The Progressive Development of Human Rights Standards at CHOGM
Alison Duxbury
Senior Lecturer, Faculty of Law, University of Melbourne

It is now one year since the Commonwealth's main decision-making body, the Commonwealth Heads of Government Meeting (CHOGM), met in Nigeria and it is the same period of time again until it will meet in Malta. Over the years, the communiqués issued at the conclusion of each CHOGM have demonstrated discussion of a diverse range of subjects, such as Southern Africa, the environment, AIDS, economic cooperation, small states, and light weapons. In addition, the Heads of Government have progressively elaborated upon the standards that they believe that member states should uphold. The outcomes of the last meeting, including the human rights issues raised in the governmental statements and the action taken against Zimbabwe, were discussed in the Spring 2004 edition of CHRI News. This article will take a step back and review the way in which the adoption of human rights principles has evolved at CHOGMs since 1971. While this article concentrates on the standards adopted at CHOGM, this is not meant to underestimate the importance of statements made in other official Commonwealth meetings, or indeed the work of the Commonwealth Secretariat and non-governmental organisations. But when it comes to giving a public face to the expression of Commonwealth values, it is to the statements of the biennial meetings that we turn.

The Singapore Declaration of 1971 is regarded as the first articulation of a Commonwealth human rights policy by the Heads of Government. But when reading the Singapore Declaration it is important to recall the limitations within which the Commonwealth must act, set down only six years previously in the Agreed Memorandum on the Commonwealth Secretariat. Thus, the Agreed Memorandum states that the Commonwealth "does not encroach on the sovereignty of the individual members", nor does it require members to reach collective decisions. These limitations have provided a brake (albeit a progressively less significant one) on the development of a human rights programme by the organisation.

The Singapore Declaration refers to a wide range of standards, but concentrates on two fundamental principles: first, freedom from discrimination, and secondly, the importance of democratic political processes and representative institutions. In language uncharacteristically passionate for a document adopted by states in an international forum, the Heads of Government in Singapore declared that "racial prejudice" was a "dangerous sickness" and racial discrimination, "an unmitigated evil of society". In the 1970s and 1980s the Commonwealth was chiefly known for its stance against such discrimination in the face of apartheid South Africa, as is emphasised by documents such as the Commonwealth Statement on Apartheid in Sport, and the Lusaka Declaration of the Commonwealth on Racism and Racial Prejudice issued at the 1979 CHOGM. The title of this later Declaration reflects a concentration on racial prejudice, but it would be a mistake to regard it as solely concerned with that form of discrimination. Thus, it emphasises the need to eliminate distinctions based on "race, colour, sex, descent, or national or ethnic origin". Furthermore, the Lusaka Declaration also recognises the place of remedies in human rights law by stating that "everyone has the right to effective remedies and protection against any form of discrimination". This assertion is particularly significant given that the realisation of rights requires that standards not only be promoted, but also protected, by effective processes.

Many discussions of the articulation of human rights principles at Heads of Government Meetings tend to leap from the Singapore Declaration to the Harare Declaration of 1991. While it is true that these are the most significant statements of Commonwealth rights, a number of other CHOGMs in the intervening 20 years elaborated upon the organisation's approach beyond the prohibition of racial discrimination. The Heads of Government have pledged their commitment to the principle of self-determination (Singapore), referred to economic, social and cultural rights (London 1977), and recognised the inter-relationship of all rights (Kuala Lumpur, 1989). These statements are important given their explicit acknowledgement of the existence of human rights standards beyond the traditional sphere of civil and political rights. As CHRI stated in its 2001 Report, "we live in a poor Commonwealth", and in this context the recognition and implementation of economic, social and cultural rights must be achieved.

On one level the Harare Declaration of 1991 was merely a reaffirmation of principles that had already been stated elsewhere, rather than a declaration of new Commonwealth values. However, arguably it was not until the meeting in Harare that the Heads of Government began to emphasise the second aspect of the Singapore Declaration - democratic government and representative institutions, or the 'fundamental political values of the Commonwealth'. Paragraph 9 of the Harare Declaration pledges the Commonwealth to work with "renewed vigour" on (among other things) "fundamental human rights" and "democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary". Subsequently, at Edinburgh (1997), Durban (1999), Coolum (2002), and Abuja (2003) the Heads of Government "reaffirmed" or "renewed" their commitment to the fundamental political values of the Commonwealth.

The "renewed vigour" highlighted in the Harare Declaration was certainly in evidence two years later at the Auckland CHOGM, when the Commonwealth for the first time instituted strategies for the enforcement of its fundamental values. The Millbrook Commonwealth Action Programme is a more radical document than the Harare Declaration in that it outlines measures that the Commonwealth may take in the event of the unconstitutional overthrow of a government. Although not explicitly phrased as a document for the enforcement of human rights, it enables different parts of the organisation to take actions ranging from a public expression by the Secretary-General "of the Commonwealth's collective disapproval", to suspension from participation in Commonwealth meetings. The significance of these measures is that the organisation has certainly moved some way from the principles set down in the Agreed Memorandum. This is particularly apparent when considering the role of the Commonwealth Ministerial Action Group (CMAG) and the subsequent suspension of Nigeria, Pakistan and Fiji (now all reinstated to full membership) and also the withdrawal of Zimbabwe as a result of Commonwealth enforcement action.

In the past I expressed the view that prior to 1991, CHOGMs demonstrated "a consistently haphazard approach to human rights". Despite the many advances that have been made since that date, to some extent the comment still holds true in two respects. First, the reluctance to use CMAG for the full range of human rights standards articulated internationally, despite the broadening of its remit by the High Level Review in 2001 (adopted at the 2002 CHOGM) to include serious or persistent violations of the Harare Commonwealth Principles. Additionally, the Heads of Government have not consistently used the terminology of rights when discussing economic and social values. For example, although the Fancourt Declaration on Globalisation and People-Centred Development (1999) is a forceful statement of the issues that are most significant to member countries, such as the elimination of poverty, good governance and development, it does not take an explicitly rights approach. To some extent this has been rectified in the Aso Rock Declaration (2003), whereby the Heads of Government committed themselves to both development and democracy as well as a specific list of objectives, including an independent judiciary, a well-trained public service, and machinery to protect human rights. This last goal highlights that a complete human rights system at the international level, as well as in the domestic sphere, not only requires the articulation of standards but also measures for the implementation and enforcement of rights.

In dealing with human rights principles, CHOGMs have been progressive in both senses of the word: first, over the years the Heads of Government have progressively developed the standards that members should uphold. Secondly, the establishment of CMAG and the Commonwealth's stance towards the violation of its fundamental values have been innovative when compared to the practice of other international organisations. CHOGMs have achieved much but there is work to be done in both the articulation of rights and the protection of those standards, in order for the Commonwealth to have a complete system for the protection of rights.