conservative legislature is unwilling to cooperate and protect human rights, appropriate government ministers should be aware that they have the power to ratify a treaty without the consent of the legislative branch, which effectively is a method of ‘passing legislation’ in the executive branch. But, while ratification is ‘legally binding’ in the sense that the treaty body will hold them responsible to fulfill their duties, governments do not always perceive this method of ratification to have legal authority and application unless it is formally incorporated into domestic legislation, which is the responsibility of the Parliament, which itself cannot be compelled to do so by the executive branch. This effectively creates a conflict in the balance of powers where the ministers’ supposed authority can be undermined by Parliament, blocking their decisions from having any real value or legal effects. Tepulolo v Pou & Attorney General (Tuvalu, 2005)9 is a demonstration of this case. Even though Tuvalu already ratified CRC, the court in which the case was originally cited was not able to apply the convention because, as the Supreme Court ruled, “no laws have, it appears, been passed or even considered by Parliament specifically to give effect to the obligations places on the states parties by either convention”. While ratification through Parliament, such as the way that it is conducted in Vanuatu, may ensure the domestication of the conventions,
RRRT assisted FSM and Kiribati governments prepare instruments of ratification for CEDAW. Jalal, P.I & Madraiwiwi, J. (eds), Pacific Human Rights Law Digest: Vol 1 (Suva: RRRT, 2005), p.63
the “Pacific way” allows ministers to initiate a process which may take much longer in the classic style of Vanuatu.
PIC governments generally perceive reporting requirements to be the most practical constraint to ratification. The majority of PICs that have ratified various conventions have not reported on them in compliance with the legal obligations in them. Only Fiji and Samoa have appeared before the CEDAW Committee, Fiji has reported before the ICERD Committee, and only Solomon Islands and Vanuatu have appeared before the CRC Committee. The human rights treaty system is based on the seven core human rights conventions and reporting under them. These set legal standards for the promotion and protection of human rights and create legal requirements and obligations for states parties to implement human rights at the national level. The treaties also provide the standards for the United Nations and its various agencies to support their implementation at the national level. Compliance with these standards by states parties is monitored by seven treaty bodies through various procedures; the main one being that all treaty bodies consider periodic reports filed by state parties and provide them with “concluding comments” for the further assistance of states on implementation. The concluding comments (findings) of the treaty body provide further guidance on how the conventions ought to be implemented. These procedures are designed to assess objectively the situation in states parties and encourage them to implement their international legal obligations. Most critically they also provide a means through which the United Nations and other development agencies can assist and support states to implement their obligations.10 Reporting and the engagement between the treaty body and the state when a state physically appears before it (termed the “constructive dialogue”) is the main method used by the treaty body to monitor compliance with the convention by the state party. Reporting is a legal obligation once ratification occurs. All conventions require immediate preparation and filing of reports within 1-2 years and then periodic reports to be filed at intervals of between 2-5 years (see table on next page).
Office of the UN High Commissioner for Human Rights (OHCHR), Concept Paper on the High Commissioner’s Proposal for a Unified Standard Treaty Body (Geneva, HRI/MC/2006/CRP.1, 14 March 2006), p.8
Reporting periodicity under the treaties11 Treaty ICERD ICESCR* ICCPR CEDAW CAT CRC ICRMW CRC-OPSC** CRC-OPAC†† Initial report within 1 year 2 years 1 year 1 year 1 year 2 years 1 year 2 years 2 years Periodic reports every 2 years 5 years 4 years† 4 years 4 years 5 years 5 years 5 years or with next CRC 5 years or with next CRC
* Article 17 of the Covenant does not establish a reporting periodicity, but gives the Economic and Social Council discretion to establish its own reporting programme. † Article 40 of the Covenant gives the Human Rights Committee (HRC) discretion to decide when periodic reports shall be submitted. In general, these are required every four years. ** Optional Protocol on the sale of children, child prostitution and child pornography. †† Optional Protocol on the involvement of children in armed conflict.
If all PICs were to ratify and report to each of the seven treaty bodies, reporting responsibilities would be quite onerous, especially for the smaller or poorly resourced PICs. It would mean that a PIC could be sometimes filing reports and appearing before a treaty body virtually every other year. If reports are filed late or if treaty bodies are unable to engage in the constructive dialogue for one reason or another, it could mean that state parties might be appearing before a treaty body at least once and perhaps twice a year. Reporting on the conventions again requires a further intensive level of consultations, possibly the hiring of expensive consultants to write the report (very few PIC governments have the internal capacity to write their own reports), engagement with NGOs who may or may not agree with the contents of state reports, requiring line ministries to respond to various articles in the conventions and gathering data and statistics from often poorly resourced departments. The reporting process also requires ensuring that the lead ministry in charge of implementation of the particular convention is ready and able to file the report and to prepare a delegation to go to New York or Geneva to engage in the constructive dialogue process.12 The constructive dialogue process places additional burdens on PICs. It requires a knowledgeable team of civil servants (sometimes NGOs are included in the government team) to accompany the prime minister or minister to attend the constructive dialogue process and to respond to questions from the treaty body members. This requires both technical capacity and financial resources for travel,
OHCHR (2006), pp.10-11 Pacific Regional Rights Resource Team (RRRT), CEDAW Roadmap: Reporting before the Committee (Suva: RRRT, 2003)
accommodation and daily living expenses in expensive (and often very cold) cities (New York or Geneva) for periods sometimes as long as 2-3 weeks.13 Many PICs, especially smaller PICs, cannot release officials from their domestic responsibilities for such long periods.
The main objective of the human rights treaty body system is to ensure human rights compliance at the national level through the implementation of the human rights obligations contained in the conventions. Therefore the effectiveness of the system must be assessed by the extent to which state parties are able to implement the recommendations in the concluding comments resulting from the constructive dialogue under reporting procedures. It must also be assessed by how successful the system has been in providing states with support and guidance on the meaning of treaty provisions and in implementing them.14 Once a country has ratified a convention there is a moral, ethical and legal obligation to:15 Amend and implement national laws to comply with the standards of the convention; Amend policies to comply with the standards of the convention; Implement affirmative action to meet the standards set out in the convention; and Integrate the principles of the convention into all programmes ands projects. The compliance process requires political will, considerable technical capacity and financial resources. The services of legal experts and legislative drafters may also have to be sought externally as many countries do not have their own drafters or if they do they may lack the skills and experience to undertake such tasks, especially that of complex legislation. An example of implementation of CEDAW (ratified in 1995) is the Family Law Act 2003 (Fiji), which took several years to pass into law and to implement in the form of the setting up of the Family Division of the existing courts which opened for operation in November 2005.16 Additionally compliance requires amending all state policies and programmes to comply with treaty standards. Thus the principles of the conventions have to be integrated into government policies, programmes, actions and decision making at all levels and by all branches of government. Courts in the region have ruled that upon ratification citizens have a legitimate expectation to expect that the principles of a convention to apply domestically unless there is a specific domestic law prohibiting them from doing so.17 PIC courts in Samoa, Fiji and Vanuatu have used, in particular, CRC to protect the rights of children from both sexual abuse and the abuse of police powers.18
RRRT (2003) OHCHR (2006), p.4 15 Jalal.P I., Law for Pacific Women: A Legal Rights Handbook (Suva: Fiji Women’s Rights Movement, 1998), chp 15 16 The NGO education and advocacy process began in 1992, the law reform process began in 1996, the law was passed in 2003 and the courts went into operation in late 2005. 17 Minister for Immigration v Teoh, (1995) ALR 353; Jalal, P. I. & Madraiwiwi, J. (2005), p.89 18 See Jalal, P I & Madraiwiwi, J (2005) for a comprehensive list of PIC cases discussing conventions in the courts.
Implementation of a convention can therefore be a necessary but time consuming and costly exercise for most PICs. It should be noted, however, that compliance with conventions usually fulfills a much required development need, and the ratification merely provides a legal obligation and accountability framework for ensuring that the development need is fully realised. The difficulties of the ratification, reporting and implementation process is fully acknowledged, but there are methods for PICs to address them which will be discussed in a further section of this paper under the heading of Treaty body reforms & reporting.
Substantive: Cultural, political and legal
The enabling environment for human rights conventions and standards is affected by many factors in all PICs.19 These include perceptions that human rights are intrinsically against Pacific culture and identity. Identity is tied up with the chiefly or elder man system and human rights are seen as being against that system, rather than accepting of it and making it more accountable. Human rights norms, particularly those in CEDAW, are also perceived as threatening to the domestic status quo because they challenge the fundamental patriarchal nature of society. Christian churches are very powerful in the PICs and some view human rights with skepticism and as a threat to them. For example, the loss of Samoans by established churches to new fringe churches is blamed on the human rights standard of religious freedom rather than on Samoans becoming more educated and having more choices.20
Human rights contained in the seven human rights conventions are universal, inalienable, indivisible and interrelated. Therein lies their main attraction; that they belong to everybody regardless of their race, religion, culture or gender. No person can abdicate his or her rights, unless they are taken away to the extent permitted by law, for example, loss of liberty if a person commits a crime. The most significant ideological challenge to the ratification of human rights conventions is their claim to universality and that human rights are seen as being in conflict with Pacific culture and identity. Although there is no homogeneity in Pacific culture, some PIC governments and communities believe that Pacific Island culture is incompatible with human rights. They argue that that whereas Pacific culture focuses on the good of the community as a whole, human rights focus on individual rights at the expense of the collective good. If there is a conflict between the two principles, culture ought to take precedence over human rights because it preserves identity and the good of the community in an uncertain and rapidly changing world. They regard human rights as yet another example of Western hegemony with the West imposing its value system on the Pacific region. That alone is a reason to reject them.
Jalal, P.I., Using rights-based programming principles to claim rights: The Regional Rights Resource Team (RRRT) project in the Pacific Islands (unpublished paper prepared for OHCHR, Suva, 2005) <http://www.rrrt.org/assets/OHCHR%20Best%20Practice%20Case%20Study.pdf> 20 Pacific Regional Rights Resource Team (RRRT), RRRT Samoa Human Rights Country Report (unpublished report, Suva, 2006)
The arguments used against the universal application of human rights in the Pacific are similar to that of Asia and the “Asian values” notion, raised mainly by some South East Asian governments. It posits that human rights are based on culture and since cultural values vary, there cannot be any universal human rights.21 Academics call the argument against the universal application of human rights “cultural relativism”. This argument holds that human rights are culture bound: values take their meaning from a cultural milieu, where the context informs the meaning of the value. It suggests for example that values such as individual freedom which finds its provenance in Western society, to a non-Western society with an authoritarian tradition (such as for example the chiefly system), is impossible because it would not have the same meaning.22 The argument further contends that the development of universal standards is an unfair standard against which to measure non-Western standards of human rights, despite the fact that culture is constantly changing and evolving. To a great extent the relativist argument is based on the theory that culture remains static, yet traditional Pacific culture no longer exists in its pure form in any of the Pacific Islands. Both concepts of culture and human rights are organic, fluid and changing23 and ignores the fact that many Pacific Islanders negotiate a space between them which is comfortable; a space which allows both human rights and culture to co-exist with constant negotiations being made as to when and to what must precedence be given. An example of this negotiation are Pacific human rights activists in local human rights NGOs who believe in the value of their culture and identity and who demand not that the chiefly system be disbanded but that it should be preserved but made more accountable. The South East Asian government leaders that reject the universality of rights contend that their Asian economic success is due to their cultures, which provide political stability and economic development, and that these values are oriented to the community. Rights create confrontation and instability which may prohibit economic advancement. This idea has been raised publicly by some PIC leaders, citing countries like Singapore as an appropriate model for PICs. There is no evidence that the Asian economic success is due to unique family or community structures or a disdain for democracy or human rights.24 On the contrary there are a larger number of economically successful countries which have democratic systems that recognise, protect and defend human rights.25 There is an equally valid argument that human rights abuses in fact contribute to the failing of states, especially if the state does not meet the needs of its citizens.26 Complying with economic and political rights for instance is an indicator of a successful state.
