Hay, Kathryn --- "‘The Canoe Will Sail When the Wind is Right’: Moving Towards Sub-regional Human Rights Arrangements in the Pacific?" [2010] NZYbkIntLaw 7; (2010) 8 New Zealand Yearbook of International Law 171

Last Updated: 10 August 2015

‘THE CANOE WILL SAIL WHEN THE WIND IS RIGHT’: MOVING TOWARD SUB-REGIONAL HUMAN RIGHTS ARR ANGEMENTS IN THE PACIFIC?

Kathryn Hay*

I. Introduction

Institutional human rights arrangements currently operate throughout the world at the international, regional and national levels. The international and regional human rights systems have evolved from within the United Nations (UN) framework and are founded on the universal human rights standards. Presently, the Asia-Pacific region remains the only UN-defined region without formal regional human rights mechanisms, although some sub-regional developments have recently occurred. This region extends across thirty-seven countries and sixteen territories, within which the Pacific is classified as a sub-region.

The development of formal regional human rights arrangements in the Asia-Pacific was initially proposed more than forty years ago. Although as a region the Asia-Pacific faces myriad human rights challenges, the diversity of countries and cultures and absence of a shared sense of regional identity inhibits momentum to form a regional mechanism for the promotion and protection of human rights. Developing institutional arrangements at the sub-regional level may, however, be feasible. For example, in 2009 the Association of South East Asian Nations (ASEAN), as a sub-region, ratified its own human rights charter which allows for the establishment of an ASEAN human rights commission. Consideration of Pacific human rights arrangements has increased in recent years, although to date, Pacific leaders have not agreed to establish a sub-regional human rights institution. The aim of this note is to outline recent developments in the Pacific towards the development of sub-regional human rights arrangements (SHRAs).1

II. The Pacific Context

The Pacific sub-region consists of sixteen countries, including fourteen small island states as well as Australia and New Zealand.2 All of these countries are members of the Pacific Islands Forum (PIF), which is the primary political and economic intergovernmental organisation. The work of the PIF is founded on a vision for the Pacific, widely known as the Auckland Declaration (2004). The vision states:

Leaders believe the Pacific region can, should and will be a region of peace, harmony, security and economic prosperity ... respected for the quality of its governance, the sustainable management of its resources, the full observance of democratic values and for its defence and promotion of human rights.3

The development of the Pacific Plan operationalised this vision and was endorsed by Pacific leaders in 2005 and revised in 2007. The Plan is a collective policy that is based on the concept of [sub-] regionalism, that is, countries working together for their joint and individual benefit. The Plan explicitly endorses a concept of [sub-] regionalism that does not entail any limitation on national sovereignty.4 A [sub-] regional approach then is only to be taken in order to support, complement and add to national efforts. The Plan is structured around four pillars: economic growth, sustainable development, good governance, and security. Commitments to the promotion and protection of human rights in the Pacific are explicit in Strategic Objective 12 under the Good Governance pillar.5 The idea of SHR As can be inferred from the following two objectives in particular:

12.5 Where appropriate, ratify and implement international and regional human rights conventions, covenants and agreements; and support for reporting and other requirements.

12.9 ...explore the possibilities for regional support, including through pooling of resources and regional integration, in legal institutions and mechanisms providing legislative services, and in the area of judiciaries, courts and tribunals.6

Individual countries in the Pacific vary in regards to their adherence to human rights standards. The majority of PIF states have human rights provisions entrenched in their constitutions. However, the Pacific has the lowest worldwide level of ratification of the seven core international human rights instruments.. In 2006, the New Zealand Law Commission noted the reasons for low ratification were the perception of a conflict between human rights and customary practice, restricted financial and human resources, lack of technical capacity and capability to fulfill treaty obligations, other national issues taking priority, and in some instances a desire to avoid the scrutiny of the international community.7 The PIF Secretariat and the New Zealand Human Rights Commission subsequently explored the demands of international reporting on the small states in the Pacific and concluded these states were primarily concerned with “the perceived onerous nature of reporting obligations, the size of the task and, consequently, the benefits of ratification.”8

