35 Review of Efforts to Establish a South Asian Human Rights Mechanism

Mallika Singh

epgp books

 

 

Introduction

South Asia is home to almost one-fourth of the world’s population and is comprised of the following countries: Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. The region faces a host of challenges that are common to all of these countries – poverty, terrorism, extremism, corruption and deficiencies in the democratic set-up, human rights of children, women and marginalized communities. Despite the fact that these countries have vastly divergent fundamental principles grounded in their constitutions, all South Asian states guarantee a number of fundamental rights, which are nevertheless not always enforced by state mechanisms such as the courts because of political expediency and social pressures. This is what necessitates the creation of a South Asian Mechanism for Human Rights that would be fair, independent and unfettered by the dictates of national ideologies and local pressures.

Asia, and South Asia by extension, is the only region in the world that does not have any region-wide human rights treaty or human rights mechanism directed towards the promotion and protection of human rights. In other regions of the world, this regional human rights mechanism takes the form of a regional human rights court and/or commission that attempts to provide redress when national courts or institutions are unwilling or unable to provide justice. There are a number of reasons offered in political and academic circles for this absence of a region-wide treaty mechanism: some believe that it is not realistic for South Asian states to agree on a human rights treaty for the region, considering that the political needs are exactly the opposite. Recent years have witnessed the tightening of laws, increased powers being given to the police to legally infringe civil rights under the pretext of counter-terrorism initiatives and the lack of judicial engagement with state impunity, among other problems. The conclusion has been that coherent ideas need to be formed and standards designated in political discourse among South Asian states before formal institutions for monitoring human rights issues can be setup, similar to the process that unfolded in Europe after the Second World War.

Since the 1960’s, there have been various initiatives that have been undertaken to set up a regional or sub-regional human rights mechanism in Asia. The focus of this module will specifically be on efforts taken so far to establish a human rights mechanism in the South Asian sub-region of the Asian continent.

Learning Outcomes

  • To review efforts to establish a South Asian human rights mechanism.
  • To get an overview of seminars held under the auspices of various regional institutions. To gain an understanding of the workings of SAARC and its regional implications.

A. United Nations initiatives

In the 1960s, the United Nations Commission on Human Rights set up a study group to look into the establishment of regional human rights mechanisms in all parts of the world. Pursuant to this, the UN Secretary-General was advised that the best way to promote the establishment of such mechanisms in various parts of the world was to organize regional seminars in those regions that have not yet adopted a regional commission to monitor human rights issues. In this regard, the UN General Assembly issued a series of resolutions aimed at setting up regional mechanisms for promoting and protecting human rights in various regions across the world, such as in resolution 32/127 of 1977:

“Appeals to states in areas where regional arrangements in the field of human rights do not yet exist to consider agreements with a view to the establishment within their respective regions of suitable regional machinery for the promotion and protection of human rights.”

In the South Asian region, the UN administered regional seminars took place in Colombo in 1982, Kathmandu in 1996, New Delhi in 1999 and Islamabad in 2003.

i. Colombo Seminar 1982

In 1982, the UN organized a seminar called “National, Local and Regional Arrangements for the Promotion and Protection of Human Rights in the Asian Region” in Colombo, Sri Lanka. Participants were from 19 states, regional organizations, non-government organizations (NGOs) and UN agencies. The conclusion reached by the participants stated – “the necessary political will, a prerequisite for evolving intergovernmental collaboration for the promotion of human rights, does not at present exist in the region.” The participants felt that it was premature to think of a regional arrangement but recommended that periodic regional and sub- regional meetings should be held on human rights issues.

ii. Kathmandu Workshop 1996

Just like the preceding workshops that took place in various Asian locations such as Colombo, Manila and Jakarta, the workshop in Kathmandu was focused on the long-term objective of setting up a regional human rights mechanism (either in the Asia-Pacific region as a whole or sub-regions like South Asia). The representatives of 30 states and nine NGOs attended. For the first time, states in West Asia, including Iran, Iraq, Jordan, Saudi Arabia, Syria, and United Arab Emirates, participated. The workshop discussed common principles and explored enabling strategies for the establishment of a regional arrangement.  Some of the main conclusions reached at this workshop included:

