PROMOTING HUMAN RIGHTS - GOOD GOVERNANCE, THE RULE OF LAW AND DEMOCRACY

PACIFIC JUDICIAL CONFERENCE, VANUATU 26-30 JULY 2005, The Hon John von Doussa QC, President, Australian Human Rights and Equal Opportunity Commission1

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world

Universal Declaration of Human Rights2

There is no doubt that nurturing good governance is essential to ensuring respect for human rights. Without the rule of law, independent courts and other institutions of the modern society - essential components of good governance - the promise of human rights may remain just that: a promise unfulfilled. Enforcement of fundamental freedoms when it matters may be impossible. The lesson of history is that transparent, responsible, accountable and participatory governance is a prerequisite to enduring respect for human dignity and the defence of human rights.

The Hon Justice M Kirby3

The theme of this conference concerns human rights. As an introduction to that theme, this paper outlines recent activities intended to foster the promotion and enjoyment of human rights internationally and, more particularly, in the Pacific region and then addresses several current issues. The judiciary has not been included in many of these activities, even though its role is crucial in the recognition, protection and enjoyment of human rights.

It would be a fascinating philosophical exercise to go back in time to ascertain the genesis of the notions of democracy, human rights and the rule of law. Modern attempts to understand their interrelationship seem to throw up a "chicken and egg" debate. I propose to bypass that debate and simply start from the proposition that each stands separately but is related to, and dependent upon, the others. A moment's reflection shows that the quality and enjoyment of each builds on the strength of the other two.

The Origins of International Human Rights

The establishment of the United Nations (UN) in 1945 ushered in a new period of respect for human rights. Its Charter does not, however, contain a comprehensive Bill of Rights.

Instead, contemporary human rights law is based upon the Universal Declaration of Human Rights (UDHR), which was drafted by the Commission on Human Rights (CHR)4 in 1947, and adopted by the General Assembly of the United Nations on 10 December, 1948.5

The UDHR sets out, in succinct terms, the fundamental rights and freedoms that all human beings, regardless of race, colour, sex, language, religion, political or other opinion, ethnicity and national background are entitled to enjoy. In one form or another, these rights have been recognised for centuries but it was not until the creation of the Universal Declaration that they were comprehensively codified with the support and agreement of the international community.

These rights are not just a construct based on Western ideals. They have deep roots in the traditions of all peoples. The drafters of the Declaration drew upon the principles enshrined in national laws and constitutions. They referred not only to common law systems of justice but also to civil law countries and socialist systems.6 They did so in order to make certain its universal application.

The rights enshrined in the UDHR have been further articulated in subsequent conventions. In 1966, the International Covenant on Civil and Political Rights7 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights8 (ICESCR) were adopted by the General Assembly. Together, the Declaration, conventions and their optional protocols9 constitute an International Bill of Rights.

Other major human rights treaties dealing with specific subject matters have also been enacted. They include the Convention on the Elimination of all Forms of Racial Discrimination (CERD);10 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW);11 the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);12 the Convention on the Rights of the Child (CROC);13 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (MWC).14 Conventions addressing the rights of Indigenous peoples and disabled persons are in the process of being negotiated.

Schedule 1 of this paper summarises the substantive provisions of the seven core international human rights treaties. Schedule 2 shows which Pacific States have ratified them. Ratifications by France are also shown. Pacific Island States have a very low record of ratification of these treaties. Nevertheless, all states are subject to customary international law.15 There are differing views whether all of the rights embodied in the UDHR have, through their widespread and consistent international acknowledgement, become part of customary international law. Nevertheless, it is now generally accepted that some rules, at least, have become custom; namely, the prohibitions against slavery, torture, arbitrary detention, and systematic racial discrimination. Consequently, these prohibitions are binding on all states, regardless of whether they have ratified the specific treaties mentioned above.16

Whilst States are bound in international law by the treaties they have signed and by international custom, human rights so recognised do not become part of the domestic law of some States, including common law countries, until those States have enacted them into domestic law. Of course, this is not necessary if human rights are already enshrined in the State's Constitution. Schedule 3 summarises the fundamental rights and freedoms that are constitutionally entrenched in Pacific Island States.

Many principles in the International Bill of Rights reflect the meaning and content of the notions of the rule of law and democracy. The rule of law is expressed in the provisions which assert that all are equal before the law and are entitled, without discrimination, to the equal protection of the law. It is also embodied by the principle that no one shall be subjected to arbitrary interference with their rights and freedoms.17 Democratic principles are inherent in the right to self-determination, the right of freedom of peaceful assembly and association and the right to take part in the government of the country directly or through freely chosen representatives.18

UN Human Rights Regime

Each major human rights treaty contains a supervisory mechanism, according to which States are required to lodge periodic "country reports". The reports describe the legislative, administrative and judicial measures taken by the State to comply with its obligations under the convention. These reports are considered by "Treaty Bodies", which are committees established pursuant to the provisions of the treaty for the purpose of monitoring state compliance.19 Reports issued by Treaty Bodies are, at times, critical of a State. If a State is found to have neglected its responsibilities, the Treaty Body will make recommendations to help that State remedy the deficit.

The functional commissions of the UN have also established a number of mechanisms to assist the promotion and protection of human rights. These are referred to as "special procedures". They include periodic debates before the CHR on country situations and the appointment of thematic rapporteurs and working groups. The special procedures recognise that "domestic" human rights issues are now legitimate matters for international scrutiny.20

Optional protocols to the ICCPR, ICERD, CEDAW and CAT provide a mechanism for individuals to lodge complaints, known as "communications", with the Treaty Body, alleging a violation of their rights under the Convention. These communications are carefully considered by the relevant treaty body and result in the publication of a "Finding". There is no machinery to enforce a Finding if it is adverse to a State. Instead, the system relies upon the State being prepared to act on the Finding and any recommendation therein.

