Home
| Databases
| WorldLII
| Search
| Feedback
Queensland University of Technology Law and Justice Journal |
INVIGORATING ECONOMIC, SOCIAL AND CULTURAL
RIGHTS IN THE SOUTH PACIFIC:
A CONCEPTUAL
APPROACH
’DEJO
OLOWU [*]
A quick glance at the human rights landscape across the South Pacific
region reveals problems for economic, social and cultural rights.
Despite global
efforts towards mainstreaming these rights, coupled with increasing regional and
national embrace of these rights
elsewhere, the South Pacific largely presents a
picture of resistance to the formal recognition of these rights. This paper
accentuates
a gaping lacuna in the South Pacific approach to economic, social
and cultural rights and examines the rationalisations for this
scenario.
Highlighting the human development and poverty challenges in the smaller states
of the South Pacific, this paper contends
that economic, social and cultural
rights constitute veritable platforms for addressing some of these critical
challenges. Despite
deep rooted conceptual, normative and institutional
obstacles to enhancing the status of these rights, this paper canvasses a
multidimensional
approach towards invigorating these rights and identifies some
trajectories for securing their goals in the South Pacific.
By
their very nature, economic and social rights imply that conditions of poverty
and deprivation will be satisfied. By recognising
these rights, the eradication
of poverty becomes not merely a policy choice for the State, but a legally
binding responsibility for
which it is
accountable.[1]
I INTRODUCTION
More than half a century after human rights appeared on the global
political agenda, the scope and content of human rights is still
being
developed. A particularly notable aspect of this debate relates to the status of
economic, social and cultural rights vis-à-vis civil and political
rights,[2] which deepened in the early
years of the United Nations (UN), as states became polarised along philosophical
and ideological lines.
On one side was the United States, who saw economic,
social and cultural rights as communist manifestoes, while to the other, led
by
the defunct Union of Soviet Socialist Republics, they were as urgent and vital
as civil and political rights.[3] As a
result, economic, social and cultural rights were marginalised within the UN
arena, within regional systems, and across diverse
national legal
systems.[4]
Other reasons for
this marginalisation exist, aside from the ideological dissensions of the Cold
War era. Colonialism had also made
an impact on the post-independence attitude
of many states. In states of the British Commonwealth in particular, it had
become an
established pattern for the Bills of Rights in most independence
constitutions to enumerate only civil and political rights (usually
named
‘fundamental human rights’) to the total exclusion of economic,
social and cultural rights. As I have shown elsewhere,
where economic, social
and cultural rights norms were included in constitutional provisions, they were
included under a label different
from civil and political rights and couched as
‘directive principles’.[5]
The resultant effect had been an age-long lack of judicial recognition or a body
of jurisprudence for these rights in a vast number
of countries around the
world, many of the smaller states of the South Pacific
inclusive.[6]
In its thematic
outlook, this paper highlights the international human rights frameworks
relating to economic, social and cultural
rights and assesses the
constitutional, legal or policy responses of states of the South Pacific to
these frameworks. This paper
notes that despite the increasing efforts at the
international level towards mainstreaming these rights, coupled with growing
regional
and national embrace of these rights elsewhere, the South Pacific
represents the last bastion of resistance to the formulation of
appropriate
legal frameworks for the recognition of these rights. Apart from the incidence
of institutional apathy and the impediment
of non-justiciability, this paper
posits that the very low level of awareness, promotion and implementation of
economic, social and
cultural rights in the South Pacific – critical to
national and human development processes – have largely been the result
of
the under-theorised and under-explored profile of economic, social and cultural
rights within discourses on constitutionalism
and human rights in the South
Pacific.
The dearth of material in this area is telling. In the course
of researching this article, this author discovered that neither the
Suva nor
Port Vila libraries of the University of the South Pacific (a regional
university serving twelve Pacific island countries)
hold any volume on economic,
social and cultural rights in the region. Recourse to Lexis-Nexis, Westlaw,
Hein-Online, the Australian
Legal Information Institute and the New Zealand
Legal Information Institute databases, among others, was equally futile in
generating
useful academic or advocacy materials on the theme of this essay. It
may be argued, therefore, that economic, social and cultural
rights as
legal entitlements in the South Pacific, in theoretical and practical
terms, do not really exist.
This is where this article makes its entry
point. The essence of this paper is to sensitise human rights researchers and
activists
on the need to appropriately conceptualise South Pacific human rights
discourses in an integrative, all-encompassing way. A caveat
needs to be entered
here, however. This paper does not seek to provide answers to every human
rights-related question pertaining
to the South Pacific. That should be a task
for future scholarly explorations. In any event, there exists a broad assemblage
of scholarly
works on various human rights issues relating to the South
Pacific.[7] In its own distinct
context, this paper does no more than lay a conceptual premise for the
inclusion of economic, social and cultural rights in human rights education and
research as well as the development
and poverty reduction discourses in the
South Pacific region.
Extrapolating from the peculiar socio-economic
challenges in the smaller states of the South Pacific, therefore, this paper
contends
that economic, social and cultural rights constitute a veritable
platform for tackling some of the most pronounced challenges in
these states and
makes a strong case for their integration into constitutional review processes
as well as debates pertaining to
human rights, governance and democratisation in
the South Pacific. Acknowledging deeply-rooted historical, conceptual,
normative,
institutional and structural obstacles to enhancing the status of
these rights in the South Pacific, this paper emphasises the integrative
human
rights approach and canvasses multidimensional legal, policy and strategic
responses that would lay the foundation for the
promotion and realisation of
these rights in the region.
II THE INTERNATIONAL REGIME OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
The notion of international human rights, as it is known today, emerged
with the adoption of the Universal Declaration of Human Rights
(‘UDHR’)[8] in
1948. A treaty of 30 articles, the UDHR opens with unequivocal provisions
on equality and non-discrimination, two vital principles that have become
hallowed concepts in
defining every other human
right.[9] Articles 3 to 21 cover the
traditional civil and political
rights[10] while articles 22 to 27
deal with economic, social and cultural
rights.[11] What is particularly
outstanding about the UDHR, at least from the perspective of this study,
is that it is devoid of any language of hierarchy among human rights. On the
same footing
and with equal potency, the UDHR guarantees the protection
of civil and political rights and economic, social and cultural rights.
Notwithstanding divergent arguments
on the legal status of the UDHR, an
incontrovertible fact is that it is an instrument that has become the most
influential and most authoritative global reference
for human rights,
considering the multitude of UN and regional human rights treaties, national
constitutions, municipal cases and
statutes, and even private sector initiatives
that have unabashedly drawn inspiration from
it.[12]
To translate the
principles of the UDHR into legal obligations, two treaties were
developed in 1966, creating certain obligations for states parties. These two
treaties
are the International Covenant on Civil and Political Rights
(‘ICCPR’)[13] and
the International Covenant on Economic, Social and Cultural Rights
(‘ICESCR’).[14]
The two came into force in 1976, and together with the UDHR and the
optional protocols, are jointly referred to as the ‘International Bill of
Rights.’[15]
By the
antecedents of UN politics, the two treaties emerged in an atmosphere of
controversy: principally as the offshoot of the ideological
polarities at the
onset of the Cold War.[16] During
the drafting of the international bill of rights, the UN General Assembly
eventually decided that two separate covenants should
be prepared, one on civil
and political rights, and the other on economic, social and cultural rights
because it was reasoned that
the two sets of rights were of different nature,
requiring different instruments.[17]
One long-standing consequence of that differentiation had been the
marginalisation of economic, social and cultural rights in human
rights
implementation and discourses. It had therefore become commonplace for some
lawyers and legal academics to refer to ‘hierarchies’,
‘generations’, ‘categories’ or
‘classification’ of human
rights.[18] This is of course
reflective of perceptions about the evolution, content and degree of
enforceability of human rights, not only at
the international realm, but also at
regional and national levels.
It is worthy to note that the UDHR
made no distinction among the rights it proclaimed. The two covenants have the
same legal status. In fact, the two covenants overlap
in respect of certain
rights. For instance, both covenants recognise and protect the core principles
of self-determination and non-discrimination
in identical
wordings.[19] Similarly, trade union
rights are found in the ICESCR even though these rights share many
similarities with traditional civil and political rights of freedom of
association and freedom
of assembly. Language is considered to be part of
culture, yet language rights and other cultural rights are included in the
ICCPR as well as in the
ICESCR.[20]
Despite
these and some other cross-cutting linkages between these two human rights
treaties, the argument yet persists, rather inaccurately,
that while civil and
political rights emphasise freedom from State interference, a major element of
economic, social and cultural
rights is the perceived claim on the State for
protection and assistance in attaining these
rights.[21] It will therefore be
worthwhile to examine the ICESCR in some detail here.
The kernel
of the obligations created for the protection of the rights in the ICESCR
is the provision of article 2(1) which states:
Each state party to the
present covenant undertakes to take steps, individually and through
international assistance and cooperation,
especially economic and technical, to
the maximum of its available resources, with a view to achieving progressively
the full realisation
of the rights recognised in the present Covenant by all
appropriate means, including particularly the adoption of legislative
measures.