  1. “1. Any regional arrangement would need to be based on the needs, priorities and conditions prevailing in the region;
  2. The roles, functions and tasks of regional arrangements should be identified by the governments of the region;
  3. The diversities and complexities of the region would require extensive consultations among states in the region;
  4. The establishment of National Human Rights Institutions (NHRIs) by a number of Asian and Pacific countries was welcomed. States with existing NHRIs were encouraged to strengthen them as outlined in the Vienna Declaration and Programme of Action; and 

  5. The useful roles played by NGOs in the promotion and protection of human rights and their participation in the process of the development of regional arrangements.”

iii. New Delhi Workshop 1999

In the context of the UN efforts to establish a South Asian human rights mechanism, the New Delhi workshop was a turning point. The title of the Human Rights Commission’s annual resolutions changed from ‘Regional Arrangements for the Promotion and Protection of Human Rights in the Asia-Pacific Region’ to ‘Regional Co-operation for the Promotion and Protection of Human Rights in the Asia-Pacific Region’, as per Commission Resolution 1999/69 of 1999. The paradigm shifted from the original aim of the UN Workshops to set up ‘Regional Arrangements’ for a human rights mechanism to ‘Regional Co- operation’.

The participants of the workshops committed to taking step-by-step approaches to ensuring regional co-operation for the universal promotion of respect for human rights. They recognized the inter-relatedness of democracy, human rights and development. Additionally, the workshop affirmed the development of regional co-operation through the building of national capacities and exchange of experiences based on regional technical support of the UN Voluntary Fund for Technical Co-operation in the Field of Human Rights.

iv. Islamabad Workshop 2003

The eleventh UN Workshop was held in Islamabad, Pakistan. The workshop reviewed the progress in implementing the four pillars of the Tehran Framework (‘Framework for Regional Technical Co-operation in Asia Pacific’ adopted in the Tehran Workshop of 1998 had four aims – develop and strengthen national capacities, implement human rights education, establish national institutions for supervising human rights issues and develop strategies to implement the right to development and other economic, social and cultural rights). The Islamabad workshop also raised concerns about the limited resources available to the Office of the High Commissioner for Human Rights (OHCHR) to provide technical assistance on human rights issues and to protect and promote human rights in the Asian region. The workshop urged member states to support the human rights activities of the OHCHR in the region. The workshop highlighted the various human rights initiatives of the South Asian Association for Regional Co-operation (SAARC), for the strengthening and development of regional endeavours for the promotion and protection of human rights in the South Asian region.

B . South Asian Association for Regional Co-operation (SAARC)

SAARC is made up of Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka – the countries that largely comprise the region of South Asia. It was founded with the intention of promoting peace and stability in the region of South Asia while strictly adhering to the principles of the UN Charter, which has itself been the basis for the formation of many international human rights treaties. It has so far been reluctant in labeling many of its initiatives and treaties as ‘human rights’ related treaties. However, the President of Maldives stated during the 13th SAARC Summit in 2005 that:

“It is time that an autonomous SAARC Centre for Human Rights, based on civil society, is established. Such a Commission could promote international standards, facilitate cooperation among lawyers and jurists, and share expertise and resources in the advocacy of human rights and democracy in the region.”

SAARC has a cooperative approach of focusing on treaties linked with specific human rights issues. In 2002, it adopted two treaties related to human rights: the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution and the SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia. In 2004, SAARC adopted the SAARC Social Charter which impacts on many economic, social and cultural rights and include commitments to eradicate poverty, improve health services, foster educational access, and promote the status of women and children, population stabilization and drug addiction rehabilitation. Under the Charter, members set up national coordination committees through an integrated programme of action where core areas of co-operation are identified.