Ghai, Y., Human Rights and Social Development: Toward Democratization and Social Justice (Geneva: Democracy, Governance and Human Rights Programme Paper Number 5, United Nations Research Institute for Social Development, October 2001), p.13 22 Malcolm, CJ, ‘Human Rights at the End of the 1990s: Challenges to Universality’ (1998) 5:4 E Law <www.murdoch.edu.au/elaw/issues/v5n4/malcolm54nf.html> para 10 23 Merry, S., Changing Rights, Changing Culture (unpublished paper, Wellesley College, US, December 1999), pp.7 & 16 24 Ghai, Y. (2001), p.14 25 The countries of Northern Europe are economic and social success stories but they also have a high degree of human rights compliance. 26 Burma and Nepal have dire human rights records and are considered failed states.
Asian NGOs on the other hand are equally insistent that human rights are universal and indivisible, have a place in Asian society and are essential to sustainable development in Asia. Democracy, they argue, is an essential element of sustainable development. Further that there is a relationship between rights and culture, but they see Asian culture as enriching their experiences and understanding of rights, producing a cosmopolitan and hence truly universal view of rights, rather than retreating behind a barricade of cultural relativism.27 It should also be noted that it is not un-coincidental that those who use cultural arguments to prohibit the advancement of rights are often those who benefit most from the system, such as the elite, who rely on culture remaining static and unaccountable. It has been succinctly stated by a commentator, that “those who deny a right to others are usually the beneficiaries of such a denial, and those whose rights are denied are usually the worse off for losing them”.28 This argument also ignores the reality that all PICs have varying degrees of human rights already protected in their constitutions and amendments are unlikely to remove them. Very few ordinary Pacific islanders would be willing to give up their basic rights to free movement, speech, fair trial, freedom from discrimination, free and fair elections, a just wage, protection against torture or an independent judiciary and return to an authoritarian system. Even the opponents of universal human rights would be loath to give up some of these rights because it protects them too from the arbitrary use of state power and injustice. The European Union head in Fiji said recently: “Human rights are one of those funny things – you may not know that you have them, but you sure as hell know when they are taken away.”29 An example of the internal contradictions is provided by current debates about free speech in the Pacific. Some groups in the PICs claim that free speech (protected in all PIC constitutions) undermine indigenous rights, the chiefly or royal system and group cohesion because it creates disunity and suspicion. It is disrespectful to question the leadership or state behaviour, especially when leadership rests in the hands of traditional chiefs, elders or royals and because it creates chaos and rifts in the community. Such governments may use the cultural relativist argument to suppress press freedom to protect themselves against public scrutiny. UN Secretary General Kofi Annan pointed out in relation to this: “There are however, those who still question the value of free speech to their societies; those who argue that it threatens stability and endangers progress: those who still consider free speech an imposition from abroad and not the indigenous expression of every people’s demand for freedom. This argument is never made by the people, but by governments, never by the powerless but by
Ghai, Y. (2001), p.14 Nathan, A.J., ‘Cultural Values and Relativism: The Example of Women’s Rights’ (excerpted from a work in progress, "Negotiating Culture and Human Rights: Beyond Universalism and Relativism," edited by Lynda S. Bell, Ilan Peleg and Andrew J. Nathan) <www.aasianst.org/Viewpoints/Nathan.htm> para 8 29 Speech by EU Representative HE Roberto Ridolfi at the Fiji Human Rights Commission launch of a case law database on December 10, 2005.
the powerful; never by the voiceless, but by those whose voices are the only ones allowed to be heard.”30 Another example of a conflict which appears to pit rights against culture is found in customary notions of child discipline. Most Pacific Islanders believe that children should be beaten for disciplinary reasons while conventions such as the CRC frown upon physical punishment.31 Despite this there are many situations where the PIC courts of law have made decisions which managed to preserve culture and customary laws while advancing the rights of disadvantaged groups by finding compatibilities and room to negotiate within what are sometimes considered completely contradictory notions.32
Political & economic
Political setbacks also exist, preventing PIC governments from ratifying human rights treaties. For all PICs the emphasis of governments is on economic growth. Democracy and human rights are perceived as obstacles to economic growth because of the need for greater accountability within a human rights system, and the attention given employment and other rights in a democracy. Lee Kwan Yew, former Prime Minister of Singapore, greatly admired by many Pacific leaders, was a great champion of the Asian values argument defending authoritarian arrangements on the basis of their alleged effectiveness in promoting economic success.33 Renowned economists such as Amartya Sen have successfully demonstrated that there is no evidence that authoritarian governance and the suppression of political and civil rights are really beneficial in encouraging economic development. He states that in fact, there is more evidence to show that what is needed for generating faster economic growth is a friendlier economic climate, rather than a harsher political system.34 The challenge is to convince governments and industry that both can and ought to occur simultaneously, and that economic growth without the realisation of civil, political, economic, social and cultural rights is not positive sustainable development for Pacific Islanders.35 It is for this reason that the UN Secretary General has taken the significant step of calling for mainstreaming of human rights in all of the UN’s development work.36
Speech by Kofi Annan on World Press Freedom Day, 3 April 1999, quoted in Akolo, J., Shutting down the media: a dilemma of culture and the right to freedom of expression in Tonga (unpublished paper, Suva, 2004), p.19 31 Tauasosi-Posiulai, T. & Leilua, N., Governance for Livelihoods Development Project in Samoa (Unpublished UNDP/SUNGO report, 2005) p.40 32 In Noel v Toto (Vanuatu, Case No 18 of 1994), the court held that the elder male system of decision making for the clan must be preserved along with clan ties but monies obtained from leases ought to be shared also with the women of the clan. Jalal, P. I. & Madraiwiwi, J. (2005), p.26 33 Amartya, S., Human Rights and Asian Values (New York: Carnegie Council on Ethics and International Affairs, 1997), p.10 34 Idem, p.12 35 Jalal, PI (2005) 36 UN, In larger freedom: Towards development, security and human rights for all (UN Secretary General Report, New York, September 2005)
Correspondingly, the vast majority of countries that really clamp down on human rights are ones that are the worst off economically.37 Human rights, good governance and economic prosperity go hand in hand. Some countries have shown legal and political tolerance towards interruptions of democracy by the military, police or civilian militia where there have been attempts to subvert the rule of law with the use of force after elections. This has resulted in conflict in Fiji, Solomon Islands and Vanuatu. The potential for civil conflict puts the building of functioning democracies under threat. There have been incidences of suspension of rights during times of emergency, even non-derogable rights such as free speech. There are thus reasons of political convenience why violations of human rights are tolerated and the ratification of human rights treaties not encouraged. Many PIC governments also resist ratification as an expression of hostility against what they consider to be forced ratification by the superpowers, and even the UN, and their hegemonic attitudes. Related to this is increasing pressure by donors which impose the conditionality of good governance and adherence to human rights to granting aid. Article 96 of the Cotonou Agreement under which PICs receive European Aid is an example of this.38 Pacific donors such as AusAID and NZAID are no less concerned about the link between good governance, human rights and economic prosperity, and whilst they may not link their aid grants with the ratification of human rights treaties, they do observe and monitor good governance practices along with their aid programme. AusAID’s Core Group Recommendations Report for a government white paper on aid (currently being prepared) states clearly that the challenge for AusAID is to ensure that its aid programme is “used productively, improves rather than undermines effectiveness and strengthens the means of which assessments of aid performance be made.39 AusAID’s second largest priority next to economic growth is “functioning and effective states” which focus on improving the quality of decision making at the political level.40 NZAID has been committed to integrating human rights into all of its programmes and policies. Its Human Rights Policy sets out the agency's overarching human rights framework, including the rationale for integrating human rights into NZAID's organisational culture as well as into all of NZAID's policies, strategies, programmes and processes. NZAID's central focus is poverty elimination through sustainable and equitable development. It addresses poverty elimination both as a human rights issue as well as a development issue, underscoring how advancement in one area reinforces
For example, North Korea, Nepal, Burma, Liberia and Sierra Leone. European Commission, The Cotonou Agreement (ACP-EC, Cotonou, 2000) <http://europa.eu.int/comm/development/body/cotonou/agreement/agr42_en.htm> Article 96: Essential elements: consultation procedure and appropriate measures as regards human rights, democratic principles and the rule of law. Article 8(4) also reads: “The dialogue shall focus, inter alia, on specific political issues of mutual concern or of general significance for the attainment of the objectives of this Agreement, such as the arms trade, excessive military expenditure, drugs and organised crime, or ethnic, religious or racial discrimination. The dialogue shall also encompass a regular assessment of the developments concerning the respect for human rights, democratic principles, the rule of law and good governance.” 39 Duncan, R. et al, Core Group Recommendations Report for a White Paper on Australia’s Aid Program (Canberra: AusAID, 2005) p.i 40 Idem, p.iii
advancement in the other: “Integrating human rights and development requires bringing together the standards and principles of human rights with the plans, policies and processes of development.”41 These donor priorities are evidence of an increasing priority for donors to link principles of good governance with aid. There is also some resistance to ratification from some PICs which look askance at a few powerful developed countries that demand that smaller, less powerful countries ratify such treaties, but which they themselves disingenuously refrain from doing so.42 The political convenience to violate human rights has often been demonstrated and has frequently been justified through vilification of the conventions and the resulting legal framework as threatening to indigenous rights, more particularly land rights. When indigenous-Fijian majority parties lost the general elections in Fiji in 1987 and 1999 to Indian-Fijian dominated parties this was blamed on democracy and human rights rather than dissatisfaction with the status quo. Both notions were seen by some indigenous groups as threatening their political power and their cultural identity. Human rights treaties do not refer to land but they are perceived to be threatening to the communal land system because of their emphasis on equality and access to resources for all.43 This has been problematic in countries like Solomon Islands, where other Pacific Islanders (for example, ethnic i-Kiribati who are Solomon Islands citizens) have moved internally and settled without any legal security and are using up seabed resources considered the preserve of indigenous local communities. Another example of political conflict appearing to manifest itself as an argument against human rights is found in Samoa. In February 2006, in the run-up to March elections, there were reports that a particular village was in a state of turmoil because the matai elders had warned a junior matai not to stand in the same constituency as a senior matai and not to compete against him. The junior matai was refusing to withdraw his candidacy.44 Again this “disunity” was blamed on “too many human rights” being exercised. Although this was more about evolutionary political fragmentation and increasing political independence being exercised by Samoan citizens, it was blamed on human rights. In the Pacific Islands these incidences give human rights a “bad name”.
Legal (formal & customary law)
Across the region, human rights, good governance, democracy and the rule of law are often poorly understood because governments have not promoted civic and human rights education in the past. Although this is slowly changing, most PIC populations are not legally literate, are not aware of their rights and unable to participate in political or governance processes.45
New Zealand Agency for International Development, NZAID Human Rights Policy, <www.nzaid.govt.nz/about/human-rights.html> p.4 42 The USA has not ratified any of the seven core human rights treaties but is powerful in determining what occurs within the UN human rights system. The US is considered a rogue state in this regard. 43 Huffer, Dr E. (2003), p.14 44 Personal interview, Apia, Samoa, January 2006 45 P. I. Jalal (1998); Pryor, B., Stimulating a National Response to Human Rights Conventions in Pacific Island Countries (RRRT briefing paper prepared for Asia Pacific Rights and Justice Initiative, Suva, 2003)
Most PIC constitutions have a bill of rights (BOR) which contains to varying degrees civil and political rights, similar to those contained in ICCPR. These include basic rights like the right to vote, a fair trial, due process, free speech, movement and so on. The Kingdom of Tonga, although it is a monarchy, contains some civil and political rights. A few BORs have more advanced rights; economic and social rights like the right to an education or privacy (Fiji). Fiji, Papua New Guinea and Tuvalu have constitutions that contain advanced sections allowing for the application of international human rights law where relevant (though the sections are silent about the need for ratification).46 In spite of this, there are some laws – legislation and customary law, and in some cases laws in PIC constitutions – that are in conflict with standards in the conventions, are perceived to be in conflict with them or have been interpreted by officials to be so. Thus the most significant perceived constraint in this category of objections is that PICs are reluctant to ratify conventions that are in conflict, whether directly or indirectly, with domestic law. Most PICs are of the view, incorrectly so, that they need to amend all their laws to make them compliant with conventions before ratification. It is poorly understood that ratification can precede the process of amendment and compliance and in fact is a means through which assistance in compliance can be sought from the UN, donors and development agencies. Coupled with this is the belief that constitutional amendments must be done before ratification, a daunting process in itself as most PIC constitutions require qualified majorities to amend them. Many PICs consider that there are sufficient human rights already within their own legal frameworks and it is unnecessary for more rights to be incorporated either directly through implementation or amendments to law or indirectly through incorporation through new precedents in court. Some PICs do not see the need for ratification of the ICCPR as most civil and political rights are already in their various BORs, or at least that is how it is perceived.
