The International Covenant On Civil And Political Rights - Essay Example

The International Covenant On Civil And Political Rights Background information on topic as follows:   "With regard to the exercise of the cultural rights protected under article 27 [of the International Covenant on Civil and Political Rights], the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of the minority communities in decisions which affect them"   - United Nations Human Rights Committee, General Comment 23, on Article 27 (Fiftieth session, 1994) at paragraph 7.   Article 27 of the International Covenant on Civil and Political Rights gives to the Maori culture the right to engage in fishing activities and it reiterates its obligations to ensure that these rights are recognized. The Fisheries Settlement has achieved this to a large extent in as much as it gave them the right to revenue through quota together with Maori participation in the Sealords deal in what may be called as the modern day embodiment of Maori claims to the commercial fishery. In this way Maori exercises effective control in a company through their shareholding and their representatives on the Board of Directors and has placed them in an unprecedented position to expand their presence in the market through the acquisition of further quota and fishing assets as well as through diversification in international catching processing and marketing. Its implementation is ensured and protected by the Treaty of Waitangi Fisheries Commission and its companies as well as individual tribes. Apart from this the Fisheries settlement has come a long way in protecting non-commercial fishing i.e. for customary food gathering and a successful attempt has been made to recognize the special relationship between Maori and places of importance for customary food gathering. It may be noted that the right of minorities under Article 27 are not unlimited. They are subject to reasonable regulation provided these measures have a reasonable and objective justification and are consistent with the other provision of the Covenant and most importantly do not result in a denial of right. In Re Mahuika V New Zealand, it was held by one of the committee members that as far as in relation to Article 27 of the Covenant, an overall settlement of fisheries claims is found to be compatible to Article 27 provided that the conditions of effective consultation and securing the sustainability of culturally significant forms of Maori fishing are met. The Human Rights Committee was of the view that there is no breach of any article of the Covenant. In pursuance of the protection of the rights of the Maoris under Article 27 of the Covenant, the State has ensured that through a tedious and complex process of consultation with the various Maori groups it has attempted to secure broad Maori support to a nation wide settlement and regulation of fishing activities. It was only when there was substantial Maori support that the Settlement was enacted. It would not be out of place to mention that the consultation process gave special attention to the cultural and religious significance of fishing for the Maori inter alia to securing the possibility of Maori individuals and communities to engage themselves in non-commercial fishing activities. In this way the State has taken necessary steps to ensure that the Fisheries Settlement and its enactment through legislation including the Quota Management System are in line with article 27. It is of utmost importance that cultural and religious significance of fishing for Maori must deserve due attention in the implementation of the Treaty of Waitangi (Fisheries Claims) Settlement Act. Measures affecting the economic activities of Maori must be carried out in such a way that the Maoris continue to enjoy their culture and profess and practice their religion in community with other members of their group. The State is under an obligation to bear this in mind in its further implementation of the Treaty of Waitangi (Fisheries Claims) Settlement Act. Article 27 of the Covenant clearly protects Maori enjoyment of their fishing rights. In an attempt to protect these rights the State has recognized the Maoris as a minority whose indigenous culture and economic activities are to be protected and not marginalized, as was the case earlier. These rights include participation in the law building process of the State, which will help them have a say in their own community. Secondly and very importantly the Quota system has brought them to the mainstream by ensuring their presence and participation in National level economic activities related to fishing which is their only source to survival. Somewhere in the competitive world and in order to streamline the fishing activities it has been argued by some Maoris that modern legislations and technologies have removed them from their ethnic proximity. Article 27 of the covenant has been able to confer upon the Maoris those indigenous rights which is otherwise under constant fear of being infringed by the various State legislations. The success of Article 27 lies in the fact that it has recognized the Maori as an intrinsic part of the Country and has safeguarded the Maoris’ rights pertaining to fishing, its culture, its language and its religion which in modern legislation and policies would have faced extinction. The Waitangi Tribunal has been set up to cater to the cases of the Maoris in conflict with the state in cases of violations of their indigenous character in terms of dispute with respect to their fishing rights, rights over the fishing land, the area of fishing, the various processes of fishing, their cultural ethos, their language and its interpretations etc. With the sword of Article 27 hanging over them the Tribunal lays emphasis in a quick disposal of cases and is one of the instruments to protect the Maori indigenous culture as envisaged under Article 27 of the Covenant. However every implementation of any legislation in any community which is a minority takes its own time and goes through the rigors of facing flak from the dissenting groups. This also in fact contributes in a large way in propelling the State to take more interest in the Minorities and contribute more in implementing their rights and culture as envisaged under article 27 of the Covenant. It can be safely argued that the fact that there exists an effective mechanism of protecting the minorities’ rights i.e. the Maoris’ rights and their implementation by a judicial system and by way of enactment of laws to this effect, goes to show that Article 27 of the covenant has been largely responsible in bringing these into effect with adequate State intervention and has been largely successful. Imagine a situation where no such covenant existed. The Maoris would have been deprived of their basic rights and soon their existence would have been questionable and would have resulted in havoc and private warring groups would have arisen and there would have been state terrorism and all that. On the contrary the existence of Article 27 of the covenant has been effective in harnessing the countries huge fishing industry, which is more authentically and effectively manned by the Maoris who are born fishermen. The quota system introduced by the Country was in a large way contributory to the participation of the Maoris in the country’s economic and national front, in all spheres i.e. in nation building, and in ensuring their participation in enacting laws and participating in debates and negotiations to protect their rights and their interests while preserving their customary and indigenous character. By giving them adequate participation in these spheres the State has been able to bring them to the mainstream and have ensured that a heavy population of the Maoris have been on to the road of development and are benefited by modern legislations and the competitive world. In this way they have come a long way from their backwardness and have now bagged an important place in the National scheme of economic and political activities while preserving their original character which is ensured by Article 27 of the covenant. By urging the State to help them buy the Seaworld deal the Maoris carved their way into the business world of processing and marketing fish apart from their customary methods, which has obviously given them an impetus to develop their customary industry. It is the implied pressure of Article 27 of the Covenant that the Maoris have been able to hone their skills and at the same time to preserve their indigenous entity. With the ethnic group now becoming speedily aware of their rights and privileges envisaged under Article 27 of the Convention, the group has been able to protect their ethnic identity and emerge as a winner in the national arena. Such legislations are always under the eye of scrutiny and is always under constant checks and balances and under critical review every time any ethnic group raises its voice against the State or its policies which try to curb their indigenous interests and ethos. But the entire covenant and specially Article 27 has been almost successful in fighting for the rights of the minorities and their active participation in all that concerns their ethnicity and their culture. The fishing culture of the Maoris are of the deepest concern to the community and because of which the Maoris have disputes with the State legislations which try to curb their rights of fishing and marketing by the undue influence of modern technology and modern legislations which hinder their activities. In concluding the debate, it can be safely argued that Article 27 of the Covenant has been an important instrument in channelising and safeguarding all the rights and interests of the Maori community to the extent feasible in modern times with its limitations being under constant review and change as per requirement and as a result of judicial interventions. Source: Mahuika v New Zealand Communication No 547-1993 CCPR-C-70-D-547-1993. Read More