HISTORIC OVERVIEW OF HUMAN RIGHTS IN THE COMMONWEALTH SUCCESSES, CHALLENGES AND THE WAY FORWARD. Human Rights Unit, Commonwealth Secretariat

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1 HISTORIC OVERVIEW OF HUMAN RIGHTS IN THE COMMONWEALTH SUCCESSES, CHALLENGES AND THE WAY FORWARD Human Rights Unit, Commonwealth Secretariat Abstract This article reviews the evolution of human rights in the Commonwealth, both at the Secretariat level and in Member States. The article traces the origins of the Secretariat s Human Rights Unit and details key areas of its work. The article also highlights the progress made by Commonwealth Member States in ratifying international human rights treaties and establishing national human rights institutions which are compliant with the Paris Principles. Lastly, the article looks at challenges faced by Member States in implementing strong human rights mechanisms and makes recommendations in that regard. 1. Human rights and the Commonwealth Secretariat It is commonly recognised that human rights derive from the dignity and worth of the human person 1 which lends them considerable moral authority. Accordingly, a longstanding strategic goal of the Commonwealth Secretariat has been strengthening the promotion and protection of human rights in Commonwealth Member States. In 1977, Commonwealth leaders, notably British PM Jim Callaghan and Commonwealth Secretary-General Sir Shridath Ramphal, took their first public stand on human rights. To their credit, they decided that the Commonwealth assumed an inherent obligation to take a strong stand on human rights issues, and in response to atrocities being committed in Uganda, prevented Idi Amin from attending that year s Commonwealth Heads of Government Meeting (CHOGM) in London. The London Communiqué was one of the first joint expressions by Heads of Government to address human rights, setting a precedent with an explicit and forceful condemnation of a member government. 2 Paragraph 35 of the Communiqué reads thus: Cognisant of the accumulated evidence of sustained disregard for the sanctity of life and of massive violation of basic human rights in Uganda, it was the overwhelming view of Commonwealth leaders that those excesses were so gross as to warrant the world s concern and to evoke condemnation by Heads of Government in strong and unequivocal terms. Mindful that the people of Uganda were within the fraternity of Commonwealth membership, Heads of Government looked to the day when the people of Uganda would once more fully enjoy their basic human rights which now were being so cruelly denied. The work of the Human Rights Unit supports the attainment of the Commonwealth s strategic goal of strengthening the respect, promotion and protection of human rights in Commonwealth Member States. This paper was prepared by the Human Rights Unit of the Commonwealth Secretariat and presented at the Commonwealth Law Ministers Meeting, Gaborone, Botswana, 5-8 May Preamble, Universal Declaration of Human Rights. 2 Smith, A. and Sanger, C. (1981) Stitches in Time: The Commonwealth in World Politics, London: Andre Deutsch Limited, p

2 In 1981, at the Melbourne CHOGM, the Secretariat was given the mandate to set up the Human Rights Unit (HRU). The HRU was established in 1985 as part of the International Affairs Division and was subsequently the sole responsibility of one lawyer working in the Legal Affairs Section with the mandate to promote the understanding of and respect for human rights in the Commonwealth in accordance with the principles enshrined in the various Commonwealth Declarations and in UN human rights treaties. The Harare Commonwealth Declaration (1991) affirmed that human rights are among the fundamental political values of the Commonwealth. The HRU was reconstituted as a standalone unit in 2002 with a broadening of its mandate to encompass not just the promotion of human rights, but also their protection. Its first Head was appointed in the same year. By 2007, the HRU was able to help each country develop a human rights model that most suited its own political landscape and offer capacity-building through training and publications, including on human trafficking, freedom of association, the treatment of victims of crime, and a special focus on young people and rights. 3 At the end of Don McKinnon s tenure as Secretary-General, there were five staff members working in the HRU. McKinnon insisted that all staff decisions had to take human rights into account. 4 During his two terms as Secretary-General, he set out to create a Unit with independent credibility. 