The above provision encapsulates the nature of states
parties’ obligations under the ICESCR and determines how they must
approach the implementation of the substantive rights contained in articles 6 to
15.[22] The wording of article 2(1)
of the ICESCR has remained a subject of great controversy among
government officials, scholars and human rights activists, in diverse
geo-political
settings. There have been robust arguments suggesting that rather
than constituting binding obligations for states parties, the rights
in the
ICESCR are but mere ‘aspirations’ or idealistic goals to be
achieved over the course of
time.[23]
By the textual
interpretation of this, article 2, states parties have expressly undertaken to
be legally bound to take steps, to the
maximum of their available
resources, to achieve progressively the full realisation of the
rights in the ICESCR. One critical misconstruction that has resulted from
the language of that provision is that the actualisation of economic, social
and
cultural rights strictly necessitates fiscal provisions by states. This perhaps
explains why many writers like Vierdag and Cranston
berated economic, social and
cultural rights on the assumption that the rights are costly, would undermine
creativity, would remove
incentives, and would lead to bloated State
apparatus.[24]
While there
remains a lot of work to be done in the elaboration of the exact scope and
content of article 2, a clearer understanding
of the obligations of a state
party to the ICESCR has increasingly crystallised over the years. Human
rights experts and scholars have, by growing consensus, identified the
tripartite
levels at which the obligations of a State operate in regard to any
human right. These are that the State must respect, protect and
fulfil. The obligation to fulfil further contemplates the duty to
facilitate, to provide and to
promote.[25] This typology applies
to every kind of human rights and thus demystifies the protracted resource
constraint argument against economic,
social and cultural rights. It essentially
means that every human right has its positive and negative connotation. For
instance,
the right to vote (a political right) entails making fiscal provisions
for a credible electoral process and the right to fair trial
(a civil right)
connotes appropriate staffing and funding for a credible judicial system just as
the right to housing requires that
government must not take away what is
available for shelter without providing an alternative. The same principle
applies to the right
to water which demands that the State should refrain from
permitting the pollution of available sources of potable water.
While
efforts intensify within the international human rights arena on how best to
promote and strengthen economic, social and cultural
rights around the globe,
focus must not be lost on the status and efficacy of these rights at regional
and national levels. The questions
then emerge: how has the recognition of
economic, social and cultural rights fared across world regions? To what extent
has the divergence
in the conceptualisation of economic, social and cultural
rights impacted the outlook of these rights within the existing regional
human
rights systems? A reflection on the outlook of the three existing regional human
rights systems will be appropriate at this
juncture as it would facilitate the
background against which the subject should be understood in the South Pacific
context.
III ECONOMIC, SOCIAL AND CULTURAL RIGHTS WITHIN REGIONAL HUMAN RIGHTS SYSTEMS
Regional human rights mechanisms are commonly thought to be potentially
more effective than UN human rights mechanisms, because they
are able to take
better account of peculiar regional
conditions.[26] In another
significant way, the UN itself has always encouraged the creation of regional
mechanisms to deal with security, development,
and human rights issues, which
should complement UN mechanisms.[27]
The three existing regional human rights systems are, therefore,
region-specific, and should naturally be expected to take into consideration
those values and customs peculiar to their respective
territories.[28]
The Council
of Europe (now incorporated into the European Union), the Organisation of
American States (OAS), and the defunct Organisation
of African Unity (OAU)
(which preceded the current African Union), being the apex regional
organisations for the European, Inter-American,
and African regions,
respectively, had adopted a number of human rights instruments largely based on
the UN human rights model.[29]
The main human rights instruments of the European regional arrangement
are the European Convention for the Protection of Human Rights and
Fundamental Freedoms (‘European
Convention’),[30] and the
European Social Charter
(‘Charter’).[31] While
the European Convention primarily protects civil and political rights,
the Charter seeks to protect socio-economic rights. Both instruments establish
supervisory
machinery for the rights guaranteed. However, there are marked
differences between the two. Whereas the provisions of the European
Convention must be accepted in entirety, the Charter permits states to
accept its guarantees selectively, and it uses a complicated system of
reporting
as the means of supervision instead of a complaints procedure.
There has
been a pervading notion that the impact of the Charter is generally less than
that of the European Convention, reflecting the previous lack of
enthusiasm within the European regional system for creating a strong framework
for economic, social
and cultural
rights.[32] In more recent times,
however, protocols have been concluded to extend the range of the rights
protected and improve the supervisory
machinery while further measures are also
being contemplated.[33] From the
ongoing developments within the European regional human rights arrangement, the
prospect is manifest that the value of the
protection available for economic,
social and cultural rights as rights capable of implementation would further
appreciate over the
course of
time.[34]
In the
Inter-American regional human rights system, the main instruments are the
American Declaration of the Rights and Duties of
Man,[35] the Inter-American
Convention on Human Rights (‘Pact of San
Jose’),[36] and the
Additional Protocol of San
Salvador,[37] which deals with
economic, social and cultural rights.
The Pact of San Jose clearly
concentrates on civil and political rights, paying only modest attention to the
observance of economic, social and cultural
rights.[38] It does become obvious
that the Pact of San Jose retained the classification
stereotype.
The supervisory machinery for economic, social and cultural
rights in the Inter-American regional system was later strengthened through
the
adoption of the Protocol of San Salvador which makes elaborate provisions
for state reporting as the principal implementation and monitoring mechanism for
the rights contained
therein.[39]
This Protocol also provides for a petition system albeit only in respect of
limited rights.[40] It must be
mentioned that the positive trend towards an effective protection of economic,
social and cultural rights in the Inter-American
regional system is primarily
anchored on the Inter-American Commission on Human Rights (the Inter-American
Commission) as well as
the Inter-American Court on Human Rights (the
Inter-American Court),[41] as well
as some quasi-ministerial
bodies.[42]
Unmistakably,
the elaborate structures for human rights implementation monitoring within the
Inter-American regional human rights
system have been quite active in the
promotion and protection of economic, social and cultural
rights.[43] It is worthy of mention,
however, that apart from the abounding regional human rights instruments that
have become helpful in the
remarkable movement of the Inter-American regional
system towards stronger economic, social and cultural rights protection, the
consistent
stance of the monitoring bodies has been much more the result of the
sensitivity of these bodies to the stark and harsh realities
of mass poverty and
the grim social conditions particularly across the Latin American
region.[44]
Within the
African regional human rights system, the foremost instrument is the African
Charter on Human and Peoples’ Rights (‘African
Charter’),[45] which
covers civil and political as well as economic, social and cultural rights
within the same context, and with equal
force.[46] It has been pointed out
that the African model represents a significantly new and challenging normative
framework for the implementation
of economic, social and cultural rights,
placing the implementing institutions of the African Charter and human
rights advocates in a position to pioneer imaginative approaches to the
realisation of these
rights.[47]
While the foregoing
discussion reveals varied approaches to economic, social and cultural rights by
the existing regional human rights
system, the moral it portends for the
conceptualisation of human rights in any future regional human rights system for
the South
Pacific must not be overlooked. In the ongoing political and scholarly
discourses on the establishment of either a Pacific or an
Asia-Pacific
charter-based regional human rights system, the spotlight should shift towards
integrating all human rights into a single
instrument. The effectiveness which
such an approach has facilitated in building a body of jurisprudence on these
rights within the
existing regional human rights systems makes this a viable
option for the South Pacific.
Having explored the philosophy, content and
promise of economic, social and cultural rights as expressed through the
ICESCR, and the variegated responses across diverse geo-political
regions, thus far, it is crucial to evaluate what the attitudes of states
have
been towards this treaty and its normative contents. In other words, since 1966
when this treaty was adopted, how much recognition
has it garnered among states
in terms of ratification? What has been the response of South Pacific states
towards this treaty? At
the regional and national levels, what is the status of
economic, social and cultural rights in normative terms? What efforts are
being
made to squarely place economic, social and cultural rights on human rights
agenda? In the light of the peculiar socio-economic
challenges of the South
Pacific states, what are the implications of economic, social and cultural
rights and what should be the
approach to these rights? These are some of the
questions that this paper addresses in the ensuing segments.
IV OVERVIEW OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE SOUTH PACIFIC
As at the time of the most recent annual update of UN treaty databases,
in 2006, there were a total of 153 states parties to the
ICESCR.[48] Out of these,
only Solomon Islands was a state party to this treaty among all the smaller
states of the South Pacific, a dismal rendition
of the profile of this treaty in
the region.[49]
At the South
Pacific regional level, no specific human rights system or normative framework
exists. It must be mentioned that while
there has been a series of initiatives
towards the establishment of a regional human rights system for the broader
Pacific/Asia-Pacific
region since the 1980s, these initiatives have not
translated into concrete institutional structures. Apart from the Draft
Pacific Charter of Human Rights that was adopted in 1989 under the auspices
of the Law Association for Asia and the Pacific (LAWASIA), efforts towards the
materialisation
of a regional human rights system have largely remained at low
ebb. The numerous factors responsible for this situation have recently
been
explored elsewhere.[50]
At
the national levels, a survey of the constitutions of South Pacific states
proves quite revealing. Apart from Fiji Islands whose
1997 Constitution contains
a sprinkling of economic, social and cultural
rights,[51] the overwhelming number
of other constitutions in the South Pacific exclusively guarantee only civil and
political rights. These
are the Constitutions of the Cook Islands,
1980;[52] Marshall Islands,
1989;[53] the Federated States of
Micronesia, 1975;[54] Kiribati,
1979;[55] Nauru,
1968;[56] Samoa,
1960;[57] Solomon Islands,
1978;[58] Tonga,
1875;[59] and Tuvalu,
1978.[60]
Another model of
constitutionalism manifests in Papua New Guinea and Vanuatu where beyond
securing civil and political rights as ‘Basic
Rights’,[61] and
‘Fundamental
Rights’,[62] respectively,
these two constitutions created a set of ‘Directive Principles’ and
‘Fundamental Duties’. The
Constitutions of both states explicitly
pronounce those provisions as
‘non-justiciable’.[63]
Consequently, on the very few occasions when the Directive Principles in the
Constitution of Papua New Guinea were ever called into question, the apex
court in Papua New Guinea unequivocally pronounced that these provisions are not
enforceable.[64]
The
question that confronts the analytic mind, therefore, is: why has there been so
much palpable apathy and reluctance towards economic,
social and cultural rights
in the South Pacific, more so when the vast majority of them were not
significant role actors in the ideological
controversies of the earlier UN human
rights treaty formulation days? This paper opines that the answer lies in the
constitutional
and political history of many of these states.
