Published in The Hindu on Sep. 15 by Garimella Subramanium ::
The lack of a common human rights mechanism for South Asia must be regarded an anomaly considering that each member country forswears a commitment to democracy and the law
From Kathmandu to Kabul and Dhaka to Delhi, there is growing recognition that regional cooperation in South Asia would remain incomplete unless a culture of respect for the basic rights and fundamental freedoms of the region’s peoples is fostered through legal guarantees and effective enforcement. The South Asian Association for Regional Cooperation (SAARC) countries meeting in November in Nepal should take a hard look at infusing vigour and vitality into this inter-governmental forum
There are already several civil society initiatives which emphasise the linkages between peace and democracy, such as the South Asia Forum for Human Rights (SAFHR) and the Pakistan-India Peoples’ Forum for Peace and Democracy (PIPFPD). But across national borders, lawyers, activists and the intelligentsia are making common cause for the establishment of a formal regional human rights body, on the lines of similar institutions in existence in other parts of the world
The latest expression of the need for a cross-country formal body is evident in the Delhi Declaration issued at the end of the recent national consultation under the aegis of the Regional Initiative for a South Asia Human Rights Mechanism (RISAHRM). More than 100 participants drawn from among neighbouring countries and 20 Indian States proclaimed, “We resolve to work towards … a comprehensive inter-state human rights mechanism.” The declaration further goes on to affirm, “We the people of South Asia dedicate ourselves in the immediate and interim to the establishment of a credible, People’s/Citizens South Asia Human Rights Council.
Similar in spirit was the Lahore Declaration in June 2014. It called upon the governments of SAARC to include in the agenda of the November 2014 Kathmandu Summit a discussion on an inter-state rights mechanism. The articulation of support for a regional institution since 2010 onwards has received strong backing from the RISAHRM and the Asian Forum for Human Rights and Development.
In its nearly three-decade history, efforts to foreground the principles of human rights in the SAARC discourse have been marginal. There have, however, been noteworthy departures in the right direction. These are the two SAARC Conventions of 2002 — to combat trafficking in women and children and to strengthen regional mechanisms to promote the welfare of children. The adoption of a social charter in 2004 echoes a broader commitment to advance the socio-economic conditions of the populations in the region. The 2011 SAARC Charter of Democracy aims to counter the threat of military takeovers that has remained a blot on the region. Together, these steps — although at best pious pronouncements — are an acknowledgement of the many formidable common challenges that hamper peace and prosperity among the people of South Asia, who make up nearly a quarter of the global population.
Addressing the anomaly
The absence of a common human rights mechanism for South Asia must be regarded a serious anomaly considering that each of the seven countries forswear a commitment to democracy and the rule of law. All the states of South Asia have ratified the two main United Nations covenants on civil, political, economic and social rights besides the 1948 Universal Declaration of Human Rights. Significantly, with the exception of Pakistan, all the other countries of the region have functioning, legally established human rights institutions with quasi-judicial authority to investigate, if not punish, violations.
The ASEAN Intergovernmental Commission on Human Rights (AICHR) is the latest among several regional mechanisms, although its mandate is merely advisory and to promote public awareness on critical issues.
The 2004 Arab Charter on Human Rights, for the Arab League, is enforced by an elected committee of independent experts, which is empowered to scrutinise periodic reports submitted by member states. The Arab Summit in 2013 even agreed in principle to establish an Arab court on human rights. The Organization of African Unity (OAU), now the African Union, in 1981, adopted the African Charter on Human and Peoples’ Rights which led to the establishment of the African Court, with jurisdiction over the member states.
A more robust framework to monitor and enforce human rights obtains in the American states and in the European continent. The Inter-American Commission on Human Rights adopted the 1969 American Convention on Human Rights, which is enforced by the Inter-American Court of Human Rights. The Council of Europe, which is made up of all the European countries including Russia and Turkey, is arguably the most vibrant international body of its kind. The European Convention on Human Rights and Fundamental Freedoms is enforced by the Strasbourg-based European Court of Human Rights.
An opportunity in store
An important inference from the international experience is that the effectiveness of the enforcement of human rights is relative to the vastly dissimilar stages in the evolution of democratic institutions in different regions. Routine violations of individual liberties by repressive regimes, and the exploitation of natural wealth in Africa and the Americas overriding the interests of their populations, is stark evidence of the need to strengthen the monitoring and enforcement of democratic rights. The total absence of a regional mechanism in South Asia falls in an altogether separate category. The Kathmandu summit of the SAARC in November presents an opportunity to build on earlier initiatives that can potentially alter this scenario.
The consensus in the Delhi national consultation in August 2014 was for the establishment of a human rights mechanism within the overall framework of the SAARC. Apt was the reasoning and emphasis that lasting change could be brought about only through effective law enforcement, which was ultimately the responsibility of governments. The most passionate articulation of this position was from Hina Jilani, former United Nations Special Representative of the Secretary-General on human rights defenders and chair of the South Asians for Human Rights. Miloon Kothari, former U.N. Special Rapporteur on adequate housing and Sima Samar, Chairperson of the Afghan Independent Human Rights Commission (AIHRC) were no less emphatic on the responsibility of states to their peoples. That is all the more acute in respect of the leadership of the nuclear neighbours Pakistan and India, with the wounds of Partition and the subsequent wars still festering.