Why should Pacific Island Countries sign ICESCR?

By Ruby Awa, Senior Human Rights Advisor, the Pacific Community By Ruby Awa, Senior Human Rights Advisor, the Pacific Community

I attended a very informative consultation on the draft federal constitution of Solomon Islands the other week. The consultation presented an exciting opportunity to engage with the esteemed Solomon Islanders who have been the drivers behind years of consultations on the proposed constitution and a new federal government system.

I was particularly interested to see whether Solomon Islands would take the opportunity to reflect the rights in the International Covenant on Economic, Social and Cultural Rights (ICESCR) in this new constitution.

Solomon Islands and Papua New Guinea are the only countries in the Pacific that have ratified the Covenant. Palau became a signatory in 2011. Solomon Islands became a signatory to the Optional Protocol to the ICESCR in 2009.

The draft federal constitution explanatory notes states: “Human Rights have been so broadly interpreted or given extensive meaning to suit or accommodate certain western world ideals which are in direct conflict with the beliefs, norms and practices of Solomon Islands’ contemporary and traditional society… For this reason a deliberate decision, based on views obtained from the various people’s consultations as far back as 2008, was taken…that apart from restricting or limiting these ‘human rights’ provisions under the usual conventional restrictions or limitations…the Republic through this Constitution may also restrict or limit those ‘human rights’ which are opposable to Solomon Islands customary law and practice e.g. same sex marriage and cohabitation.” Apart from an absurd limitation which explicitly excludes sexual orientation as a prohibited ground for discrimination, there was an obvious reluctance to adopt the rights set out in ICESCR in the draft constitution.

The reluctance to set out comprehensive provisions for economic, social and cultural rights in domestic laws is a view held not only by Solomon Islands – it is a sentiment shared by other Pacific Island countries due to fears that ratification and domestication of economic, social and cultural rights will bring about overwhelming obligations. There is an unfounded fear that fulfilment of economic, social and cultural rights will create stress on limited financial resources of the state.

As a Pacific Islander, I have observed increased complaints about rationed water, low wages, the bad state of health services, and lack of policies and laws to protect aspects of culture such as motifs. These are reflections of rights which are set out in the ICESCR. Rights in the Covenant include the right to an adequate standard of living for everyone, including adequate clothing, housing and food, high standards of health and health care for all, the right to education, the right to participate in all cultural life of the community, , the right to just and favourable conditions of work, and assistance to the family as a natural and fundamental unit of society.

Development is a key feature of national strategies and policies across the Pacific. There is a need for better understanding that human rights, particularly economic, social and cultural rights, and development have the same purpose. The 1986 Declaration on the Right to Development sets out the following in its preamble and Article 1:

Preamble

Recognizing that development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom,…

 Article 1

The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.

All Pacific citizens and governments generally agree on the development agenda. For most Pacific people, development is about economic growth, fair distribution of the benefits of such, and sustainability. Development is perceived as improved well-being for people and systems which increases economic growth but at the same time ensures that natural resources are not over-exploited. This is a reflection of the human rights based approach which puts the person at the centre of development.

However, development does not necessarily translate to improved realisation of human rights. This is why it is crucial to ensure that there is protection of economic, social and cultural rights in the legal framework of Pacific Island countries. Ratifying the ICESCR and domesticating the rights set out in the Covenant ensures that realisation of human rights are a goal of development. This means that where a state has economic growth, it has a legal commitment to ensure realisation of the right to education, the right to just and favourable conditions of work, the right to an adequate standard of living, the right to social security, and the right to enjoyment of the highest attainable standard of physical and mental health.

The rights in the ICESCR mean commitment by governments to channelling financial resources to ensure improved well-being of citizens. However, the obligation from this commitment takes into consideration resource limitations that countries may face. The concept of progressive realisation is set out in Article 2 of the Covenant to address this.

Article 2

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

The onus on the state to fulfil its obligations to ensure realisation of economic, social and cultural rights on ratification of the treaty is subject to the capacity of the state to do so. However, the state is required to show continued progress towards realisation of economic, social and cultural rights. Article 2 refers to “international assistance and co-operation”. So the question then is – who else is committed to the same standards? There are currently 164 state parties to the Covenant. This means that there are 164 states, including major donor partners of Pacific countries, who have made commitments to development and ensuring better well-being for people.

The ICESCR proposes rights which are inherent to the dignity of Pacific Islanders, but more than that, they are interrelated with development which is a key issue for Pacific Island countries. Economic, social and cultural rights are standards which reflect development needs for Pacific people.



SPC’s Regional Rights Resource Team receives core funding from the Australian Government and additional project support from the Kingdom of the Netherlands, Pacific Leadership Programme (PLP), European Union (EU) and the German Development Bank (KfW).