At the
birth of the UN in 1945, and still in 1948 when the UDHR was adopted as
‘a common standard of achievement’ for all human
beings,[65] only one of the small
South Pacific states – Tonga – was free from overt colonial
domination.[66] From the
constitutional outlook of economic, social and cultural rights in the former
colonies of the prominent colonial power in
the Pacific region – Britain,
few among them have justiciable constitutional provisions on economic, social
and cultural rights.
Since so many volumes of scholarly works have been produced
assessing the impact of colonialism on constitutionalism, democratisation,
governance and the challenging process of evolving a human rights culture in
many of states of the modern world, including those
in the South
Pacific,[67] this paper does not
intend to scrutinise the abounding wealth of literature in that regard, and it
suffices to state that extrapolating
from the extensive gamut of scholarly
writings and other observable traits, the preponderance of South Pacific states
had adopted
constitutional rights that fitted their respective colonial legal
orientations, at the dawn of their political independence. It had
thus become
inevitable for them to have the Bills of Rights in their independence
constitutions closely modelled after the European Convention. One must
call to mind that the European Convention only guarantees civil and
political rights.
The four-fold hypotheses from which any meaningful
analysis of the profile of economic, social and cultural rights in the South
Pacific
should proceed are therefore as follows:
a) that at independence,
the first constitutional frameworks on which an overwhelming majority of South
Pacific states were founded
resulted from the constitutional ideas dictated or
arranged by their erstwhile colonial overlords, devoid of significant local
participation;[68]
b) that since
the prevalent human rights thinking within the realm of British
constitutionalism was about rights expressed as civil
and political rights, it
was inevitable for the new independence constitutions to follow that
pattern;[69]
c) that consequent
to (a) and (b) above, economic, social and cultural rights were alienated from
imperial constitutional history,
and thus, the growth and development of
coherent jurisprudence for these rights have been arduous and stunted; and
d) that the manner of the emergence of imposed constitutional rights norms
during the colonial transition in many newer states in
the South Pacific
disrupted indigenous political thought processes and caused a disjuncture in
rights prioritisation, the consequences
of which reverberate till the present
day.[70]
The emphasis on the
constitutional and legal history of the smaller states of the South Pacific in
this paper must not becloud the
holistic focus of this study. As crucial as the
constitutionalisation of human rights can be in advancing the status and
relevance
of economic, social and cultural rights, the connective argument here
is that the existence of a constitutional (legal) order within
national systems
provides an auspicious setting to stimulate the protection and promotion of
all human rights through the in-built institutions and frameworks
established under constitutional norms.
Critical to this study,
therefore, is the question of the prevailing environment that makes the
enhancement of the status of economic,
social and cultural rights imperative for
the smaller states of the South Pacific. The foregoing thesis is of no little
significance
for the small island states of the South Pacific where tremendous
constitutional, social, economic, cultural and political changes
are taking
place simultaneously.
V CONTEXTUAL CHALLENGES FOR SOUTH PACIFIC COUNTRIES
While the aggregation of national growth rates in the overall conditions of
world populations in the years that followed the Cold
War led to the hasty
suggestion that most developing states had recorded ‘rapid
improvement’ in human development
indices,[71] a more thorough
analysis reveals sharp contradictions. Since the end of the Cold War, a dull
picture of human development indices
for the small states of the South Pacific
has consistently radiated through all the scientific standards of measuring
human growth
and progress around the world. A quick look at any of the Human
Development Reports produced by the United Nations Development Programme
(UNDP) since 1990 shows that the plight of most people in these states has
remained
parlous in terms of the overall trends of poverty and human
privations.[72]
In the
Pacific Human Development Report 1999 published by the UNDP, focussing
exclusively on ‘fifteen Pacific highland
countries’,[73] the UN agency
had noted the significant effect of globalisation on the states of the Pacific
region in many respects. Apart from
issues related to booming populations,
unemployment, declining economic viability, labour migration and
poverty,[74] the UNDP had pointed
out that the maintenance of sustainable livelihood in the smaller states of the
Pacific was becoming critical
and central
issues.[75]
That observation
could not have been more accurate even almost a decade after. In the most
recently published UNDP Human Development Report
2005,[76] among all the
smaller Pacific States, Tonga was the only one listed among nations in the
‘High Human Development Index’
ranking.[77] All the others were
listed under the ‘Medium Human Development Index’
ranking.[78] While there was
considerable improvement in the life span of the peoples of the smaller states
of the South Pacific between 1970-75
and
2000-05,[79] the fiscal commitments
of the governments of these states to health
resources;[80] to water and
nutritional needs;[81] and to
education[82] have remained largely
negligible.
Beyond the foregoing statistical rendition lies the
unmistakable relegation of economic, social and cultural rights in the work of
the few civil society and human rights advocacy groups in the South Pacific
region. What more? In the work of the Fiji Human Rights
Commission, the only
national human rights commission in the South Pacific, these species of rights
do not feature prominently and
are tangentially referred to in the course of
litigating civil and political
rights.[83] In its overall
assessment of human rights in the region, the Amnesty International in its 2006
Report had found that State economic
development initiatives do ‘not
prioritise [the] realisation of economic, social and cultural
rights.’[84]
It is in
the context of the above indices that this paper, therefore, contends that the
engagement of economic, social and cultural
rights in the smaller states of the
South Pacific should no longer a policy option but be translated into a
collective legal and
ethical imperative.
VI TRENDS IN THE CONCEPTUALISATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS: IMPLICATIONS FOR ACTION AND STRATEGIES IN THE SOUTH PACIFIC
One significant area where international law is undergoing dynamic
changes is in the universalisation and integration of all human
rights. At the
level of the UN, it is noticeable that its other key human rights treaties give
equal protection to the civil and
political rights as well as the economic,
social and cultural rights of their provisions on equal footing. Significant
here are the
Convention on the Elimination of All Forms of Racial
Discrimination
(‘CERD’);[85]
the Convention on the Elimination of All Forms of Discrimination against
Women
(‘CEDAW’);[86]
the Convention on the Rights of the Child
(‘CRC’);[87]
and the Convention on the Rights of All Migrant Workers and Members of their
Families
(‘MWC’).[88]
In an upward swing from the situation of human rights in the Cold War years,
international human rights development has undergone
remarkable growth in terms
of the consensus on the broader obstacles to a global human rights agenda. The
decapitation of the apartheid
system in South Africa, democratisation in many
states of the developing world, the disintegration of communist
apparatchik in Central and Eastern Europe and their steady accession into
the European regional human rights scheme, have all contributed in
huge measures
to the emergence of a new global outlook to the promotion of all human
rights for all human beings in all
places.[89]
Perhaps no
better reflection of the invigoration of human rights can be seen than in the
text of the Vienna Declaration and Programme of Action (‘Vienna
Declaration’), adopted at the World Conference on Human Rights held in
Vienna, Austria, in June 1993. The declaration provides that: ‘All
human
rights are universal, indivisible and interdependent and
interrelated.[90] The Vienna
Declaration has had far-reaching effects in repositioning economic, social
and cultural rights as rights whose attainment must be immediately
pursued. The
establishment of the Centre for Economic and Social Rights in New York in 1993,
and of the Economic, Social and Cultural
Rights Violations Project, in 1996 by
the American Association for the Advancement of Science and Human Rights
Information and Documentation
Systems, as well as the activities of the
People’s Decade for Human Rights Education, and the work of the Maastricht
Conference
have been cited among pointers to this
assertion.[91] Today, all regional
groupings, except Asia and the Pacific, have regional instruments recognising
and protecting both civil and political
rights and economic, social and cultural
rights.
It is of great importance to note that the stereotype of human
rights dichotomy is fast crumbling at national levels with some States
incorporating both sets of rights into their Constitutions without qualification
or distinction. The Constitution of Philippines 1987 includes elaborate
provisions on economic, social and cultural
rights.[92] One other remarkable
constitution that has given unparalleled importance to economic, social and
cultural rights is the Constitution of the Republic of South Africa 1996.
On the same footing with civil and political rights, the constitution provides
for an elaborate range of economic, social and cultural
rights.[93] The integration of these
rights into the fundamental laws of these States is fast becoming a veritable
platform for developing a
vibrant body of jurisprudence on economic, social and
cultural rights as the courts now have the opportunity to scrutinise
governmental
programmes vis-à-vis the legitimate expectations of
the people.[94] The innovative
judicial approaches adopted in some of the pertinent cases certainly portend
enviable implications for constitutionalism
in the South Pacific.
The
notion of interconnectedness has also gained robust appreciation beyond
bureaucratic platforms. One can venture to say that in
the light of escalating
mass poverty, homelessness, diseases and deprivations across the globe, linkages
for inclusionary rights-based
approaches to these challenges were inevitable.
The 1990s witnessed a redirection of the efforts of many otherwise conservative
human
rights non-governmental organisations (NGOs) towards addressing human
rights violations in holistic fashion at their various levels
of activism. The
New York-based Human Rights Watch and the London-based Amnesty International are
now championing the protection
and promotion of economic, social and cultural
rights across the world. The World Bank and the UN Development Programme have
also
acknowledged the relevance of these species of rights in the global
agenda.[95] The underpinning premise
for this change of attitude is the realisation of the mutually enhancing
capacity of all human rights as
well as the agreement on the basic idea that:
‘All human rights are related to each other and are important for
maintaining
human
dignity.’[96]
The
growing consensus towards the interconnectedness principle is being manifested
in the application of human rights to human experiences
in diverse societies
around the world. As Buergenthal points out, the years that followed the
Vienna Declaration have witnessed ‘considerable progress...as far
as the implementation of human rights is
concerned’.[97] To buttress
his point, he points to the transformations that have been recorded in the
monitoring activities of the various regional
human rights mechanisms that had
in the Cold War years been bogged down by ideological cleavages that often
veiled impunity.[98] Indeed, it is a
trend rapidly gaining acceptation that economic, social and cultural rights
secure the rights that are essential
for the full enjoyment of all other rights.
