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  5. Human Rights System for SAARC: Problems and Perspectives

 
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FOCUS June 2014 Volume Vol. 76

Human Rights System for SAARC: Problems and Perspectives

Gyan Basnet

The South Asian Association for Regional Cooperation (SAARC) was established in 1985 with the great hope of promoting subregional cooperation among the South Asian countries. Today, with one-fifth of the world’s population, the countries of South Asia face formidable challenges resulting from poverty, under-development, and conflict within and among themselves. Their low economic production, unemployment and population pressure are not helped by historic exploitation and by other adverse legacies. In addition, deep-rooted divisions and animosities throughout the subregion make any commonality across nations impossible, and the whole subregion has to grapple with gross violations of human rights.
Consequently, governments in the subregion lack effective initiative and political commitment needed to meet their obligations to respect, protect and fulfill human rights and fundamental freedoms. Internal conflicts, civil strife, poverty and so-called anti-terror legislation and measures have resulted in violations of the civil liberties of the people. The subregion is one of the world's most militarized areas with states needing to protect themselves against their own neighbors. Its prospect is grim. There is no deep commitment to human rights, and none of the states is willing to acknowledge that any solution to their problems might be found subregionally.
Many questions need to be considered today. Has SAARC achieved anything in nearly three decades of existence? Why, compared to others, does the subregion remain so backward in terms of everything? While human rights mechanisms exist in other regions or subregions of the world: why have the SAARC countries home to a fifth of the world’s population never thought of having one? Can a subregion that is so politically, socially and economically volatile afford to go on ignoring this issue? Does subregional integration have any future in South Asia? What might enhance its chances? Is there any hope for SAARC itself? Is it not time for it to redefine itself with a more dynamic pace of progress and evolution? The very diversity of South Asia demands a gradual implementation of conceptual steps that could build towards a distinct regional identity. One example of such conceptualization could well be the establishment of a SAARC human rights mechanism.