5 The mainstreaming of human rights across the Secretariat became features of the Programme Strategies of the Secretariat for 2002/ /04 and the Commonwealth Strategic Plan 2004/ /08, as part of the Programme on Good Offices, Democracy and Human Rights. During the tenure of the current Secretary-General, Kamalesh Sharma, and the reform and renewal processes mandated by the 2011 CHOGM, the human rights programme has been enhanced: its budget has more than doubled, both with regard to programming and staffing. Its total budget currently stands at 1,522,000 with its programme budget having increased from 300,000 to 924,000. Its staff structure has increased from 5 to 12 positions, including two members of the team based at the Commonwealth Small States Office in Geneva. The Commonwealth Charter agreed to by Heads of Government in 2012 underscores the commitment of Member States to Commonwealth principles and values inclusive of human rights. The CHOGM Communiqués have also, over the years, become progressively stronger in relation to human rights, encompassing a broader range of issues on which new and strengthened mandates have been established. These issues include early and forced marriage, sexual violence in conflict and the right to development. 2. Human rights in Commonwealth Member States International commitments The Commonwealth has a varied record on ratification of the nine core international human rights treaties. In December 2013, Lesotho joined Nigeria as the only Commonwealth Member States to have ratified all nine. Seven Member States have ratified eight core human rights treaties. 6 Nevertheless, there has been significant progress, and the number of ratifications has steadily risen since HRU s establishment and its strengthened engagement with individual Member States. 3 D. McKinnon, In the Ring: A Commonwealth Memoir (London: Elliott and Thompson, 2013) Ibid, p Ibid. 6 Bangladesh, Ghana, Rwanda, St Vincent and the Grenadines, Seychelles, Uganda, and Zambia. 2

3 In several CHOGM Communiqués, Commonwealth Heads of Government single out the International Covenant on Civil and Political Rights (ICCPR) 7 and the International Covenant on Economic, Cultural and Social Rights (ICESCR), 8 which along with the Universal Declaration of Human Rights (UDHR) comprise the International Bill of Rights and form the basis for universal protection of human rights. However, 16 Member States are yet to ratify the ICESCR and 11 have not ratified the ICCPR. For both the ICCPR and the ICESCR, two Member States are signatories respectively, but have yet to deposit their instruments of ratification. 9 All Member States have ratified the Convention on the Rights of the Child (CRC), the most widely ratified human rights treaty. The CRC elaborates the substantive rights found in the ICCPR and the ICESCR with a focus on the particular vulnerabilities and needs of children. CRC is the only international human rights treaty that enjoys the support of every Member State. Universal ratification by Member States does not, however, extend to the CRC s Optional Protocols on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) affirms principles of fundamental human rights and equality for women. With the exception of Tonga, CEDAW has been ratified by all Commonwealth Member States. 10 Opened for signature in 2007, the Convention on the Rights of Persons with Disabilities (CRPD) is one of the most quickly ratified human rights treaties. 11 Two of the most recent countries to become party to the Convention are Commonwealth Member States; Singapore in July 2013 and Kiribati in September While 15 Member States are yet to ratify the Convention, 12 are signatories, broadly reflecting Member States commitment to protecting the rights of persons with disabilities. It should also be noted that Commonwealth Member States were instrumental in drafting the CRPD. New Zealand, for example, in recognition of its role in advocating the need for the Convention and in negotiating its text, as well as for the quality of New Zealand s landmark National Disability Strategy, received the 2008 World Disability Award. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) was the first international human rights treaty to be adopted and enter into force. 12 At present, eight Commonwealth Member States have not ratified it. 13 Commonwealth ratification of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) is somewhat less exemplary. Nineteen Commonwealth Member States have not ratified CAT. Of these, India is the only State to have deposited a signature. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families is one of the least ratified human rights conventions. Only 13 7 Ratified by 168 out of 193 UN Member States. 8 Ratified by 162 UN Member States. 9 Nauru and St Lucia deposited signatures on the ICCPR. Belize and South Africa deposited signatures on the ICESCR. 10 CEDAW has been ratified by 187 UN Member States. 11 Ratified by 144 UN Member States as of April Globally, 177 States are parties to ICERD. 13 Brunei Darussalam, Dominica, Kiribati, Malaysia, Nauru, Samoa, Singapore, and Vanuatu. Nauru is the only one of these States to have signed the Convention. 3