Section 43(2) of the Fiji Constitution, Section 15(c) of the Tuvalu Constitution and Section 39(3) of the PNG Constitution.
PICs are very wary of any rights with resource implications like economic, social or cultural rights. Most PIC governments regard such rights as being too expensive to implement and are unable to accept that international law allows for the progressive realisation of rights. There is a view that if these rights are ratified, then citizens will be able to immediately enforce rights such as the right to work, education or shelter. PIC governments perceive conventions to be inconsistent with their own development priorities rather than essential to them. The concept of “progressive realisation of rights” is poorly understood by most PIC governments.47 Legal reasons for non-ratification are also partly explained in the Implementation section of this paper, namely that considerable resources are required to fully comply with convention standards. Ratification requires wide and sweeping changes to domestic legislation and most PICs do not have the resources to undertake this task. Many are of the view that there are far more pressing mainstream laws that require changes – why give preference to human rights legislation which just makes the work of government officials more difficult? Another obstacle to ratification as PIC governments see it is the conflict between convention standards and unwritten customary law. However the same tensions already exist between existing BORs provisions in current PIC constitutions and contemporary interpretations of customary law. This is evident, for example, in the conflict between notions of equality within a BOR which grants women equality and unwritten customary law, many interpretations of which deny equality and may relegate women to a subordinate status.48 There are also often conflicting provisions within the same constitution; for example, the granting of equality and non-discrimination in the BOR but another provision in the same constitution which gives constitutional status to customary law, many provisions or interpretations of which are discriminatory. In many cases the courts attempt to reconcile the apparent conflicts by seeking harmony between them.49 Sometimes it grants customary law precedence over rights50 and sometimes it is the converse.51 However the courts do not appear to have much trouble
As quoted in Jalal, P. I. & Madraiwiwi, J. (eds), Pacific Human Rights Law Digest: Vol 1, p.85 (Government of South Africa v Grootboom, 2001(1) SA 46), the Limburg Principles refer to the analysis of ICESCR by a group of international lawyers under the aegis of the International Commission of Jurists. The concept or phrase “to achieve progressively the full realisation of the rights” has been interpreted to mean as follows: 1. “The obligation to achieve progressively the full realisation of the rights requires state parties to move as expeditiously as possible towards the realisation of the rights. Under no circumstances shall this be interpreted as implying for states the right to defer indefinitely efforts to ensure full realisation. On the contrary, all state parties have the obligation to begin immediately to take steps to fulfil their obligations under the covenant”; 2. “Some obligations under the covenant require immediate implementation in full by all state parties such as the prohibition of discrimination in article 2 (2) of the covenant”; 3. “The obligation of progressive achievement exists independently of the increases in resources; it requires effective use of resources available”; and 4. “Progressive realisation can be effected not only by increasing resources but also by the development of societal resources for the realisation by everyone of the rights recognised in the Covenant”. 48 See Jalal, P I., (1998) and Corrin Care. J., Customary Law and Women’s Rights in the Solomon Islands (Development Studies Network , 1999) 49 Jalal, P. I. & Madraiwiwi, J. (2005), p.26 (Noel v Toto) 50 The Minister for Provincial Government v Guadalcanal Provincial Assembly which effectively denied women the power to be elected to provincial assemblies as they could not be chiefs under customary law, discussed in Corrin Care, J. (1999), p.16 51 Lafaialii v AG & Ors (Civil Case No 8 of 2003), as discussed in Jalal P I & Madraiwiwi, J (2005), p.71, demonstrates the uneasy tensions between fa’a Samoa and the power of matai to order banishment and freedom of religion.
adjudicating such conflicts and the existence of customary laws (generally unwritten, often ambiguous and rarely arrived at by consensus among those who control their interpretation) is not a strong argument against ratification, especially since existing BORs already contain a substantial number of rights from the conventions.
The role of non-governmental organisations (NGOs)
In many countries civil society organisations (CSOs), particularly NGOs, are the driving force behind conventions being ratified. However, many PIC NGOs have a limited capacity to do so because all PICs lack a proper legal framework for robust NGOs – a consequence being that accountability of governments to its citizens is weak because, in the main, NGOs do not have sophisticated rights advocacy strategies. While NGOs are active in service delivery, many are hesitant to assume a political or advocacy role in support of conventions. The historical experience in the PICs is that a significant factor, possibly the most significant critical factor in determining whether a convention gets ratified or not, is well-organised, effective, strategic and well-funded local NGOs dedicated to effect it. If this occurs in partnership with informed government officials working together with NGOs, (for example, Ministries or Departments of Women as in CEDAW advocacy) the chance of ratification significantly increases. Thus a vibrant and politically aware civil society is critical as to whether conventions are ratified or not. Although there have been specific local groups mobilising to effect the ratification of particular conventions, like CEDAW and CRC,52 there are no groups dedicated to the other five conventions. In Fiji’s case, there are a few NGO groups that have filed parallel reports for ICERD to the Human Rights Committee in Geneva53 but did not initially mobilise to effect ratification. Concomitantly, if there are government ministries or departments or influential officials willing to push for ratification, as has been the case for CEDAW throughout the Pacific, the chance of ratification also increases. Thus advocacy groups, both inside government and outside it, are extremely important in determining whether conventions get ratified and reported on. Related to this is the promise by NGOs to government that they will assist in the process of ratification, reporting and implementation when called upon. The formal CEDAW partnership in Samoa and various CRC committees made up of both government officials and NGOs in Solomon Islands and elsewhere in the PICs are examples of the partnerships that enhance the chance of ratification and reporting. It should be noted, however, that NGOs that are perceived as “too aggressive” may have exactly the opposite effect, and the conventions that they purport to support may not get ratified. With few exceptions, CEDAW was ratified in all the PICs from joint
Fiji Women’s Rights Movement in Fiji, Mapusaga O’ Aiga in Samoa, Punanga Tauturu Inc in the Cook Islands, the National Council of Women in Tuvalu, and the Vanuatu Women’s Centre and National Council of Women in Vanuatu. 53 The Citizen’s Constitutional Forum and Ecumenical Centre for Research, Education and Advocacy in Fiji.
partnerships between governments and NGOs who were able to engage in their own style of constructive dialogue with government to effect ratification.
The strategic positioning of the United Nations (UN)
The presence of UN bodies physically located in the region with strong relationships with governments and NGOs dedicated to ratification, reporting and implementation on specific conventions is also influential in determining whether conventions are ratified. United Nations Development Programme (UNDP) Pacific Offices (Fiji, Papua New Guinea and Samoa) have until recently not seen themselves as having a specific “human rights mandate”. Up until recently UNDP’s role has been mainly confined to awareness raising. It has been criticised for remaining silent during the coups and political crises in both Fiji and Solomon Islands in 2000. It has also been criticised for raising awareness in human rights, but not the advocacy of them. The criticism is that while UNDP is silent when violations occur or while they are occurring in the Pacific, it is an able and credible analyst of past behaviour and does not hesitate to outline human rights violations in its Common Country Assessments well after the events.54 This is perhaps a misunderstanding of the role of UNDP, whose role is not necessarily one of advocacy. This role is more appropriately that of the Office of the UN High Commissioner for Human Rights (OHCHR), whose function in such crises is to be an “honest but neutral broker”, advising of violations, suggesting a remedy and engaging in persuasive dialogue but without condemning or undermining the violator, in most cases a state. The Pacific Regional Rights Resource Team (RRRT) training, advocacy and technical advisory project has been for over 10 years now the only regional project with a specific and broad mandate on human rights and has been associated with ratification, reporting and implementation of ICERD, CEDAW and CRC where relevant in Fiji, Solomon Islands, Cook Islands, Tuvalu, Federated States of Micronesia, Samoa, Kiribati and Vanuatu. UNDP’s association with this project only began in 2002. The UNDP Pacific Sub Regional Centre set up in 2005 now has a human rights specialist with a mandate to advocate for ratification. Until recently there has been no UN agency with a mandate to advocate for five of the seven core treaties generally. OHCHR has only just opened a regional office in Suva. This is the case for UNICEF with the CRC and for UNIFEM with CEDAW, the most widely ratified treaties in the Pacific region. Both international bodies are responsible for providing support to Government for “their” treaties. UNICEF is particularly successful in this regard as CRC is the most widely ratified treaty. Support may also be provided by international NGOs based in the Pacific region such as Save the Children. In contrast none of the other five core human rights treaties have agencies dedicated to them or have regional offices or presences in the Pacific. The Pacific OHCHR office, which has a broad mandate for all seven core treaties, will have a critical role in supporting the other five core treaties.
Pryor, B. (2003), p.26
Human rights commissions can be successful in promoting the ratification of conventions and nationalising their provisions. However, apart from Fiji, all PICs lack a human rights commission. Thus the structures and mechanisms for promoting and protecting human rights are extremely limited. It is critical that all PICs establish national human rights mechanisms, grant them appropriate powers to be a driving force for change and resource them properly so that their presence is not mere lip service. For very small countries other options might have to be considered rather than fully fledged commissions. Alternatively, a regional human rights mechanism could be considered if national resources are limited.
THE BENEFITS OF RATIFICATION FOR PICS Historical
Although it is not widely acknowledged to be so or even understood, the human rights framework and the international human rights system has already brought considerable benefits to the PICs and its citizens. The majority of Pacific Islanders who understand the implications of not having human rights to protect them would be loath to abdicate them, given a choice. Most of these rights would be uncontested and even those who oppose them generally would concede that, for instance, the right to a fair trial cannot be dispensed with even on the grounds that they might have a Western provenance. Some of the gains of the international human rights framework for PICs include: Providing the moral and legal framework for decolonisation and independence from former PIC colonial powers (a key feature of the Universal Declaration on Human Rights (UDHR) and ICCPR); Providing a framework for democracy and elections for PIC constitutions and membership into the UN; Providing a legal framework of good governance; Enabling the majority of PICs to be perceived globally as functioning democracies and generally respecting of human rights (compare PIC records to that of Africa and South East Asia); Enabling the establishment of an independent judiciary; Allowing considerable overseas aid because PICs are generally able to demonstrate elected leadership and good governance; Providing aid and technical support for combating child pornography, discrimination against women and for other infrastructure development needs – for example, in Fiji, EU support for hardware projects such as the building of bridges because Fiji is able to demonstrate human rights compliance with article 96 of the Cotonou Agreement; Providing protection against the arbitrary use of power by the state in terms of the right to free movement, speech, fair trial, freedom from discrimination, free and fair elections, a just wage, protection against torture, an independent judiciary and so on; and
Ratification has also been a strong leverage for national improvements in a wide range of spheres – for example, CRC being the catalyst for legislation against child pornography.
