The New Identity For The SAARC: Establishing A Regional Human Rights Mechanism

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With one-fifth of the world’s population the countries of South Asia face formidable challenges resulting from poverty, underdevelopment, and conflict within and among themselves. Their low levels of production, unemployment and population pressures are not helped by historic exploitation and other adverse legacies. In an historical, cultural, physical and linguistic sense, South Asia is an integrated region, but any commonality across nations has been made impossible by deep-rooted divisions and animosities across the whole region. The latter is hugely polarized, and it has to grapple with gross violations of human rights. Consequently, governments in the region lack the effective initiative and political commitment needed to meet their obligations to respect, protect and fulfil human rights and fundamental freedoms. Internal conflicts, civil strife, poverty and so-called state anti-terror legislation and measures have resulted in violations of the civil liberties of the people.

The South Asian Association for Regional Cooperation (SAARC) was established in 1985 with the objective of promoting regional cooperation between seven South Asian countries—Bangladesh, Bhutan, India, Nepal, the Maldives, Pakistan and Sri Lanka. Despite the extremely slow pace at which SAARC moves and its very limited achievements, the association did receive an increase in its membership when Afghanistan became the 8th member in 2007. However, the Association has from its very beginning been up against hard politics, mutual fear and a strong sense of rivalry between its two principle members, India and Pakistan. One reason for SAARC’s unimpressive progress is a lack of agreement among the member states on what should be the guiding force towards regionalism. SAARC has consequently been unable in any way to achieve its basic objective of promoting regional cooperation and solidarity. It is a disgrace that after nearly 30 years it has nothing to show and nothing to celebrate.

Even now SAARC is still trying to steady itself. It may not have made any great mark, but at least it has not been disbanded and it continues to function, albeit in a haphazard manner. Sadly, the presence of this regional organization has done nothing to remove historical irritants between members or to lower the levels of suspicion and distrust among neighbours. Disputes between member states have led to outright wars, low-intensity conflicts, cross-border terrorism, a debilitating arms race and some very hostile propaganda. SAARC has failed to prevent any of these and they in turn have held up SAARC’s progress.

Belonging to a regional forum for nearly 30 years has led to no shared values or norms and, despite some points of commonality in the past, the member states have been unable to map out a common future.

South Asia today is a black spot for the gross violation of human rights and civil liberties. The people of Bhutan have as yet seen no glimpse of democracy, and they are deprived of all kinds of freedoms under the rule of an assertive kingship. Pakistan enjoys a pseudo democracy. Nepal has been faced with a serious political crisis from more than a decade: it has no proper government, no constitution, a dead civil society and a puppet media. India, a so-called growing economy and the largest democracy on earth, faces political crises and internal instability from Kashmir to Assam. Kashmir is regarded as ‘a legal black hole’ in terms of human rights violations perpetrated by the armed forces. Most importantly, throughout the SAARC region, the poor are getting poorer and the rich richer: the gap between the two is widening further while the dynastic political elite and business people can enjoy whole states’ welfare facilities and opportunities. Why is this happening? Why there is so much that is unjust in this region? Is it not time for a radical rethink? Who is responsible? Is it not high time for the people of SAARC as a whole to seek common answers to common problems?

Despite a serious human rights crisis throughout much of the region, SAARC has not even given thought to adopting a specific, detailed and uniform human rights convention or charter despite the existence of these in all other major regions of the world. Is it not high time then for SAARC states to think seriously about it?

What is required is a widespread formal commitment to human rights across the whole region. This should take the form of bills of rights, the establishment of national human rights institutions, declarations by IGOs and the establishment of regional human rights regimes. The latter would be relatively independent but coherent human rights sub-regimes operated within the larger framework of international human rights practice. Examples of major regional mechanisms are the European human rights monitoring mechanism, the Inter-American system, and the African system. All these regional mechanisms have created, under their human rights charter, bodies such as a commission and a court of human rights. These have broad mandates to monitor human rights compliance by states parties, to receive reports from states, to receive complaints from individuals and states, to investigate and to order interim measures to prevent any escalation of human rights violations. They also provide appropriate reparations for victims by the violators, and they publish their findings and make recommendations to pressurise the state parties concerned.