There are also human rights regimes, with supervisory mechanisms, in certain regions around the world. The UN divides the world into four geographic zones: the Africas, the Americas, Europe and the Asia Pacific region - the latter being all States east of Europe and west of the Americas (from Palestine to the American west coast). Each region, other than the Asia Pacific, has a human rights body to which complaints of non-compliance may be made by individuals against the State.21

The point has now been reached where international law and the international community have established wide-ranging human rights standards which touch upon most aspects of government and human endeavour.

However, the stark reality is that established norms are not being implemented in many parts of the world and are not enjoyed by the members of many minority ethnic and social groups.

Human rights only have meaning when they can be enjoyed in a practical sense. This was emphasised by the present High Commissioner for Human Rights, Madame Louise Arbour, who observed in her Opening Address at the 61st Session of the CHR that the UN has spent the last 60 years establishing human rights norms and the time has now come to concentrate on their implementation.22

The Secretary-General has tried to reform the United Nations in order to achieve this goal. In his first reform program in 1997,23 human rights were integrated into the work of the whole organisation. His second reform program called for stronger links between international standards, international human rights machinery and UN activities undertaken at the country level. He encouraged more attention to human rights protection work while, at the same time, maintaining the UN's traditional commitment to human rights promotion, capacity and infrastructure building. To this end, the Office of the High Commissioner for Human Rights (OHCHR) co-convened a major international seminar in September 2004 with the United Nations Development Programme (UNDP) focusing on practical measures to ensure effective implementation of good governance practices for the promotion of human rights at the national level.24 The seminar was attended by 138 people from 73 countries. In a statement summarising the outcome of the seminar, the Chairman, Mr Lee Sun-jin, observed:

Good governance needs to aim for justice. While the element of the rule of law is extremely important as part of good governance for the promotion of human rights, that element should not merely imply respect for the national law but rather for law which is consistent with the international human rights framework, with channels to promote justice.

The Seoul Seminar on Good Governance was followed by an International Roundtable of National Human Rights Institutions (NHRIs) in Suva, Fiji on 13-15 December 2004. The Roundtable was convened to consider the role of NHRIs in ensuring good governance and the promotion and protection of human rights. It was organised by OHCHR and hosted by the Fijian Human Rights Commission. Although it was an international roundtable, it is significant that OHCHR chose to hold it in the Pacific.25

National Human Rights Institutions

Both the Secretary-General of the UN and the High Commissioner for Human Rights have said that NHRIs are one of the principle vehicles for the promotion and protection of human rights.26

To be an accredited NHRI, an organisation must comply with the "Paris Principles".27 The key minimum criteria are:

  • Independence guaranteed by the national constitution or by statute;
  • Autonomy from the government;
  • Pluralism, including in its membership;
  • A broad mandate based on universal human rights standards;
  • Adequate powers of investigation, without authorisation from higher authority;
  • Sufficient resources to maintain an adequate infrastructure and to carry out its mandate; and
  • Members that are appointed by an official act, for a specified period.

The accreditation process is carried out by the International Co-ordinating Committee of National Institutions (ICC). This body meets annually.

An accredited NHRI will have the power:

  • To make recommendations and proposals to the government on human rights aspects of existing and proposed laws;
  • To report on specific violations of human rights and the national human rights situation in general; and
  • To receive, investigate and report on complaints from individuals. Most NHRIs also have power either to commence litigation to enforce human rights or to intervene in litigation involving significant human rights issues.

It must be recognised that NHRIs are not the only form of national human rights mechanism. Such mechanisms may come in various shapes and sizes and may be established under the Parliament, Executive or Judiciary. They may have mandates of varying widths and enjoy differing degrees of independence from government. Besides a NHRI, there could be a national advisory commission on human rights, a national anti-discrimination commission, or an ombudsman. Generally, however, these mechanisms have more retricted mandates than a NHRI. This topic is taken up later in this paper.

The importance of NHRIs in the UN system has recently been emphasised by the Secretary-General. In a report published in March 2005,28 he recommended that NHRIs be given greater participatory rights in the CHR. At the 61st Meeting of the CHR, the member States resolved to permit accredited NHRIs to speak under all agenda items. They also supported NHRI engagement in all the subsidiary bodies of the Commission.

At present, there are three NHRIs in the Pacific: Australia, Fiji and New Zealand.29 These NHRIs are members of a regional organisation, the Asia Pacific Forum of National Human Rights Institutions (APF).30 The APF was founded in 1996 to provide practical support, technical assistance and co-operation to NHRIs, civil society and governments.31 There are presently 15 members of the APF, comprising 12 full members32 and 3 associate members.33 The APF has an independent, very active Secretariat with substantial funding34 and an Advisory Commission of Jurists.35

The establishment of an NHRI is a matter for the legislature of each State and the structure of a particular institution will reflect that State's constitution, local laws and judicial and administrative system.

Many States have established a NHRI in order to comply with their obligations under international conventions to provide effective remedies for human rights violations.36 The Australian Human Rights and Equal Opportunity Commission (HREOC) was established for this purpose.37

Regional Activities for the Promotion and Protection of Human Rights in the Pacific

Interest in the promotion and protection of human rights in the Pacific region is not new. LawAsia undertook a major project in the late 1980s to encourage the Pacific States to agree to adopt a Pacific Charter of Human Rights. The Human Rights Committee of LawAsia held a conference on the question in Fiji in April 1985, following which a drafting committee was convened. The work of the drafting committee was reviewed and considered at seminars conducted by LawAsia in 1987, 1989 and 1990. The outcome38 was a draft model treaty based on the African Charter of Human and Peoples' Rights which established the African Commission on Human and Peoples' Rights. The proposed treaty recognised wide-ranging rights, including all basic civil and political rights (most of which are already contained in the constitutions of the Pacific States), as well as economic, social and cultural rights, and the rights of peoples including Indigenous peoples. The draft also included sets of duties for the government and individuals as members of society. Finally, the draft proposed a Pacific Human Rights Commission which would supervise the Charter and deal with complaints about human rights violations. The treaty has not been adopted by the Pacific States. However, as I will mention later in this paper, it has recently been raised again for discussion.