3.2 The relevance of human rights to The Pacific Plan: development, poverty reduction, the MDGs, governance, democracy and security Challenges facing the Pacific region
The challenges facing the Pacific region and the success of The Pacific Plan are many. In the past 20 years, economic growth and development in the region have been disappointing. Regional fora and development reports55 have repeatedly attributed the lack of progress to poor governance, which indicates a need for development to address democracy and human rights rather than focus predominantly on economic growth. The Pacific Island leaders meeting in Auckland, New Zealand in April 2004 pledged to “give the greatest support to maintaining and increasing efforts by the Forum Secretariat to enhance the governance capabilities of the Forum members and Forumrelated agencies”,56 with specific reference to encouraging the creation of national human rights machineries. A pledge by the Pacific Islands Forum in its Pacific Plan to engage civil society is a positive development that could usher in change.57 Discrimination against women and children exists in most spheres of Pacific Island society due to tradition and cultural practices, which perpetuates domestic violence and child abuse. Ensuring equal opportunities for women and better protection for children requires long-term commitment and concerted effort. Creating opportunities for young people, who in many countries make up over half the population, requires innovation and resources. Discrimination on the basis of race, ethnicity, gender and sexual orientation is evident in some PICs. There is frequent abuse of power by the police, armed forces and prison wardens. An increasing number of HIV/AIDS cases presents not just health, but also social and rights concerns. Fighting discrimination against people living with HIV/AIDS will require education, policy and law change. Cross cutting themes in the Pacific include growing threats to human security, a lack of livelihood opportunities and access to resources, such as land, are linked to rising income disparity and growing poverty. A lack of adequate housing and disregard for labour rights are additional concerns requiring attention. There is growing poverty, instability and poor governance throughout the region and migrant workers in Fiji and Tonga present growing challenges. The growing impact of globalisation on small island economies and states and the human rights abuses that accompany this are evident also.58 Many PIC governments are reluctant to admit that there is poverty in the Pacific (because they equate poverty with the absolute poverty of for example Africa), but the numbers of
Asian Development Bank and UNDP Human Development Reports. Pacific Islands Forum Leaders’ Communiqué, Auckland Declaration (Auckland: Pacific Islands Forum Secretariat, 2004) para 5 57 Pacific Plan Task Force (2005) 58 Jalal, P I., (2005) pp.1-2
poor are increasing on a daily basis, hence The Pacific Plan’s Strategic Objective 4, which aims to reduce poverty, and 12, which hopes to achieve improved transparency, accountability, equity and efficiency in the management and use of resources. Many of these challenges are being addressed in such development plans as The Pacific Plan, the MDGs and national development plans which focus on improving development and reducing poverty. However, the success of regional or national development plans is dependent on real mechanisms that ensure their enforceability and require a level of accountability. Failure to include these types of provisions significantly weakens the probability of such plans succeeding and certainly undermines their intentions. Thus the ratification of treaties is not an obstacle to economic growth and development, but critical to it.
Human rights: links to development, poverty reduction and the MDGs
Ratification and implementation of human rights treaties is critical to achieving development needs and provides a framework for achieving The Pacific Plan, realising the MDGs, development goals and the reduction of poverty. The conventions have the advantage of imposing a legal obligation for compliance with development goals and complete The Pacific Plan. This explains why all UN development work is required to integrate human rights into development. The definition of poverty used in this paper is not income poverty but that of human poverty, the definition adopted by the UNDP Human Development Reports, which takes the view that poverty is broader than a lack of income – that it is deprivation across many dimensions. Human poverty thus means deprivation in the valuable things that a person can do or be.59 The realisation of human rights is critical to the achievement of all 15 Strategic Objectives in The Pacific Plan, but in particular to those of: reduced poverty (4); improved health (6); improved education and training (7); improved gender equality (8); recognised and protected cultural values, identities and traditional knowledge (11); improved transparency, accountability, equity and efficiency in the management and use of resources (12); improved political and social conditions for stability and safety (13); and increased national ownership and commitment to regional approaches, plans, policies and programmes (14). Virtually all of these objectives are also goals of human rights treaties. There are obvious overlaps between The Pacific Plan and the Millennium Development Goals and human rights are critical also to the achievement of the eight MDGs that PICs have committed themselves internationally to achieving by the year 2015 (see table on next page):
United Nations Development Programme, Human Development Report 2000 (New York: UNDP, 2000), p.20
Millennium Development Goal (MDG) MDG 1: Eradicate extreme poverty and hunger MDG 2: Achieve universal primary education MDG 3: Promote gender equality and empower women MDG 4: Reduce child mortality MDG 5: Improve maternal health MDG 6: Combat HIV/AIDS, malaria and other diseases MDG 7: Ensure environmental sustainability MDG 8: Develop a global partnership for development
Pacific Plan Strategic Objective (SO)
SO 4: Reduced poverty
SO 7: Improved education and training
SO 8: Improved gender equality
SO 6: Improved health SO 6: Improved health SO 6: Improved health
SO 12: Improved transparency, accountability, equity and efficiency in the management and use of resources SO 14: Increased national ownership and commitment to regional approaches, plans, policies and programmes
There are clear and unequivocal similarities between poverty reduction goals, treaty goals, MDG goals, development goals and overall good governance and democratic goals. It is no accident that both important plans recognise the importance of the same concepts. In the new era of development, policymakers and other experts are managing to understand and incorporate plans that are more aware of long-term sustainability rather than those geared specifically at only opening markets. How do human rights, especially the international human rights treaty law framework, contribute towards achieving these goals? How does it especially help secure development, poverty reduction and the MDGs? Many local leaders fail to see poverty as a manifestation of exclusion and powerlessness and not just a lack of resources. The main idea underlying the adoption of human rights treaties to effect development, poverty reduction, the MDGs and Strategic Objectives outlined above in The Pacific Plan is that the norms and values enshrined in them have the potential to empower the disadvantaged and thereby allows them to actively participate in their own liberation from poverty and marginalisation. The extra value of the Plan is that leaders have endorsed it, it is closer to home and there is a stronger sense of ownership of it. One of the most distinguishing features of a human rights approach is that it is explicitly based upon the norms and values set out in the international law of human rights. It is widely accepted by experts, governments and development agencies that effective poverty reduction is not possible without the empowerment of the poor.60
OHCHR, Human Rights and Poverty Reduction: A Conceptual Framework (Geneva: OHCHR, 2004), pp.1-2
The highly regarded World Bank study, Voices of the Poor,61 clearly demonstrates that the denial of rights is inherent in poverty and that poverty cannot be addressed without the realisation of human rights. The UNDP Human Development Report 2000 states that, “a decent standard of living, adequate nutrition, health care, education and decent work and protection against calamities are not just development goals – they are also human rights”.62 Once the notion of rights is introduced into policy making, the logic behind poverty reduction is that the poor no longer only have needs but that they also have rights and therefore legal obligations on the part of others to fulfill them. The reduction of poverty then becomes more than charity or a moral obligation – it becomes a legal obligation.63 The human rights framework adds value to the agenda of development. It draws attention to the accountability of governments to respect, protect and fulfill the human rights of all people. It offers a tradition of legal tools and institutions (both of structure and substance) namely the law, the judiciary and the process of litigation as a means to secure human development. It offers to the development process the idea that others have duties to facilitate and enhance development.64 Most of the prominent features of the human rights normative framework contribute to the empowerment of the poor and disadvantaged because they are based on accountability, the principle of universality, non-discrimination and equality, the principle of participatory decision making processes and the interdependence of human rights. An important salient feature of the human rights framework is that responsibility for the marginalised becomes a universal obligation. This means that while a state bears the primary responsibility for realising human rights within its borders, donors, development agencies and other states are also obliged to contribute to human rights and therefore to development priorities. This has significant implications for the conduct of international affairs, especially the flow of international aid to PICs from rich countries and development agencies, and for efforts to establish adequate systems of multilateral trade, investment and finance that are conducive to poverty reduction”.65 Thus, ratification justifies further aid and technical support from donors to PICs. Most importantly, the international rights framework does not make unreasonable demands that all human rights be realised immediately. In recognition of resource constraints, it allows, if necessary, for the progressive realisation of economic and social rights over a period of time and for the setting of priorities among rights in the course of progressive realisation, but with time bound indicators and benchmarks.66 Finally, despite common misconceptions, the non-fulfillment of a right does not necessarily mean that a state is automatically in violation of its international obligations; all that a state is required to do is demonstrate that it is taking all reasonable measures within its resources to progressively realise a right. The treaty monitoring and reporting system then becomes responsible for helping make that decision. The combination of the two
Narayan, D., et al, Voices of the Poor: Volume 1: Can Anyone Hear Us? (New York: World Bank, 2000) 62 UNDP (2000), p.8 63 OHCHR (2004), pp.2 & 33 64 UNDP (2000), p.2 65 Idem, pp.9-11 66 OHCHR (2004), pp.22-23
perspectives – that of human rights coupled with development and The Pacific Plan – gives PICs something that neither can provide alone.
Human rights: links with governance and democracy
Transparency International (TI), an independent organisation which looks at national integrity systems, good governance, corruption and related practices worldwide, states that all PICs need to formulate anti-corruption strategies to combat bad governance and corruption. Its country reports state that many PIC leaders regard themselves as beyond the law; that most PICs lack effective leadership codes; that customary gift-giving practices and conflict of interest have always been challenges arguably bordering on corruption; that many media outlets are government controlled, are therefore less able to be independent and more inclined to be docile; that nepotism and cronyism is rife throughout the region; many fiscal policies lack transparency and accountability; that public funds are often misused; that NGOs generally lack the capacity to demand accountability from the state; that there are insufficient institutions that might contribute to national integrity systems; and that rank-pulling (where influential individuals use connections to exert undue influence over decision makers to make decisions in their favour) exists throughout the region.67 The costs of corruption to the region as reported by TI include personal losses, loss of time, development costs, political costs, social costs, decline in work ethics and degradation of values, inefficient delivery of services, wastes of public funds, waste of precious natural resources, lack of investor confidence in the region and vast overall costs to the economy.68 There are many historical, political and cultural factors which have contributed to this assessment but all can be subsumed under the rubric of bad governance. Although the Pacific region profile is considerably better than other regions of the developing world (for example, Africa), PICs need to formulate strategies to prevent further declines in bad governance. The Pacific Plan links ratification of human rights treaties with a fair and equitable distribution of resources. A human rights response that includes the building of strong and stable democracies, as envisioned in The Pacific Plan, would greatly enhance the possibility of achieving good governance. The decision to choose democracy as a governmental system with its related tenets of free and fair elections; a free and independent media; separation of powers; accountability to civil society; the involvement of civil society in governance; collective decision making; political tolerance; and equality of rights for virtually all PICs was made many years ago. This paper does not attempt to discuss the viability of democracy as The Pacific Plan vision statement accepts it as given: “We seek a Pacific region that is respected for the quality of its governance, the sustainable management of its resources, the full observance of democratic values and for its defence and promotion of human rights.” (our emphasis)
This information is gleaned from Transparency International National Integrity Systems Country Study Reports for Fiji, Nauru, Niue, Kiribati, Cook Islands, Solomon Islands, Samoa and Tonga. 68 Ibid.
Democracy is an essential pre-condition for the attainment of human rights. Concomitantly, a democracy cannot exist without respect and protection of human rights. Democracy and human rights are defining elements of good governance. These rights and notions are mutually reinforcing, with advancement in one area strengthening progress in another.69 Human rights are critical to building a stable evolutionary democracy that is relevant to Pacific Island culture and needs. Economic development that is not based on democracy and equality of economic benefits produced only in conditions of democracy is a recipe for further problems. Concurrently, economic development can only occur in conditions of stable democracy. Economic development not based on equality of rights will result in only the already advantaged benefiting from the economic progress envisaged in The Pacific Plan.