In the words of Henry Shue: ‘No one can fully, if at all, enjoy any right
that
is supposedly protected by society if he or she lacks the essentials for a
reasonably healthy
life.’[99]
One of the
principal reasons for the apparent under-development of economic, social and
cultural rights had been the perceived lack
of clarity in the content of many of
these rights, and the lack of authoritative international case law pertaining to
them. In this
regard, NGO initiatives like the Limburg Principles on the
Implementation of the International Covenant on Economic, Social and Cultural
Rights, 1986, and the Maastricht Guidelines on Violations of
Economic, Social and Cultural Rights, 1997, have
sought to break down the legal obligations under the ICESCR for both
states and non-state actors.[100]
These developments are salutary in deepening the cause of integrative
human rights protection and promotion in the South Pacific states
of the 21st
century. It is however not sufficient to incorporate human rights language into
constitutions or policy statements, the
crucial task lies in implementation.
Although human rights treaty monitoring committees may exist to clarify and
apply the provisions
and to communicate with states parties, monitoring is only
one element. Implementation has to do, not only with the reception of
the
rights, but also with their further interpretation and application. This process
of implementation is what must become the preoccupation
of human rights groups
and advocates in this new era of integrative approach to human
rights.
The thrust of this analysis is that the age-long artificial
dichotomy is fast fading into oblivion. It is therefore important for
human
rights and development activists, scholars and policy makers in the South
Pacific to realise the challenges of advancing these
rights beyond their present
neglect, exclusion and constitutional non-justiciability, and to deepen the
empirical research, intensify
the innovative litigation skills and generate
policy options towards this objective.
Furthermore, since it is at the
national and regional levels that the efficacy of global standards will be
tested, this paper strongly
advocates that the regional clamour for a coherent
legal and policy approach in the Pacific must begin at the Pacific Islands Forum
(‘the Forum’).[101]
Since the Forum recognises and proclaims that ‘unity in securing shared
interests contributes to the national, regional and
global
good’,[102] it becomes
imperative that the Forum translates this rhetoric into reality. When the Forum
articulates its commitment to the rights
of human beings within the Pacific
region, it would have provided a springboard for civil society groups to
follow-up through lobbying
within the appropriate political and legislative
arenas of its member-states. While the Forum is yet to consider human rights
treaty
ratification as a topical issue, the member-states of the Forum cannot
continue to ignore this subject while the rest of the world
is moving on. In
this age and time, no State can successfully play a game of denial with the
multidimensional implications of globalisation
for its people. The danger of not
having coherent legal and policy responses to the ratification of all the key UN
human rights treaties
in the Pacific region far outweighs whatever political
gains would be scored through an ostrich approach. Lessons from the adverse
consequences of the erratic approach of States in other regions of the world
surely indicate implications for more pragmatic initiatives
in the Pacific
region.
On a cautionary note, however, advocacy for economic, social and
cultural rights should not fall into its own trap of perpetuating
the dichotomy
stereotype that was exacerbated by Cold War tensions. Focusing on economic,
social and cultural rights does not mean
that these rights are more important
than, or independent from, civil and political rights. They only warrant
specific focus and
attention in the South Pacific because they have been ignored
for so long, and so, little work has been done to elaborate and popularise
them
as human rights. In strategic terms, the implications of all the above is for
NGOs to be more pragmatic in their approach to
the promotion of all human
rights. It is important for human rights activists and indeed all legal
practitioners and academic lawyers
in the South Pacific to vigorously affirm
that all human rights are interdependent and indivisible. It is crucial that all
human
rights be recognised as essential to human survival and dignity. It is in
this regard that the innovative lawyering skills of human
rights advocates and
few judges in Fiji Islands deserve commendation. In PAFCO Employees Union v
Pacific Fishing Co Ltd,[103]
the High Court of Fiji Islands applied article 8 of the ICESCR to
interpret a lacuna in the Trade Disputes Act 1978 and for the purpose of
determining the content of the Fiji Constitution’s Bill of Rights relating
to the right of workers to organise and to bargain collectively.
Apart from
litigation, however, South Pacific NGOs must stimulate economic, social and
cultural rights by providing information and
advice to legislatures; influencing
budgets through data-based research and analysis; use of other institutional
structures such
as national human rights institution, where available, to help
publicise, prevent and remedy violations; education for the bar and
bench;
partnership with the media; mass mobilisation and awareness strategies;
networking with trade unions and the civil service;
monitoring violations by
providing expert knowledge of socio-economic conditions; influencing national
foreign policies; and networking
with other NGOs and international NGOs. They
will also have to develop broad-based strategies for filing alternative reports
before
international treaty monitoring bodies in respect of those human rights
treaties to which South Pacific States are parties.
It is equally worthy
to mention that while a rights-based focus had largely been elusive in the two
previous Pacific Human Development Reports (1994 and 1999), the
participation of a wide range of interdisciplinary researchers, civil society
groups and human rights organisations
such as the Pacific Regional Rights
Resource Team, among others, indicates a positive trend towards the integration
of human rights
into the final production of the 2006 edition of the Reports.
This is a salutary development.
One must also commend the recent
colloquium on economic, social and cultural rights held in Suva, Fiji Islands,
in June 2006, which
witnessed the participation of 21 judges and four lawyers
from 12 Pacific island
countries.[104] Perhaps that
opportunity for interactive discussions on these rights will signal the prospect
of their enhanced promise and realisation
for South Pacific peoples.
All
the above issues and approaches contemplate that the peoples of the South
Pacific desire an effective delivery of the promises
of all human rights.
It goes without saying that this will undoubtedly entail sustained commitment
and result-oriented planning, mobilisation
and execution.
VII CONCLUSION
This paper has shown that from a rather hazy and humble beginning, economic,
social and cultural rights have grown to become significant
norms on the global
human rights and human development agenda. The need for concerted activism as
well as the modalities for galvanising
these rights into greater relevance in
the South Pacific has been discussed, with greater emphasis on the notion of the
interconnectedness
of all human rights.
It has been shown here that the
principles which must inform approaches to human rights activism in the South
Pacific must encompass
the interdependence and indivisibility of rights, the
applicability of economic, social and cultural rights to all individuals on
the
basis of equality and non-discrimination; the indication of these rights for
certain governmental obligations; the constitutional
justiciability of economic,
social and cultural rights; and the desirability for their vertical and
horizontal effect. All these
must be pursued in tandem within the wider human
rights context.
[*] LLB (Hons), LLM, Obafemi Awolowo University, Ile-Ife, Nigeria;
LLM Human Rights & Democratisation, University of Pretoria, Pretoria,
South
Africa; PG Dip International Human Rights, Åbo Akademi University, Turku,
Finland; JSD Cum Laude, University of Notre Dame, Notre Dame, Indiana,
USA; Barrister and Solicitor (Nigeria); Senior Lecturer, Nelson Mandela School
of
Law, University of Fort Hare, East London, South Africa. E-mail:
djolowu1(at)yahoo.co.uk. The author is grateful to Nilesh Bilimoria,
Senior Legal Officer, Fiji Human Rights Commission, Suva, for the useful information he supplied.
[1] S Liebenberg and K Pillay,
Poverty and Human Rights: National Speak Out On Poverty Hearings
(SANGOCO, 1998) 2.
[2] See D
Warner, ‘An Ethics of Human Rights: Two Interrelated
Misunderstandings’ (1996) 24 Denver Journal of International Law and
Policy 395, 400.
[3] C Raj
Kumar, ‘International Human Rights Perspectives on the Fundamental Right
to Education: Integration of Human Rights and
Human Development in the Indian
Constitution’ (2004) 12 Tulane Journal of International and Comparative
Law 237, 247.
[4] See
‘The Realisation of Economic, Social and Cultural Rights: Final Report on
the Question of the Impunity of Perpetrators
of Human Rights Violations,
prepared by Special Rapporteur El Hadji Guisse’ UN Commission on Human
Rights, 49th Session, ch
16, UN Doc E/CN.4/Sub.2/1997/8
(1997).
[5] See ’D Olowu,
‘Human Rights and the Avoidance of Domestic Implementation: The Phenomenon
of Non-Justiciable Constitutional
Guarantees’ (2006) 69(1) Saskatchewan
Law Review 39, 42. See also Chinonye Obiagwu and Chidi Anselm Odinkalu,
‘Combating Legacies of Colonialism and Militarism’ in Abdullahi
Ahmed An-Naim, Human Rights under African Constitutions: Realising the
Promise for Ourselves (2003) 220.
[6] I am aware that the phrase
‘South Pacific’ has been used by various writers and institutions in
different contexts with
varying meanings. For the purposes of this paper,
however, I am employing the term to refer to all the sixteen independent and
self-governing
states in the Pacific Ocean region that make up the
‘Pacific Islands Forum’, excluding Australia and New Zealand. See
Australian Government, Department of Foreign Affairs and Trade, Pacific
Islands Forum [2]-[3]
<http://www.dfat.gov.au/geo/spacific/regional_orgs/spf.html>
at 27 October
2006. The territories covered are, therefore, those of the Cook Islands,
Federated States of Micronesia, Fiji,
Kiribati, Republic of the Marshall
Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga,
Tuvalu, and Vanuatu.