In the conclusions of the UN's 12th Annual Workshop on Regional Framework for the Promotion and Protection of Human Rights in the Asia Pacific Region,39 the Governments of the region recognised:

"..both the financial and human constraints faced by the Pacific Island States in their efforts to promote and protect human rights and call[ed] upon the OHCHR to provide technical assistance, capacity building and training, also through the posting of a sub-regional representative in Fiji, to Pacific Island Governments and to support the Pacific Island States which have not yet done so to consider establishing a National Human Rights Institution".

The Pacific Islands Forum (PIF)40 has also repeatedly expressed a strong commitment to achieving regional co-operation on human rights and good governance.

At their annual meeting in 2003, the Pacific Islands Forum leaders agreed to carry out a review of the Forum and its Secretariat. An Eminent Persons' Group41 was established to review the forum. It was tasked with providing a fresh mandate and vision for the Pacific Islands Forum and an improved capacity within the Forum to enable it to provide leadership on regional co-operation and integration.

In its report delivered to a Special Leaders' Retreat in April 2004, the Eminent Persons' Group recommended that:

The forum should report the work of members in developing national human rights machinery. As part of this process, those leaders whose governments are not already engaged with the Asia Pacific Human Rights Forum [sic - APF], might consider becoming so. This would draw in practical assistance from the Office of the UN High Commissioner for Human Rights.42

In April 2004, the Forum Leaders adopted the "Auckland Declaration", in which they endorsed the recommendations of the Eminent Persons' Group, including the recommendation regarding the establishment of human rights machinery and noted that this may be done in consultation with the APF.43

On 1-3rd June 2004, a "Pacific Island Human Rights Consultation" (the 2004 Suva Consultation) was held in Suva, Fiji. This Consultation was organised by the OHCHR, APF, UNDP and the Commonwealth Secretariat and was hosted by the Fijian Human Rights Commission. Participants in the Consultation included representatives of the Governments of Fiji, Kiribati, Nauru, New Zealand, Palau, Papua New Guinea, Tonga, Vanuatu and Australia. Representatives of non-governmental organisations also attended from 16 States, as well as representatives from OHCHR, UNDP, UNICEF, UNESCO, the Pacific Islands Forum Secretariat, the Commonwealth Secretariat and the NHRIs of Australia, Fiji and New Zealand. There were over 80 participants in all. In the Concluding Statement the participants reaffirmed that: 44

the primary focus for the promotion and protection of human rights is at the national level and therefore it is the primary responsibility of States to ensure that human rights are promoted, protected and fulfilled.

To that end the participants welcomed the decision of the Pacific Island Leaders to encourage the development of national human rights machinery with the possible engagement of the APF and the support of the OHCHR and other UN agencies. In the course of the Consultation, many participants stressed the importance of understanding the Pacific as a region distinct from Asia. Participants expressed the view that customary law should not take precedence over international human rights law but that human rights programs and rights-based interventions must be delivered in a culturally appropriate manner. The participants recommended that for each real or perceived conflict between culture and rights, careful analysis, wide consultation and an inclusive national decision-making process should be undertaken.45

The Concluding Statement also noted the crucial need for an OHCHR presence in the Pacific. It requested the appointment of an OHCHR human rights adviser to provide full-time technical co-operation and needs assessment, as well as to assist Pacific States to address and provide effective responses to human rights problems.

Since the 2004 Suva Consultation, the OHCHR has taken steps to establish a sub-regional office in Fiji. The selection process for the representative has concluded and it is anticipated that the office will open in mid-2005.

As a follow up to the recommendations of the Eminent Persons' Group, the Pacific Islands Forum Secretariat, in co-operation with the APF, held a Regional Workshop on National Human Rights Mechanisms in Nadi, Fiji, on 28 February - 1 March 2005 (the 2005 Nadi Workshop). The Justice and Foreign Affairs Ministries were to be the principle participants. There were representatives of 13 of the Forum States, though not always at Ministerial level and, in addition, there were representatives of the office of the UNHCHR, the UNDP and other UN agencies, along with representatives from regional NGO's working in the human rights field. The Outcome Statement records that the workshop identified a range of challenges facing Forum countries in the promotion and protection of human rights. These include:

  • Limited "ownership" and awareness of human rights within both governments and communities due, in part, to a lack of understanding of the relevance of human rights (including economic, social and cultural rights) to the daily lives of the people of the region;
  • Multiple priorities of government competing for scarce resources, including economic and social development and environmental concerns, exacerbated by frequent changes in government;
  • A lack of economic, technical, institutional human resources and capacity to pursue human rights at the national level;
  • Obstacles presented by the region's isolation and the difficulty of governments in accessing international assistance;
  • The variety of models of good governance and the machinery of government in Pacific nations;
  • A lack of quality information on the benefits of becoming a party to international human rights conventions;
  • The heavy treaty based reporting obligations on governments; and
  • The need to reconcile human rights with traditional customary rights.

The workshop recognised that the primary responsibility for promoting, protecting and monitoring human rights at the national level lies with national governments. It also identified a number of issues that need to be considered by governments if they are planning to establish national human rights machinery including:

  • The possibility of using human rights legislation to set out detailed protections;
  • The importance of establishing new human rights institutions while, at the same time, strengthening existing governmental and non-governmental mechanisms which play a role in human rights;
  • The significant role played by civil society in promoting, protecting and monitoring human rights;
  • The need to build a culture of human rights through all levels of society; and
  • The desirability of extending regional human rights training programs to all Forum island countries

The Outcome Statement is notable for its failure to make any express reference to the pivotal role of the judiciary and the legal profession which supports it. It is respectfully suggested that this is a serious omission. The judiciary and the legal profession fulfil important roles in standard setting, in detecting and remedying human rights violations and in promoting understanding about the content and importance of human rights and about the community's responsibility to respect them.