4 Member States have ratified it. 14 None of the developed Member States that are destinations for migrant workers have ratified it, even though it reflects rights set out in the other core human rights treaties. The International Convention for the Protection of All Persons from Enforced Disappearances is the least ratified of the human rights treaties. Since entering into force in 2010, only four Member States have ratified the Convention. 15 Over the past decade there has been a general trend towards wider ratification of international human rights instruments. Maldives, for instance, has ratified four of the core human rights treaties since Vanuatu has ratified the CAT, the ICCPR and the CRPD since October In September 2011, St Lucia signed the International Covenant on Civil and Political Rights and the Convention on the Rights of Persons with Disabilities. Since October 2013, St Lucia has also deposited instruments of ratification to both Optional Protocols to the Convention on the Rights of the Child. National human rights institutions A key pillar of the HRU s remit relates to national human rights institutions (NHRIs). Compliance with human rights standards requires effective institutional mechanisms for their promotion and protection. An NHRI is a key mechanism of a strong and effective human rights system of protection and promotion at the national level. NHRIs contribute to the promotion and protection of human rights through a number of activities. Crucially, NHRIs help to ensure the compliance of national laws and practices with international human rights standards by reviewing and advising on national legislation and policy. They support governments implementation of human rights commitments and address pressing human rights concerns in a country. This may be undertaken by way of monitoring State compliance with human rights standards, mediation, public inquiries and investigations, visits to places of detention, and human rights education. NHRIs also support the work of human rights defenders and civil society. The idea of establishing national committees for the promotion of human rights was first discussed during the negotiation of the Universal Declaration of Human Rights in the 1940s. The first national human rights commissions, however, were not established until the 1970s. In the late 1980s and 1990s, such national mechanisms for the promotion and protection of human rights became more widespread, and standards for their functioning were developed. These standards are set out in the Paris Principles, which provide inter alia guidelines with regard to the composition of NHRIs and standards as to the appointment of members; require that NHRIs enjoy the competence to promote and protect human rights with as broad a mandate as possible; and outline the various competences that NHRIs should be empowered to fulfil. Adopted at an international workshop held in Paris in 1991, the Principles were subsequently endorsed by both the United Nations Commission on Human Rights and the UN General Assembly. 16 NHRIs are periodically reviewed (every five years) and assessed by the International Coordinating Committee of National Human Rights Institutions for the Protection and Promotion of Human Rights under the auspices of its Sub-Committee on Accreditation. The 14 Bangladesh, Belize, Ghana, Guyana, Jamaica, Lesotho, Mozambique, Nigeria, Rwanda, St Vincent and the Grenadines, Seychelles, Sri Lanka and Uganda. 15 Lesotho, Nigeria, Samoa and Zambia. 16 UN Doc. A/RES/48/134, 4 March

5 Sub-Committee issues grades to NHRIs based on their compliance with the Paris Principles. NHRIs that are in full compliance with the Paris Principles are graded A. A number of Commonwealth Member States have established NHRIs. The 2011 report of the Eminent Persons Group recommended that: All Commonwealth countries should establish, or, where they already exist, strengthen, national human rights institutions in accordance with the UN-adopted Paris Principles, including by the provision of adequate resources to ensure their independence. 17 This was reaffirmed at the 2013 CHOGM where Heads urged Member States to support the establishment and strengthening of national human rights institutions and/or regional mechanisms where suitable, in compliance with the Paris Principles. 18 As of January 2014, 24 Commonwealth Member States had NHRIs accredited by the Sub- Committee on Accreditation. Of those institutions, 21 had A status, 19 three had B status 20 and two had C status. 