While promotion and education work on human rights is consistently occurring throughout the Pacific to increase levels of understanding, human rights is often perceived to be of little relevance.9 This stance is associated with the debates around universalism and cultural relativism and the tension between human rights, culture and law in the Pacific. The legacy of colonialism throughout almost all of the small island states provides an explanation for the popularity of relativist arguments which are grounded “in a desire to express and foster national, regional, cultural or civilizational pride”.10 The perception that human rights are a Western construct contributes to ambivalence within the Pacific to the concept of human rights.11 Within the PIF configuration, only Fiji, Australia and New Zealand have national human rights institutions (NHRIs), which also limits substantial work on the promotion and protection of human rights in each jurisdiction. Furthermore, the Fijian institution is not currently accredited by the International Coordinating Committee of National Human Rights Institutions. Overall, the limited understanding and commitment to human rights standards correlates with the low level of demand for human rights institutions, both at the national and sub-regional levels.

III. Why Sub-Regional Human Rights Arr angements?

The Pacific, as a sub-region, faces significant human rights issues including:

... employment, freedom from discrimination, protection and equal treatment of people living with HIV/AIDS, violence against women and children, the right to health (including water and housing), environmental degradation and associated climate change concerns, the rights of those detained, and incidents related to tribal or land disputes.12

Nation states in the Pacific are constrained by resources, both human and financial, and the need to address multiple issues concurrently. SHR As offer an alternative or complementary means to address common human rights issues within a regional, or in this case, a sub-regional grouping. These institutional arrangements are formal in the sense that they are agreed to and developed by governments, as opposed to informal non-government or civil society mechanisms. Although not mutually exclusive, the primary types of SHR As include a charter of human rights, a human rights commission, and a human rights court. Whilst all UN-defined regions, apart from the Asia-Pacific, have at least one of these institutional configurations these mechanisms are nuanced in their reflection of the needs and priorities of the particular region.

Jalal, a former Senior Legal Advisor in RRRT/SPC, outlined several advantages for the development of SHR As in the Pacific.13 These advantages include increased technical and legal support for individual states in adopting and implementing international standards, and the availability of staff and resources to address particular human rights concerns in a specific country. SHR As can provide monitoring assistance for ensuring human rights standards and norms are upheld within a country as well as the sub-region, and are an impetus for greater transparency and accountability. An institutional arrangement may also encourage an exchange of knowledge and experiences among countries in one area which are facing similar issues. The threat of inspection by a sub-regional body as well as scrutiny of its reports by other member states is likely to persuade countries to pay attention to and address human rights violations. A sub-regional institution might also be more cost-effective than the establishment of NHRIs, especially in smaller countries, or can provide a safety net to support NHRIs if their independence or effectiveness is under threat. SHR As reflect specific contexts, needs, priorities, cultural and political environments, and for these reasons could, arguably, also be more effective than international human rights institutions. On the other hand, opposition to SHR As is generally associated with issues of effective implementation, especially in respect of adequate resourcing, skilled staff, accessibility for local peoples and powers of enforcement.

IV. Progress Towards Pacific Human Rights Arrangements

Several milestones in terms of progress towards the development of SHR As in the Pacific can be identified. In 1985, under the direction of Justice Kishor Govind, the Law Association of Asia and the Pacific (LAWASIA) began discussions on a draft Pacific Charter of Human Rights. Drawing on international human rights norms and, in particular, the African Charter of Human and Peoples’ Rights, the draft Charter was tabled and adopted by LAWASIA in 1989.14 The Charter included the full range of economic, social, cultural, civil and political rights. In addition, it combined existing human rights provisions from Pacific constitutions and legislation and attempted to address individual and collective rights and duties as well as the rights and responsibilities of Pacific governments. The Charter also proposed the future establishment of a Pacific human rights commission which would implement the Charter and receive complaints about human rights violations.