The judiciary and the legal profession must be active in these matters and must engage with the good governance debate which is occurring.

Issues

The following comments are intended to raise issues which seem to require further discussion. I do not attempt to offer definitive solutions.

1. Ratification of Human Rights Conventions

It will be evident from this paper that both UN agencies and the 2004 Suva Consultation urge Pacific Island States to accede to all the major human rights conventions. These exhortations need to recognise that the Island States, generally speaking, have comprehensive fundamental human rights provisions already embedded in their constitutions which, at a domestic level, are likely to provide similar protection to that which would follow from accession to international treaties. As the Outcome Statement of the 2005 Nadi Regional Workshop recognised, there are resource implications which would arise in implementing State obligations under the Conventions and in meeting the reporting obligations.

2. Establishment of a NHRI

There would also be resource implications in establishing an NHRI. However, before a NHRI is dismissed from consideration on economic grounds, or on the basis that there are other institutions, such as an ombudsman, which fulfil similar functions, detailed consideration of the benefits of a well-resourced NHRI is necessary.46 Those benefits are likely to include:

  • Status within the community, since NHRIs have the ability to promote human rights principles through the media, workshops and a variety of other educational programs. The regional network of NHRIs has considerable experience in delivering grass roots education programs appropriate to a wide variety of cultural and social settings;
  • The existence of an official body to receive and remedy individual complaints;
  • The ability to provide legal assistance in human rights matters to disadvantaged members of a community (this is a power and function that is not possessed by Ombudsmen);
  • The power to pursue systemic discrimination issues, particularly in relation to women and children, in all areas of public life; and
  • Access through the NHRI to expert technical assistance from the OHCHR, and the regional activities of the members of the APF.
  • NHRIs develope expertise in international human rights law, and through the APF and other NHRIs have access to a wealth of research material. NHRIs are, at the request of the national courts or through an intervention role, able to make this expertise available to the courts. In this way they can provide valuable assistance to judges to correctly identify and apply relevant human rights principles. This is a valuable resource tool that courts otherwise lack.

If, however, a State is considering establishing an alternative form of human rights mechanism, it is critical that it provides individuals with the ability to seek redress for violations of human rights by private individuals and entities.

3. Public education

As the Outcomes Statement of the 2005 Nadi Workshop recognised, a substantial obstacle in the development of human rights in the Pacific is the lack of understanding of human rights principles and their relevance. This is already a problem facing the constitutionally enshrined rights in Pacific States.

Litigation to enforce human rights, the reasons for judgments, publication of the judgments and media coverage of the case are all powerful educative tools that assist in improving understanding of human rights principles in the community.

Whatever human rights mechanisms are adopted, there must be a heavy emphasis on education and promotion. In this respect, the role of civil society organisations (NGOs) is important and their role should be formally recognised. A criticism of many good governance programs is that they address the "supply side" and do not give adequate consideration to the needs of citizens whose "demand" they should be answering. Consequently, development programs tend to reflect a "top-down" approach to administrative reform and restructuring and do not prioritise the needs and concerns of the poor and marginalised. This approach detracts from the sense of ownership and participation that communities should feel for development programs. Since civil society organisations are generally established to promote the interests of the common citizen, they are better suited at planning and delivering "bottom up" programs, including the delivery of human rights information.47 The Outcomes Statement of the 2004 Suva Consultations supports the provision of funds for these purposes.48

4. Access to Justice.

However comprehensive the law and the breadth of the mandate of human rights mechanisms, rights can only be enjoyed when there is a realistic means of investigation and enforcement.

A strong, independent legal profession is important to this process. Effective, well resourced offices for the Public Solicitor and the Public Prosecutor are critical to the efficient functioning of the legal system and to the rule of law in general.

Strengthening the capacity of the judiciary and the legal aid system should be a high priority on national budget agendas.

5. Perceived Conflicts between International Standards and Cultural Rights and Practices

The relationship between customary law and international human rights standards continues to be contentious. A simple solution to the problem, sometimes suggested, would be to accept that international human rights law can be modified to suit local traditions. Conventions make provision for the right of everyone to take part in cultural life49 and for minority groups to enjoy their own culture in community with other members of their group.50 However, these provisions do not permit modification of the fundamental rights otherwise recognised.51 Local modification of these rights is not acceptable to the UN community. Moreover, many fundamental rights are already enshrined in the constitutions of Pacific States and those rights, as a matter of domestic law, cannot be modified without lawful constitutional amendment.

Much of this debate centres on the rights of women and children. Those groups comprise a substantial part, if not a majority, of each community. The practical reality is that they will not accept modification of their rights. They will expect their full protection under the law.52

When issues of perceived conflict arise, the first, most important step, is to research the scope and content of the relevant international standard, the applicable constitutional and statutory provisions and the postulated customary right. That exercise, in itself, is likely to highlight reasons why the latter must give way to the former.

This exercise is also likely to demonstrate areas where more education and understanding in the community is necessary to explain why traditional custom has been overtaken by time and other factors. In this way, the limited sense of "ownership" and awareness of human rights, which was noted in the Outcomes Statement of the 2005 Nadi Workshop, may be overcome.

An important step in developing materials for research of this kind is now under way in the New Zealand Law Commission, which has received a reference to review and analyse the interface between custom and human rights in Pacific Island countries.

6. A Sub-Regional Human Rights Body

Reference has already been made to the work of LawAsia in the late 1980's in drafting a proposed Pacific Charter of Human Rights. The possibility of such a development was expressly raised by the CEO of the Fijian Ministry of Foreign Affairs at the 2005 Nadi Workshop. He indicated that Fiji would support the development of a regional human rights commission and, subsequently, a regional human rights court.