Human rights and security
The fourth pillar of The Pacific Plan is that of improved security for the region. It specifically outlines at Strategic Objective 13 “improved political and social conditions for stability and safety”. Since PICs do not have to be concerned with threats of external attack, security in this context is more about human security within our borders, rather than national security. True security for Pacific Islanders is human security (which encompasses economic, food, health, environmental, personal, community and political security); environmental security (which recognises environmental threats to the region and the threat of internal armed conflict); and economic security which is about access to resources, finance and markets necessary to sustain acceptable levels of welfare and state power. The promotion of human security is necessary to prevent violent conflict from erupting in the region70 and human security is tied up with human rights, effective governance and the rule of law. Human rights and the rule of law are critical to political and social stability in the region; stripped of all its minutiae the response by citizens of both Fiji and the Solomon Islands to the political crises in 2000 demonstrates that underpinning all political concerns was the perceived unfair distribution of resources and the benefits of development. The observance of rights are essential to ensuring that resources and the benefits of development are distributed fairly and evenly based on need and on principles of non-discrimination and equity. Some groups in the Pacific perceive human rights as a threat to the achievement of security. An argument offered against human rights is that if they are rigorously observed, anti-terrorism measures will not be successful in obtaining critical information which will lead to the arrests of terrorists and the prevention of transnational crime. Some developed countries have passed new legislation71 attempting to circumvent the civil and political rights of suspected terrorists using methods against international human rights law standards. Some groups have even
UNDP (2000), p.56 Greenpeace Australia Pacific, True Security: Achieving a Peaceful, Secure and Prosperous Pacific (prepared for the 2005 Pacific Islands Forum, Greenpeace Australia Pacific, 2005), p.12 71 The USA – the Patriot Act (Public Law 107-56) of 2001; Australia – the Anti-terrorism Act 2004, the Anti-terrorism Act (No 2) 2004, the Anti-terrorism Act (No 3) 2004 and the Australian Anti-Terrorism Act 2005.
attempted to justify the use of anti-human rights methods such as unlawful detention and “torture lite”,72 to combat terrorism. The UN High Commissioner for Human Rights, Justice Lousie Arbour, had this to say about such attempts: “We are all too aware that the advances in the field of human rights during the past 60 years are now being openly challenged in the fight against terrorism. We must be conscious of these developments and remind our interlocutors – whether in Government or not – that the only effective way to win the fight against terrorism is in the full respect of international human rights norms. I may add that this is key not only to dealing with the manifestations of terrorism but, even more importantly, in preventing terrorist acts and ending the breeding ground that feeds terrorism.” 73
The relevance of each human rights treaty to the Pacific
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
ICESCR rights include rights to self-determination, culture and identity, language, education, privacy and food. ICESCR promotes the inclusion of socio-economic rights for the benefit of all people in the Pacific. It allows the opportunity for external and internal speculation on policies, which is always important to have in any government. In fact, it is already part of the good governance practices specifically called for in The Pacific Plan. Moreover, ICESCR is the human rights treaty that is at the core of the link between development and human rights, securing important rights necessary for sustainable human development. ICESCR deals directly with many issues affecting the constituents of PICs. In the Pacific, for example, an average of 25 per cent of people live in poverty; no countries have 100 per cent access to safe drinking water, with some having access as low as 20 per cent in rural areas74; and while expenditures on education may have increased, quality has not and rural and outer islands are frequently without books or other teaching materials75. Articles 7, 9, 11, 12, and 13 of ICESCR deal directly with these issues. However, ICESCR should not be looked at as an additional burden on PIC governments to ensure that these conditions are met, but as an indicator, as a legal obligation that once reported on in a complete UN treaty body system that clears PICs of governance problems, that they are meeting their capacity and require outside assistance to improve conditions further. ICESCR would do so in terms of socioeconomic rights. It would be a guiding tool for the adoption and implementation of socio-economic policies and legislation, especially those called for in the MDGs and
Tayler, W., Notes on Human Rights and Terrorism (paper presented to the 8th Annual Meeting of the International Council of Human Rights Policy, Lahore, May 2005) 73 Arbour, L., Protecting Human Rights: Charting the Way Forward (UN High Commissioner for Human Rights Opening Address, Heads of Field Presences Meeting, 22 November 2004), para 3 74 Abbott, D. & Pollard, S., Hardship and Poverty in the Pacific. (Manila: Asian Development Bank, 2004), p.48 75 Idem, p.36
Pacific Plan. And, additional monitoring through ICESCR would demonstrate that all means possible had been undertaken to meet the obligations. ICESCR would also provide PICs protection against conditions demanded by the EU through ACP (Africa, the Caribbean and the Pacific) structural adjustment policies, as well as those of the International Monetary Fund (IMF) and World Bank. Ratifying ICESCR would allow PICs to argue that fulfilling certain structural adjustment policy conditions or those of the IMF and World Bank would cause violations of international and domestic law set forth by ICESCR. The total benefit of ICESCR then is the provision to deal directly with poverty issues that are affecting the region while fulfilling Pacific Plan obligations and MDG aims, as well as finding a way to defend against possible interruptions of policies that are meant to target these problems. ICESCR as an international convention, would give PICs much more protection from the World Bank, IMF and EU than domestic law would.
The International Covenant on Civil and Political Rights (ICCPR)
ICCPR promotes the civil and political rights of individuals. This includes the right to life, speech, movement, vote, stand in elections and other rights related to civil society. Some of these rights are already protected in domestic constitutions, but to ensure their full-protection and meet the guidelines prescribed in The Pacific Plan, ratification is ultimately the best opportunity. Many Pacific states have bad governance records. Some PICs have been unstable, suffering from repeated coups or substantial corruption before and after elections. The various bills of rights that exist in PICs have not done enough to fight against these problems. As acknowledged by the ADB’s Hardship and Poverty in the Pacific report, good governance is the key to fighting poverty, and good governance is not possible without enforcing civil and political rights present in the ICCPR, which make possible the “improved transparency, accountability, equity and efficiency in the management and use of resources in the Pacific”, as called for in The Pacific Plan.76 The Pacific Plan calls for these areas to be strengthened. Ratifying ICCPR would ensure this strengthening by obliging states parties to make laws, policies and regulations, and procedures that are consistent with internationally accepted and agreed human rights values called for in the Plan and legally enforceable in the ICCPR.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
ICERD deals specifically with discrimination on the basis of race and ethnicity. It is mainly concerned with racial discrimination faced by an individual or a group of people, where the state or government is the main perpetrator. This is commonly referred to as “state sponsored racism”. ICERD provides for a specific definition of race and ethnic discrimination. Most PIC constitutions or laws make such discrimination illegal, but do not provide an adequate explanation or definition as to what constitutes race or ethnic discrimation. Where the definition of race discrimination
Pacific Plan Task Force (2005), p.4
is unclear or ambiguous in national legislation, ICERD can assist in providing an explanation. Governments can use ICERD as a baseline against which to assess and improve their national laws, policies and programmes. For example, ICERD is mainly concerned with state sponsored racism – ratifying ICERD would enable states parties to reassess state policies to ensure they do not fall within the broader definition of such racism. ICERD also provides for affirmative action as long as it is consistent with human rights principles. It takes into account the needs and concerns of people of marginalised racial and ethnic groups. Affirmative action under ICERD provides states parties with an opportunity to provide special treatment to those groups that are marginalised racially and ethnically. While the issue of discrimination in terms of race is not specifically addressed in The Pacific Plan, ICERD is targeted as a milestone in the good governance Strategic Objectives for the first three years (2006-2008), so the priority of ICERD ratification is clearly high and understood to hold particular importance to fulfilling Pacific Plan objectives, which should send a clear message to PICs that it needs to be done or the Plan will fail.
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
CAT protects citizens from the most direct harm possible for a government to cause. As such, it is surprising that no PIC has yet ratified CAT. In fact, PICs generally distance themselves from the issue of torture as they do not generally participate in international conflict and related incidents to which torture is most often attributed. However, what is misunderstood is the added value of CAT to domestic cases where torture is more frequent. Police brutality, for example, occurs often in the Pacific. The result is public mistrust for law enforcement and the creation of an unstable environment where people do not feel safe. The indirect impact of this on the Pacific conflicts with The Pacific Plan goals; international investment will slow and PICs will feel the economic effects. As protecting human rights, reducing poverty, and improving social conditions for safety and security are main objectives of The Pacific Plan, the tolerance of policies that do not make the maximum effort to prevent this could be considered a violation of the agreement. Some may feel that PICs already face a substantial burden from treaties and that there are other issues need to be dealt with more immediately. On the contrary, CAT may not place additional burdens on PICs and it serves as a protection for fundamental rights and goals outlined in The Pacific Plan, notably the anti-corruption measures in the good governance policies, as torture is in fact a corruption of governance. Furthermore, law enforcement training called for in the Plan cannot be ethically carried out if there are no measures taken to prevent subsequent torture. CAT is also the only treaty in the UN system that provides the opportunity to also ratify an optional protocol (OP-CAT) that will help overcome the technical and resource barriers frequently encountered by PICs and cited as a reason for non-ratification. Therefore, as PICs frequently fail to comply with standards for prison conditions under their own legislation, for example, CAT and OP-CAT will not be a mere case of 31
redundant legislation, but will provide a means to an end that domestic legislation was unable to accomplish. In other words, not only will the ratification demonstrate Pacific compliance with international standards and raise their status in the international community as they will be able to fulfill their treaty obligations through the reporting and visits established through CAT and OP-CAT, this system also creates a funding mechanism that draws directly from UN general funding. Furthermore, it would serve as evidence that this is an effective approach that could be applied to other treaties where PICs need additional technical and other resources to meet the responsibilities.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
CEDAW promotes the fundamental human rights, dignity and worth of women consistent with the high regard for Pacific women. It prohibits discrimination against women on the grounds of sex and gender and provides for affirmative action for women. CEDAW is the second most ratified convention after CRC in the Pacific, which is important as women make up 50 per cent of the Pacific’s population. Women make up one-third of the formal, paid workforce, with the majority being in the informal and semi subsistence sectors; and only 10-20 per cent of women hold managerial positions. Women hold a very small proportion of seats in national Parliaments, varying from 0 per cent to 15.5 per cent (Fiji). The regional average is 4.5 per cent, which indicates that PICs have the lowest number of women representatives of any region in the world.77 Where these inequalities exist, CEDAW calls for PICs to implement temporary measures aimed at speeding up de facto gender equality. Ratification of CEDAW encourages states to change laws and policies that have a detrimental effect on women through the reporting process. This leads to women having better access to resources; and increased opportunities enable women to support their families and communities. This has a direct link to the development of Pacific states as studies have shown that when the lives of women are improved, there is an immediate benefit for families. Enforcement is already an obligation through CEDAW and its implementation is called for as the improved economic and political participation of women meets Strategic Objective 8 of The Pacific Plan and MDG 3. CEDAW also ensures measures towards sustainable development and reduced poverty outlined in the Plan. Pacific aid partners have strong gender policies and look towards the recipient state’s commitment in furthering women’s equality. Ratification and implementation of CEDAW is one such indicator. Technical assistance to promote and support the state’s commitment to gender equality is more likely to be increased and enhanced if CEDAW is ratified.
The Convention on the Rights of the Child (CRC)
CRC is the first legally binding international instrument to incorporate the full range of human rights – civil and political rights as well as economic, social and cultural rights.
SPC et al, Pacific Islands Regional Millennium Development Goals Report 2004 (Noumea: SPC, 2004) <www.spc.int/mdgs/MDGReport/Reg_report.htm>
As called for in The Pacific Plan, the convention protects children's rights by setting standards in health care, education and legal, civil and social services. These standards are benchmarks against which progress can be assessed. States that are party to the convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child. CRC is the most widely ratified treaty in the Pacific (with 100 per cent ratification), as well as globally. Few argue against its relevance. Two additional Optional Protocols – on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography – were adopted to strengthen the provisions of the convention in these areas. The widespread ratification of CRC in the Pacific region has seen infant mortality rates decline over the past decade, sustainable immunisation programmes providing much needed vaccines to children, and the provision of quality education for children. By using CRC as a benchmark, UNICEF also works towards ensuring that governments and other partners provide children with access to safe water and adequate sanitation. Research on eliminating gender disparity in primary and secondary education has tied the education of girls, called for in CRC, to the goals of reducing poverty, hunger, under-five mortality, maternal mortality and fighting major diseases, which are necessary to fulfill The Pacific Plan. The obligations under CRC are specifically in line with Initiative 12.6 of The Pacific Plan, where it requires PICs to develop a strategy to support participatory democracy, consultative decision-making (including non-state actors, youth, women and persons living with disabilities) and the electoral process. The Pacific Plan targets children again, calling for the “enhancement of advocacy for and coordination of youth programmes and monitoring of the status of youth, which is called for immediate implementation.”78 There is also a clear synergy in the principles and obligations under CRC and those stipulated within the MDGs. Six of the eight MDGs are directly related to the principles of the CRC and can be easily identified as rights belonging to children. In this sense, the millennium agenda has become a CRC agenda also for PICs. This has been evident in the incorporation of MDGs into the national development plans of various PICs. Through ratification, the CRC, like The Pacific Plan and MDGs, has become a mandate for development, poverty reduction, improved livelihood and health for PICs and their children. Further implementation of CRC will only improve conditions to a higher degree and contribute to The Pacific Plan meeting its goals.
