A Paper Prepared for the
UNESCO ASIA/PACIFIC MEETING ON HUMAN RIGHTS
Prepared by C. Wickliffe
MC Fellow in Human Rights Education
Institute of Justice and Applied Legal Studies
University of the South Pacific
As we reflect on the human rights education needs of our region I am reminded that most people of the Pacific, who live in a region that comprises one third of the globe, generally do not have access to the international human rights system. This is because few fully independent countries in the Pacific have acceded/ratified the six major international human rights instruments.
The major human rights treaties are:1
- the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) 1966;
- the International Covenant on Civil and Political Rights (ICCPR) 1966;
- the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966;
- the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) 1979;
- the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984;
- the Convention on the Rights of the Child (CRC) 1989.
Of the 14 independent countries in the Pacific, only two have ratified the ICCPR and only three have ratified the ICESCR that. The ICCPR and the ICESR, combined with the Universal Declaration of Human Rights, make up the International Bill of Rights. The protections offered by these important instruments are generally available only in independent countries, in territories still under colonial rule, or in countries who have chosen a self-governing relationship with their former trustee/colonial power namely:
- Tokelau through New Zealand (Aotearoa);2
- New Caledonia (Kanaki), French Polynesia (Te Ao Maohi) and Wallis and Futuna through the Republic of France;3
- Guam, Hawaii, Northern Marianas and American Samoa through the United States of America;4
- Pitcairn Islands through the United Kingdom;
- Easter Island (Rapanui) through Chile;5
- Solomon Islands;6
- Pitcarin through the United Kingdom.7
Of the other major human rights instruments only the Convention on the Rights of the Child (CRC) has been ratified/acceded to by all the independent countries in the Pacific.8
A hand full have acceded/ratified the Convention on the Elimination of Discrimination Against Women.9 Fiji is one of the few countries who have done so.10 The other countries/territories, excluding Australia and New Zealand (Aotearoa), who have acceded/ratified or are bound by it are Samoa, Vanuatu, Papua New Guinea, Cook Islands, Niue and Tokelau, the French Territories of New Caledonia (Kanaki), French Polynesia (Te Ao Maohi) and Wallis and Futuna.11
Only six Pacific states have ratified the International Convention on the Elimination of all forms of Racial Discrimination (CERD), namely New Zealand and Tonga in 1972, Fiji in 1973, Australia in 1975, Papua New Guinea and the Solomon Islands in (1982).
II. Are Pacific States committed to Human Rights?
There is currently no combined regional state commitment to human rights or to the Universal Declaration of Human Rights as a common standard of achievement for all pacific peoples and nations. A demonstration of this reality is the Final Forum Communique of the Ninth South Pacific Forum, Pohnipei, Federated States of Micronesia 24-25 August 1998. In this statement there is no mention of the 50th Anniversary and regional leaders at the Forum made no renewed commitment to the Universal Declaration of Human Rights.
What we have in the Pacific are a number of constitutions in the region that contain provisions recognising the existence, without discrimination by reason of race, national origin, color, religion, opinion, belief, or sex, of fundamental human rights and freedoms.12 New Zealand, while it does not have a written Constitution, does have the New Zealand Bill of Rights Act 1990 and through judicial activism in the Court of Appeal (led by the previous President, Lord Cooke of Thorndon) the 1990 Act now has assumed a quasi constitutional status.13 Australia has human rights and racial discrimination legislation.
In addition to the Constitutions, there are 8 Pacific countries (including Australia and New Zealand) which have Ombudsman's Offices and three countries with human rights institutions (including Australia and New Zealand).