Many questions need to be asked today: has SAARC achieved anything in nearly three decades of existence? Why, compared with other regions, are they so backward in terms of everything? In almost every other region there is some kind of regional human rights mechanism: since a fifth of the world’s population resides in the SAARC region, why have the SAARC nations never thought having one? Can a region so politically, socially and economically volatile afford to go on ignoring this issue?

Most importantly, can South Asia gear itself for real regional cooperation? Can national and regime interests become sufficiently harmonised in order to promote cooperative trust and mutual confidence among the power elites of the region? The very diversity of South Asia demands the gradual implementation of conceptual steps that build towards a distinct regional identity. One such conceptualisation could well be the establishment of a SAARC regional human rights mechanism.

Towards Setting up a South Asian Human Rights Mechanism

Many questions need to be asked: Why is a separate charter for the promotion of human rights so important for the SAARC region? What would it add to existing practices? SAARC countries have signed already several conventions on narcotics, trafficking in women and children for prostitution, promotion of child welfare, and there have been several agreements on food security and various social issues. However, there has been no regional agreement that specifically focuses on human rights and fundamental freedoms. A regional instrument would be regarded as an appropriate complement to the universal human rights instruments of the United Nations. Such regional human rights mechanisms are already established in the Americas, Europe, Africa and most recently the Arab States: the last major geographic area, therefore, without its own mechanism is the SAARC region. The Council of the League of Arab States adopted its own Arab Charter on Human Rights in 2004, and it has been in force since 2008. The Charter grants a number of human rights and fundamental freedoms to the people, and it 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.

Most SAARC countries have common problems concerning torture, trafficking, internal displacement due to conflict, refugees, rights over resources, urban shelter and demolition, domestic violation against women, the practice of the death penalty, and extra-judicial detention and forced disappearances. A few countries of SAARC have national human rights institutions. All SAARC countries have, or in the case of Nepal should soon have, a written constitution under which human rights are recognised as fundamental. Despite these provisions and initiatives, however, there is a deteriorating human rights situation in the region brought about by the anti-terrorism measures adopted in some South Asian countries, by internal political crises and civil strife and by the hostility of governments towards human rights despite their claims to be democratic. The SAARC region has suffered for centuries from the absence of a rule of law and constitutionalism and from a culture of impunity that affects almost all the countries. Is there not then an urgent need to formulate a regional human rights mechanism?

The 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). Moreover, Bhutan has still to ratify the ICCPR, the International Convention on Economic, Social and Cultural Rights (ICESCR), and the Convention against Torture. Even where treaties have been ratified, though, implementation has been restricted by the reservations of some countries that follow a narrow interpretation of treaties relating to civil and political rights, and by a limited political commitment to implement economic, social and cultural rights. An effective regional human rights mechanism would ensure the protection and promotion of human rights in the region especially common issues including the rights of migrant workers, human trafficking, minority rights, the right to development, and, most importantly, it would challenge the existing culture of impunity and lawlessness in the region. Such a mechanism could also provide a less costly, more accessible and effective redress alternative to existing international processes and procedures.

Not all SAARC nations are democratic and those that claim to be on the way to being so easily slide into authoritarianism as in the case of Bangladesh, Pakistan and Nepal. The prospect, therefore, of ideological homogeneity across the region would seem to be anything other than bright. With over sixty per cent of its population still forced to survive below the poverty line, how could this region even claim to be democratic? Moreover, how could it claim to have a fully-fledged democracy until human rights are protected and enshrined in the international covenants? The SAARC region faces serious challenges in consolidating democracy and strengthening and promoting human rights and the fundamental freedoms of its people. SAARC should now seriously consider establishing a regional human rights mechanism similar to those of the Inter-American or European Systems. The mechanism would certainly help states to promote and protect rights and freedoms effectively within their jurisdiction. It would ensure that international human rights laws were respected and promoted effectively throughout the SAARC nations. Moreover, such a mechanism could help people in the region to develop a common understanding of universal human rights issues, norms, values and perspectives.