Pacific Plan Task Force (2005), p.16
The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)
The primary objective of ICRMW is to protect migrant workers and their families, a particularly vulnerable population, from exploitation and violation of their fundamental human rights, which is a common occurrence when people are outside their normal environments where they are more familiar with the system. Ratification of ICRMW is therefore necessary for the protection of the rights of migrant workers in the Pacific, for Pacific Islanders who work abroad and for the region’s social and economic development. Current global estimates of migrant persons are around 175 million, or 3 per cent of the world population.79 Migration is not new to the Pacific. Pacific Islanders are constantly migrating for better salary and living conditions and lately there has been a swift flow of skilled migrants from other countries to the region. In some PICs, remittances are the largest source of revenue. Migration and remittances ought to be viewed as a complement to local development, as they deliver welfare gains and assist in reducing poverty.80 The issue of reciprocity is fundamental, as the region enjoys the benefits of migrant work through high remittances and therefore the region has a duty to respect the rights of such workers in the region. Ratification means better incentives, protection of human rights for migrant workers and their families, well-managed migration flows, prevention of trafficking and clandestine movement of people, equal treatment and wider constitutional protection.81 The special measures encouraged by the convention would have a direct impact on migration and the economy at large. Ratification can also be seen as an acknowledgement by PIC leaders that migrant issues are a growing concern and they are willing to take responsibility by becoming agents of change. However, this is not only for their own concern, but meets a milestone in the Plan’s Strategic Objectives for the first three years. The Pacific Plan understands migrant workers to be a priority and sees ICRMW as a means to provide adequate protections.
Indigenous peoples and human rights
Many groups that oppose human rights in fact gain considerable benefits from them. Of note are Pacific groups that may openly oppose human rights on the basis that international human rights conflict with indigenous rights, though indigenous rights are recognised by the international human rights community as an intrinsic part of human rights principles. This behavior is evident in the selective support of international treaties, such as the international proposed draft of indigenous rights (which is yet to be
United Nations, Activities of the United Nations Statistics Division on International Migration (New York: United Nations Statistics Divisions, 2002) 80 The World Bank, ‘Migration can deliver welfare gains, reduce poverty, says economic prospects 2006’ (World Bank media release, 25 November 2005) <http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:20724214~pagePK:6425704 3~piPK:437376~theSitePK:4607,00.html> 81 Stefanie, G., “Migrant Human Rights: From the Margins to the Mainstream” (Migration Information, March 1 2005) <http://www.migrationinformation.org/Feature/display.cfm?id=291>
accepted), the Draft Declaration on the Rights of Indigenous Peoples (DDRIP). It is essential to understand that the international human rights treaty body system is only able to be successful if all the mechanisms operate together. Partial ratification (selective or with multiple reservations) of treaties makes minorities more vulnerable. The treaties are meant to complement each other to offer full protection from tyranny and exploitation of every group, not to marginalise some and give preference to the rights of others. The UN encourages protections of indigenous rights, but social justice demands that this must be in a manner that reflects principles of equality. Indigenous and ethnic rights groups prosecuted in Fiji and Solomon Islands used the bill of rights and the international human rights framework to mount their appeals against conviction and imprisonment. It is poorly understood that it is the international human rights system that provides the legal framework to oppose tyranny, exploitation and marginalisation of not only indigenous peoples under threat, but other minorities. The international human rights system and human rights nationally have enabled indigenous peoples to gain unprecedented rights hitherto not recognised in law. In the famous Mabo v Queensland decision in Australia,82 the High Court of Australia upheld the claims of five plaintiffs from Murray Island (Mer) that Australia was occupied by Aboriginal and Torres Strait Islander peoples who had their own laws and customs, and whose 'native title' to land survived colonisation. It changed the foundation of land law, overturning the doctrine of terra nullius (land belonging to no one) on the basis of which British claimed Australia. This acknowledgment inserted the legal doctrine of native title into Australian law. It recognised the traditional indigenous rights of the Meriam people to their islands and their right to identity and nondiscrimination. The court also held that native title existed for all indigenous people in Australia before colonisation. The court held that this native title exists today in any portion of land where it has not legally been extinguished. The decision of the High Court resulted in the Native Title Act 1993 (Cth), which attempted to codify the implications of the decision and set out a legislative regime under which Australia's indigenous people could seek recognition of their native title rights.83 There is little doubt that this decision is the result of human rights and the international law system, which had created a different milieu in Australian courts, and the close monitoring of the case by the Human Rights Committee which monitors ICERD. Among the many arguments used was one that the plaintiff’s rights were protected under article 5 of ICERD. The case brought to an end 10 years of litigation about Aboriginal land rights. It resulted in Australia’s legal system being brought into line with other legal systems throughout the world that already recognised native land titles.84 It is widely acknowledged that by the time the High Court decided Mabo, two things had changed. First, the court had established a record of making decisions that protected human rights. In 1982, in Koowarta v Bjelke-Petersen, it decided that the
Mabo and others v. Queensland (No. 2)  HCA 23; (1992) 175 CLR 1 F.C. 92/014 (3 June 1992) Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), Overturning the Doctrine of Terra Nullius: The Mabo Case, (Canberra, AIATSIS, 2004) <http://ntru.aiatsis.gov.au/research/mabo/mabo.html#> 84 Castan, R., Mabo and Land Rights (Melbourne: Victorian Council for Civil Liberties, 1994)
Racial Discrimination Act 1975, which enacted ICERD, was valid. The court was slowly developing a clear path towards recognition of fundamental human rights through interpretation of the constitution and the common law. Second, the understanding of Aboriginal land rights, the perspective on the rights of indigenous peoples and the moral and social implications of a narrow legal view had significantly changed as a result of human rights85 and the monitoring of it by the human rights treaty bodies. As Brennan J stated in Mabo; “The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.”86 The international human rights system has also allowed indigenous peoples to obtain other benefits which accrue to them as members of that group. In Lovelace v. Canada,87 Sandra Lovelace submitted a case to the UN Human Rights Committee which administers the ICCPR under the Optional Protocol to the ICCPR. Lovelace was born and registered a Maliseet in Canada, but she lost her rights and native status under Canada's Indian Act after she married a non-native. She argued that the Act was discriminatory on the basis of sex and violated the ICCPR protocol. The committee stated that Canada was in violation of article 27 of the covenant because Lovelace’s right to access to her native culture and language (as a member of a minority) in a community with other members of her group had been blocked by the loss of her right to live on her reserve. It is clear that the current legislation and proposed future legislation can together ensure a balanced system that will protect indigenous rights. An accusation often levied at human rights is that it prioritises individual rights over group rights, yet four of the seven core human rights treaties are dedicated to protecting the rights of vulnerable groups or minorities under threat. These treaties are focused on group rights in comparison to other more advantaged groups. ICERD, CRC, CEDAW and ICRMW allow for affirmative action which grants those groups covered by the conventions special privileges which are not considered unlawful discrimination. In no way could it be argued that these conventions favour individuals over group rights because the advantages accrue only if a person can demonstrate membership of that group.
Castan, R., (1994) Mabo and others v. Queensland (No. 2)  HCA p.23 87 United Nations Human Rights Committee, ‘Views of the Human Rights Committee under Article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights in the matter of Lovelace v. Canada - Concerning Communication No. R.6/24’  1, Canadian Native Law Reporter 1 <www1.umn.edu/humanrts/undocs/session36/6-24.htm>
The DDRIP is a similar draft treaty focusing in group rights of marginalised indigenous peoples. It sets out the rights of the indigenous people of countries worldwide, as well as the framework by which states or governments can protect and secure these rights. The draft declaration deals with the rights of indigenous peoples in areas such as selfdetermination, culture and language, education, health, housing, employment, land and resources, environment and development, intellectual and cultural property, indigenous law and treaties and agreements with governments. It also lays down guidelines states and other organisations can use to make sure that the aspirations of indigenous people are kept alive.88 However, as a draft, the declaration has not yet become part of international law and therefore does not yet have legal force. All the core human rights treaties started as draft declarations before they became binding treaties. One advantage of PICs being part of the international human rights system through ratification of all core treaties is that they will then be able to influence DDRIP becoming part of international law. They will, however, have more bearing on the establishment of the DDRIP as a convention if they are already participants in the rest of the UN treaty body system, demonstrating their respect for all areas of human rights and not only those that are politically convenient to them.
What is the added value for Pacific Island states to ratify all the core human rights treaties? The international human rights treaty system offers substantial benefits to the Pacific region; the more vulnerable and the more poor a country, the greater the need for human rights. Ratification provides added value in the following ways:
Provides a legal regime of accountability and enforceability
Ratification adds a legal focus to development. Regional declarations lack mechanisms for accountability, enforceability and for measuring progress. Ratification and reporting ensure accountability to an international body which monitors the treaties’ progress over time, step by step, which thereby enhances governance, democracy and security through an accountability system. It also enables access to tried and tested policies and legislative frameworks. The system of reporting and monitoring allows for a system of introspection against international standards because ratification gives a state the opportunity to slowly measure its standards against universal standards and to obtain assistance in complying with them.
Enables the realisation of human rights and encourages adherence to the rule of law
Ratification encourages the protection and realisation of human rights nationally and thereby advances respect for the rule of law and democracy. Improving conditions that often serve as the foundation for breeding terrorism reduces the need for often inappropriate and fear based security policies. Ratification ensures the use of human
Pacific Regional Rights Resource Team (RRRT), Human Rights Training Manual (Unpublished, Suva, 2002), Chp 18
rights conventions as a set of standards and common language. Using the language of rights as a common language demonstrates a broad international consensus which countries can work together on. Ratification operates on the principle of nondiscrimination and integrates gender as an integral part not an “add on”.
Improves the public standing of PICs and their governments
Ratification demonstrates an honest intention by the state which ratifies to comply with the standards contained in them, even when it may falter from time to time. The inability of a state to immediately comply does not affect its credibility because ratification demonstrates an intention to comply. It enhances a government’s public standing to its citizens, as well as enhances its political and moral image to the global community Ratifying a convention is a good indicator of international solidarity and cooperation on a given international issue or concern. For PICs it will demonstrate commitment and a willingness to improve the lives of citizens nationally and regionally.
Encourages a fair system of aid, technical support and global justice
Ratification enables development cooperation to contribute to the development of the capacities of duty bearers (states and others) to meet their obligations and/or of rights holders (citizens) to claim their rights. For example, it requires other duty bearers (wealthy states and donors) to be responsible, not just the main duty bearer, i.e. the state. Thus, ratification justifies further aid and technical support from donors to PICs. It also through participation in the international human rights system allows the system of global governance to be transparent and fair, giving a voice to small and poor countries; a group in which PICs are included and therefore given an opportunity to lead and speak. Ratification also reassures donors that the state will utilise donor funds towards equitable and just practices. It lays a base of mutual trust and cooperation to achieve viable and sustainable outcomes and provides a programming tool to donors and development agencies. Through ratification, development agencies know where to provide support – for example, UNICEF, which facilitates state and national stakeholder engagement in the reporting process relating to CRC, uses the committee’s concluding comments as a programming tool. UNICEF approaches the reporting exercise as a dynamic occasion for assessment and dialogue with states, UN entities and NGOs. This results in a framework for state accountability for implementation of their treaty obligations. Other agencies in the UN system, for example, UNDP and WHO, also participate in the reporting process, and seek to integrate its output into their programming.89 Non-ratification is then just a missed opportunity to demonstrate the need for international aid and technical support.