Ill. Human Rights Violations
National constitutions and institutions in the Pacific are not protecting the human rights of citizens of the Pacific. Human rights violations continue to occur. These violations include abuse of police powers, failure to meet minimal standards relating to the rights of prisoners, militarisation and its use against civilian communities, violence against women, abuse of children and young people, limitation of free speech and media freedom, discrimination based on gender, disability (including HIV/AIDS status), age, minority status or discrimination against immigrants, migrant workers or indigenous peoples.14 Other human rights violations are occurring in the economic, social and cultural sphere.15 There is also hardship being caused by the decreasing levels of aid from developed countries thus impacting on the right to development for the third world countries in the region.16
Pacific Governments have been more concerned about environmental human rights related issues not expressly mentioned in the Universal Declaration of Human Rights but which are related to the economic, social and cultural rights therein declared. These concerns relate to environmental degradation, nuclear testing and contamination of island sites, the transportation of hazardous waste, over fishing by foreign vessels, climate change and rising sea levels.17
IV. Human Rights and Education
It is now commonly accepted that what is needed in the Pacific is good human rights education. To this end there are many civil society organisations, churches and intergovernmental agencies promoting and protecting human rights through the development of education programmes to achieve common standards in the sector areas or specific issue related work that they focus on. However, there is no regional organisation working on human rights generally.
Consequently, the initiative taken by the Commonwealth Secretariat to organise in 1996 a Workshop on Human Rights Education and Training held in Port Vila, Vanuatu was long over due. During the Workshop, 50 participants from throughout the Pacific developed an action plan for human rights education in the Pacific. That action plan is attached. At the meeting in Vanuatu it was resolved that the Pacific needed a Pacific Charter of Human Rights. Participants also recommended the establishment of a South Pacific Centre for Human Rights and that:
- it be representative of nations and NGOs in the region;
- it should have a permanent secretariat;
- it should be the regional focal point for the dissemination of information and
- resources throughout the region and externally; and
- it be located at Port Vila within the Institute of Justice and Applied Legal Studies (IJALS), University of the South Pacific.
IJALS is coordinating the move to establish this Centre and with monitoring the implementation of the action plan and Ms Wickliffe, a Commonwealth Technical Fund for Cooperation Fellow in Human Rights Education based at IJALS is working on this project. Ms Wickliffe's position are to:
- Provide advice to USP, the Department of Law and UALS on all matters relating to human rights education;
- Consult, liaise with and assist members of the legal profession, judiciary, government service, donor agencies and community groups in order to identify their respective needs in terms of human rights education;
- Monitor and report on the legal obligations of individual jurisdictions in the region in terms of national and international law;
- Develop a resource base from which human rights education material can be accessed;
- Assist in the development and teaching of courses on the Law Programme at USP that are concerned with human rights education;
- Develop a set of materials, specific to the region, that will aid the development of human rights education;
- Provide training and support for those engaged in human rights education.
Since her appointment, IJALS has held one further regional meeting to discuss how to progress the Pacific Centre for Human Rights and a number of meetings of the advisory committee established to complete the establishment process. Due to her commitments she was unable to come to attend this meeting and I have come in her place as her counter-part.
The reasons we have identified for such a Centre include:
1. Excluding Australia and New Zealand, only Fiji has a Human Rights Commission in the Pacific, therefore, there is limited national capacity and no regional inter-governmental organisation or NGO generally responsible for promoting, protecting, monitoring and advocating for human rights and human rights education in the Pacific;
2. Those human rights organisations that do exist are sector or group specific example includes the British Department of Foreign Investment and Development (DFID) and the Pacific Regional Human Rights Education Resource Team (RRRT) which focuses on gender, women and children;
3. Outside of PNG, Fiji and the Solomon Islands, all the other countries of the Pacific have populations of less than 300,000 making them too small to be able to establish effective national human rights institutions. Having a regional organisation will be a more sustainable way of meeting the needs of the region;
4. Churches, NGOs, academics and civil society sector generally agree that a Centre is needed;
5. Work on developing a regional human rights instrument is needed as the Asia/Pacific region remains the last area of the globe with no regional instrument;
6. Governments need legal advice on signing international human rights instruments; they need the training to be able to implement human rights instruments; they also need to know how to draft legislation incorporating the international instruments into domestic law.