Additionally, the outcome document of the SAARC Summit in 2011, known as the Addu Declaration of 2011, and the Thimpu Declaration, adopted in 2013 by SAARC Law (a Regional Apex Body of SAARC), accorded official recognition to human rights as the core component of democracy and good governance and as a necessary ingredient for social and economic development in the region.

Despite positive steps in this direction, SAARC has not moved to establish an all-encompassing South Asian human rights mechanism.

C. Civil society initiatives

i. South Asian Centre for Human Rights

The South Asian Centre for Human Rights has given some thought to the idea of establishing a regional human rights mechanism. It has noted the common patterns among the issues faced by South Asian countries in the field of human rights – powers of security forces and the need to reform the laws that govern them, lack of active judicial engagement with state impunity and human rights violations etc. In light of these issues, the Centre engages with concerns of many South Asian countries regarding the hegemonic nature of the international human rights regime by arguing for the contextualization of human rights in the South Asian context, in order to increase their cross-cultural appeal and applicability in the region. It has made two broad recommendations: first, that SAARC countries establish a ‘Working Group of Eminent Persons of South Asia’ to explore the possibility of drafting a South Asia Human Rights Convention with full participation of civil society groups; second, that the National Human Rights Institutions in various South Asian countries collaborate to establish such a Convention.

ii. Asian Forum for Human Rights and Development (FORUM-ASIA)

FORUM-ASIA has been actively involved in the civil society advocacy for the establishment of the ASEAN Intergovernmental Commission on Human Rights (AICHR) and has been also working with its member organizations, networks, partners and coalitions to push the strong advocacy for the regional mechanism in South Asia.

In March 2010, FORUM-ASIA in collaboration with INSEC-Nepal had organized the First Sub-Regional Workshop on Regional Human Rights Mechanism for South Asia in Kathmandu. The outcome document was the Kathmandu Declaration 2010 that incorporated a strong call to the South Asian governments to establish regional human rights mechanism in South Asia and establish National Human Rights Institutions (NHRIs) in Pakistan and Bhutan. A delegation had also met with the Prime Minister of the Government of Nepal and requested him to push the agenda of a regional mechanism in South Asia in the 16th SAARC Summit in Bhutan and other forums.

The workshop in Kathmandu spawned a number of such other workshops and seminars. As an immediate follow-up to the Kathmandu workshop, a half-day workshop was conducted at the premises of ‘People’s SAARC’ at the Indian Social Institute, New Delhi on 21 April 2010 to broaden, strengthen and consolidate efforts in building sub-regional campaigns on the establishment of a human rights body for South Asia. Similarly, a seminar on “The Need for Inter-Governmental Human Rights Mechanism in South Asia” was organized in collaboration with the Sustainable Development Policy Institute (SDPI) in November 2010 in Islamabad.

The Second Sub-Regional Workshop on a Human Rights Mechanism in South Asia was held in Kathmandu in July 2011 and saw the attendance of various luminaries. Ms. Hina Jilani, former Special Rapporteur of the UN Secretary-General on Human Rights Defenders and Chair of the South Asians for Human Rights (SAHR), delivering keynote remarks, expressed grave concern about the deteriorating human rights situation due to anti-terrorism measures adopted in South Asian countries. She further pointed out the lack of rule of law in various countries of South Asian region. Also delivering keynote remarks, former Assistant UN Secretary-General Mr. Kul Chandra Gautam pointed out that despite the national human rights mechanism being the most important and effective mechanism for recognition and respect of human rights, the regional mechanism can complement the national mechanism, especially in addressing cross border issues.