The political and other obstacles to this outcome, it might be thought, would be long and difficult to overcome. In the meantime, it would be regrettable if this long term possibility delayed individual States considering ratification of the major human rights conventions.

One reason advanced for this wide-reaching and ambitions proposal, was that it could pre-empt the need for Pacific States to ratify individual human rights conventions. However, a Pacific Human Rights Charter, or some other treaty which would be necessary to establish a regional human rights commission or court, would require each participating State to sign and ratify it.

There is one further possible obstacle to Pacific States participating in a regional human rights commission or court. The promoters intend that a regional body would have power to hear and determine human rights complaints, and to bring down a decision that would bind the State and the complainant. There must be a serious question about the legal and constitutional capacity of a State to cede adjudicative functions, in the nature of judicial power, to a third party where the State constitution vests the judicial power in a constitutional court structure and does not provide for that structure to be qualified by legislative or executive action which vests power in another body to make a decision that could override the State's courts. Such a problem could be overcome by constitutional amendment but that, in itself, may be a very difficult path.

7. A Comprehensive Pacific Regime

There is one further dimension to a regional commission or other human rights body, which does not appear to have been canvassed in recent consultations. That is the position of the French Pacific Islands, in particular New Caledonia and Tahiti which, apart from their geographical relationship, have close trading and tourist relationships with their other Pacific neighbours. Should not the administration of these islands be included in discussions, and their positions recognised and accommodated?

Conclusion

Discussion at this Conference is likely to identify other issues that need to be considered, as well as expanding on the comments I have already made. I am confident that the discussion will demonstrate the point that the judiciary has a lot to offer in the ongoing debate.

The way forward may be slow, but the momentum for the establishment of human rights mechanisms in the Pacific region should be maintained.

As I hope the foregoing discussion has illustrated, I think two matters stand out as the priority ones. The first is the pressing need for programs to inform communities, from political and business leaders to the grass roots of the electorate, and especially those who suffer disadvantage and inequality, about the nature, scope and benefits of the protection of human rights principles. In this exercise NGOs in civil society are a valuable avenue for promulgating information - but they need funding support.

But probably the best way of all for promoting the importance of human rights principles, and in assisting in the presentation of education programs would be a NHRI. The establishment of NHRIs in States that do not have one should be an important goal.

SCHEDULE 153: Substantive provisions of the seven core international human rights treaties

 

ICESCR
Art. No.

ICCPR
Art. No.

ICERD
Art. No.

CEDAW
Art. No.

CAT
Art. No.

CRC
Art. No.

CMW
Art. No.

Right to self-determination

1

1

 

 

 

 

 

Public emergencies; limitation of and derogation from rights

4; 5

4; 5

1(2); 1(3)

 

2(2); 2(3)

13(2); 14(3);15(2)

 

Implementation of the instrument:

 

 

 

 

 

 

 

preventive measures

 

 

7

5; 3

10; 11

19(2); 33; 35

 

adoption of legislation

2(1); 2(3)

2(2)

2(2); 4; 5

3; 2(a)

2(1)

4

 

 

legal punishability of offences

 

 

4(a); 4(b)

(2b); 11(2a)

4; 5; 6; 7; 8; 9

 

 

Non-discrimination; equality before the law; general policy

2(2); 3

2(1); 3; 26

2(1); 5(a)

2; 15(1); 9-16

 

2

7; 18; 25; 27

Rights of groups subject to discrimination (special measures)

2(3)

27

1(4); 2(2)

4; 14

 

22; 23; 30

 

Right to an effective remedy

 

2(3)

6

2(c)

14

37(d); 39

16(9)

Right to procedural guarantees

 

14; 15; 16

5(a)

15

12; 13; 14; 15

12(2); 37(d); 40

16(5) (6) (7) (8); 18

Right to a nationality

 

24(3)

5(d-iii)

9

 

7; 8

29

Political rights and access to public service

 

25

5(c)

7; 8

 

18(2)(3); 26; 23(3)(4)

41; 42(3)

Right to life; right to physical and moral integrity; slavery, forced labour and traffic in persons

 

6; 7; 8

 

6

1; 16

6; 11; 19; 34; 32; 35 33, 36; 37(a)

9; 10; 11

Right to liberty and security of the person

 

9; 10; 11

5(b)

 

 

37

16

Right to freedom of movement; right of access to any public place; expulsion and extradition

 

12; 13

5(d-i); 5(d-ii); 5(f)

15(4)

3

10

8; 22; 39; 56

Right to privacy; right to freedom of thought, conscience and religion

 

17; 18

5(d-vii)

 

 

14; 16

12; 14

Freedom of opinion and expression

 

19; 20

5(d-viii);

4(a); 4(c)

 

 

12; 13

13

Right to peaceful assembly and association

8

21; 22

5(d-ix); 4(b)

 

 

15

40

Right to marry and found a family; protection of the family, mother and children

10

23; 24

5(d-iv)

16; 12; 4(2);5(b); 11(2)

 

16;18; 19; 20; 22; 23; 33; 34; 36; 38

44

Right to own property, to inherit and obtain financial credits

 

 

5(d-v); 5 (d-vi)

13(b) 15(2)

 

 

32

Right to work

6(1)

 

5(e-i)

11(1-a,b,c)

 

 

25

Right to just and favourable conditions of work

7

 

5(e-i)

11(1-d,f); 11(2); 11(3)

 

 

25; 35

Trade union rights

8

22

5(e-ii)

 

 

 

26; 40

Right to social security

9

 

5(e-iv)

11(1-e); 13(a);

14(2-c)

 

26

43(e)

Right to adequate food and clothing

11

6(1)

5(e-iii)

14(2-h)

 

27(3)

 

Right to enjoy the highest standard of physical and mental health

12

6(1)

5(e-iv)

12; 14(2-b)

 

24

28; 43(e)

The right to education; other cultural rights

13; 14; 15

27

5(e-v); 5(e-vi)

10; 13(c); 14(2-d)

 

23; 24 (2)(c); 28; 29; 30; 31

30; 31; 43(a)(b) (c)

SCHEDULE 2: RATIFICATION OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS BY PACIFIC ISLAND NATIONS

 

ICCPR

ICESCR

CERD

CAT

CEDAW

CRC

Others

Australia

13/11/80

10/3/76

30/10/75

7/9/89

27/8/83

16/1/91

Acceded to 1st and 2nd Optional Protocols (OP) under ICCPR and CRC.