Fee money generated from project work has been used by IJALS to develop a Discussion Document that has been circulated to over 300 civil society organisations and churches throughout Melanesia, Micronesia and Polynesia. It has also been sent to the Heads of Governments of all Pacific States that are members of the South Pacific Forum and the Pacific Community (South Pacific Commission). Through this process IJALS and the Advisory Committee are attempting to obtain the views of Pacific peoples and Governments on whether we need a Centre, where it should be located and what it should do. (Distribute copies of the Discussion Document)
While IJALS has not sent the Discussion Document to a large number of Australian and New Zealand civil society organisations, it has circulated the booklet to the respective national human rights institutions in each country and the heads of state.
Attendance at this meeting is an opportunity for us to hear how we can collaborate with UNESCO to establish a Pacific Centre for Human Rights.
Other human rights education projects that IJALS and the School of Law at the University of the South Pacific have started and/or completed include:
- Disability Law and Policy in Fiji;
- Under-graduate law course on personal rights;
- Over 60 hours human rights skills training for law graduates included in the Professional Legal Practice Diploma Course;
- Judicial training development;
- Community Legal Literacy to be taught by satellite in the 12 countries of the USP region. This modular certificate will have a significant human rights component. A Fellow in Community Legal Literacy is soon to be appointed. This person will work with Caren Wickliffe on the development of course material;
- Teaching on a USP/RRRT Legal Literacy Workshop for Rural Women; Regional HIV/AIDS Human Rights, Law and Ethics Project;
- Conference and Published Proceedings on the Importance of National Human Rights Institutions (Fiji);
- Regional research into the state of civil society in all 15 Commonwealth Countries. This research will provide an informed country by country picture of what human rights education is needed.
- Lectures and Conference Papers on Cultural Rights, Indigenous Peoples and the Collective Right to Self-Determination in the Pacific, Human Rights - Human Values, The Rights of Women and Children etc.
V. How will the Pacific Centre for Human Rights Education Advance Human Rights Education in the Pacific?
In large measure this is covered by the Discussion Document circulated to you. However, to summarise the objectives and activities of the Centre would include:
- human rights education projects that are sector specific;
- development of a school curriculum;
- development of courses on legislative drafting;
- broad campaigns to encourage countries to sign international human rights instruments;
- training for key stakeholders such as Ombudspersons, police, prison wardens, judiciary, attorney-general's offices, inter-governmental agencies etc;
- continuation of the development of community legal literacy programmes for distance and face to face teaching;
- facilitate conferences, seminars etc.
- publication of human rights materials;
- ensure Pacific presence at major international and regional human rights forums; capacity building for existing institutions and organisations.
One of most important jobs for the Pacific Centre for Human Rights would be to continue to work on a Pacific Charter of Human and Peoples Rights and Duties that will elaborate on the Declaration and other human rights instruments and developments in the context of the Pacific.
The Charter would lead to the establishment of a Pacific Commission or Court to hear complaints from states, peoples and individuals alleging violations of their rights under the Charter. This regional mechanism is needed to ensure the promotion and protection of human rights in the Pacific.
There has been one significant attempt lead by LAWASIA to adopt a Draft Pacific Charter of Human Rights but this attempt failed. A full discussion on the process used to gain Pacific acceptance of this draft instrument is to be found in the 1992 Victoria University of Wellington Law Review.18 The text of the draft appears to be a well considered document consistent with other international and regional human rights instruments and Pacific national constitutions.
The draft even has a section on individual rights, economic, social and cultural rights, the rights of indigenous peoples and a section on the duties of the individual. In this last respect, article 29 of the draft provides that individuals have the duty:
1. To preserve harmonious development of the family and to work for its cohesion and respect;
2. To work to the best of their abilities ad competence, to use their skills and abilities for the betterment of their communities, and to pay taxes imposed by law in accordance with their means and in the interests of their society.,
3. To preserve and strengthen positive Pacific cultural values in their relations with other members of the society, in the spirit of tolerance, dialogue and consultation and, in general, to contribute to the promotion of the well being of society.