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Setting up a Mechanism

Why might a separate charter on human rights be so important for SAARC? What would it add to existing practices? SAARC member- states have already signed several conventions on narcotics, trafficking in women and children for prostitution, and the promotion of child welfare. There have also been several agreements on food security and various social issues. However, there has been no convention focusing specifically on human rights and fundamental freedoms. A subregional instrument could be regarded as an appropriate complement to the human rights instruments of the United Nations. Regional human rights mechanisms are already established in the Americas, Europe, Africa and most recently in the Arab States. But South Asia, one of the remaining major geographic areas in the world, has no human rights mechanism of its own. The 2004 Arab Charter on Human Rights of the Council of the League of Arab States has been in force since 2008. The Charter contains a number of human rights and fundamental freedoms of the people, and provides for the election of a seven-person Committee of Experts on Human Rights to consider states’ reports and to monitor states’ compliance with the Charter.
Numerous common problems affect most SAARC member- states, e.g., torture, human trafficking, internal displacement owing to conflict, refugees, rights over resources, urban shelter and demolition, domestic violence against women, the death penalty, extra-judicial detention, and forced disappearances. A few countries in the subregion have national human rights institutions. All have, or in the case of Nepal should soon have, a written constitution under which human rights are recognized as being fundamental. Despite these provisions, however, there is a deteriorating human rights situation throughout the subregion due to the anti- terrorism measures adopted by some of the countries, internal political crises and civil strife and the hostility of governments towards human rights despite their claims to be democratic.
The subregion has suffered from the absence of rule of law and constitutionalism and from a culture of impunity. Is there not then an urgent need to formulate a SAARC human rights mechanism?
Majority of SAARC member- states have still to ratify the optional protocols to the International Convention on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Bhutan, moreover, has still to ratify the ICCPR, the International Convention on Economic, Social and Cultural Rights (ICESCR), and the Convention against Torture (CAT). Even where treaties have been ratified, implementation has been limited by reservations on the part of some countries that apply a narrow interpretation to treaties relating to civil and political rights, and by a restricted political commitment to implement any economic, social and cultural rights. An effective human rights mechanism would ensure the protection and promotion of human rights throughout the subregion. It could cover especially such common issues as the rights of migrant workers, human trafficking, minority rights, and the right to development. Most importantly, it could challenge the existing culture of impunity and lawlessness. Such a mechanism might also provide redress, alternative to existing international processes and procedures, in less costly, more accessible and more effective manner.
The prospect of ideological homogeneity across the subregion would seem to be anything other than bright. With over 60 per cent of the population still forced to survive below the poverty line, how could the subregion even claim to be democratic? South Asia faces serious challenges in consolidating democracy and strengthening and promoting the human rights and the fundamental freedoms of its people. It should now seriously consider establishing its own human rights mechanism similar to those of the Inter- American or European systems. The mechanism would certainly help states to effectively promote and protect human rights and fundamental freedoms within their jurisdiction. It can support the promotion and respect or international human rights laws throughout South Asia, and facilitate common understanding of universal human rights issues, norms, values and perspectives among citizens of SAARC countries.
By way of example, the Organization of American States has a human rights protection system in the Americas that allows both states and individuals to file complaints. Under the American Convention on Human Rights, two bodies protect, promote and monitor human rights. The Inter- American Commission on Human Rights has the primary function of raising complaints against an American state found to have violated human rights, and the Inter-American Human Rights Court has jurisdiction over contentious cases mostly forwarded by the Commission. Under the Inter-American system, both the Commission and the Court have made a major contribution to recognizing human rights, developing human rights jurisprudence and protecting human rights in the Americas. Elsewhere, the Council of Europe drafted a European Convention on Human Rights after the Second World War in response to a call by Europeans from all walks of life for such instrument. The Convention was designed to incorporate a traditional civil liberties approach to securing effective political democracy. The Convention created the European Court of Human Rights in Strasbourg, and any person who feels that a state party has violated his or her rights under the Convention, can take his or her case to the Court. Judgments confirming violations are binding on all.
To be both credible and practically effective in meeting both its promotion and protection requirements, a future SAARC human rights mechanism, based on a human rights charter, would require a minimum set of characteristics. These would include the power to receive and decide upon individual and inter-state complaints of human rights violations by a state party. It should have the potential to develop additional mechanisms such as special procedures and subsidiary bodies on thematic issues, working groups, etc. It can consist of a SAARC Human Rights Commission with broad powers to investigate, make site visits for fact finding, receive reports and complaints by states and individuals, and a SAARC Human Rights Court, empowered to make binding decisions on human rights issues and grant reparations for victims of human rights violations by states. The human rights mechanism, as with other regional practices, would be able to cooperate with international human rights mechanisms. This would strengthen the existing human rights framework and help to overcome procedural and institutional weaknesses in both domestic jurisdictions and in the international system itself. This would make up for any lack of expertise or experience in human rights jurisprudence and help to ensure the effective implementation and enforcement of human rights norms and standards. A future SAARC charter on human rights, similar to that of the Inter-American system would be a great breakthrough for South Asia.
The United Nations High Commissioner for Human Rights (Navi Pillay) reminded SAARC member-states in 2011 about the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993, that "recognised the value of intergovernmental systems to promote and protect human rights at the regional and sub- regional level, and [that] their development has been continuously encouraged by the General Assembly and Human Rights Council." The High Commissioner noted that while a regional human rights mechanism for the whole Asia- Pacific has not progressed for the past twenty years, the establishment of subregional mechanism has made a headway as shown by the Association of Southeast Asian Nations (ASEAN) whose human rights mechanism's "mandate and composition...have several weaknesses, [yet] they provide an important source of inspiration and lessons learned for SAARC countries in embarking on a similar journey. " The High Commissioner asked: So will SAARC prove ready to rise to this challenge?1