Although LAWASIA lobbied Pacific governments to agree to the draft Charter the project failed to get significant support. Significantly, the draft Charter was perceived to be initiated and developed by New Zealanders and Australians, with minimal support, input or consultation with Pacific peoples. Consequently, there was little sense of Pacific ownership of the Charter, or an agreement that it was needed by the small island countries. Ultimately, Pacific leaders did not believe the Charter would improve the livelihoods or economic situation of most Pacific peoples.15

The absence of a mandate for the Charter, the perceived clash between ‘Western’ and Pacific values, minimal recognition of human rights and especially the international instruments at the time, by both governments and the public, and negligible involvement from civil society all influenced the process. Since then, little interest has been shown from either Pacific states or civil society, outside of LAWASIA, for pursuing the re-development of a Pacific charter. Although Justice Govind has purportedly begun to rewrite the draft charter, wider discussions have been minimal compared with those on a sub-regional human rights commission or a sub-regional court.16

Several meetings over the past 15 years have promoted either national or sub-regional human rights initiatives in the Pacific. In July 1996 an action plan for Pacific countries to support a South Pacific Centre for Human Rights was developed at the Human Rights Education Conference in Vanuatu.. The aim of the Centre was to promote and coordinate research and advice on human rights education throughout the sub-region. Furthermore, the Centre was also expected to undertake work on a new Pacific Charter of Human and Peoples’ Rights and Duties.17 Although initial developmental work was undertaken by Caren Wickliffe, MC Fellow in Human Rights Education based at the Institute of Justice and Applied Legal Studies at the University of the South Pacific, the Pacific Programme for Human Rights Education through the Pacific Centre for Human Rights failed to attract sufficient funding, and progress on the initiative stalled. Since 1998, RRRT/SPC have sought to redress some of the concerns around the lack of human rights education by implementing teaching programmes on human rights to the law graduates in the Professional Diploma in Legal Practice Programme at the University of the South Pacific.

In 2004, a Pacific Human Rights Consultation was attended by over eighty representatives from Pacific governments, civil society organisations and NHRIs. Participants agreed to:

... encourage Pacific Island governments to establish an independent Pacific Islands’ human rights mechanism that could undertake such activities as: coordinating the outcome of Pacific human rights consultations; overseeing a Pacific Islands human rights plan of action; undertaking appraisals of the national, legal and political human rights frameworks; and monitoring human rights, particularly in countries which have no independent national human rights institutions.18

In 2005, a Pacific Regional Workshop on National Human Rights Mechanisms produced several recommendations including the undertaking of research on NHRIs, custom and human rights and the ratification and implementation of international human rights treaties and conventions.19 The PIF Secretariat played a lead role in advancing these recommendations and research on all three of these areas had been completed by 2009.20

Since 2006 the concept of a regional appellate court first proposed by Mere Pulea in 198021 has been further developed and advocated by Justice Gerard Winter, Mere Pulea and Ratu Joni Madraiwiwi, along with other members of the legal fraternity from several Pacific countries. Specifically, Justice Gerard Winter has proposed a Pacific Supreme Court or legal facility that could include the functions of strengthening Pacific law, security and development, complementing case law in individual Pacific countries, enabling a sub-regional dispute settlement process, and the development of Pacific jurisprudence on human rights.22

Broad support for a human rights commission in the Pacific was given at the Pacific Regional Civil Society Organisations Forum in October 2006. In 2007, at a meeting of Pacific Islands Members of Parliament and also a human rights training session for Pacific Islands Judges and Magistrates, an endorsement was given to the RRRT/SPC and the PIF Secretariat to explore the possibility of setting up a Pacific human rights commission.23 The Members of Parliament (MPs), Judges and Magistrates acknowledged that this course of action should be led by an indigenous organisation to ensure ownership by Pacific governments and peoples. It was indicated that this would be a long-term process requiring technical and financial support from outside agencies such as the Australian and New Zealand governments, the Office of the High Commissioner for Human Rights (OHCHR), other donors and development agencies. Sub-regional non-government organisations had also agreed with an exploratory process earlier that year.