FORUM-ASIA also acts as the secretariat for the Regional Initiative for a South Asian Human Rights Mechanism (RISAHRM), a civil society forum that was created subsequent to the sub-regional consultations held in Kathmandu in 2010 and 2011. This forum is a collaborative platform of civil society and individuals from the region committed to the cause of furthering human rights and peace. The mission of the forum is to advocate for and help create an environment conducive for the establishment of a South Asia Human Rights Mechanism. As part of the ongoing advocacy, they organized a National Consultation Meeting in Dhaka in December 2012, where over 100 participants including civil society representatives, academia, journalists, students and other professionals took part in concluding a time-bound course of action for a group of experts to review various themes requiring action in South Asia. In 2014, the RISAHRM (in collaboration with other civil society groups) called for the promulgation of a SAARC Human Rights Charter. The same claims were reiterated in the Lahore Declaration of 2014.

iii. SAARC-affiliated civil society organizations

Civil society awareness of SAARC activities and its attempts to participate in and influence the SAARC process has also stepped up in recent years. A glance at the list of SAARC’s Apex Bodies and SAARC Recognized Bodies reveals that SAARC is more interested in working with technical civil society organizations than civil society organizations working on human rights and democratization. Still, groups such as the South Asian Free Media Association (SAFMA), South Asians for Human Rights (SAHR) and South Asia Forum for Human Rights (SAFHR) now try to lobby SAARC into addressing a wider range of human rights issues than it has in the past. The largest network of civil society groups working to push SAARC deeper into acting on human rights is People’s SAARC, a collective of people’s movements, rights groups and prominent members of civil society across South Asia with a Secretariat based in Kathmandu, where the SAARC Secretariat is located.

Summary

There are enormous challenges in establishing human rights mechanism in South Asia because of the legal and geo-political hurdles. The politics of South Asia have been affected heavily by the continuing tensions in Indo-Pakistan relations. Similarly, there are number of issues in South Asia – such as water, migrant workers, trafficking, minority and indigenous community, refugees and border disputes – which are also contentious issues which need to be settled through bilateral and multi-lateral mechanisms. Climate change and ecological degradation have become threats common to the region, not to mention the rest of the planet. SAARC has a regional agenda and mechanisms on development related matters, but it is high time for SAARC to have one focused agenda for a human rights mechanism. Regional human right organizations should continue pushing the agenda for regional human rights mechanisms in the national, regional and international forums through concerted effort, shared vision and common strategies.

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Reference

  • Surya Deuja, “Establishing a Robust Regional Human Rights Mechanism in South Asia”, Asian Human Rights Defender, Vol. 6, No. 1, 2010, p. 1.
  • Rainer Hoffman & Ugo Caruso (eds.), Minority Rights in South Asia (Peter Lang: 2011), p. 173.
  • Sou Chiam, “Reports from Regional Human Rights Mechanisms: Asia’s Experience in the Quest for a Regional Human Rights Mechanism”, University of Wellington Law Review, Vol. 40, 2009, pp. 127. UN General Assembly, Regional arrangements for the promotion and protection of human rights: resolution adopted by the General Assembly, 8 December 1988, A/RES/43/152.
  • Hidetoshi Hashimoto, The Prospects for a Regional Human Rights Mechanism in East Asia (Routledge, London, 2004).
  • Centre for Human Rights, United Nations Report on the Fourth Workshop on Regional Human Rights Arrangements in the Asian and Pacific Region (Kathmandu, 26-28 February 1996). SAARC Charter, available at < http://www.saarc-sec.org/SAARC-Charter/5/>.
  • Asian Centre for Human Rights, South Asia Human Rights Index 2008, (2008), available at < http://www.achrweb.org/reports/SAARC-2008.pdf>.
  • 17th SAARC Summit Declaration (November 14th, 2011), available at <http://www.saarc-sec.org/2011/11/14/news/ADDU-DECLARATION/79/>.
  • 18th SAARC Summit Declaration (27 November 2014), available at < http://www.saarc-sec.org/press-releases/18th-SAARC-Summit-Declaration/121/>.
  • Kathmandu Declaration: Outcome document of the First Sub-Regional Workshop on a South Asian Human Rights Mechanism, available at < http://forum-asia.org/documents/Kathmandu%20Declaration%202010.pdf>.
  • Dhaka Consensus: Regional Initiative for a South Asian Human Rights Mechanism, available at < https://www.forum-asia.org/?p=15651>.
  • Lahore Declaration, 2014, available at < https://www.forum-asia.org/?p=17324>.