OHCHR (2006), p.6
Involves participation of civil society and citizens in the development process
Ratification facilitates participation of Pacific Island citizens in The Pacific Plan and development process. It empowers communities through capacity building because it involves civil society. It thereby changes the situation of the beneficiary or group from being passive aid recipients to rights-holders and thereby discourages a hand out mentality. Ratification focuses on how development outcomes are brought about. It scrutinises poverty through a human rights lens and encourages a more structural approach to poverty alleviation. It involves the poor being able to do things themselves and thereby contributes to the goal of poverty reduction.
4. A MECHANISM FOR REGIONAL SUPPORT FOR RATIFICATION, REPORTING AND IMPLEMENTATION
4.1 The treaty body reforms90 & reporting
One of the most significant objective constraints to ratification of all the core treaties is the heavy responsibility of reporting on each treaty, but it is absolutely necessary for the monitoring of compliance with the treaties and for accountability. This is how development goals in The Pacific Plan might be monitored, through the regime of legal accountability. Currently all states that are parties to the treaties must submit regular reports to the seven treaties bodies (the committees) and appear before them periodically. This means preparing seven reports and attending seven constructive dialogues on a periodic basis. The committees do not sit on a permanent basis. They meet from time to time, twice or three times a year to engage in the dialogue. The committees consist of part time committee members, elected by states parties, who are experts in their field. The work of the experts is done on a voluntary basis and generally, most have full-time positions working in their own countries. OHCHR has proposed treaty body reforms to minimise the technical and resource burdens of reporting. The main recommendation is the proposal of a unified standing treaty body instead of seven treaty bodies. It is based on the premise that, unless the international human rights treaty system functions and is perceived as a unified, single entity responsible for monitoring the implementation of all international human rights obligations, with a single, accessible entry point for rights holders, the lack of visibility, authority and access which affects the current system will persist. The advantages of a unified standing treaty body are listed below: Unlike the current system of seven part-time committees, a unified standing treaty body of permanent, full-time professionals is more likely to assist states parties in their implementation of human rights obligations;
It would provide a framework for a comprehensive, cross-cutting and holistic approach to implementation of the treaties, and could introduce flexible and creative measures to encourage reporting, and maximise the effectiveness and impact of monitoring; It would ensure a consistent approach to the interpretation of provisions in the treaties which are similar or overlap substantively; It would also guarantee consistency and clarity of concluding comments, general comments/recommendations and, in that way, strengthen the interpretation of treaty provisions; It could extend the period of the dialogue with individual states parties from the current average of one day per treaty body to, for example, up to five days, depending on factors such as the number of treaties ratified; By combining the seven dialogues currently operating independently into one, in-depth session with one monitoring counterpart rather than seven, the dialogue would be transformed into a strategic and continuous tool for monitoring human rights performance against all obligations. States parties would be encouraged to send expert delegations including all government ministries having responsibility for the full range of human rights to respond to detailed questions and benefit from the expertise of committee members; Members would be available on a permanent basis for follow-up missions by the experts, given the permanent nature of their work; It would inevitably be more visible than the existing treaty bodies, and would be able to make its procedures, recommendations and decisions better known at the national level; It would also be available to convene sessions in regions, thereby strengthening the visibility of the system and ensuring its accessibility; (our emphasis) A comprehensive, overall assessment of the implementation of international legal obligations under human rights treaties for countries in one single document, rather than in seven separate documents, would be more likely to attract heightened attention from political bodies such as a future Human Rights Council or the Security Council. Without considering the merits and demerits of a single treaty body in contrast to seven treaty bodies, the proposals above are clearly of immense importance to PICs that are considering ratification of the seven core treaties and are more likely to encourage PICs to ratify. In practical terms this means that each PIC would have to prepare one single report rather than seven. A PIC would only have to appear before a single committee once every now and then, but for a longer period. It would only have to send one delegation to attend the dialogue rather than seven separate delegations. This does not mean that PICs should refrain from ratification until the new system is in place. PIC ratification based on the principle of agreement followed by a debate about shortcomings in fulfilling obligations will strengthen arguments that reform is needed. Thus, mere acknowledgement that the current system has inadequacies and abstaining from participation until reform is made is also undesirable.
A Pacific regional mechanism
There are no regional mechanisms whose purpose is solely to assist in ratification, reporting and implementations of human rights treaties. There are regional human rights instruments and institutions in the Americas, Europe, Africa and in the Arab states but their functions generally are to issue advisory opinions, promote human rights, receive complaints and hear and adjudicate disputes (except for the Arab Human Rights mechanism). They function in a similar manner to national human rights institutions.91 The Inter-American Court of Human Rights issues advisory opinions as well as deals with human rights violations by issuing opinions of legal matters brought forth by Organisation of American States (OAS) member states. The African Commission on Human and Peoples’ Rights is mandated to “collect documents, undertake studies and research on African problems in the field of human and peoples rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights and, should the case arise, give its views or make recommendations to governments.”92 Its duties increased with the introduction of the African Court of Human Rights (case preparation). However, beyond “collecting documents” and “undertaking studies”, it does not appear to be a real mechanism for providing technical support. The Fiji Human Rights Commission is able to provide treaty reporting support to the Fiji Government for the three conventions ratified by it if needed. In Fiji’s case, the ICERD report was principally prepared by Foreign Affairs and the CEDAW report by the Women’s Ministry, with support from paid consultants (NZAID supported) and NGOs. In Samoa, the CEDAW report was prepared by the Women’s Ministry, other Samoan governmental organisations and an NGO CEDAW partnership with the support of UNIFEM’s consultants. Vanuatu’s CEDAW report was prepared by a paid consultant with support from a committee consisting of governmental organisations and NGOs, and its CRC report by the Ministry of Health. Solomon Islands prepared its CRC report in a similar manner. In all cases donors supported the reports by paying for consultants and in some cases paying for the delegations to attend the constructive dialogue. The United Nations Development Fund for Women (UNIFEM) and SPC’s Pacific Women’s Bureau provide technical and advisory support for ratification and reporting on CEDAW to PIC governments. UNICEF provides similar support on CRC. Both UNICEF and UNIFEM also to varying degrees will assist in implementation but this is hampered by a lack of funds. As mentioned earlier, CAT is the only treaty in the UN system that provides the opportunity to also ratify an optional protocol that will help overcome the technical and resource barriers frequently encountered by PICs and cited as a reason for nonratification. There is no regional institutional technical and advisory assistance offered to ICESCR, ICCPR, ICERD and ICRMW. Regional institutions such the Pacific
See Annex B, which provides a summary of all human rights regional mechanisms and their main functions. 92 African Charter on Human and Peoples’ Rights (1981), Article 45
Islands Forum have not had a human rights mandate until The Pacific Plan was approved. UNDP in the Pacific has so far not assisted in treaty ratification and reporting, except recently through RRRT which has assisted both government and NGOs in either ratification and/or reporting in Fiji, Federated States of Micronesia, Samoa, Kiribati and Tuvalu. Local NGOs provide some support for the treaties that they are interested in by providing information to government for state reports or by filing parallel reports to assist the treaty bodies get a complete picture of the human rights situation in their counties.93 The International Women’s Rights Action Watch Asia-Pacific (IWRAW Asia Pacific) based in Malaysia also assists NGOs that wish to file CEDAW parallel reports and attend the treaty sessions as they have done for Fiji and Samoan NGOs. The Asia Pacific Forum for Human Rights Institutions (APF) provides support to establishing and capacity building of national human rights institutions but it does not concentrate on treaty ratification and reporting. As Fiji has the only national human rights commission in the Pacific Island region, its direct support is currently limited to Fiji. However it has a potential and significant role to play in helping establish human rights institutions which will eventually have an impact on the capacity of such institutions to assist PICs report and comply with their treaty obligations. The best overall option is a comprehensive regional mechanism with the responsibility to promote and defend human rights and to provide technical and financial support for ratification, reporting and implementation. This could be a regional human rights commission, but one with a broader mandate than other regional human rights institutions. This ought not to be confused with a regional court, which would currently be a severe and further drain on Pacific resources. However a regional mechanism such as this generally only works more effectively when there are national human rights institutions already in place. If there are resource constraints, an important first step could be a system of UN support for a regional “technical cooperation” mechanism specifically geared at assisting PIC governments with treaty ratification and reporting. This would be an innovative option and could pave the way for a fully-fledged regional mechanism in future. If resource constraints limit the existence of a “permanent team” and office, a viable first alternative could be an OHCHR initiated and sponsored regional fund together with a fluid, interchangeable team of people, including consultants, from a variety of agencies who can be called upon to provide short-term technical capacity for assistance in ratification and reporting. The assistance could prioritise those treaties that do not have specific UN agency support. This might exclude treaties such as CEDAW and CRC, but not necessarily so. Donors could contribute to this fund and PICs could apply to a “Regional Fund for Ratification and Reporting” for support. Organisations such as RRRT and others might even be able to serve in a longer term capacity if it looked at building technical support capacity – i.e. extending the mandate to training of human rights treaty support personnel or serving as the main body responsible for providing technical support.
In Fiji, Solomon Islands, Samoa and Vanuatu, NGOs have helped government write various state reports for ICERD, CRC and CEDAW.
The non-ratification of a treaty does not prevent a country from being assessed against the standards contained in them. However ratification demonstrates a state’s honest intention to abide by the provisions of a treaty and enables it to obtain assistance to comply with the treaty’s obligation. The Pacific region has the lowest ratification rates worldwide. Ratification of the core international human rights treaties is widely regarded to be a basic requirement for promoting and protecting human rights at national and local levels. The Pacific Plan aims to step-by-step envision a region that is “respected for the quality of its governance, the sustainable management of its resources, the full observance of democratic values, and for its defence and promotion of human rights”.94 The link between effective implementation of the 15 Strategic Objectives and the need for protection of human rights is explicitly stressed in the Plan. Although it is not explicitly stated to be so, there are unambiguous links between The Pacific Plan and the Millennium Development Goals (MDGs) as they share many goals in common. The ratification of international human rights instruments has not been a high priority in the Pacific, even when it might be critical to development in the region. There are quantitatively observable reasons for the current low levels of ratification such as a lack of technical and financial resources for ratification, reporting and implementation, as well as those overlooked due to the low, but growing level of awareness of the connections between ratification and development. There are also cultural, legal and political obstacles. The development challenges facing the region are considerable and undermine the potential of the success of The Pacific Plan. However the added value of ratification of human rights treaties is extensive. Human rights are critical to the success of the Plan, and therefore to development, poverty reduction, the MDGs, governance, democracy and security envisaged in it. Each of the seven core human rights treaties target specific groups who need special protection, or target general and specific rights considered valuable universally. Each treaty has its own inherent value and each is intrinsically worthy of ratification and implementation. The international human rights system recognises the special rights of indigenous peoples who are marginalised, has provided them with enforceable rights and the DDRIP has potential to further their rights when it becomes part of international law. Ratification of treaties will enable PICs to influence the DDRIP becoming a full human rights treaty binding under international law. They will, however, have more bearing on the establishment of the DDRIP as a convention if they are already participants in the rest of the UN treaty body system, demonstrating their respect for all areas of human rights and not only those that are politically convenient to them. The international human rights treaty system offers substantial benefits to the Pacific region. Ratification provides added value by providing a legal regime of accountability and enforceability for regional development plans. It also enables the realisation of human rights and encourages adherence to the rule of law. Ratification improves the
Pacific Plan Task Force (2005), p.3
public standing of PICs and their governments and encourages a fairer and equitable system of aid, technical support and global justice. It also involves participation of civil society and citizens in the development process and thereby acts as a catalyst for the reduction of poverty. Proposals for a single standing unified treaty body for reporting offers PICs opportunities for reducing the resource burdens of reporting and may encourage ratification. The best overall option for the region is a comprehensive regional mechanism whose responsibility is to promote and defend human rights and to provide technical and financial support for ratification, reporting and implementation, such as a regional human rights commission. However, if there are resource constraints, an innovative option would be a non-permanent team of pooled experts sponsored by OHCHR, who could be called upon to provide short-term technical capacity for assistance in ratification, reporting and implementation. Most PICs have a bill of rights in their constitutions. Most contain basic civil and political rights, while some are more advanced. Many PICs have ratified CRC and CEDAW. It is merely one further step to ratify all other treaties since the basis is already provided in the constitutions. The Pacific region is not known for gross violations of rights. The region has little to fear from ratification of any of the seven core human rights treaties. The moral and spiritual values of Pacific Islanders speak to the treaties and resonate with treaty values.