In April 2008, the “Strategies for the Future: Protecting and Promoting Human Rights in the Pacific” Symposium was held in Samoa. The Symposium was attended by representatives of Pacific governments, civil society organisations, academe, NHRIs and international and regional human rights organisations. The aim of the symposium was to identify a) key human rights challenges in the Pacific and b) strategies for strengthening national, regional and international mechanisms for enhanced protection of human rights in the region.24 The concluding statement included recommendations for Pacific Island governments to:

• Translate commitments in the Pacific Plan into practical action by demonstrating the necessary political will to develop a [sub-] regional human rights mechanism;

• Actively support the work of the proposed human rights desk in the Pacific Islands Forum.25

Furthermore the PIF and SPC were encouraged to:

• Embrace the need for a [sub-] regional human rights mechanism, and, in cooperation with civil society, to start working on its conceptualisation, including to enhance the capacity to advance human rights.

Participants also endorsed the importance of Pacific states upholding international human rights standards whilst respecting Pacific cultural identity. One of the key outcomes from the Symposium, and as specified in the Final Statement, was support for the establishment of a Working Group to undertake scoping work on a Pacific human rights commission.26 It was anticipated the group would report to the PIF leaders meeting in August 2009. After the Symposium, RRRT/SPC and the PIF Secretariat, in consultation and cooperation with other organisations such as Amnesty International, sent a funding proposal to the European Union for the establishment of the Working Group.27 A relationship of cooperation, formalising the arrangement between RRRT/SPC and the PIF Secretariat was established, however, owing to a delay in the appointment of a senior Human Rights Advisor to the Secretariat as well as limited funding, progress on the establishment of the Working Group stalled. The likely membership of the Group would have included a small number of Pacific Island representatives and supranational organisations such as the Asia-Pacific Forum and OHCHR. Representatives from the Australian and New Zealand Human Rights Commissions as well as other key stakeholders would have been granted observer status.28

On 3 September 2008, the then Australian Minister for Foreign Affairs, the Hon Stephen Smith MP, asked the Joint Standing Committee on Foreign Affairs, Defence and Trade to inquire into and report on Human Rights Mechanisms and the Asia-Pacific. The terms of reference for the Inquiry were to investigate and report on international, regional and sub-regional mechanisms currently in place to prevent and redress human rights violations, with a view to providing options on possible models that may be suitable for the Asia-Pacific region, with a focus on the UN human rights system, regional mechanisms and roles for parliaments. Although the brief extended across the Asia-Pacific, the majority of the submissions (28 in total) focused on the Pacific sub-region. Many of the submissions broadly supported the establishment of SHR As in the Pacific but with several caveats, including that any institutional arrangements: derive their functions from a combination of universal human rights principles and national considerations; comprise independent experts rather than government officials; exercise investigatory and monitoring roles with powers to enforce determinations and award redress; be properly resourced; be accessible to victims of human rights violations; be led by people from the small island states of the Pacific. The final report from the Inquiry endorsed the idea of a human rights arrangement at either the sub-regional or wider Asia-Pacific level, acknowledging it could complement existing mechanisms.29

Throughout 2009 and 2010 the idea of SHR As in the Pacific was canvassed in several forums, particularly by RRRT/SPC.30 In general there is ongoing support for the concept of SHR As by individual MPs, lawyers, judges and some non-government organisations, and agreement to further conceptualisation of how this idea might be realised. The compulsory nature of the new UN reporting requirements may provide further impetus for Pacific governments to consider advancing the idea of a sub-regional arrangement so that pooled resources, expertise and the generation of institutional knowledge can assist with these accountability obligations that directly affect their reputation, nationally, regionally, and within the international community. Member states of the UN are now obliged to participate in the four-yearly Universal Periodic Review (UPR) process with the intention of promoting accountability and dialogue within and between states on human rights obligations, responsibilities and duties. Whilst the report-writing for the UPR is less onerous than for the treaty bodies, significant research and consultation is expected to occur. Supporting countries to fulfill the requirements of the UPR process could, therefore, also be a function of a sub-regional human rights mechanism.