Cook Islands

 

 

 

 

 

6/5/97 (a)

 

Fiji

 

 

10/2/73 (s)

 

27/9/95

12/9/93

 

FSM

 

 

 

 

1/10/04 (a)

4/6/93 (a)

 

France ( New Caledonia)

4/11/80

4/11/80

28/7/71

18/2/86

14/12/83

7/8/90

Ratified European Convention on Human Rights ( 3 May 1974) and Revised European Social Charter ( 7 May 1999)

Kiribati

 

 

 

 

16/4/04 (a)

10/1/04 (a)

 

Nauru

 

12/11/01 (sig)

12/11/01 (sig)

12/11/01 (sig)

 

26/8/94 (a)

Signatory to 1 st and 2 nd OP's under CRC.

New Zealand

28/3/79

28/3/79

22/12/72

9/1/90

9/2/85

6/5/93

Acceded to 1 st and 2 nd OP's under ICCPR and CRC and the OP under CEDAW.

Niue

 

 

 

 

 

19/1/96 (a)

 

Palau

 

 

 

 

 

3/9/95 (a)

 

PNG

 

 

26/2/82 (a)

 

11/2/95 (a)

31/3/93

 

RMI

 

 

 

 

 

3/11/93

 

Samoa

 

 

 

 

25/10/92

29/12/94

 

Solomon Islands

 

17/3/82 (s)

17/3/82 (s)

 

5/6/02 (a)

9/5/95 (a)

Acceded to OP under CEDAW.

Tonga

 

 

17/3/72 (a)

 

 

6/12/95 (a)

 

Tuvalu

 

 

 

 

5/11/99 (a)

22/10/95 (a)

 

Vanuatu

 

 

 

 

8/10/95 (a)

6/8/93 (a)

 

Note: (a) = acceded; (s) = succeeded; and (sig) = signatory.

SCHEDULE 3 - CONSTITUTIONAL PROTECTIONS

Australia

No explicit Bill of Rights and limited constitutional provisions. Statutory protections.

 

 

Cook Islands

Part IVA "Fundamental Human Rights and Freedoms"

  • Non-discrimination s.64(1)
  • Right to life, liberty and security of person s.64(1)(a)
  • Equality before the law s.64(1)(b)

 

  • Property rights s.64(1)(c)
  • Freedom of thought, conscience and religion s.64(1)(d)Freedom of speech and expression s.64(1)(e)
  • Freedom of peaceful assembly and association s.64(1)(f)
  • Due Process and fair trial s.65

Federated States of Micronesia

Article IV - Declaration of Rights

  • Freedom of expression, peaceful assembly, association or petition s.1
  • Freedom of religion s.2
  • Right to life, liberty and property s.3
  • Equality before the law and non-discrimination s.4
  • Right to privacy and security of the person s.5
  • Due process and fair trial ss.6,7, 8, 11 & 13.

 

  • Abolishment of capital punishment s.9
  • Abolishment of slavery and involuntary servitude s.10
  • Right to free movement s.12

Article V - Traditional Rights

  • Preservation of the role of a traditional leader as recognised by custom s.1
  • Traditions enshrined in statute may override Article IV rights s.2

Fiji

Chapter 4 - Bill of Rights

  • Application of rights s.21
  • Right to life s.22
  • Right to liberty s.23
  • Freedom from service and forced labour s.24
  • Freedom from cruel or degrading treatment s.25
  • Freedom from unreasonable searches and seizure s.26
  • Due process and fair trial ss.27, 28 and 29
  • Freedom of expression s.30
  • Freedom of assembly s.31
  • Freedom of association s.32
  • Labour relations s.33
  • Freedom of movement s.34
  • Freedom of religion and belief s.35
  • Universal suffrage s.36
  • Right to privacy s.37
  • Equality before the law and non-discrimination s.38
  • Right to education s.39
  • Protection against compulsory acquisition of property s.40
  • Enforcement provisions s.41
  • Establishment of Human Rights Commission s.42

Chapter 5 - Social Justice

  • Affirmative action/special measures programs for disadvantaged groups s.44

Kiribati

Chapter II - Protection of Fundamental Rights and Freedoms of the Individual

  • Right to life s.4
  • Right to liberty s.5
  • Protection from slavery and forced labour s.6
  • Protection from inhuman treatment s.7
  • Protection from deprivation of property s.8
  • Protection for privacy of home and other property s.9
  • Due process and fair trial s.10
  • Freedom of conscience s.11
  • Freedom of expression s.12
  • Freedom of assembly and association s.13
  • Freedom of movement s.14
  • Non-discrimination s.15

Marshall Islands

Article II - Bill of Rights

  • Freedom of thought, speech, press, religion, assembly, association and petition s.1
  • Freedom from slavery and involuntary servitude s.2
  • Freedom from unreasonable search and seizure s.3
  • Due process and fair trial s.4
  • Just compensation s.5
  • Freedom from cruel and unusual punishment s.6
  • Habeas Corpus s.7

 

  • Ex post facto laws and bills of attainder s.8
  • Quartering of soldiers s.9
  • Imprisonment for debt s.10
  • Conscription and Conscientious Objection s.11
  • Equality before the law and non-discrimination s.12
  • Personal autonomy and privacy s.13
  • Access to judicial and electoral processes s.14
  • Health, education and legal services s.15
  • Ethical government s.16
  • Enforcement provisions s.18

Nauru

Part II Protection of Fundamental Rights and Freedoms

  • Right to life s.4
  • Personal liberty s.5
  • Protection from forced labour s.6
  • Protection from inhuman treatment s.7
  • Protection from deprivation of property s.8
  • Protection of person and property s.9
  • Due process and fair trial s.10
  • Freedom of conscience s.11
  • Freedom of expression s.12
  • Freedom of assembly and association s.13
  • Enforcement provisions s.14

New Zealand

Statutory Bill of Rights only.

