Jamaican governmental authorities often maintain in international fora that the country is within the mainstream of human rights promotion and protection. In support of this proposition, different administrations note, as a starting point, that Jamaica has a good track record with respect to the ratification of the main international human rights instruments.

Many a slip

In response, critics may be heard to say that there’s many a slip betwixt the cup and the lip. It is one thing to support treaties and other instruments which seek to safeguard human rights, but quite another to provide for such rights in practical, day-to-day circumstances. No doubt, this is correct. One of the main challenges in this area of law, therefore, is to formulate means by which the promise of human rights is met in reality.

In assessing the human rights landscape, we should, nevertheless, be mindful of some of the main instruments open to states in international law. These instruments provide benchmarks for criticism and indicate areas of consensus among states as to the basic rights of human beings. What, then, are some of the main instruments that should guide Jamaica in this area of law and policy?

The ICCPR

At the level of international law, the International Covenant on Civil and Political Rights (the ICCPR)(1966) is a treaty of primary significance. The ICCPR, as its name suggests, sets out some of the main civil and political rights to be enjoyed by individuals wherever they may be.

The ICCPR, to which Jamaica became a party during the first Michael Manley Administration in October 1975, safeguards, inter alia, the right to life, liberty and security of person, privacy of the home and other property of the individual, freedom from slavery, servitude and compulsory labour, and the freedoms of conscience, expression, assembly, association and movement.

The rights enumerated in the ICCPR owe their philosophical origins to Western liberal democratic traditions. Within international law, failure on the part of a State to meet requirements of the ICCPR can give rise to State responsibility for wrongdoing.

The ICESCR

Another treaty of broad significance is the International Covent on Economic, Social and Cultural Rights (the ICESCR) (1966). Again, Jamaica became a party to this treaty in October 1975.

Among the rights listed in the ICESCR are: the right to work, the right to enjoy just and favourable conditions of work, the right to form and join trade unions, the right to social security, protection and assistance for the family, the right to an adequate standard of living, the right to the highest attainable standard of physical and mental health, the right to education and the right to take part in cultural life.

The ICESCR, therefore, offers a considerable spread of rights. All represent important objectives of the State but most, if not all, will require significant expenditure by the State if they are to be achieved. Against this background, the ICESCR stipulates that the rights in this treaty are to be available to individuals to the extent that the State may afford them.

This position is set out in Article 2(1) of the ICESCR in the following terms:

“Each State Party … undertakes to take steps … to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present covenant by all appropriate means, including particularly the adoption of legislative measures.”

The cynic may say that Article 2(1) takes away with the right hand what the left hath offered. In fairness, though, it is difficult to guarantee, as a matter of law, certain economic and social rights when financial resources are scarce.

The UDHR

Jamaica’s human rights landscape is also influenced by the Universal Declaration on Human Rights (the UDHR)(1948). The UDHR, as a Resolution of the United Nations General Assembly, is not automatically binding as law.

As a matter of history, however, the terms of the UDHR – which included both civil and political rights, as well as economic, social and cultural rights – formed the foundation of the ICCPR and the ICESCR. In addition, several provisions in the UDHR are frequently cited as representing rules of customary international law, so they are binding outside of treaty law, even if a State is not party to a given treaty, the State may be bound by the UDHR, because the UDHR represents the law, in the general practice and opinion of States.

Eleanor Roosevelt played a pivotal role in having the UDHR passed, accepted and promoted within the United Nations system.

American Convention

The three instruments noted so far – the ICCPR, the ICESCR and the UDHR – may be accepted and implemented by all States. Their multilateral character may be distinguished from the American Convention on Human Rights, a regional treaty open to participation by countries in the Organization of American States.

Jamaica ratified the American Convention in August 1978. In large part, this treaty reiterates various provisions in the ICCPR, but it modifies some of them on the assumption that a regional treaty may give greater precision to rules adopted by all States in the region.

Two modifications to the ICCPR approach may be briefly mentioned. One is that while neither the ICCPR nor the American Convention expressly bans the death penalty, the latter treaty prohibits the reintroduction of the penalty once it has been banned. And secondly, with respect to the right to life, the ICCPR does not define when life begins; in contrast, the American Convention states that, in general, life begins at conception.

Rights of children, women

At the multilateral level, Jamaica is also party to various treaties that govern specific issues. These include the International Convention on the Rights of the Child, to which Jamaica became a party in June 1991 (during the second Manley Administration). This treaty elaborates on the rights that are to be afforded to children in all countries party to its terms.

Other multilateral treaties addressing particular issues include the Convention on the Elimination of All Forms of Racial Discrimination (the CERD)(1966) and the Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW). Jamaica became a party to the former in June 1971 (during the Hugh Shearer Administration), and to the latter in October 1984 (through the Edward Seaga Government).