By way of example, the Organization of American States governs human rights protection in the Americas. Both states and individuals can file cases and complaints. Under the American Convention on Human Rights, two bodies protect, promote and monitor human rights: a) The Inter-American Commission whose the primary function is to make a complaint to the Inter-American system whenever an American state is proved to have violated individual human rights; and b) The Inter-American Human Rights Court, which has jurisdiction over contentious cases mostly forwarded by the Commission. In 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 Second World War in response to a call issued by Europeans from all walks of life. 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 a case to the Court. Judgements confirming violations are binding on all.

To be credible and able to meet both the promotion and protection requirements effectively and practically, a future regional human rights mechanism for SAARC, based on a human rights charter, should have a minimum set of characteristics. These would include an ability to receive and decide upon individual and interstate complaints of human rights violations by the state party. It should have the potential to develop additional mechanisms such as special procedures and subsidiary bodies on thematic issues, working groups, etc. There would be a SAARC Human Rights Commission, with broad powers to investigate, make site visits, 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 permit reinforcement of the existing human rights framework and the overcoming of procedural and institutional weaknesses in domestic jurisdictions as well as in the international system. It would also help to overcome any lack of expertise or experience in human rights jurisprudence and to ensure effective implementation and enforcement of human rights norms and standards.

National human rights mechanisms are more important and effective in addressing local issues: the regional mechanism would play a complementary role, especially with regard to cross-border matters. The regional mechanism would also be a useful platform for South Asian countries to utilize opportunities under the United Nations’s Universal Periodic Review system, which monitors the human rights performance of all UN members. A future SAARC charter on human rights, similar that of the Inter-American system, would be a great breakthrough for the SAARC region.

A Human Rights Culture in the Region

Enough is enough – SAARC must no longer be a hostage of rival powers in the region. The South Asian states have been too reluctant to take forward the regional project in a manner that it deserves. The provisions of the SAARC Charter have been ignored. Regional cooperation remains at a very rudimentary stage, and there is little evidence of any desire to act regionally by building trust and avoiding force. Prominent Nepalese Professor Lok Raj Baral has argued: ‘So whatever commonalities and shared values exist in the region, they hardly matter for making SAARC more meaningful for the peoples of the region. Unless the South Asian regimes are reconstructed (and this is perhaps a challenging task for South Asian power elites who come from a variety of backgrounds) for transforming the nature of the region, SAARC cannot make headway.’ In the absence of the right political atmosphere no economic, political or social integration is feasible. Establishing a proper regional human rights mechanism could provide an alternative way of establishing a favourable political environment and of reconstructing the region politically, socially and economically.

Of course, there would be enormous challenges in establishing a regional human rights mechanism in South Asia because of the legal and geo-political hurdles. The politics of the South Asia continue to be affected heavily by the continuing tensions in Indo-Pakistan relations. There are contentious issues, too, in South Asia – such as water, migrant workers, trafficking, minority and indigenous communities, refugees and border disputes – which need to be settled through bilateral and multi-lateral mechanisms. If the SAARC countries fail to address these factors, its very future is bleak. Most importantly, political commitment, sincerity, and establishing a culture of human rights and the rule of law across borders are essential. Now is the time to create a SAARC Charter on Human Rights in treaty form, a consensus document. This must be the primary focus of all SAARC nations. It is essential. It needs to be the departure point for all SAARC agendas; it needs to be the alpha and omega for SAARC’s future plans, programmes and cooperation. The basic norms and values of human rights guaranteed by the international human rights covenants and national constitutions has to be the guiding force for any economic, social, developmental and political cooperation among the South Asian countries.

Human rights must also be the guiding force for South Asian politics and for its democratic processes. These values must be above partisan politics and above the narrow interests of one or two nations. It has to be the means to common goals and agendas. Establishing the proposed human rights institution to monitor, promote and consolidate human rights will bring the SAARC nations together to achieve common aims and ambitions towards peace and prosperity. The new future human rights body must be the common forum and a milestone to bring the South Asian society together as a single body of humanity regardless of religious, political, cultural or ideological differences. The essence of human rights has the power to mend all differences.

Dr. Gyan Basnet

Dr. Gyan Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Prominent 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. Email: [email protected]

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