21 Some Member States, such as Mozambique, Pakistan, Samoa, Seychelles and Swaziland, have established NHRIs but these are yet to either fully operationalize or apply for accreditation. Still other Member States are currently engaged in dialogue on the establishment of NHRIs. These include Barbados, Botswana, Jamaica, 22 Lesotho and Malta. To date, there are no national institutions in the Caribbean region as envisaged by the Paris Principles. Some States, however, have Ombudsman-type bodies whose primary mandate includes addressing maladministration. The absence of NHRIs or the lack of ones complying with the Paris Principles remains a challenge in many Commonwealth Member States. Where NHRIs have yet to be established common challenges include the willingness to establish accountability and oversight mechanisms, scant financial and/or human resources with which to commence establishment, low levels of awareness about international human rights standards, and weak implementation and systematic application of those standards. Small Island and Developing States experience particularly acute difficulties in establishing NHRIs as separate self-standing institutions, due to scarce resources, lack of staff and underdeveloped institutional frameworks. Buttressed by the EPG recommendation and underscored by the CHOGM 2013 outcomes, the Strategic Plan of the Secretariat has as one of its intermediate outcomes effective institutions and mechanisms for the promotion and protection of human rights. The outputs aligned to the outcome include the establishment, operationalization and strengthening of national human rights institutions. The work programme of the Human Rights Unit includes facilitating discussions on the establishment of NHRIs in Jamaica, Lesotho and Malta. It is supporting the establishment of an NHRI in Barbados with targeted technical assistance. The Unit is also actively collaborating with governments in Mozambique, Seychelles, Sri Lanka and Swaziland to strengthen existing institutions and make them more compliant with the Paris Principles. 17 See Report of the Eminent Persons Group to Commonwealth Heads of Government, (London, 2011) p See Commonwealth Secretariat, Colombo Communique, Colombo, 2013, p. 7, para Australia, Cameroon, Canada, Ghana, Kenya, India, Malawi, Malaysia, Mauritius, Namibia, New Zealand, Nigeria, Rwanda, Sierra Leone, South Africa, Tanzania, Uganda, United Kingdom and Zambia. The United Kingdom has three A accredited NHRIs: the Equality and Human Rights Commission; the Northern Ireland Human Rights Commission; and the Scottish Human Rights Commission. 20 Bangladesh, Maldives and Sri Lanka. 21 Antigua and Barbuda, and Barbados. 22 Developments regarding discussions with Jamaica to establish an NHRI occurred subsequent to the May 2014 Commonwealth Law Ministers Meeting. 5

6 One final way in which the HRU works to develop and improve the capacity of Member State NHRIs is through support to the Commonwealth Forum of National Human Rights Institutions (CFNHRI). Established in 2007, the CFNHRI is an informal body of Commonwealth NHRIs and other national accountability mechanisms with a human rights mandate. Its broad objectives are to promote networking; share information, experiences and best practices; encourage countries to establish NHRIs that comply with the Paris Principles; and assist national institutions to fulfil their mandated activities. The current chair of the CFNHRI is the Chair of the Malaysia Human Rights Commission. Past chairs were Australia, Canada and Uganda. In March 2014, the CFNHRI held its annual meeting in Geneva. The fourth biennial meeting is proposed to be held in Malta in 2015, ahead of CHOGM. The Universal Periodic Review The Universal Periodic Review (UPR) is an important mechanism for the improvement of human rights internationally. Under the auspices of the United Nations Human Rights Council, the UPR is a relatively new mechanism. Created in 2006, it held its first session in The UPR is a state-driven peer-review process which provides each Member State the opportunity for self-reflection on matters relating to human rights and to declare what actions it has taken to improve the human rights situation nationally and fulfil its human rights obligations. The principal goal of the UPR is to improve the human rights situation in all countries and address human rights violations wherever they occur. It is a cooperative mechanism designed to ensure universality of coverage and equal treatment for every country when their human rights situations are assessed. 23 The UPR is the only universal mechanism of this kind and reviewed the human rights record of every UN Member State during the first cycle reviews. Countries commenced their second cycle of reviews in One of the advantages of the UPR process is that it covers the full ambit of human rights. The review process is not limited to any set of rights; rather it is comprehensive and promotes the universality, indivisibility, interdependence and interrelatedness of all human rights. 24 Human rights obligations reviewed are those enshrined in the UN Charter, the Universal Declaration of Human Rights and the international human rights instruments to which the State under Review is a party. 