V. The Approach of the Pacific Islands Forum

Despite all of these promising developments, since the adoption of the Pacific Plan (2005) there has been limited progress within the PIF itself in regards to the human rights objectives and implementing these at a sub-regional level. In 2006 the primary focus was clearly on national support for human rights.31 The call for a [sub-] regional human rights mechanism was renewed at the end of 2007 by the Secretary-General of the PIF. In addition, the PIF Secretariat Regional Strategy Paper and Regional Indicative Programme for the period 2008-2013 specified a commitment to further analysis of a [sub-] regional ombudsman office and human rights mechanisms. The 2009 Pacific Plan Annual Progress Report indicated that work had been undertaken to “strengthen Ombudsman functions”, however, no mention is made of the idea of human rights mechanisms.32

The Pacific Plan also endorsed the strategic objective of “where appropriate, ratify [ing] and implement[ing] international and regional human rights conventions, covenants and agreements; and support[ing] ... reporting and other requirements”.33 To achieve this objective a sub-regional support mechanism was to be established by 2007 and the full implementation of the treaties and conventions by individual Pacific states was to occur by the end of 2008. To date, neither of these goals has been achieved.

In 2009, RRRT/SPC was given a mandate to work with the PIF Secretariat on a scoping exercise to explore the concept of SHR As in the Pacific. In 2010, Mr Filipo Masaurua was appointed to the PIF Secretariat as a senior Human Rights Advisor. This position, funded by the Asia-Pacific Forum and the PIF, and supported by the New Zealand Human Rights Commission, is expected to complement and provide additional capacity to the existing human rights expertise at the Secretariat under the Political Governance and Security Programme. The role of the Advisor is to offer policy advice, increase coordination and capacity building in the human rights domain across the Pacific.34 The Advisor and other Secretariat staff will also work with RRRT/ SPC on the scoping exercise. During 2010-2011 the concept of SHR As in the Pacific, together with an examination of existing models in other regions and their effectiveness as well as applicability to the Pacific, received initial examination.35 Further scoping work will continue in 2012 with a full report to the PIF leaders expected in 2013.

VI. Conclusion

Although there have been several developments in recent years towards the establishment of SHR As in the Pacific, there is to date little in the way of concrete outcomes. The scoping exercise on possible sub-regional mechanisms legitimises further discussion and analysis of human rights issues in the Pacific and the range and functions of possible institutional arrangements. However, if SHR As are seen to be controversial or potentially harmful to the Pacific leaders then it is doubtful whether the concept of SHR As will receive positive consideration and thus, advancement. The scoping exercise by RRRT/SPC and the PIF Secretariat then presents a major opportunity for the idea of SHR As to be framed in a way that will be favourable to the Pacific leaders. Although the ideas of a commission, court, and charter are being promoted as being most tenable, it may also be beneficial for Pacific leaders to consider other possible arrangements that might only emerge through a more extensive consultation with Pacific peoples.

The outcome of the RRRT/SPC and PIF scoping exercise, and the Pacific leaders’ response to it, will be pivotal and much depends on the political will of the leaders. Even if the recommendations of the scoping exercise emphasise the development of a new sub-regional human rights institution, and the leaders are favourably disposed to these views, sustainable and effective implementation will present considerable challenges. To conclude, however, on a more positive note, and in the words of Arthur Faerua: “... like a canoe will sail when the wind is right, pull back a bit but make sure at the end of the day you are going in the general direction and moving.”36



* PhD candidate in Politics, Massey University. This update note is drawn from my doctoral dissertation: Agenda Success? The Prospects for Sub-Regional Human Rights Arrangements in the Pacific.