[7] Many of such works include: A
Angelo, ‘Lo Bilong Yumi Yet’ (1992) 22(2) Victoria University of
Wellington Law Review 33; S Farran, ‘Custom and Constitutionally
Protected Fundamental Rights in the South Pacific Region: The Approach of the
Courts
to Potential Conflicts’ (1997) 21 Journal of Pacific Studies
103
<http://www.usp.ac.fj/editorial/jpacs_new/Farran.PDF>
at 27
October 2006; Leulua’iali’i Tasi Malifa, ‘The
“Rights” Conflict in the Constitutions of the
South Pacific: Seeking
Toleration into the 21st Century’ in Nin Tomas (ed),
Collective Human Rights of Pacific Peoples (1998) 119, 120; C Wickliffe,
‘Human Rights Education in the Pacific: A Paper Prepared for the UNESCO
Asia/Pacific Meeting
on Human Rights Education’ (1999) 3 Journal of
South Pacific Law 1, [10]
<http://www.vanuatu.usp.ac.fj/journal_splaw/
working_papers/wickliffe1.htm>
at 27 October 2006; M Wilson and P Hunt (eds), Culture, Rights, and Cultural
Rights: Perspectives from the South Pacific (Huia Press, 2000); ’D
Olowu, ‘When Unwritten Customary Authority Overrides the Legal Effect of
Constitutional Rights:
A Critical Review of the Tuvaluan Decision in Mase
Teonea v. Pule O Kaupule & Another’ (2005) 9(2) Journal of
South Pacific Law
<http://www.paclii.org/journals/jspl/current/commt1.html>
at 27 October
2006; and S Farran, ‘Human Rights in the Pacific Region — Challenges
and Solutions’ [2005] LAWASIA Journal
39.
[8] Universal Declaration
of Human Rights, GA Res 217 A (III), UN Doc A/810 (1948). For a vivid
insider description of the drafting processes and political intrigues that
culminated in the adoption of the UDHR on 10 December 1948, see M A
Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of
Human Rights (Random House, 2001). See also J Morsink, The Universal
Declaration of Human Rights: Origins, Drafting, and Intent (University of
Pennsylvania Press, 1999) 1-88; Peter Meyer, ‘The International Bill: A
Brief History’ in Paul Williams
(ed), The International Bill of Human
Rights (1981) xxiii-xl.
[9]
See UDHR, arts 2 and 3, respectively. Virtually all human rights
treaties since WWII emphasise the cardinal principles of equality and
non-discrimination.
See EW Vierdag, The Concept of Discrimination in
International Law with Special Reference to Human Rights (Nijhoff, 1973) 1,
83-139. See also A Eide and T Opsahl, Equality and Non-Discrimination
(Norweigan Institute of Human Rights, Publication No 1, 1990) 17-25 (showing how
these two core UN principles have found acceptance
and application within
various regional human rights
systems).
[10] Right to life,
liberty and personal security (art 3); prohibition of slavery and servitude (art
4); prohibition of torture, cruel,
inhuman or degrading treatment or punishment
(art 5); recognition as a person (art 6); equal protection before the law (art
7); right
to effective judicial remedy for violations (art 8); freedom from
arbitrary arrest, detention or exile (art 9); right to free and
fair trial (art
10); presumption of innocence in criminal proceedings (art 11); right to privacy
and family life (art 12); freedom
of movement (art 13); right to seek and enjoy
asylum (art 14); right to a nationality (art 15); right to marry and found a
family
(art 16); right to property (art 17); freedom of thought, conscience and
religion (art 18); freedom of opinion and expression (art
19); freedom of
peaceful assembly and association (art 20); and, right to political
participation (art 21).
[11]
These are the rights to social security (art 22); to work and to free choice of
in employment and employment standards and conditions
(art 23); to rest and
leisure, including holidays with pay (art 24); to adequate living standards (art
25); to education (art 26);
and, to cultural life (art
27).
[12] For discussions on the
legal significance and influence of the UDHR at global, regional and
national levels, see R E Asher et al, The United Nations and the Promotion of
the General Welfare (The Brookings Institution, 1957) 674-7; L B Sohn and T
Buergenthal, International Protection of Human Rights (Bobbs-Merrill,
1973) 514-22; H J Steiner and P Alston, International Human Rights in Context
(Oxford University Press, 2nd ed, 2000)
139.
[13] International
Covenant on Civil and Political Rights, opened for signature 26 December
1966, 999 UNTS 171, GA Res 2200A (XXI), UN Doc A/6316 (1966) (entered into force
on 23 March 1976).
[14]
International Covenant on Economic, Social and Cultural Rights, opened
for signature 16 December 1966, 993 UNTS 3, GA Res 2200A (XXI), UN Doc A/6316
(1966) (entered into force on 3 January 1976).
[15] For further discussions
about the ‘International Bill of Rights’, see International Human
Rights Internship Programme
(IHRIP), Ripples in Still Water: Reflections by
Activists on Local- and National- Level Work on Economic, Social and Cultural
Rights (IHRIP 1997) 1; Krzysztof Drzewicki, ‘Internationalisation of
Human Rights and Their Juridization’ in Raija Hanski and
Marku Suski (eds)
An Introduction to the International Protection of Human Right: A
Textbook (2nd ed, 1999) 25, 32-5; M Robinson, ‘Making Human Rights
Matter: Eleanor Roosevelt’s Time Has Come’ (2003) 16 Harvard
Human Rights Journal 4.
[16] See L M Keller, ‘The
American Rejection of Economic Rights as Human Rights and the Declaration of
Independence: Does the Pursuit
of Happiness Require Basic Economic
Rights?’ (2003) 19 New York Law School Journal of Human Rights 557,
559.
[17] An extensive discussion of
the ideological intrigues that fuelled the separation of the adoption of two
distinct covenants is found
in K Arambulo, ‘Drafting an Optional Protocol
to the International Covenant on Economic, Social and Cultural Rights: Can an
Ideal Become Reality?’ (1996) 2(1) University of California at Davis
Journal of International Law and Policy 111. See also Meyer, above n 8.
[18] See G Wilner, ‘The
Status and Future of the Customary International Law of Human Rights:
Reflections on Regional Human Rights
Law’ (1996) 25 Georgia Journal of
International and Comparative Law 407,
418.
[19] See arts 1(1) and 2(2)
International Covenant on Economic, Social and Cultural Rights, opened
for signature 16 December 1966, 993 UNTS 3, GA Res 2200A (XXI), UN Doc A/6316
(1966) (entered into force on 3 January 1976) and arts 1 (1) and 2(1)
International Covenant on Civil and Political Rights, opened for
signature 26 December 1966, 999 UNTS 171, GA Res 2200A (XXI), UN Doc A/6316
(1966) (entered into force on 23 March 1976)
respectively.
[20] Art 27
International Covenant on Civil and Political Rights, opened for
signature 26 December 1966, 999 UNTS 171, GA Res 2200A (XXI), UN Doc A/6316
(1966) (entered into force on 23 March 1976) and art 15 International
Covenant on Economic, Social and Cultural Rights, opened for signature 16
December 1966, 993 UNTS 3, GA Res 2200A (XXI), UN Doc A/6316 (1966) (entered
into force on 3 January
1976).
[21] See Interights,
Building Bridges for Rights: Inter-African Initiatives in the Field of Human
Rights (Interights, 2001)
20.
[22] By virtue of arts 26
and 31 of the Vienna Convention on the Law of Treaties, opened for
signature on 23 May 1969, 8 ILM 679 (1969) UN Doc A/CONF 39/28 (1969) (entered
into force 27 January 1980), the provisions of the ICESCR are binding on
all parties to it and must be performed in good faith. See M W Janis, An
Introduction to International Law (Aspen Publishers, 3rd ed,
1999) 27-30.
[23] See generally,
EW Vierdag, ‘The Legal Nature of the Rights Granted by the International
Covenant on Economic, Social and Cultural
Rights’ (1978) 9 Netherlands
Yearbook of International Law 69, 80 (contending that the use of such
phrases like ‘undertake to take steps’, ‘undertake to
ensure’, ‘undertake
to guarantee’, and ‘recognise the
right’ makes the eventual ‘assurance’ of the foreseen benefits
to
be ‘dependent on steps that must first be taken’). See also I
Brownlie, Principles of Public International Law (Oxford University
Press, 4th ed, 1990) 572 (contending that the obligation for rights such as
those laid down in the ICESCR are merely ‘programmatic and
promotional’). For others like Sunstein, civil and political rights are
negative in that
they only require abstention by states whereas the Committee on
Economic, Social and Cultural Rights (CESCR) are positive because they
demand expenses by states. See C R Sunstein, ‘Against Positive
Rights: Why Social and Economic Rights Don’t Belong in the New
Constitutions of Post-Communist
Europe’ (1993) 2(1) Eastern European
Constitutional Review 35-8.
[24] See Vierdag, above n 23. See
also M Cranston, What Are Human Rights? (Bodley Head, 2nd ed,
1973) 65-71. However, see, Committee on Economic, Social and Cultural Rights,
General
Comment No 3: The Nature of States Parties’ Obligations (art 2, para 1, of
the Covenant), 5th sess, para 3, UN Doc E/1991/23 (1990), where
the treaty monitoring body of the ICESCR, the UN CESCR stated
that: ‘The means which should be used in order to satisfy the obligation
to take steps are stated in art 2 (1) to be
“all appropriate means,
including particularly the adoption of legislative measures”. The
Committee recognises that in
many instances legislation is highly desirable and
in some cases may even be indispensable. For example, it may be difficult to
combat
discrimination effectively in the absence of a sound legislative
foundation for the necessary measures. In fields such as health,
the protection
of children and mothers, and education, as well as in respect of the matters
dealt with in arts 6 to 9, legislation
may also be an indispensable element for
many purposes.’
