Stephen Vasciannie
TWO WEEKS AGO, the Inter-American Commission on Human Rights and the Commonwealth Secretariat co-sponsored a conference on human rights in the Caribbean. The conference, held in Antigua, concentrated on the extent to which Anglophone Caribbean countries have ratified the main United Nations and regional treaties pertaining to human rights.
The organisers of the conference, and most participants, proceeded on the assumption that the promotion and protection of human rights constitutes one of the main functions of the State, and that therefore the State was obliged to take appropriate measures to ensure the fulfilment of this function. But there is sometimes a slip between the cup and the lip: What states say they believe about human rights must always be matched by what they do.
MAIN TREATIES
The main treaties considered at the Antigua conference included the following: (a) the International Covenant on Civil and Political Rights (the ICCPR), (b) the International Covenant on Economic, Social and Cultural Rights (the ICESCR), (c) the First Optional Protocol to the ICCPR, (d) the Second Optional Protocol to the ICCPR, aimed at abolishing the death penalty, (e) the Convention on the Elimination of Racism, (f) the Convention on the Elimination of Sexual Discrimination, (g) the Convention on the Rights of the Child and (h) the American Convention on Human Rights.
Caribbean States as a group have been quite enthusiastic about the treaties that prohibit racism and sexual discrimination, as well as about the Convention on the Rights of the Child. Thus, for these treaties, most, if not all Caribbean countries have become state parties, and make efforts to conform to the treaty terms. In contrast, however, Caribbean states as a group have been slightly lukewarm about the ICCPR and the ICESCR, and have been decidedly standoffish about the American Convention on Human Rights and the First Optional Protocol to the ICCPR. And, as to the Second Optional Protocol, concerning the abolition of the death penalty, Caribbean states have retained a position that can fairly be characterised as absolute rejection.
This situation raises important questions about Caribbean attitudes to human rights. The ICCPR sets out a broad set of civil and political rights that are recognised in Caribbean constitutional law and practice. The ICESCR recognises, as rights, certain items that we do not regard as legal rights in the Caribbean, such as the right to employment and the right to a reasonable standard of living. But that treaty places no duty on state parties to provide such rights if the states concerned do not have the resources to provide the rights. On the face of things, therefore, Caribbean countries should have no fundamental problem with ratifying either the ICCPR or the ICESCR.
NO FUNDAMENTAL PROBLEM
On the face of things as well, Caribbean countries should have no fundamental problem with ratifying the American Convention - which sets out a list of rights similar to those found in the constitution of every Caribbean country. Likewise, given that the First Optional Protocol to the ICCPR seeks essentially to ensure that persons may bring their claims concerning agreed human rights to the United Nations Human Rights Committee, there may again appear to be no fundamental bar to Caribbean participation in this treaty.
In fact, from the list of treaties above, only the Second Optional Protocol to the ICCPR is classifiable as fundamentally problematic for Caribbean states. More specifically, although the intelligentsia in the Caribbean may suggest otherwise, majority sentiment in the region remains in favour of the ultimate sanction for some types of murder. It would therefore be unrealistic to expect Caribbean governments to commit themselves to the abolition of the death penalty at this time - as is required by the Second Optional Protocol to the ICCPR.
DISCERNIBLE THREADS
So, if we should have no fundamental problems with the ICCPR, the ICESCR, the First Optional Protocol to the ICCPR and the American Convention, why have we not been more anxious to become parties to those treaties? The answer to this question may vary from country to country, and also from treaty to treaty. However, some common threads are clearly discernible.
For a start, the international rights agencies that interpret the treaties in question sometimes adopt approaches that are inconsistent with Caribbean perspectives on particular issues. To take a topical example, what is the scope of the right to privacy? When the ICCPR was adopted in 1966, homosexual sex was not regarded as protected by the right to privacy; but now, in view of the United Nations Human Rights Committee, the right to privacy protects this activity. Caribbean governments do not share - and have never shared - this view on the right to privacy. Our governments will therefore be appropriately sceptical about ratifying treaties that may be interpreted away from the meaning that it carried at the time of adoption.
In addition, the international rights agencies sometimes appear insensitive to cultural concerns in the Caribbean, they do not carry significant representation from the Caribbean in their decision-making bodies, and they have reporting requirements that place rather onerous burdens on small, poor countries. So, if we do not ratify some treaties, this does not represent a desire to violate human rights: the issue is more nuanced than it may appear at first sight.
Stephen Vasciannie is a
professor at the University of the West Indies and a deputy solicitor general.