Perhaps the flaw in LAWASIA's initiative was in not providing a space or enough resources to ensure that Pacific peoples could internalise and own the discourse of regional human rights.
VI. Are there any problems in advancing human rights education?
There are problems. As yet, there is little commitment from Pacific states to international human rights instruments and no serious debate among the leaders about a regional instrument has occurred. In general, Pacific Governments, excluding Australia and New Zealand, have been slow to respond to calls from the international community to sign, accede or ratify international or regional human rights instruments.19 The reason why Pacific governments have been slow to respond to these calls may relate to a misconception of what human rights are or a long standing perception that human rights are only about individual civil and political rights. As in other parts of the world, there have been criticisms of the international human rights framework as one that reflects popular western culture (the cultural relativism debate), internationalisation and globilisation.20 In the main there is a perception that the international human rights regime to be western in origin. To a degree this view is valid because of the unbalanced emphasis in the past on individual rights and freedoms.21 There was little attention given to collective rights and duties - concepts that fit easily within Pacific cultures.22 The dangers of ignoring the discourse on cultural relativism or taking an extremist position on the issue have been identified by the World Commission on Culture and Development23 and by Imrana Jalal in her excellent work Law for Pacific Women24 where she examines the detrimental aspects of some custom on the rights of women.
However, no one can ignore the central role culture plays in determining the way people in the Pacific relate to each other and their communities. It provides the essential in sight into the way people live together. It can either assist or hinder the promotion and protection of human rights.
There is a need to advance the discussions on human rights in the Pacific by illustrating the relevance of human rights and values to all Pacific peoples. As culture pervades the entire way of life of all Pacific peoples, cultural is the answer to promoting respect for human rights and advancing the Universal Declaration of Human Rights as a common standard.
What is needed is a programme that would seek to better inform our knowledge of the way culture impacts on the interpretation and exercise of human rights in the Pacific. It would seek to take a holistic approach to all rights and responsibilities by reassessing what is meant by human rights in the Pacific. It would provide opportunities for Pacific Peoples to develop a regional philosophy of rights and responsibilities.
As a human rights education project, the programme would facilitate forums across the spectrum of communities and stakeholders, in the Pacific to identify the basic principles that underpin how Pacific cultures protect the inherent human dignity and well being of individuals and communities.
At these forums participants would be asked to discuss the positive nature of cultures in promoting respect for the well-being of people and in particular the elderly, women, children, people with disabilities and other sector groups. The aim would be to identify core principles which underpin Pacific Peoples values and norms and cultural rights concerning:
- cultural notions of spirituality and its importance to the well-being of individuals and communities;
- cultural relationships with the environment and how that relationship enhances the well-being of individuals and communities;
- how Pacific cultures sustainably managed resources for the well-being of present and future generations;
- cultural relationships that promote well-being among people;
- cultural forms of leadership - traditional and customary;
- political consensus building on issues that concern the well-being of individuals and communities;
- models for political, cultural, social and economic development for individuals and communities;
- protecting and promoting the well-being of the weak and vulnerable in Pacific communities, particularly women, children, young people and people with disabilities;
- the cultural roles of women and men in Pacific cultures;
- modes of transmitting knowledge;
- conflict resolution between individuals or communities;
- the role of customs and customary law in promoting and protecting the well-being of individuals and communities;
- forms of regulating behavior between individuals and communities.
Traditional and cultural experts supported by academics, and civil society organisations including the churches, religious leaders and the NGO sector would lead the forums. All Pacific Peoples would be represented in these forums including the indigenous peoples of Aotearoa, Australia, the French, American and Chilean territories.
At the national level, the forums could produce statements of guiding principles and an inventory of identified human and peoples rights that will form the basis for discussions at the regional level. Participants at the regional meeting would be required to build a consensus around the relevant principles that should be utilised in drafting a regional human rights instrument. They would also be asked to determine what mechanism should be in place to ensure the legal enforceability of the rights and responsibilities. The inventory of rights would guide the drafting of a regional instrument.