[25] Although the idea of a
‘tripartite typology’ was originally conceived by Henry Shue in
1980, the idea has been advanced
by many human rights scholars and experts in
subsequent years. While there are variants of the levels of obligations, such as
those
proposed by Van Hoof (1984), the Maastricht Guidelines on Violations of
Economic, Social and Cultural Rights, 1997, and Steiner and Alston (2000),
the most elaborate and most influential are those found in the pronouncement of
the CESCR in its
General Comment No 14, The Right to the Highest Attainable
Standard of Health (art 12), UN Doc E/C12/2000/4 [hereinafter GC No 14]. For
a thorough scholarly analysis of these typologies, their variants, significance
and connotations, see M Sepulveda, The Nature of the Obligations Under the
International Covenant on Economic, Social and Cultural Rights (Antwerp
Intersentia Uitgevers, 2003) 157-248. The CESCR’s typology has itself
found further development in the works of the
UN Special Rapporteur on the Right
to Food (Asbjørn Eide). See Asbjørn Eide, The Right to
Adequate Food as a Human Right, UN Sales No S89XIV2 (New York), 1989; A
Eide, A Oshaug and W Barth Eide, ‘Food Security and the Right to Food in
International
Law and Development’ (1991) 1(2) Iowa Journal of
Transnational Law and Contemporary Problems 415-67; Report Updating the
Study on the Right to Food prepared by Mr A Eide, UN Doc E/CN4/Sub.2/1998/9;
The Right to Adequate Food and to be Free From Hunger, Updated Report by
Special Rapporteur Mr Eide, paras 51-2, UN Doc E/CN4/Sub2/1999/12; and
A Eide, The Right to Food in Theory and Practice
<http://www.fao.org/docrep/W9990E/W9990E00.htm>
at 27 October 2006. See
Henry Shue, ‘Rights in the Light of Duties’ in Peter G Brown and
Douglas McLean (eds), Human Rights and US Foreign Policy (1979) 65,
66-78, where he had identified the three correlative duties to forbear;
to protect; and to
aid.
[26] See Dinah
Shelton, ‘The Promise of Regional Human Rights Systems’ in Burns H
Weston and Stephen P Marks (eds), The Future of International Human
Rights (1999) 351. See also Allan Rosas, ‘Economic, Social and
Cultural Rights in the External Relations of the European Union’
in
Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social
and Cultural Rights: A Textbook (2nd ed, 2001) 479, 484-7 (explaining the
increasing commitment to the ‘human rights clause’ in the European
Union policies
as a notion founded on the desire to advance and reinforce the
‘commonly shared values and principles, as laid down in [the
UN human
rights system]’).
[27] See
B H Weston, R A Lukes, and K M Hnatt, ‘Regional Human Rights Regimes: A
Comparison and Appraisal’ (1987) 20(4) Vanderbilt Journal of
Transnational Law 585.
[28]
The only existing three regional human rights systems are the European, the
Inter-American, and the African. None yet exists for
Asia, the Pacific, or
Asia-Pacific. The idea of establishing a regional human rights system for Asia
or the Pacific remains a matter
of optimistic debate. For some of the pertinent
literature on this matter, see W M Reisman, ‘Practical Matters for
Consideration
in the Establishment of a Regional Human Rights Mechanism: Lessons
from the Inter-American Experience’ (1995) St Louis-Warsaw
Transatlantic Law Journal 89; V Muntarbhorn, ‘Asia, Human Rights and
the New Millennium: Time for a Regional Human Rights Charter?’ (1998) 8
Transnational Law and Contemporary Problems 407, 413-18; Pamela A
Jeffries, ‘The Case for a Human Rights Charter for the Pacific?’ in
Paul Hunt (ed), Human Rights – How are They Best Protected? (1998)
30-5; S R Harris, ‘Asian Human Rights: Forming a Regional Covenant’
(2000) 17(1) Asia-Pacific Law and Policy Journal 1; and M Robbins,
‘Powerful States, Customary Law and the Erosion of Human Rights through
Regional Enforcement’ (2005) 35 California Western International Law
Journal 275.
[29] For the
comparative distinctions between the UDHR, the African Charter,
the European Convention and the Inter-American treaties, see B Obinna
Okere, ‘The Protection of Human Rights in Africa and the African Charter
on Human
and Peoples’ Rights: Comparative Analysis with the European and
American Systems’ (1984) 6(2) Human Rights Quarterly 141-59; Philip
Kunig, ‘Regional Protection of Human Rights: A Comparative
Introduction’ in Philip Kunig, Wolfgang Benedek and
Costa R Mahalu (eds),
Regional Protection of Human Rights by International Law: The Emerging
African System (1985) 31-58; T Buergenthal, ‘International Human
Rights Law and Institutions: Accomplishments and Prospects’ (1988)
63 Washington Law Review 1-19; G M Wilner, ‘The Status and Future
of the Customary International Law of Human Rights: Reflections on Regional
Human Rights
Law’ (1995-1996) 25 Georgia Journal of International and
Comparative Law 407-26.
[30]
European Convention for the Protection of Human Rights and Fundamental
Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (1950) ETS 5
(entered into force on 3 September 1953), amended by Protocol No 13 of
2002, ETS 187 (2002).
[31]
European Social Charter, opened for signature 18 October 1961, ETS 35
(1961) (entered into force on 26 February 1965), revised by ETS 163
(1996).
[32] JG Merrills,
‘Promotion and Protection of Human Rights Within the European
Arrangements’ in Raija Hanski and Marku Suski
(eds) An Introduction to
the International Protection of Human Right: A Textbook (2nd ed, 1999)
279.
[33] See AW Heringa, ‘The
European Social Charter: New Initiatives for the Improvement of Basic Social
Rights Protection Within
the Framework of the Council of Europe’ in
APM Coomans et al (eds), The Increasing Importance of
Economic, Social and Cultural Rights (1994) 30, (for an analysis of the
development of jurisprudence on economic, social and cultural rights in the
European regional
arrangement). Under the Additional Protocol No 3 to the
European Social Charter, adopted on 9 November 1995, there is a collective
complaint mechanism that would allow complaints to be submitted by
employers’
organisations, NGOs and trade unions. For a critical analysis
of the economic, social and cultural rights profile envisaged under
this
procedure, see A Hendriks, ‘Revised European Social Charter’ (1996)
14(3) Netherlands Quarterly of Human Rights 341-2. See also David Harris,
‘The Council of Europe (II): The European Social Charter’ in Raija
Hanski and Marku Suski (eds)
An Introduction to the International Protection
of Human Right: A Textbook (2nd ed, 1999) 325.
[34] See generally, H P Graver,
Welfare State and Constitutionalism under the EEA Agreement, in The
Welfare State and Constitutionalism in the Nordic Countries (The
Nordic Council of Ministers, 2001) 95 (pointing out the tremendous positive
impact that the European Economic Area Agreement and the European
Community Treaty would have on the re-development of rights-based welfarism
in applicable member states). See also Klaus Fuchs, ‘The European
Social
Charter: Its Role in Present-Day Europe and Its Reform’ in Krzysztof
Drzewicki, Catarina Krause and Allan Rosas (eds),
Social Rights as Human
Rights: A European Challenge (1994) 151-2, 156 (discussing the long-term
implications of the European Social Charter for economic, social and cultural
rights
jurisprudence in an enlarged Europe). For an extensive discussion of the
emerging concept of ‘autonomous’ economic, social
and cultural
rights in the European regional human rights system, see Olivier de Schutter,
‘The Protection of Social Rights
by the European Court of Human
Rights’ in Peter Van der Auweraert, Tom De Pelsmaeker, Jeremy Sarkin and
Johan Vande Lanotte
(eds), Social, Economic and Cultural Rights: An Appraisal
Of Current European And International Developments (2002)
207-39.
[35] American
Declaration of the Rights and Duties of Man, OAS Res XXX, adopted by the 9th
International Conference of American States (1948), reprinted in Basic
Documents Pertaining to Human Rights in the Inter-American System,
OEA/Ser.L.V/II.82 doc.6 rev1 at 17
(1992).
[36] Inter-American
Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS
123, OASTS 36 (1969), OEA/Ser.C/II.5 (entered into force on 18 July
1978).
[37] Additional
Protocol of San Salvador, opened for signature 17 November 1988, OASTS 69
(1988) (entered into force in
1999).
[38] Art 26 of the
Inter-American Convention on Human Rights, opened for signature 22
November 1969, 1144 UNTS 123, OASTS 36 (1969), OEA/Ser.C/II.5 (entered into
force on 18 July 1978), directs states to adopt measures with a view to
achieving
the ‘progressive realisation’ of the rights while art 42
enables the commission to ‘watch over’ the promotion
of the
rights.
[39] See art 19,
Additional Protocol of San Salvador, opened for signature 17 November
1988, OASTS 69 (1988) (entered into force in
1999).
[40] See art 19(6),
Additional Protocol of San Salvador, opened for signature 17 November
1988, OASTS 69 (1988) (entered into force in 1999). The individual petition
system here only relates
to the right of workers to organise trade unions and to
join the union of their choice (art 8) and the right to education (art
13).
[41] See generally,
Sepulveda, above n 25, 50-1 (observing that while the Inter-American Commission
has consistently addressed ‘the
realisation of [economic, social and
cultural rights] in its country reports, and takes into consideration the
[economic, social
and cultural rights] contained in the Declaration when dealing
with individual cases’, the Inter-American Court has adopted
a gradualist
approach). Cf H Van der Wilt and V Krsticevic, ‘The OAS System for the
Protection of Human Rights’ in Raija
Hanski and Marku Suski (eds) An
Introduction to the International Protection of Human Rights: A Textbook
(2nd ed, 1999) 384.
[42] These
are the Inter-American Economic and Social Council, and the Inter-American
Council for Education, Science and Culture. See
art 19(2), Additional
Protocol of San Salvador, opened for signature 17 November 1988, OASTS 69
(1988) (entered into force in
1999).