 

Niue

No constitutional Bill of Rights

 

Palau

Constitutional protection of fundamental rights and freedoms, reflective of those in the ICCPR.

 

Papua New Guinea

Division 3 - Basic Rights

  • Right to freedom s.32
  • Right to life s.35
  • Freedom from inhuman treatment s.36
  • Due process and fair trail s.37
  • Limitation on certain rights s.38
  • Liberty of the person s.42
  • Freedom from forced labour s.43
  • Freedom from arbitrary search and entry s.44
  • Freedom of conscience, thought and religion s.45
  • Freedom of expression s.46
  • Freedom of Assembly and association s.47
  • Freedom of employment s.48
  • Right to privacy s.49
  • Right to vote s.50
  • Right to Freedom of Information s.51
  • Right to freedom of movement s.52
  • Protection from unjust deprivation of property s.53
  • Equality s.55
  • Enforcement provisions s.57

Samoa

Part II Fundamental Rights

  • Enforcement provisions s.4
  • Right to life s.5
  • Right to personal liberty s.6
  • Freedom from inhuman treatment s.7
  • Freedom from forced labour s.8
  • Due process and fair trial ss.9, 10
  • Freedom of religion ss.11, 12
  • Freedom of speech, assembly, association, movement and residence s.13
  • Rights regarding property s.14
  • Equality before the law and non-discrimination s.15

Solomon Islands

Chapter II Protection of Fundamental Rights and Freedoms of the Individual

  • Right to life s.4
  • Right to personal liberty s.5
  • Protection from slavery and forced labour s.6
  • Protection from inhuman treatment s.7
  • Privacy and Property rights ss.8 & 9
  • Due process and fair trial s.10
  • Freedom of conscience s.11
  • Freedom of expression s.12
  • Freedom of assembly and association s.13
  • Freedom of movement s.14
  • Non-discrimination s.15
  • Enforcement provisions s.18

Tonga

Part 1 Declaration of Rights

  • Prohibition on slavery s.2
  • Foreign labour s.3
  • Equality before the law s.4
  • Freedom of religion s.5
  • Freedom of expression s.7
  • Freedom of petition s.8
  • Habeas Corpus s.9

Due process and fair trial ss 10, 11, 12, 13, 14, 15

Tuvalu

Part II Bill of Rights

  • Right to life s.16
  • Personal liberty s.17
  • Freedom from slavery and forced labour s.18
  • Freedom from inhuman treatment s.19
  • Privacy and Property rights ss.20 & 21

Due process and fair trail s.22

  • Freedom of belief s.23
  • Freedom of expression s.24Freedom of assembly and association s.25
  • Freedom of movement s.26
  • Non-discrimination s.27
  • Limitations on rights ss.29, 30, 31, 32, 33, & 34.
  • Enforcement provisions s.38

Vanuatu

Chapter 2 Fundamental Rights and Duties

  • Right to life, liberty, security of the person, due process and fair trial, freedom from inhuman treatment and forced labour, freedom of conscience and worship, freedom of expression, freedom of assembly and association, freedom of movement, privacy and property rights, equality and non-discrimination s.5
  • Enforcement provisions s.6
  • Fundamental duties s.7

 

