Office of the UN High Commissioner for Human Rights

Address by Mr. Paulo David, Regional Representative, Regional Office for the Pacific, Office of the United Nations of the High Commissioner for Human Rights (OHCHR)

At the opening 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

Honourable Senator,
Excellencies,
Honourable Justices,
Ladies and gentlemen,

On behalf of the Office of United Nations High Commissioner for Human Rights, it is my great pleasure to open this colloquium and workshop on the justiciability of economic, social and cultural rights in the Pacific region.

May I first express my gratitude to Fiji for hosting this event, and particularly thank Fiji's Attorney General for opening the colloquium. I am very grateful to the organizations that have agreed to serve as the Office's partners in this endeavour: the Fiji Human Rights Commission, Interights and the Commonwealth Secretariat. It goes without saying that I thank all of you who have taken out of your busy schedules to participate. 

I am confident that the strong participation in evidence at this event will ensure that its outcome has sustainable impact in the region.

The United Nations High Commissioner for Human Rights, Ms. Louise Arbour is unfortunately unable to be with us in person, but she has asked me to convey her best wishes to all workshop participants and observers.

The High Commissioner is personally committed to economic, social and cultural rights. Her Plan of Action prepared at the invitation of the Secretary-General in May 2005 calls for leadership in protecting economic, social and cultural rights, for reaffirmation of their legal status and for strengthening recognition of their justiciability.  Her Strategic Management Plan for 2006-2007 also indicates her commitment to expand the work of the office on economic, social and cultural rights, focusing on legal protection and advocacy, including through the provision of training and advice and developing methodological tools.

The High Commissioner has no doubt that just as with civil and political rights, economic, social and cultural rights are likewise justiciable. She has pointed to the fact that whatever basis there may have been to question the equal status of and justiciability of economic, social and cultural rights 60 years ago, there is no foundation for any such categorical distinction.  The equal status, indivisibility and interdependence of all human rights have been affirmed unanimously and repeatedly by the international community. 

Economic, social and cultural rights are binding obligations in many international and regional human rights treaties, and there are procedures in place, in particular at the regional level, to ensure redress of violations of these rights. 

Constitutions in a growing number of countries in all regions of the world, including the Pacific, recognize economic, social and cultural rights.  Several economic, social and cultural rights - such as labour rights - have long been subject to judicial enforcement, but the last ten years has seen an increasingly sophisticated national and regional jurisprudence in relation to other economic and social rights.

Court decisions in Argentina, Colombia, India, Fiji, South Africa and many other jurisdictions have played and increasingly vital role in enforcing economic, social and cultural rights, demonstrating how the judiciary can play a key role in providing relief to individuals and in ensuring that Governments implement constitutionally guaranteed economic, social and cultural rights.

Judicial and quasi-judicial decisions in a variety of jurisdiction have improved access to HIV/AIDS treatments for thousands of women to prevent mother-to-child transmission of the HIV virus, restricted forced eviction leading to homelessness, improved water and sanitation services for poorer suburbs, prevented famines through the improved use of food programmes and reduced the incidence of child labour.  These decisions have helped to dispel notions that such rights are non-justiciable. 

At the international level also, work is advancing to promote the acceptance of economic, social and cultural rights as justiciable, with Member States examining options for the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights which would allow individuals to petition an international committee in circumstances where they have exhausted all national level procedures.  This progress has gone far towards broadening recognition of economic, social and cultural rights as individual entitlements, rather than programmatic provisions or welfare.

Honourable Senator, Excellencies, Honourable Justices, Ladies and gentlemen,

It is my great pleasure we have been able to gather together at this event participants from all but one country among the sixteen members of the Pacific Islands Forum. This broad participation provides us with a unique opportunity to share experiences and work together to strengthen respect for human rights, and to deepen understanding of the justiciability of economic, social and cultural rights.

The recently adopted Pacific Plan for Strengthening Regional Cooperation and Integration is a crucial tool in generating new opportunities for countries of the Pacific to enhance and stimulate economic growth, sustainable development, good governance and security through regionalism. These issues all have imporant human rights implications and the Plan identifies human rights priorities for immediate implementation. Some specific aspects of the Pacific Plan which have been identified as priorities by Governments of the region that have adopted it, such as health, education, biodiversity, environmental protection, waste management and access and affordability of energy, are issues that I am sure will feature in your discussions during the next three days.