25 The UPR first cycle focused on the overall human rights situation in the country and the fulfillment by each State of its human rights obligations and commitments. Variation in the recommendations made during the UPR, of course, exists depending on the specific human rights issues and challenges prevailing in the context of a particular region or State under Review. Nevertheless, some subjects can be identified as being of particular concern across the Commonwealth, allowing some general observations on trends amongst Member States to be drawn from their experiences in the first cycle. In the first UPR cycle, a total of 5802 recommendations were made to Commonwealth Member States. Out of this number, 4039, or 69.6%, were accepted. 26 The global rate was 73.1% Recommendations involving international obligations and institutional protection were frequently raised. One quarter of all recommendations to Commonwealth Member States 23 UN Doc. A/RES/61/251, para. 5(e). 24 UN Doc. A/HRC/5/1, Annex, para. 3(a). 25 Ibid, para The statistics derive from data collected by UPR-Info, a Geneva-based NGO that raises awareness on the UPR. The database is a searchable repository of all UPR recommendations. See 6

7 pertained to international human rights instruments or stressed the need to expand protection of human rights through ratification of or accession to these instruments. More than half of these recommendations were accepted. As noted earlier, there has been a general trend towards wider ratification of international treaties in the Commonwealth. While it is difficult to ascertain the degree to which this is attributable to the UPR outcomes of Member States, it is likely that the quickened pace of ratification has been influenced by the recommendations as well as, in our opinion, the non-adversarial and peer review modality of the mechanism. Closely connected to the question of implementation of international human rights obligations is the issue of ensuring an effective institutional framework for the protection of human rights. The institutional framework typically includes the establishment of NHRIs, development of national programmes for human rights education, the setting up of inter-ministerial mechanisms for post-review follow-up and implementation, and the adoption and implementation of national plans of action for the promotion and protection of human rights. During the first UPR cycle, most of these were raised in recommendations to Commonwealth Member States (NHRIs 250 recommendations, human rights education 258 recommendations, action plans 64 recommendations). Recommendations to Member States also addressed issues of cooperation with international human rights mechanisms, such as the treaty bodies, special procedures and the UPR itself. With regard to treaty bodies, 229 recommendations were made to Commonwealth Member States, of which 184 were accepted. Many of these (88) pertained to reporting obligations, recommending that States submit overdue reports to treaty bodies and seek technical assistance to improve their capacity to fulfil these obligations. Much concern was expressed on issues relating to women and women s rights. They were identified as important in nearly one fifth of the recommendations received by Commonwealth Member States. With regard to the protection of women s rights, 1050 recommendations were made to Member States, of which 874 were accepted. Common themes included combatting gender-based violence, improving women s political participation, and facilitating women s access to education and employment opportunities. With regard to their role in participating in the review of other States, Commonwealth Member States have a mixed record. Canada was actively engaged in the interactive dialogues, issuing 908 UPR recommendations to other States in the first cycle, more than any other country. However, 77% of UPR recommendations offered by Commonwealth Member States in the first cycle came from just eight Member States. 27 Many Member States have had minimal engagement in the review of their peers, a number of which have made no recommendations. This is, in part, because some have not been members of the Human Rights Council. It is also a reflection of the human and financial resource constraints that burden many Commonwealth States, particularly Small Island and Developing States. Resource constraints, of course, are not the only explanation for low engagement, which indicates that work remains to be done in spreading appreciation of the UPR s value and in encouraging Member States to more actively participate in all aspects of the UPR when in Geneva. States are encouraged to submit interim or mid-term reports detailing progress made on the implementation of UPR recommendations. This practice is gradually crystallising as a good practice as States are increasingly providing these interim reports. Preparation of interim reports ensures continuity over the four and a half year period before the next cycle, in the implementation of recommendations accepted by States. It also signifies that for the State under Review, the UPR process is not a one-time event, but is instead part of a continual 27 Australia, Canada, Ghana, Malaysia, New Zealand, Pakistan, South Africa and the United Kingdom. 7