ANNEX A: PACIFIC ISLAND COUNTRY TABLE OF TREATY RATIFICATION
The following chart of states shows which are a party (indicated by the date of adherence: ratification, accession or succession) or signatory (indicated by an "s" and the date of signature) to the United Nations human rights treaties listed below. Self-governing territories that have ratified any of the treaties are also included in the chart. As at 09 March 2006, all 191 Member States of the United Nations and one Non-Member State were a party to one or more of these treaties. Source: http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterIV/chapterIV.asp
ICESCR COOK ISLANDS FIJI KIRIBATI MARSHALL ISLANDS MICRONESIA (FEDERATED STATES OF) NAURU NIUE PALAU PAPUA NEW GUINEA SAMOA SOLOMON ISLANDS TONGA TUVALU VANUATU
17-Mar-82 17-Mar-82 16-Feb-72 6-Oct-99 8-Sep-95 27-Jan-82 12-Jan-95 25-Sep-92 6-May-02 6-May-02 S: 12 Nov 01 S: 12 Nov 01 S: 12 Nov 01 1/10/1985 via NZ 10-Feb-73
1/10/1985 via NZ 28-Aug-95 17-Apr-04 2-Mar-06
6-Jun-97 13-Aug-93 11-Dec-95 4-Oct-93
S: 16 Sep 05
S: 16 Sep 05
1-Sep-04 S: 12 Nov 01
S: 8 May 02 S: 8 Sep 00
S: 8 May 02 S: 08 Sep 00
27-Jul-94 20-Dec-95 4-Aug-95 2-Mar-93 29-Nov-94 10-Apr-95 6-Nov-95 22-Sep-95 7-Jul-93
S:16 Sep 05
S: 16 Sep 05
Key: Indicates the date of adherence: ratification, accession or succession Indicates the date of signature
The international human rights treaties of the United Nations that establish committees of experts (often referred to as "treaty bodies") to monitor their implementation are the following: (1) The International Covenant on Economic, Social and Cultural Rights (ICESCR), which is monitored by the Committee on Economic, Social and Cultural Rights; (2) The International Covenant on Civil and Political Rights (ICCPR), which is monitored by the Human Rights Committee; (3) The Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP1), which is administered by the Human Rights Committee; and (4) The Second Optional Protocol to the International Covenant on Civil and Political Rights, aimed at the abolition of the death penalty (ICCPR-OP2-DP); (5) The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which is monitored by the Committee on the Elimination of Racial Discrimination; (6) The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which is monitored by the Committee on the Elimination of Discrimination against Women; (7) The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW-OP); (8) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which is monitored by the Committee against Torture; (9) The Convention on the Rights of the Child (CRC), which is monitored by the Committee on the Rights of the Child; (10) The Optional Protocol to the Convention on the Rights of the Child (CRC-OP-AC) on the involvement of children in armed conflict; (11) The Optional Protocol to the Convention on the Rights of the Child (CRC-OP-SC) on the sale of children, child prostitution and child pornography. (12) The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW).
ANNEX B: REGIONAL HUMAN RIGHTS INSTRUMENTS AND INSTITUTIONS95
INTER-AMERICAN HUMAN RIGHTS SYSTEM The inter-American human rights system coexists with the UN treaty-based and non-treaty-based mechanisms. Main instruments American Declaration of the Rights and Duties of Man (1948) • Has a preamble explicitly linking rights and duties. • Covers a roster of economic and social rights, most relating to labour, contained in a social charter. • Links human rights and democracy. • Is legally non-binding and thus has led to the adoption of the American Convention on Human Rights. American Convention on Human Rights (1969) • Is fundamentally a civil and political rights treaty. • Provides progressive treatment of freedom of expression. • Makes explicit the conditions under which guaranteed rights can be overridden in times of public danger. • Has been ratified by 24 of the 35 members of the Organization of American States. Other instruments Inter-American Convention on Forced Disappearance (1994) Inter-American Convention to Prevent and Punish Torture (1985) Convention on the Prevention, Punishment and Eradication of Violence against Women (1994) Implementing institutions and mechanisms Inter-American Commission on Human Rights (1959) • Is made up of members elected by the General Assembly of the Organization of American States. • Combines promotion and adjudication functions. • Advises governments on legislation affecting human rights. Inter-American Court of Human Rights (1979) • Has two types of jurisdiction—advisory and contentious. • Issues advisory opinions on correct interpretation of treaty obligations. • Contentious jurisdiction encompasses cases submitted by the commission against states parties and vice versa. EUROPEAN HUMAN RIGHTS SYSTEM The European human rights system is by far the most developed of the regional systems. Distinguished by its preference for judicial approaches, it has gone the furthest in developing judicial processes. The European system also enjoys the highest rate of state compliance with its decisions. Main instruments European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) • Convention provides for collective enforcement of certain civil and political rights. • European Court of Human Rights rules in cases alleging that individuals have been denied their human rights. • Contracting states undertake to secure the rights defined by the convention for all.
UNDP (2000), pp.46-7
• Subsequent protocols have extended the initial set of rights. • Most countries that have ratified the convention have incorporated the provisions into their own national law. European Social Charter (1961, revised in 1996) • Guarantees a series of rights relating to conditions of employment and social cohesion. • Has a system of supervision that includes the Committee of Independent Experts, the Governmental Committee and the Committee of Ministers. • Provides for collective complaints. Other instruments European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987) Framework Convention on National Minorities (1995) Implementing institutions and mechanisms European Court of Human Rights (1959) • Has as many judges as there are contracting states. • Hears cases from individuals and contracting states. • Uses a procedure that is adversarial and public. • Issues advisory opinions on legal issues relating to conventions and protocols. AFRICAN HUMAN RIGHTS SYSTEM The African system of human rights is relatively recent. It prefers judicial and quasi-judicial approaches. Instrument African Charter on Human and Peoples’ Rights (1981) • Covers both civil and political and economic, social and cultural rights. • Provides for collective rights and for state and individual duties. • Includes claw-back clauses restricting human rights to the maximum extent allowed by domestic law. Implementation institutions and mechanisms African Human Rights Commission (1987) • Serves more promotional and less protective functions. • Examines state reports. • Considers communications alleging violations. • Expounds the African charter. African Human Rights Court (decision to establish it made in 1998; court has yet to start functioning) • Consists of 11 judges appointed in their personal capacity. • Complements the work of the African Human Rights Commission. • Serves more protective and less promotional functions. • Has a jurisdiction not limited to cases or disputes arising out of the African charter. ARAB HUMAN RIGHTS SYSTEM The Arab human rights system came into formal existence with the adoption in 1994 of the Arab Charter of Human Rights by the Arab League. The charter: • Provides for a Committee of Human Rights Experts to examine reports submitted by the states parties and to report on them to the Permanent Commission of Human Rights of the Arab League. • Prohibits denial of any of the fundamental human rights, but provides for limitations and restrictions on all rights for reasons of national security, the economy, public order, the rights of others and the like. • Includes no requirements for a valid declaration of a state of emergency, and during a state of emergency provides for only a few rights, such as prohibition of torture and safeguards for a fair trial. • Provides for no right to political organization and participation.
Accession If a country wishes to become a state party to a convention that has already entered into force, it can accede to the treaty. Accession has the same legal effect as ratification. Affirmative action Affirmative action policies recognise the inequality between certain groups in society and try to fix this by providing more resources to help the disadvantaged group “catch up” and gain real equality. It is a form of positive discrimination. Bill of Rights A bill of rights is the name given to the chapter in the constitution that protects the fundamental rights, principles and freedoms of the people of the country as human beings (for example, the right to vote, the right to free speech, the right to education). Committee UN treaty committees, or bodies, comprise groups of independent “experts” nominated and elected by states parties to the convention, or treaty. Committees meet regularly to hear state reports and look at the progress made by countries in meeting their obligations under the convention. Concluding comments Concluding comments are the findings or summing up of the state report by the relevant committee. Constitution A constitution is the supreme source of the law and provides the framework for other laws of the land. It sets out how the government is structured and operates, the executive and legislative powers of the state, the judiciary and the public service, and addresses issues of state finance, land and citizenship. Constructive dialogue The process by which a UN committee and government delegations engage in friendly, open discussions about the content of the reports. Convention A convention is a legally binding treaty or agreement based on international standards agreed upon between two or more states. Conventions are a source of international law, and can become part of local law once a country has ratified them. General observations / comments These are general observations or comments made by UN committees on issues not covered in the official state party report. These observations are usually sourced from other reports, such as the NGO parallel report. The observations may be asked in a question or comment.
Initial report This is the first report that countries are required to prepare and submit. The initial report is due one or two years after ratification or accession, depending on the convention. Non-governmental organisations (NGOs) NGOs are non-profit organisations dedicated to a particular cause or issue – for example, women’s rights. They are independent of any government. NGOs are sometimes referred to as civil society organisations (CSOs), which is a broader term that includes a wider range of interest and community groups (for example, the Fiji Law Society, other professional societies and church groups). Optional protocol An optional protocol is an additional treaty that usually allows the opportunity to address other subject specific sections related to the main treaty that were not covered in the original treaty. Though there are exceptions to the rule, optional protocols need to be ratified separately and are usually open only to states parties that accepted the terms of the main treaty. Optional protocols usually allow an individual complaints procedure. Parallel reports Parallel reports to UN committees are written by non-governmental organisations to serve as an alternative or additional source of information to state reports. Periodic reports Periodic reports are usually made every four or five years after the initial report, or whenever the relevant UN committee so requires. These report on the progress made in removing obstacles to equality made since the last report. Ratification, ratified To have ratified a treaty or convention means a state has officially committed to comply with the obligations under that treaty or convention. When a state ratifies a convention, it is said to be a “party” to it, and is called a state party. Reservations A reservation is a formal statement made by a state claiming it is not willing to be bound by a particular article or section of a particular convention. Reservations can be made when the state signs, ratifies or accedes to a convention or treaty. Signatory Many countries first sign a convention to show their support and commitment to it. Becoming a signatory means a country is obliged to stop acting in a way that would defeat the object and purpose of the convention. However, signing a convention does not mean the state is legally bound by any obligations. When these countries decide to become states parties they do so through ratification. State party, states parties A state party is the legal name for a country that has either ratified or acceded to a convention.
State report States parties to conventions are required to submit regular reports on the legislative, judicial and administrative measures they have implemented as part of their obligations under the convention. Succession Succession is the acceptance of the legal obligations previously instated during a previous government’s rule. This should not be confused with changes in administration, but instead usually applies to states that make the decision to maintain the obligations of another state that ratified a treaty on their behalf before they gained independence. Treaty Treaty is the generic name given to all instruments binding under international law. Treaties may be made between: states; international organisations with treaty making capacity and states or; international organisations with treaty making capacity. Conventions, agreements, protocols are examples of a treaty.
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Constitution of the Republic of Vanuatu (1988) International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS. 171 International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 UNTS 195 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, 30 ILM 1517 International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966, 993 UNTS 3 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 42 ILM 26 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 UNTS 85 United Nations Convention on the Elimination of all Forms of Discrimination against Women, Dec 18 1979, 19 ILM 33 United Nations Conventions on the Rights of the Child, Nov 20 1980, 28 ILM 1448 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act") Pub. L. No. 91508 Universal Declaration of Human Rights, December 10, 1948, G.A. Res. 217, UN Doc. A/810