Human Rights Culture and Challenges

So far South Asian countries have been reluctant to advance the subregional project, and the provisions of the SAARC Charter2 have largely been ignored. Subregional cooperation is still at a very rudimentary stage, and there is little evidence of any real desire to act on a subregional basis by building trust and avoiding force. A proper subregional human rights mechanism might just provide a real opportunity to establish a favorable political environment leading to a restructuring of the subregion politically, socially and economically.
Why should human rights not be the guiding force for South Asian politics and for the future development of its democratic processes? Human rights values are above partisan politics and above the narrow interests of one or two countries. They could provide a path to common goals and agendas. Establishing the proposed subregional institution to monitor, promote and consolidate human rights would bring the SAARC member-states together in order to achieve common aims and ambitions towards peace and prosperity. A subregional human rights body could become a common forum and a milestone in bringing South Asian society together as a single body of humanity despite its religious, political, cultural or ideological differences.
Of course, there would be enormous challenges in establishing such a subregional human rights mechanism in South Asia because of the legal and geo-political hurdles. The politics of the subregion continue to be affected heavily by continuing tensions in Indo- Pakistani relations. There are highly contentious issues, too, in South Asia – water, migrant workers, human trafficking, minority and indigenous communities, refugees, border disputes, etc. These would need to be settled through bilateral and multi-lateral mechanisms. If the SAARC member-states fail to address these matters the very future of the region will be bleak indeed. Political trans- border commitments are essential. Now, indeed, is the time to create a SAARC Charter on Human Rights in treaty form. This would be a consensus document, and it would be the primary focus of all SAARC member-states. This is essential.
The present-day diversity of South Asia demands that it shows great determination in searching for an identity based on parallel visions.  To be successful, it will have to rely on political logic and not on sentimentalism and rhetoric. Effective cooperation between all stakeholders, including non- governmental organizations and civil society, is essential. The latter may loudly call for the promotion and protection of human rights, but how far have their calls succeeded in achieving cooperation and integration? Subregional co- operation over human rights needs to be backed by strong political will and commitment by SAARC member-states as they seek to develop a strong South Asian identity.
Finally, SAARC lacks not only political democracy but also the democratization of social relations - indeed, a democratic culture itself. The roots of democracy in South Asia lack depth. Where is the political sincerity? Where is the commitment? Where is the political culture? Where is the culture of human rights? Most importantly, in South Asian politics all resources, including the economy, have for centuries been controlled by a few political elites (or dynasties) leaving the grassroots bereft of feelings for government or state. Abject poverty, malnutrition, illiteracy and gender inequality sadly ravage the lives of vast numbers of the people. In the absence of the right political atmosphere no economic, political or social integration is feasible. This is why the basic norms and values of human rights, guaranteed by international human rights covenants and national constitutions, have to be a guiding force for economic, social, developmental and political cooperation.
A single human rights mechanism for South Asia could eventually create the dynamic for pulling the whole subregion together.  The process could provide a great opportunity to shape a new subregional identity. Since human rights violations occur often at a very local level, e.g., at a local police station, within local industry, and even at the kitchen table, the impetus for change must come internally from within the population. However, questions remain. Can South Asia really gear itself for effective subregional human rights cooperation? Can political interests become sufficiently harmonized in order to promote cooperative trust and mutual confidence throughout the region? Are politicians ready to change their attitude? Establishing a subregional human rights mechanism should be viewed as a vital departure point for all SAARC agendas; indeed, it needs urgently to become the alpha and omega of all SAARC’s future plans, programs and cooperation.

Gyan Basnet, who holds a PhD and LLM degree in International Human Rights Law at Lancaster University, U.K., is a Columnist, Lecturer & Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal. E-mail: gyanbasnet@aol.com.

Endnote

1. "The case for a SAARC regional human rights mechanism": Statement by the United Nations High Commissioner for Human Rights, United Nations Office of the High Commissioner for Human Rights, www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11639&LangID=E.
2. The full text of the SAARC Charter is available at http://saarc-sec.org/saarc-charter/5/.


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