After consensus building at the regional level on the principles that should guide deliberations then it would be time to develop the regional statement into a human rights instrument, namely the Pacific Charter of Human and Peoples Rights and Duties. This Charter would authorise the establishment of a Pacific Commission or Court. It could hear complaints from states, nations, individuals and peoples from throughout the region whose rights under the Charter may have been violated. At the time the regional meeting for the Culture and Human Rights Project takes place the LAWASIA text may be referred to, adopted, amended and/or new provisions inserted or it may discarded totally in favor of a new text.
VIl. What else needs to be done?
There is a need to collaborate with other Pacific civil society and human rights organisations. In this respect there is much to learn from organisations such as the Pacific Concerns Resource Centre, PIANGO, the Pacific Regional Human Rights Education Resource Team (RRRT), Pacific YWCA, inter-governmental agencies such as the Pacific Community and the South Pacific Forum, UNESCO, UNICEF, UNIFEM, ILO, WHO, the churches through the Pacific Conference of Churches and academics teaching at country and regional universities.
There is also a need for Governments such as Australia and New Zealand to be far more active in promoting human rights during their discussions with their Pacific colleagues.
UNESCO too has a role to play in initiating and advancing programmes such as the culture and human rights programme.
We, who work on human rights within the region need to collaborate together to advance the Universal Declaration of Human Rights as a common standard of achievement for all peoples, individuals and nations of the Pacific. The challenge for this meeting is to recommend strategies for human rights education that are relevant and meaningful to the region.
It is, therefore, recommended that this meeting resolve to support:
1. the establishment of a Pacific Centre for Human Rights;
2. the development of regional human and peoples rights instrument;
3. the culture and human rights programme detailed above.
I would like to take this opportunity to thank the organisers for inviting IJALS to participate in this meeting.
1. Above n. 1, 242-244.
2. New Zealand ratified the ICCPR and the ICESCR on 28 December 1978. It ratified the two Optional Protocols of the ICCPR on 5 May 1989. Note also that Australia ratified the ICCPR on 13 August 1980 and the ICESCR on 10 December 1975. Australia ratified the First Optional Protocol to the ICCPR on 24 September 1991 and the Second Optional Protocol on 1 October 1990.
3. The Republic of France acceded to the ICCPR and the ICESCR on 4 November 1980 but it has not acceded to the Optional Protocols.
4. The USA signed the ICESCR on 5 October 1977 but has not ratified it. It signed and ratified the ICCPR (5 October 197718 January 1992) but it has not acceded to the two Optional Protocols of the ICCPR
5. Chile ratified the ICCPR and the ICESCR 10 February 1972.
6. Solomon Islands acceded to the ICESCR by succession on 17 March 1976 but not the ICCPR.
7. The United Kingdom ratified the ICCPR and the ICESCR on 20 May 1976.
8. There are 191 parties to the CRC. The dates of ratification and/or accession for Pacific countries/territories, excluding Australia and New Zealand, are Cook Islands (6 June 1997, with reservations); Fiji (2 July 1993113 August 1993); Kiribati (11 December 1995, with reservations); Marshall Islands (14 April 199314 October 1993) Federated States of Micronesia (5 May 1993) Nauru (27 July 1994); Niue (20 December 1998); Palau (4 August 1995); Samoa (30 September 1990129 November 1994, with reservations); Solomon Islands (10 April 1995); Tokelau through New Zealand (1 October 199016 April 1993 with reservations); Tonga (6 November 1995); Tuvalu (22 November 1995); Vanuatu (30 September 1990/7 July 1993); the French Territories of New Caledonia (Kanaki), French Polynesia (Te Ao Maohi) and Wallis and Futuna (26 January 1990/August 1990, with reservations). NB an amendment to art 43(2) of the CRC has been acceded to by Fiji 20 August 1997 but is not yet in force.
9. This is to be compared to their commitment to the CRC. At the end of 1997 there were 162 State Parties to CEDAW, a number not too far below the number of State Parties to the CRC.