[43] See Adalid
Conteras Baspineiro, ‘Inter-American Tools for the Enforceability of
Economic, Social and Cultural Rights’ in Berma
Klein Goldewijk, Adalid
Contreras Baspineiro and Paulo César Carbonari (eds), Dignity and
Human Rights: The Implementation of Economic, Social and Cultural Rights
(2002) 99-110; B Thiele, ‘Litigating Against Forced Evictions under the
American Convention on Human Rights’ (2003) 21(3) Netherlands Quarterly
of Human Rights 463.
[44]
See Baspineiro, above n 43, 101-3 (identifying ‘utter
poverty’, ‘rapidly deteriorating’ healthcare systems,
‘rural
exodus’ leading to suffocating food and housing crises, and
the constant threats to social security systems by ‘neo-liberal
reforms’ as pivotal indices that have made the
‘enforceability’ of economic, social and cultural rights
non-negotiable
within the region). See also Jasmine Gideon, ‘Economic and
Social Rights: Exploring Gender Differences in a Central American
Context’
in Maxine Molyneux and Shahra Razavi (eds), Gender Justice, Development, and
Rights (2002) 173, 186-92 (discussing policy efforts toward the
implementation of economic, social and cultural rights on gender-biased
structures to help women in Latin
America).
[45] African
Charter on Human and Peoples’ Rights, opened for signature 26 June
1981, 21 ILM 58 (1982) OAU Doc CAB/LEG/67/3 rev 5 (1981) (adopted by the OAU
Assembly of Heads of State and Government 27 June 1981) entered into
force 21
October 1986).
[46] Arts 46-54
confer the mandate of protective functions, in respect of all rights guaranteed,
on the commission through state reporting
and complaints
procedures.
[47] C Odinkalu,
‘Analysis of Paralysis or Paralysis by Analysis? Implementing Economic,
Social and Cultural Rights under the African
Charter on Human and Peoples’
Rights’ (2001) 23 Human Rights Quarterly 327, 335. For a more
recent in-depth analysis of the application of the economic, social and cultural
rights in the African Charter,
see ’D Olowu, ‘Emerging Jurisprudence
on Economic, Social and Cultural Rights in Africa: A Critique of the Decision in
SERAC & Another v Nigeria’ (2005) 2(1) Turf Law Review
29, 37-8.
[48] See United
Nations, Status of Ratifications of the Principal International Human Rights
Treaties As of 14 July 2006 (2006)
<http://www.ohchr.org/english/bodies/docs/status.pdf>
at 27 October
2006.
[49] By way of succession,
Solomon Islands became a state party to the ICESCR on 17 March 1982. See
ibid. It must be noted that Australia and New Zealand are both states parties to
the ICESCR.
[50] ’D
Olowu, ‘The United Nations Human Rights System and the Challenges of
Commitment and Compliance in the South Pacific’
[2006] MelbJlIntLaw 8; (2006) 7(1) Melbourne
Journal of International Law 155,
170-2.
[51] Articles 33 (labour
and trade union rights), 39 (education), Constitution of the Republic of the
Fiji Islands 1997 (1997)
<http://paclii.org.vu/fj/legis/num_act/ca1997268/>
at 27 October
2006.
[52] Part IV (Fundamental
Human Rights and Freedoms), Constitution of the Cook Islands, as amended
by the Constitution Amendment (No 9) Act 1980-81 (Cook Islands)
<http://www.paclii.org/ck/legis/num_act/cotci327/>
at 27 October
2006.
[53] Article II
(Bill of Rights), Constitution of the Marshall Islands
<http://www.paclii.org/mh/legis/consol_act/cotmi363.html>
at 27
October 2006.
[54] Article IV
(Declaration of Rights) Constitution of the Federated States of Micronesia
1975
<http://www.paclii.org/fm/legis/consol_act/cotfsom468.html>
at 27
October 2006.
[55] Chapter II
(Fundamental Rights and Freedoms of the Individual), Constitution of Kiribati
1979
<http://paclii.org.vu/ki/legis/consol_act/cok257/>
at 27 October
2006.
[56] Part II (arts 3-15)
(Protection of Fundamental Rights and Freedoms), Constitution of Nauru,
29 January 1968
<http://paclii.org.vu/nr/legis/num_act/con256/>
at 27
October 2006.
[57] Part II (arts
3-18) (Protection of Fundamental Rights and Freedoms of the Individual),
Constitution of the Independent State of Western Samoa 1960,
<http://paclii.org.vu/ws/legis/consol_act/cotisows1960535/>
at 27
October 2006.
[58] Chapter II
(ss 3-19) (Protection of Fundamental Rights and Freedoms of the Individual),
Constitution of Solomon Islands
1978.
[59] Part I (ss 1-29)
(Declaration of Rights), The Constitution of Tonga 1875, as amended up to
the Act of the Constitution of Tonga, 31 December 1988,
<http://paclii.org.vu/to/legis/consol_act/cot238/>
at 27 October
2006.
[60] Part II (Bill of
Rights) ss 9-28) The Constitution of Tuvalu
1978
<http://paclii.org.vu/tv/legis/consol_act/cot277/>
at 27 October
2006.
[61] Division 3 (ss
32-37), Constitution of the Independent State of Papua New Guinea
(Consolidated to Amendment No 22) 1975
<http://www.paclii.org/pg/legis/consol_act/cotisopng534/>
at 27 October
2006.
[62] Part I, ch 2
(Fundamental Rights and Duties), Constitution of the Republic of Vanuatu
1980
<http://www.paclii.org/vu/legis/consol_act/cotrov406/>
at 27
October 2006.
[63] Section 25(1),
Constitution of the Independent State of Papua New Guinea 1975; s 8,
Constitution of the Republic of Vanuatu 1980.
[64] See Simbu Provincial
Executive [1987] PNGLR 151 (10 April 1987); and Re: The Leadership
Code [1992] PNGLR 336 (31 July 1992). Both cases relate to the question of
whether the Directive Principles were to be considered in considering the
validity
of actions under a provincial government and under the country’s
Leadership Code, respectively. The equivalent provisions in
the Constitution of
Vanuatu have not been tested. It is uncertain, for now, how the courts will
respond to them.
[65] Preamble para 8,
Universal Declaration of Human Rights, GA Res 217 A (III), UN Doc A/810
(1948).
[66] See generally,
Emeliana Afeaki, ‘Tonga: The Last Pacific Kingdom’ in Ron Crocombe
and Ahmed Ali (eds), Politics in Polynesia (1983)
57-8.
[67] Some of the
insightful scholarly works include: J M Van Dyke et al, ‘Emerging Legal
Regimes in the Pacific’ (1988) 82 American Society of International Law
Proceedings 351; C Tremewan, ‘Human Rights in Asia’ (1993) 6
Pacific Review 17, 27; D Mcdougall, The International
Politics of the New Asia Pacific (Lynne Rienner
Publishers, 1997); N Thomas and T Tai Haruru (eds), Collective Human Rights
of Pacific Peoples (International Research Unit for Maori and Indigenous
Education, University of Auckland, 1998); R De Vere, D Colquhoun-Kerr and J
Kaburise (eds), Essays on the Constitution of Papua New Guinea
(Government Printing Office, 1985); G Powles, ‘Changing Pacific Island
Constitutions: Methods and Philosophies’ (1992) 22 Victoria University
of Wellington Law Review
63-83.
[68] See I Jenning,
The Commonwealth in Asia (Oxford Clarendon Press, 1951) 57-61; Peter
Fitzpatrick, ‘Popular Participation’ in Ross de Vere, Duncan
Colquhoun-Kerr
and John Kaburise (eds), Essays on the Constitution of Papua
New Guinea (1985) 17-20.
[69]
See Justice Sailosi Kepa, ‘Law-Based and Culture-Based Human
Rights’ in Nin Thomas and Te Tai Haruru (eds), Collective Human
Rights of Pacific Peoples 101 (1998) (identifying the Bill of Rights of the
constitutions of Pacific states as reflecting ‘British caution’
concerning
enforceable individual rights); Fitzpatrick, above n 68, 21.
[70] There have been robust
arguments that among the peoples of the Pacific Islands, collective or group
rights had for long been held
in high esteem before the advent of British-model
constitutionalism. In contemporary human rights conceptualisation, however,
these
are now regarded as ‘third generation rights’ that are not to
be found in most constitutions of newer states. See Konai Helu Thaman,
‘A Pacific Island Perspective of Collective Human Rights’ in
Nin Thomas and Te Tai Haruru (eds), Collective Human Rights of Pacific
Peoples (1998) 1, 3-4. While this paper is not essentially indulging in the
escapist tradition of buck-passing, the above is only to place
the present-day
marginalisation of economic, social and cultural rights in its proper
historical, political and socio-economic context
for analytical purposes only.
[71] See generally R A
Easterlin, ‘The Globalisation of Human Development’ (2000) 570
Annals 35-8 (comparing world averages of human development between 1950
and 2000).
[72] The UNDP
Human Development Reports are based on certain key indicators namely,
human development index (which measures life expectancy at birth, adult literacy
rate,
combined primary, secondary and tertiary gross enrolment ratio, and GDP
per capita); human development index trends; human and income
poverty;
demographic trends; commitment to health; technological diffusion and creation;
economic performance; structure of trade;
flows of foreign aid; flows of private
capital and debt; priorities in public spending; unemployment; energy and the
environment;
refugees and armaments; gender-related development; gender
empowerment measures; gender inequality in education; gender inequality
in
economic activity; and women’s political participation. See UNDP, Human
Development Reports, 1990-2005, New York, Oxford University Press. All these
Reports are available at http://www.undp.org/. Other instruments of global
human
development measurement include the World Development Reports and
World Development Indicators (both produced annually by the World Bank),
available at http://www.worldbank.org; United Nations Educational, Scientific
and Cultural
Organisation (UNESCO) Statistical Yearbook; United Nations
Children’s Fund (UNICEF) State of the World’s Children; and
the World Health Organisation (WHO) World Health Report, among others.