The Pacific remains the region with the lowest rate of ratification or accession of international human rights treaties. This substantially limits the capacity of Pacific countries to promote and protect human rights. The Pacific Plan calls explicitly, and as a matter of priority, upon all Pacific States to ratify the seven core international human rights treaties, including the International Covenant on Economic, Social Cultural Rights (ICESCR). It is disappointing that this treaty has only been ratified by three of the sixteen countries members of the Pacific Islands Forum, though legally binding obligations with regard to economic, social and cultural rights have been accepted by all member countries under other human rights treaties, including the Convention on the Rights of the Child.  The ratification of the ICESCR without reservations by the remaining countries of the Pacific should be advocated.

I hope that this event will point to the added-value of the International Covenant on Economic, Social Cultural Rights, and that you will all become advocates of this key international legal instrument.

Honourable Senator, Excellencies, Honourable Justices, Ladies and gentlemen,

The current Workshop is organized in the context of the United Nations Framework on Regional Cooperation for the Promotion and Protection of Human Rights in the Asia-Pacific Region. The aim of the Framework is to examine the possibility of establishing regional/sub-regional human rights arrangements in Asia and the Pacific, in light of the absence of any comparable inter-governmental system to those established in Africa, the Americas and Europe. In 1998, Governments from Asia and the Pacific agreed that four major human rights areas should receive primary focus: (1) national human rights plans of action: (2) national human rights institutions; (3) human rights education; and (4) strategies for the realisation of economic, social and cultural rights as well as the right to development.

OHCHR has implemented a series of activities relating to these four aspects through a regional technical cooperation project. Where economic, social and cultural rights are concerned, OHCHR has already convened three sub-regional workshops on their justiciability, the first for South Asia in New Delhi in 2001, the second for North-East Asia in Ulaan Baataar in 2004 and the third for South-East Asia in Manila in 2004.  Each has built on the lessons of earlier workshops, with the aim of creating a composite picture on how the aims of the Framework can be best advanced.

Honourable Senator, Excellencies, Honourable Justices, Ladies and gentlemen,

I would now like to turn to the objectives of this Workshop.

First, the Workshop aims at providing a forum for information-sharing on the current state of national, regional, and international jurisprudence on economic, social and cultural rights.  Significant cases concerning economic, social and cultural rights have emerged in the case law of a very diverse range of countries in all parts of the world. This ever-growing case law demonstrates that irrespective of the theoretical debates on the issue, more and more courts are delineating the obligations of States and providing individual relief in this area.  

The second aim of this Workshop is to encourage in-depth dialogue and discussion among judges and lawyers on the enforcement of economic, social and cultural rights in domestic legal systems by examining a series of specific range of issues. These include: (1) the typology of obligations (to respect, protect and fulfil) imposed by economic, social and cultural rights, (2) the non-discrimination guarantee, (3) the role of legal remedies in the context of violations of economic, social and cultural rights, (4) the notion of progressive realization, (5) the sensitivity of judicial review of Governmental policies and programmes in economic, social and cultural areas and (5) the domestic application of international human rights standards.

Third, the Workshop aims to encourage participants to stimulate discussion on this subject upon return to their own countries, for it is at the national level that the universality of all human rights - civil, cultural, economic, political and social rights - must ultimately receive expression.

Fourthly and finally, it is my hope that this Workshop will result in concrete follow-up strategies, so that our common efforts over the days to come become part of a consistent effort to ensure that all human rights are adequately protected through well-functioning and independent judiciaries, without which there is little hope of effective protection of human rights at the national level.

Honourable Senator, Excellencies, Honourable Justices, Ladies and gentlemen,

Let me conclude by saying that violations of economic, social and cultural rights often affect large sections of the population, ranging from the lack of free and compulsory primary education for girls to the "forced" eviction of a community from their homes. Those human rights cannot be fully realized unless and until people whose rights are at stake not only become aware of those rights, but are empowered to seek, claim and defend them. In that regard, your work - as judges and lawyers - plays an instrumental role in making valid claims justiciable in accordance with national and international law.

On behalf of OHCHR, I thank you for attending this workshop and I look forward to the outcomes of your exchanges and deliberations.

I wish you a successful meeting.

Thank you.