10. Fiji acceded on 28 August 1994 with reservations to arts. 5(a) and (9).
11. Samoa (25 September 1992); Vanuatu (8 September 1992); Papua New Guinea (12 June 1995); Cook Islands, Niue & Tokelau through New Zealand (17 July 1980110 January 1985); the French Territories through the Republic of France (17 July 1980114 December 1983).
12. See for example the Constitution of Tuvalu Part II; the Constitution of the Cook Islands ss. 64-66; Constitution of Easter Island (Rapanui); the Constitution of the State of Hawaii art. I; the Constitution of the Independent State of Western Samoa Part II; the Constitution of the Independent State of Papua New Guinea art 5; the Constitution of the Solomon Islands ch. II; the Constitution of Vanuatu. ch.II; the Constitution of Kiribati ch. II; the Constitution of Nauru Part II; cf. the New Zealand Bill of Rights Act 1990.
13. Rishworth P. Lord Cooke and the Bill of Rights in Rishworth P. (ed) The Struggle for Simplicity. Essays for Lord Cooke of Thorndon (Butterworths, Wellington, 1997) 295 for a discussion on the nature and extent of this activism 330.
14. See US Department of State Reports on Human Rights Practices for 1997 for Papua New Guinea, Tonga, Samoa, Solomon Islands, Palau, Nauru, the Federated States of Micronesia, Marshall Islands, Kiribati, Fiji, Vanuatu @ http://www.state.gov/www/global/human_rights/1997_hrp_report; see also Amnesty International Report ASA 12/02/98, March 1998 Australia, Silence on Human Rights: Government Responds to "Stolen Children" Inquiry on line at http://www.amneesty.org/ailib/aipub/1998/ASA/3120000298.htm; on the rights of people with disabilities see C. Wickliffe and B. Mani Disability Law and Policy - Fiji Report Fiji (Disabled Peoples Association and IJALS, University of the South Pacific, 1998); also see on the rights of indigenous peoples D. Robie blood on their banner - Nationalistic Struggles in the South Pacific (Pluto Press, Australia, 1989).
15. See as examples of discussions on violations of economic, social and cultural rights UNDP Fiji Poverty Report (UNDP & Government of Fiji, 1997); G. Chand and V. Naidu Fiji: Coups, Crises, and Reconciliation 1987-1997 (Fiji Institute of Applied Studies, USP, Suva, 1997); A. Mead "Misappropriation of Indigenous Knowledge: The Next Wave of Colonisation" in Pacific Concerns Resource Centre Proceedings of the Indigenous Peoples' Knowledge and Intellectual Properly Rights Consultation 24-27 April 1995, Suva, Fiji (Government Print 1997) 153.
16. See articles on the right to development USP Education in Small Island States (USP Department of Education, Revised edition, 1997).
17. See for example the Final Forum Communique of the Ninth South Pacific Forum, Pohnipei, Federated States of Micronesia 24-25 August 1998.
18. See full discussion in 'Report on a proposed Pacific Charter of Human Rights prepared under the auspices of LAWASIA, May 1989' (1992) 22 VUWLR/Monograph 4.
19. See UN Human Rights International Instruments; Chart of Ratifications as at 31 December 1997, UN Doc. ST/MR/4/Rev. 16.
20. For a selection of materials on this topic from other parts of the world see H. Seiner & P. Alston (eds.) International Human Rights Law in Context, Law Politics, Morals (Oxford University Press, USA, 1996) ch. 4.
21. See Papers and Final Statement of the Collective Human Rights of Pacific Peoples Conference Statement (http://www.hrc.co.nz, Auckland 28-30 August 1998).
22. Above n. 19.
23. World Commission on Culture and Development Our Creative Diversity - Report of the World Commission on Culture and Development, Summary Version (WCCD/UNESCO Paris, July 1996) 19-20.
24. P. Imrana Jalal Law for Pacific Women (Fiji Women's Rights Movement, Suva, Fiji 1998) ch. 2.