8 process to assess and improve its national human rights record. Interim reports were provided during the first cycle by just five Commonwealth Member States. 28 Seychelles, for example, has provided a mid-term report ahead of its second cycle review. 29 In 2011, upon completion of a review process, the Human Rights Council adopted new modalities to improve the functioning of the UPR. A key change was that the second and subsequent cycles of the UPR should focus on, inter alia, the implementation of the accepted recommendations and the developments of the human rights situation in the State under Review. 30 To date, 24 Commonwealth States have undergone their second cycle reviews. The global rate at which UPR recommendations have been accepted during the second cycle has increased to 76.2%. The acceptance rate for Commonwealth Member States in the second cycle has dropped to 64.7%. It is hoped that by the end of the second cycle the Commonwealth rate will have increased. In addition to differences in content, national reports submitted for the second cycle of the UPR qualitatively differ from those presented during the first cycle. Generally, States benefited from lessons learnt and took advantage of the accumulated reporting experience regarding the process. A cursory review of national reports of Commonwealth Member States submitted for the second cycle reveals a general trend towards greater sophistication and improved overall quality. 31 Insofar as relevant data is available, it suggests moderately positive progress with regard to the extent to which Member States are taking meaningful action as a result of the UPR process at the domestic level. However, impediments remain. The stronger the national human rights protection system is, the better the avenues to ensure effective UPR follow-up strategies. In this respect, a lack of follow-up mechanisms at the national level is still a crucial challenge across the Commonwealth. One promising development is that during the course of 2014/2015, HRU will be providing national technical assistance compacts to several preparatory and follow-up mechanisms at the request of Member States, including Lesotho, Malawi and Seychelles. From the outset, the Human Rights Unit has actively brought together various key interlocutors government officials, parliamentarians, civil society, NHRIs with the objective of building their capacity in regard to preparation for the Review, post-review activities, and supporting Member States with the sustainable and effective implementation of accepted recommendations. One of the Unit s more successful efforts in this regard has been a series of regional seminars for parliamentarians on their role in the promotion and protection of human rights, including through greater involvement in the UPR process. During the seminars, parliamentarians share their experiences and best practice examples of how they can better respond to human rights issues, challenges and debates in their countries through the important remits of law making and holding the executive to account. To date, the seminars have been convened in the Caribbean and Africa, with each, crucially, resulting in the establishment of regional groups composed exclusively of parliamentarians who have pledged to work as a network to, amongst other things, promote inter-parliamentary cooperation with the view of ensuring best practices and strengthened engagement on the implementation of Universal Periodic Review recommendations. 3. Concluding remarks and next steps 28 Australia, Kenya, Mauritius, Namibia, and the United Kingdom. 29 Submitted at the 26 th session of the Human Rights Council on 13 June UN Doc. A/HRC/RES/16/21, Annex, para South Africa and Tonga are but two notable examples. 8

9 HRU continues to build the technical capacities of Member States. It has always been the practice of the Unit to promote programmes to integrate civil, political, economic, social and cultural rights, and foster productive collaboration with strategic partners such as the Office of the High Commissioner for Human Rights, the Commonwealth Parliamentary Association, the African Commission on Human and Peoples Rights, the Organization of American States as well as leading NGOs and civil society initiatives within the Commonwealth. HRU encourages Member States, specifically small states, to utilise the services of the human rights experts and office space available in the Commonwealth Small States Office in Geneva. HRU encourages Member States to engage on their required technical assistance, especially with regard to implementation of accepted UPR recommendations. HRU encourages Member States to engage constructively with it on the establishment and strengthening of national human rights institutions which are compliant with the Paris Principles. HRU encourages Member States to note the importance of human rights education for the judiciary and to engage with HRU where technical assistance may be required. 9