12. Challenges of human rights in the Pacific

• What are human rights?

  • are the rights that all people have by being human beings.
  • they are derived from the inherent dignity of the human person and are defined internationally, nationally, and locally by various law-making bodies.
• Where do human rights come from?

  • Internationally, HR has developed mostly in the European Context and under HR - introduction of International Law in the UN context in the 1948 UN Declaration of HR (UNDHR)
  • In 1966, the General Assembly adopted:

  1. The Covenant on Civil and Political Rights (and its First Optional Protocol)
  2. The Covenant on Economic, Social, and Cultural Rights Together with the UDHR, these 3 documents are now known as the International Bill of Human Rights
• Human rights in the South Pacific

  • introduced into Pacific societies mostly through the Bill of Rights in post-colonial Constitutions and sometimes through ratification of International Treaties
  • thus, are considered "foreign" rights and freedoms in the Pacific; human rights grew out of the needs of European people in the first instance
  • Acceptance relies thus on how useful Pacific societies find the notion of HR for their self-organization, governance, development etc.
• • The orthodox school of thought is that rights are enforceable vertically = only between citizen & state; rights cannot be enforceable between citizen and citizen, or against private corporations.
  • The antidiscrimination provisions of the bills of rights in most PICs appear to cover the public sector and not the private sector = limiting HR application to the relationship between state and citizen (vertically)
  • One of the most controversial and divisive areas of human rights is the extent to which they can be applied horizontally.
  • Pacific Courts have generally opted for a vertical application
• • The tensions between customary law and formal constitutional protections continue to be a source of conflict in all Pacific communities
  • contradiction between the traditions in Pacific Islands and the ‘modern way of life’
  • This ambivalence resonates throughout the Pacific and sometimes has political repercussions, reflecting the sensitivities that are involved and the caution about ‘foreign’ concepts such as human rights
• Case study: Teonea - custom, religion, and human rights

  Background

  • Location: Tuvalu
  • Issue: Freedom of religion vs. customary authority
  • Relevant Rights: Freedom of religion, association, expression, and movement
• Key Facts:

  1. Falekaupule Authority: Recognized by the Falekaupule Act 1997, the council of chiefs can make rules based on custom.
  2. Teonea's Actions: Attempted to establish a new religion (Brethren church) on Nanumaga.
  3. Falekaupule Resolution: Banned new religions. Teonea ignored this ban.
  4. Conflict: Members of the State Church (EKT) attacked the Brethren church, injuring members.
  5. Legal Challenge: Teonea took the case to the High Court, claiming the resolution violated his constitutional rights.
• Legal Issues in the High Court

  
  

  • Constitutional Rights Alleged to be Breached:
  • Freedom of religion (s 23 (1))
  • Freedom of expression (s 24 (1))
  • Freedom of association (s 25 (1))
  • Freedom from discrimination (s 27 (1))
• • Legal Provisions:
  • Rights subject to section 29 (protection of Tuvaluan values) and public safety/order (s 23(6), s 24(3), s 25(3))
  • Non-discrimination can be limited by Tuvaluan custom (s 27 (6)(b)-(d), s 27 (7))
  • Rights must align with Tuvaluan culture (s 11 (2)), rights of others (s 11 (3)), and must be reasonably justifiable in a democratic society (s 15)
  • Constitution interpreted in light of Preamble and protection of Tuvaluan values (s 10, s 29)
• High Court Decision

  • Ruling: Falekaupule's decision was justified as it aimed to prevent divisiveness and protect social order.
  • Outcome: Teonea's rights were limited in favor of maintaining Tuvaluan values and culture.

  Court of Appeal

  • Judges: 3 judges with a possible split decision
  • Outcome:
  • Tompkins JA: Would have dismissed the appeal.
  • Fisher JA and Paterson JA: Allowed the appeal.
  • Final Decision: The resolution was a breach of Teonea's human rights. The appeal was allowed, and the Falekaupule's resolution was declared unconstitutional.
• Legislative Response

  • Parliament Action: Amended the Constitution and passed the Religious Organisations Restriction Act 2010.

  Summary

  • The case highlights the tension between human rights and customary law in Tuvalu.
  • The High Court initially justified limiting Teonea's rights to protect social order.
  • The Court of Appeal reversed this decision, affirming Teonea's constitutional rights.
  • Subsequently, Tuvalu's Parliament amended the Constitution to address the issue.
• When Human Rights Take Precedent: Regina v. M (Cook Islands, 1997)


  Key Facts

  • Victim: A 12-year-old girl (referred to as M) in the Cook Islands.
  • Customary Practice: Forced virginity testing to confirm virginity before marriage.
  • Challenge: M's family argued the practice violated her human rights.

  High Court Ruling

  • Violation: The practice was deemed a violation of M's right to be free from cruel, inhuman, or degrading treatment under the Cook Islands Bill of Rights.
• Court's Emphasis:

  • Acknowledged cultural traditions.
  • Stressed that customs cannot justify actions undermining fundamental human rights.
  • Found forced virginity testing invasive, humiliating, and harmful, causing physical and psychological distress.

  Judgment Highlight: Customary law must evolve to respect fundamental human rights principles.
• Significance

  • Precedent: Regina v. M set a human rights precedent in the Cook Islands and the wider Pacific region.
  • Impact: Demonstrated the courts' willingness to hold customary practices accountable to human rights standards.
  • Discussion: Sparked important discussions on balancing cultural traditions with individual rights protection.
• When Customary Law Takes Precedent: Teitiota v. Teitiota (Vanuatu, 2010)


  Key Facts

  • Issue: Dispute over land ownership in Vanuatu.
  • Claimant: Sarah Teitiota, a female family member, claimed inheritance rights under national laws promoting gender equality.
  • Customary Law: Land traditionally owned by the Teitiota family under customary male primogeniture (inheritance by the eldest son).
• Court of Appeal Ruling

  • Decision: Ruled in favor of customary law practice of male primogeniture.
  • Court's Acknowledgment:
  • Importance of upholding customary land ownership rights, often patrilineal in Vanuatu.
  • Recognized the evolving nature of customary law.
  • Found that national gender equality laws did not automatically override established customary practices related to land ownership.
• Significance

  • Highlight: Teitiota v. Teitiota showcases the complex relationship between customary law, state law, and human rights in the Pacific.
  • Impact: Demonstrated the court's consideration of potential social order and cultural identity disruption if customary practices are disregarded entirely.
  • Approach: Emphasized the need for a nuanced balance between individual rights and the preservation of cultural traditions.
• Balancing custom and rights: the path forward

  • Pacific nations face the challenge of reconciling customary law with human rights.
  • Respect for cultural traditions needs to be balanced with upholding fundamental rights.
  • Ongoing dialogue, education, and legal reforms are crucial