Endbnotes

  1. Also Member, Court of Appeal of Vanuatu and Supreme Court of Fiji (non-resident); formerly member of the Federal Court of Australia.
  2. Preamble, Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 at 71 (1948).
  3. The Hon Justice Michael Kirby AC CMG, "Human Rights - Essential for Good Governance", Seminar on Good Governance for the Protection of Human Rights held in Seoul, Republic of Korea, 15 September 2004. Electronic copy available at: www.sandstonepress.net/olr/OLR_sample.pdf
  4. The Commission on Human Rights is one of the functional commissions of the UN. It was established pursuant to Article 68 of the Charter, which provides that the Economic and Social Council of the UN "shall set up commissions... for the protection of human rights." The Commission on Human Rights holds annual conferences lasting approximately six weeks. Its 61st conference was held in March, 2005.
  5. Above note 2.
  6. See Human Rights Mechanisms Workshop, 2005 Nadi, Fiji, Working Paper 3, Introduction.
  7. 999 UNTS 171, entered into force on 23 March, 1976, except for Art 41, which entered into force on 28 March, 1979.
  8. 993 UNTS 3, entered into force on 3 January, 1976.
  9. There are two optional protocols to the ICCPR. The first gives individuals the right to complain of violations of their rights before the CHR and the second prohibits the use of the death penalty. They came into force on 23 March, 1976 and 11 September, 1991 respectively.
  10. 660 UNTS 85, entered into force on 4 January,1969, except for Art 14, which came into force on 4 December, 1982.
  11. 1249 UNTS 13, entered into force on 3 September, 1981.
  12. 1465 UNTS 85, entered into force on 26 June, 1987.
  13. 1577 UNTS 3, entered into force on 2 September, 1990.
  14. Entered into force on 1 July, 2003.
  15. An international practice, or course of action, becomes customary international law when States adopt that practice uniformly and consistently in the belief that they are legally required to do ("opinio juris"): North Sea Continental Shelf Case (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) 1969 ICJ 3. Once a practice is established, it is binding upon all states, unless they persistently object to being bound from the outset: Fisheries Case (United Kingdom v Norway) 1951 ICJ 116.
  16. Australian Department of Foreign Affairs and Trade, Human Rights Manual (3rd Ed.) 2004 at 15, 23.
  17. See UDHR Articles 6-12 and Schedule 1.
  18. See UDHR Articles 21 and 28, and Schedule 1.
  19. See Human Rights Manual, above note 16 at 3,45.
  20. See Human Rights Manual, above note 16 at 40-51.
  21. In the Americas, regional human rights are protected by the Inter-American Convention on Human Rights, which provides for the establishment of the Inter-American Court of Human Rights. There is also an Inter-American Commission on Human Rights established under the Charter of the Organisation of American States. In Africa, the African (Banjul) Charter on Human and Peoples' Rights establishes a Commission on Human Rights and the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights created a court. In Europe, the main human rights organ is the European Court of Human Rights, established under the European Charter for Fundamental Rights and Freedoms. However, there is also some protection of rights by the European Court of Justice, which is the judicial organ of the European Union.
  22. Opening Statement to the 61st Session of the United Nations Commission on Human Rights, Palais des Nations, Geneva, 14 March 2005.
  23. Report of the Secretary-General, "Renewing the United Nations: A Programme for Reform" UN Doc: A/51/950 (14 July 1997). See http://www.un.org/reform/refdoc.htm.
  24. The "Seminar on Good Governance Practices for the Promotion of Human Rights" was held in Seoul, Korea on 15-16 September, 2004.
  25. Due to a large number of last minute cancellations, there were representatives from only 9 NHRIs present, Argentina, Australia, Fiji, Honduras, Malawi, New Zealand, Northern Ireland, Sri Lanka, and Venezuela.
  26. Madame Louise Arbour, UN High Commissioner for Human Rights, Opening Statement, 16th Session of the International Coordinating Committee of National Human Rights Commissions for the Promotion and Protection of Human Rights, 14 April, 2005 and Secretary-General Kofi Annan, "Enhancing the participation of national human rights institutions in the work of the Commission on Human Rights and its subsidiary bodies" UN Doc: E/CN.4/2005/107 (19 January, 2005).
  27. Minimum criteria for the establishment and operation of National Institutions endorsed by CHR, Resolution 1992/54 on 3 March 1992, and adopted by the General Assembly in 1993, resolution of 48/134 of 20 December 1993.
  28. Secretary-General's Report, "Enhancing the participation of national human rights institutions in the work of the Commission on Human Rights and its subsidiary bodies" UN Doc: E/CN.4/2005/107 (19 January, 2005)
  29. Human Rights and Equal Opportunity Commission, Fiji Human Rights Commission and New Zealand Human Rights Commission.
  30. The website of the APF is: http://www.asiapacificforum.net
  31. Article 3.1 of the Constitution of the APF. Electronic copy available at: http://www.asiapacificforum.net/about/constitution/constitution.pdf
  32. Australia, Fiji, India, Indonesia, Malaysia, Mongolia, Nepal, New Zealand, The Philippines, Republic of Korea, Sri Lanka and Thailand.
  33. Afghanistan, Jordan the Palestinian Territories, being institutions that do not yet fully comply with the Paris Principles.
  34. Funding is provided by the Governments of Australia, India, New Zealand and Thailand, and several major international aid donors.
  35. For further details on the operation of the Advisory Commission of Jurists, see: www.asiapacificforum.net/jurists/index.html.
  36. For example ICCPR, Article 2 provides: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
  37. One of the functions of the Australian Human Rights Commission is to administer the four federal anti-discrimination Acts, relating to race, sex, disability and age, which were enacted in order to give a legislative basis for Australia's international obligations.
  38. (1992) 22 VUWLR/Monograph 4.
  39. The conference was held in Doha, Qatar, in March 2004.
  40. The Forum was established in 1971. Presently there are 16 members: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nehru, New Zealand, Niue, Palau, Papa New Guinea, Republic of the Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu.
  41. Comprised of Sir Julius Chan (Papa New Guinea), Mr Bob Cotton, (Australia), Dr Langi Kavaliku (Tonga), Teburoro Tito, (Kiribati), and Maiava Lulai Toma (Samoa).
  42. The Eminent Persons' Group review of the Pacific Islands Forum, Pacific Co-operation: Voices of the Region, April 2004, Recommendation 6.
  43. Ibid, Recommendation 9.
  44. 2004 Suva Consultation Outcomes Concluding Statement and Recommendations. Electronic version available at: www.asiapacificforum.net/activities/thematic/pacific/concluding.htm
  45. Ibid.
  46. The resources may come from international donors. A number of NHRIs in developing states are well-funded by international donors, anxious to encourage human rights observance.
  47. See, for example, the publication of the Australian Council for International Development, entitled Good Governance Development Programs: Responding to the Voices of Communities. An electronic version is available at: www.acfid.asn.au/pubs/papers/ACFID_good_governace_paperMar04.pdf
  48. Outcome statement paras 37-40, 44.
  49. ICCPR, Article 15.
  50. ICCPR, Article 27.
  51. For example, Art 8(2) of the Declaration of the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities states: "The exercise of the rights set forth in the present Declaration shall not prejudice the enjoyment by all persons of universally recognised human rights and fundamental freedoms." Adopted by GA Res 47/135 (18 December, 1992)
  52. The Vanuatu case of Public Prosecutor v Kota [1989-1993] Van LR661 provides a typical example.
  53. Published in the Background Note of the Seminar on Good Governance Practices for the Promotion of Human Rights, Seoul, 15-16 September, 2004. UN Doc: HR/SEL/GG/SEM/2004/2. The Seminar was jointly organised by the Office of the United Nations High Commissioner for Human Rights and the United Nations Development Programme.

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