See, in particular, UNDP, Human Development Report 2002: Deepening Democracy
in a Fragmented World, (2002) 48-9 (Table A1.3, Progress towards Millennium
Development Goals), available at http://www.undp.org.
[73] See UNDP, Pacific Human
Development Report 1999 (1999)
1.
[74] Ibid
2-6.
[75] Ibid 17-20. See also B
Hughes, ‘Report on the South Pacific Countries’ [2005] NZYbkIntLaw 10; (2005) 2 New
Zealand Yearbook of International Law 271,
275-7.
[76] UNDP, Human
Development Report 2005, International Cooperation at Crossroads: Aid, Trade and
Security in an Unequal World (2005)
<http://hdr.undp.org/reports/global/2005/pdf/HDR05_complete.pdf>
at 27
October 2006.
[77] Ibid 219-20
(Table 1: Human Development
Index).
[78] Ibid
220-1.
[79] Ibid, see Table 10
(Survival: Progress and Setbacks)
250-3.
[80] Ibid, see Table 6
(Commitment to Health: Resources, Access, and Services)
236-9.
[81] Ibid, see Table 7
(Water, Sanitation, and Nutritional Resources)
240-3.
[82] Ibid, see Table 11
(Commitment to Education: Public Spending)
254-7.
[83] See generally P
Imrana Jalal and J Madraiwiwi, Pacific Human Rights Law Digest Volume I
(Pacific Regional Rights Resource Team, 2005) xiii. When this author sought
information on the profile of economic, social and cultural
rights in the
context of the Fiji Human Rights Commission work, its Senior Legal Officer,
Nilesh Bilimoria, admitted the paucity
of these rights in the work of the
Commission. See Nilesh Bilimoria, <nilesh.bilimoria@humanrights.org.fj>,
email (26 October
2006).
[84]
Amnesty International, Amnesty International Report 2006: Regional Overview
– Asia-Pacific (2006) [33]
<http://web.amnesty.org/report2006/2as-summary-eng>
at 27 October 2006.
[85] Convention on the
Elimination of All Forms of Racial Discrimination, opened for signature 7
March 1965, 60 UNTS 195, GA Res 2106, UN Doc A/6014 (1965) (entered into
force 4 January 1969). These include the right to marry and choice of spouse
(art
5(d)(iv)); right to property (art 5(d)(v)); right to freely chosen
employment conditions and standards (art 5(e)(i)); right to form
and join trade
union (art 5(e)(ii)); right to housing (art 5(e)(iii)); right to social security
(art 5(e)(iv)); right to education
(art 5(e)(v)); and right to equal
participation in cultural activities (art
5(e)(vi)).
[86] Convention on
the Elimination of All Forms of Discrimination against Women, opened for
signature 18 December 1979, 1249 UNTS 13, GA Res 34/80 (1979) (entered into
force 3 September 1981). These include the rights to own land and property (art
16 (1)(h)); to
education (art 10); to health (art 12); to freely chosen
employment conditions and standards (art 11(a)); to marry and equality in
marriage (art 16(1)(a)-(c)); to reproductive health services (art 12(2)); to
social security (art 11); and to cultural life (art
13(c)).
[87] Convention on
the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3,
GA Res 44/25 (1989) (entered into force 2 September 1990). These include the
right to own land and property (art 16 (1)(h)); right
to education (art 10);
right to health (art 24); right to healthy environment (art 24); right to food
(art 24)(2)(c)); right to reproductive
health services (art 24(1)(d) and (f));
right to social security (art 26); and right to cultural life (art
30-31).
[88] Convention on
the Rights of All Migrant Workers and Members of their Families, opened for
signature 2 May 1991, 30 ILM 1517 (1991), UN Doc A/Res/45/158 (1990) (entered
into force on 1 July 2003). These include the right to privacy and family life
(art 14);
right to property (art 15); right to freely chosen employment
conditions and standards (art 26(e)(i)); right to form and join trade
union (art
26); right to social security (art 27); right to education (art 30); and right
to equal participation in cultural activities
(art 31).
[89] Irwin Cotler, ‘Human
Rights as the Modern Tool of Revolution’ in Kathleen Mahoney and Paul
Mahoney (eds), Human Rights in the Twenty-First Century: A Global
Challenge (1993) 7-11.
[90] See The World Conference
on Human Rights: Vienna Declaration and Programme of Action, pt 1, paragraph
5 (emphasis added) UN Doc A/CONF.157/23
(1993).
[91] B Klein Goldewijk
and B de Gaay Fortman, Where Needs Meet Rights Economic, Social and Cultural
Rights in a New Perspective (WCC Publications, 1999)
viii.
[92] For a discussion on
this point, see Matthew Craven, ‘An Historical Perspective on ESC
Rights’ in International Human
Rights Internship Programme (IHRIP)
Circle of Rights: Economic, Social and Cultural Rights Activism: A Training
Resource (2000) 40.
[93]
These include the rights to an environment that is not harmful (art 24), access
to adequate housing (art 26), access to health care
services, sufficient food
and water, and social security (art 27), basic education (art 29) and to use
language and participate in
the cultural life of their choice (art 30).
[94] A landmark decision on
economic, social and cultural rights is the decision of the South African
Constitutional Court in Government of the Republic of South Africa v Irene
Grootboom 2000 (11) BCLR 1169 (CC), where the apex court considered the
legality of the conduct of a local authority in evicting a group of squatters
who had moved
onto land that had been earmarked for low-cost housing. A
magistrate court had ordered the squatters to vacate the land by a certain
date
or face eviction. However, the eviction, under the control of the municipality,
took place a day earlier and in circumstances
that got the squatters’
homes bulldozed, their building materials and many of their possessions
deliberately destroyed This
was, according to the court, a violation of the
obligations in the constitutional guarantees. In its analysis of s 26 which
guarantees the right of access to adequate housing, the court re-asserted the
international obligation that the State must
not only restrain itself from
interfering in the enjoyment of economic, social and cultural rights but also
specifically that the
State has a duty to ‘create the conditions for
access to adequate housing for people at all economic levels’ of society,
‘including those who cannot provide themselves with housing.’
Ibid paras 35-6. In considering whether the housing policies and programmes
of the State and its agencies met the obligations in s 26(2), the court held
that those programmes adopted by the State fell short of the requirements of
that section in that no provision was
made for relief to the categories of
people identified as being in desperate need. Ibid paras 67-9. In yet another
celebrated case,
Minister of Health v Treatment Action Campaign (2002)
(10) BCLR 1033 (CC) the applicants, a coalition of South African HIV/AIDS NGOs,
had sought, inter alia, orders for the provision of Nevirapine drugs and
the establishment of a comprehensive national programme for the prevention of
mother-to-child
HIV transmission. The Constitutional Court held that the
subsisting programme was inflexible, unreasonable and amounted to ‘a
breach of the state’s obligations under section 27(2) read with section
27(1) of the Constitution.’ Ibid para 80. The government was
ordered to ‘remove the restrictions’ that prevent the use of
Nevirapine, without delay
to ‘permit and facilitate’ its use, and to
‘take reasonable measures to extend the testing and counselling facilities
at hospitals and clinics throughout the public health sector to facilitate and
expedite the use of Nevirapine for the purpose of
reducing the risk of
mother-to-child transmission of HIV.’ Ibid para 135. The Supreme Court of
the Philippines added its own
forward-looking dimension to the integrative human
rights approach in the celebrated case of Minors Oposa v Department of
Environmental and Natural Resources 33 ILM 173 (1994). The petitioners had
instituted the action complaining that the continuous issuance of timber logging
licenses was a violation
of ‘the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature’ as
guaranteed
by s 16 of the Philippines Constitution 1987. The petitioners
contended that the incessant tree felling led to deforestation and would not
only impair the rights of the present
generation of human beings but also their
succeeding generations. The Court held that the government of the Philippines
must cease
the provision of logging licenses to the corporate body in order to
preserve the health of present and future generations of Filipinos.
In its
judgment, the learned court declared that: ‘[i]t must...be emphasised that
the political question doctrine is no longer
the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects executive
and legislative
actions from judicial inquiry or review.’ Ibid para
3 (Rosario, PJ).
[95] See UN High Commissioner
for Human Rights and the Committee on Economic, Social and Cultural Rights,
‘Plan of Action to Strengthen
the Implementation of the International
Covenant on Economic, Social and Cultural Rights’ [3]-[5]
<http://www.unhchr.ch/html/menu2/6/action.htm>
at 27 October 2006.
[96] A McChesney, Promoting
Economic, Social and Cultural Rights: A Handbook (AAAA Science and Human
Rights Program, 2000) 21.
[97]
Thomas Buergenthal, ‘International Human Rights in an Historical
Perspective’ in Janusz Symonides (ed), Human Rights: Concepts and
Standards (2000) 18.
[98] Ibid
19.
[99] H Shue, Basic
Rights: Subsistence, Affluence and US Foreign Policy (Princeton University
Press, 2nd ed, 1980)
24-5.
[100] Interights, above
n 21, 20.
[101] The ‘Pacific
Islands Forum’ (previously known as the South Pacific Forum) is the
foremost political organisation in
the Pacific. It holds an annual meeting of
all the heads of government of the sixteen independent and self-governing states
in the
Pacific region. See above n
6.
[102] Pacific Islands Forum
Secretariat, Pacific Islands Forum Vision Statement, Issued at Madang, Papua
New Guinea (14 September 1995)
<http://www.forumsec.org.fj/>
at 27
October 2006.
[103] Civil Action No HBC543
of 2000, 25 January 2002 (Byrne J).
[104] See ‘Conclusions
and Recommendations of the Colloquium and Workshop for Judges and Lawyers on the
Justiciability of Economic,
Social and Cultural Rights in the Pacific Region,
Suva, Fiji, 1-3 June 2006’ (on file with author).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/QUTLawJJl/2007/5.html