1 The Pacific is frequently referred to as a region. However, for the purposes of this note the Pacific is recognised as part of the wider Asia-Pacific region and is, therefore, considered to be a sub-regional grouping. For the purposes of this note, the ‘Pacific’ consists of the member countries of the Pacific Islands Forum.

2 These countries are: Cook Islands, Federated States of Micronesia, Fiji (currently suspended from the PIF), Kiribati, Nauru, Niue, Palau, Papua New Guinea, Republic of Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu.
3 Pacific Islands Forum The Pacific Plan (Suva, 2007) at [1], available at <www.forumsec.org. fj> [“The Pacific Plan”].
4 Ibid at [3].
5 Specifically, Strategic Objectives 12.1, 12.5 and 12.9.
6 The Pacific Plan, above n 3 at 19.
7 New Zealand Law Commission Converging Currents: Custom and Human Rights in the Pacific (SP17, 2006) at [5.35].
8 PIF Secretariat and New Zealand Human Rights Commission National Human Rights Institutions: Pathways for Pacific States (Pacific Human Rights Issues Series: 1, 2007) at 7.
9 Personal Communication PI Jalal July 2008.
10 Jack Donnelly Universal Human Rights in Theory and Practice (2nd ed, Cornell University, New York, 2003) at 9.
11 Personal Communication R Crocombe December 2007.
12 PIF Secretariat and New Zealand Human Rights Commission, above n 8, at 5.
13 P I Jalal “Why Do We Need a Pacific Regional Human Rights Commission?” (2009) 40 VUWLR 177 at 179.
14 See “Report on a proposed Pacific Charter of Human Rights prepared under the auspices of LAWASIA May 1989” (1992) 22 VUWLR Monograph 4.
15 Jalal, above n 13 at 181.
16 Personal Communication G Winter October 2009.
17 Caren Wickliffe “Human Rights Education in the Pacific” (1999) J of Sth Pacific Law 3, Working Paper 1.
18 Pacific Islands Human Rights Consultation “Concluding Statement and Recommendation” (Suva, 2004).
19 Regional Workshop on National Human Rights Mechanisms “Outcomes Statement” (Nadi, Fiji, 28 February-1 March 2005).
20 New Zealand Law Commission, above n 7; PIF Secretariat and New Zealand Human Rights Commission, above n 8; OHCHR and PIF Secretariat Ratification of International Human Rights Treaties: Added Value for the Pacific Region (Suva, 2009).
21 Mere Pulea “A Regional Court of Appeal for the Pacific” (1980) 9 Pacific Perspective 1.
22 Personal Communication G Winter October 2009.
23 RRRT was established in 1995 as a project of the UN Development programme. On July 1 2008, RRRT joined the Secretariat of the Pacific Community (SPC) for an initial three year period. RRRT provides human rights training, technical and policy advice and advocacy to civil society, government services, law students and legal practitioners in eight Pacific countries.
24 The full Final Statement from the Symposium is available at [2008] NZYbkIntLaw 12; (2007-2008) 5 NZYIL 271.
25 Ibid at 274.
26 Ibid.
27 Personal Communication A Fong Toy July 2008.
28 Ibid.
29 See Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights and the Asia-Pacific: Challenges and Opportunities (Commonwealth of Australia, Canberra, 2010).
30 These Forums include, amongst others, APF meetings; the Australia and New Zealand Society of International Lawyers Conference; PIF Leaders meeting, Cairns; OHCHR Asia Pacific Regional meeting, Bangkok.
31 PIF Secretariat Pacific Plan Annual Report (PIF Secretariat, Suva, 2006) at 25.
32 PIF Secretariat Pacific Plan Annual Progress Report (PIF Secretariat, Suva, 2009) at 20.
33 The Pacific Plan, above n 3, at 19.
34 Personal Communication S Bernklau March 2011.
35 Ibid.
36 Personal Communication A Faerua December 2007.