Among others, Jamaica entered into the Convention on the Rights of Persons with Disabilities (2006), ratifying this treaty in March 2007 during the first Simpson Miller Administration. Under Prime Minister Portia Simpson Miller, Jamaica also became party to the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families in September 2008.

Enforcement

These various treaties and the UDHR are standards-setting devices, which provide guidance for Jamaica and other countries. A notable weakness, however, concerns enforcement of the human rights norms encapsulated in each document. In the view of some critics, these instruments are so often honoured in the breach their provisions are almost pointless.

In response to this line of criticism, at least three observations should be noted. First, even if international human rights law does not readily provide for sanctions in ways familiar to national law, in some instances breach of a human rights rule will cause third States to implement measures against the wrongdoing country.

For example, international action by some countries taken against apartheid South Africa, through trade and investment boycotts as well as exclusion of the Government from United Nations agencies and other measures, brought pressure to bear on the unlawful regime.

Rule of law

Secondly, some countries aspire to apply the rule of law in international affairs, and thus may not need international pressure to implement human rights treaty rules. In some cases, too, a State will enforce human rights norms primarily to preserve its reputation and credibility in international affairs. The State which today ignores a given rule in the ICCPR will, in all probability, receive little respect when it bloviates in favour of that rule on a subsequent occasion.

Thirdly, the deficiencies of enforcement in this area have been addressed, to some extent, by certain mechanisms in treaty law. In some cases, the human rights treaty will impose reporting requirements on all States parties. How Jamaica is doing with, say, freedom of expression or racial discrimination, may then become a matter for scrutiny by other countries in periodic reviews mandated by law.

Petition system

But the periodic review is normally pitched at a general level and may not concentrate on individual cases. For individual cases, some treaties, such as the First Optional Protocol to the ICCPR and the American Convention on Human Rights, allow petitions to a central body (such as the UN Human Rights Committee or the Inter-American Commission on Human Rights) for assessment as to whether particular rights have been violated. Such central bodies are empowered to make recommendations, which give guidance to States.

The efficacy of schemes for individual petitions has been subject to criticisms by governments and in some of the secondary literature. The procedures are sometimes said to be given over to delays and, on occasion, States have challenged the validity of recommendations offered on points of law. Some human rights review agencies have also been accused of insensitivity to religious and cultural nuances that may prevail in local communities.

On the other hand, the central bodies have issued numerous recommendations and have adopted a generally progressive approach to the protection of individuals. This has been a substantial contribution to the development of human rights in the world.

Pratt and Morgan

Jamaica withdrew from the First Optional Protocol to the ICCPR in 1997. This decision was prompted by a dilemma created by the interplay between the Pratt and Morgan death penalty decision of the Privy Council and putative periods of delay in death penalty cases brought before the UN Human Rights Committee and the Inter-American Commission on Human Rights.

In brief, Pratt and Morgan raised the presumption that if the time period between sentencing and execution in a death penalty case exceeded five years, execution would amount to inhuman or degrading punishment or treatment. The death sentence was to be commuted to life imprisonment. But, in some cases, international human rights were allegedly moving slowly in making their recommendations, so that the Government could not meet the five-year time period.

Thus, the Government argued that, in effect, its death penalty policy was being stymied by external human rights agencies. The Government withdrew from the First Optional Protocol to reduce delays in death penalty cases and to facilitate implementation of the Pratt and Morgan approach to time.

In 2011, however, the Government, through the Charter of Fundamental Rights and Freedoms, which amended Chapter III of the Jamaican Constitution, overturned the Pratt and Morgan approach. Today, delay in the execution of a death sentence does not in itself lead to commutation of the sentence. In this situation, there is no reason for Jamaica to remain outside the treaty regime in the First Optional Protocol to the ICCPR, as time has ceased being a factor in deciding whether the death sentence may be carried out.

Jamaica could, and should, return to the First Optional Protocol to the ICCPR. This will give our citizens an additional, international mechanism to have their human rights assessed.

Local law

In closing, it is important to note that where Jamaica is a party to an international human rights treaty, this does not necessarily mean that Jamaicans will have access to these treaty rules in national law. This is so because Jamaica is a “dualist” State. As such, for Jamaica’s international obligations to become binding in local law, these obligations normally need to be incorporated into the legal system by the constitution and domestic legislation, implicitly or explicitly.

One instance of failure to incorporate our treaty obligations into legislation concerns the Refugees Convention and Protocol which Jamaica ratified in 1964 and 1980, respectively. The obligations in the Refugees Convention and Protocol are not, therefore, fully within Jamaican law, a deficiency that, again, could and should be remedied.

Overall, then, International law provides several means for promoting and protecting human rights. These means do not always operate efficiently or decisively, but they provide useful guidelines for States which wish to advance individual rights and the rule of law both at home and abroad.

Ambassador Stephen Vasciannie is Professor of International Law at the University of the West Indies, Mona.