A concept note, prepared by the Working Group on Human Rights in India and the UN (WGHR), a Delhi-based advocacy group, for a workshop (August 26-27) on setting up a regional human rights mechanism for SAARC, says that though the region comprises over one-fourth of the world population, human rights violations have met with the stubborn view insisting on the principle of non-interference. Excerpts:
Despite the grave human rights challenges in all South Asian States, the South Asian Association for Regional Cooperation (SAARC) has shied away from adopting specific mechanisms to address these challenges. SAARC has, nevertheless, adopted various instruments and conventions touching upon several aspects of human rights. The objectives of SAARC as set out in its Charter are broad in scope, and can be interpreted as containing the organization’s commitments to various aspects of human rights. One of its objectives, “to provide all individuals the opportunity to live in dignity and to realize their full potential”, is a foundational pledge which implies preserving and protecting for their citizens the rights to health, education, adequate care and adequate standard of living, among others.
Additionally, the objective “to promote the welfare of the people of South Asia and to improve their quality of life” confers similar obligations to its member states. These rights, however, are not explicitly guaranteed by the SAARC Charter. Nevertheless, the SAARC Charter states in Article II that “[SAARC] cooperation shall not be a substitute for bilateral and multilateral cooperation but shall complement them”, and that “[SAARC] cooperation shall not be inconsistent with bilateral and multilateral obligations”.
Attitude towards human rights conventions
All SAARC members, with the exception of Bhutan, have signed and ratified (or acceded to) the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), two multilateral treaties at the core of the International Bill of Human Rights along with the Universal Declaration of Human Rights. Perhaps also compelling is the fact that all eight members are State Parties to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), as well as the Convention on the Rights of the Child (CRC). As such, the seven countries of SAARC have multilateral obligations to reinforce the rights stipulated in these two Covenants, which are basic human rights. What is more, according to the SAARC Charter, “cooperation shall not be inconsistent with bilateral and multilateral obligations.”
The SAARC States’ multilateral obligations as signatories to these United Nations treaties do not preclude benefits resulting from adding a regional dimension to their human rights commitments. Adding this regional dimension is arguably implied by the SAARC Charter’s principle that regional cooperation shall not be “inconsistent” with multilateral obligations, and even more strongly by the principle that regional cooperation shall “complement” multilateral obligations.
Complementing these obligations could include regional Conventions, such as the ones already passed on trafficking of women and children for prostitution and on child welfare, or it could take the form of human rights-centric charters such as the Social Charter and the Charter on Democracy. The most extensive way to add a regional dimension to these treaty obligations would be to form a SAARC human rights body.
Only region not to have human rights mechanism
While their efficacy can be debated, at present all regional organizations similar to SAARC – the ASEAN, the African Union (AU), the European Union (EU), the Organization of American States (OAS), the Caribbean Community (CARICOM) and the League of Arab States – all have a human rights body. SAARC is the only such regional organization to not have a human rights body or treaty for cooperation of its members on issues related to the International Covenants and other core international instruments on human rights.
With the Eleventh Summit in 2002, SAARC began to take steps toward the creation of a system of agreements and bodies that would make it more similar in scope to other regional organizations in terms of human rights, beginning with the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution and the Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia in 2002.
In the intervening period, SAARC has added the ambitious Social Charter 2004, which makes a number of commitments to strengthening economic, cultural, and social rights. Also, the Charter on Democracy, 2011 pledges a firm commitment to democracy and government by the people, and the Food Bank that will provide a safety net for the poorest people of South Asia who routinely suffer during times of humanitarian crisis. The latest addition to the roster is the Convention on Cooperation on Environment, 2010.
SAARC has demonstrated with the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, the Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia, the establishment of the Food Bank – along with the early attempts to increase regional awareness on issues like the environment, terrorism, narcotics, disabilities and tuberculosis prevention – that its members are willing to cooperate on issues of security, poverty, child rights and healthcare.
Hurdle of non-interference
However, as long as the two principles of non-interference and the exclusion of contentious issues are a part of the SAARC Charter, the regional organization will find it difficult to engage meaningfully on subject of human rights without contravening the terms of its Charter, and will not be able to take the next step as a human rights arbiter. Among the major human rights challenges in the region today, several revolve around civil and political rights where meaningful arbitration by a regional human rights body would require interfering in contentious issues in the internal affairs of a member state.
Annual SAARC summits have proved to be a platform where human rights have been discussed and recognized often. While many of the annual summit documents make a passing reference to human rights, in 1991 when the States met in Colombo for the 6th SAARC Summit they emphasized on the indivisibility and interdependence of human rights and particularly focused on development. At the 7th annual summit in Dhaka the need to provide a regional perspective to international discussions on human rights was pointed out. The member States have since reaffirmed their commitment to human rights in subsequent summits.
SAARC’s Colombo Declaration, 1991 said:
“In regard to human rights, the Heads of State or Government observed that civil and political rights on the one hand and economic and social rights on the other are inter-dependent and of equal importance Human rights issues should not therefore be viewed in narrow and exclusively political terms. In this context they underlined the need to view the efforts of States co guarantee human rights in their full context, through the pursuit of development for all citizens in conditions of stability, which in turn guarantees the enjoyment of human rights of all persons.”
SAARC’s Addu Declaration, 2011 said:
“Reaffirming their commitment to peace, confidence building, liberty, human dignity, democracy, mutual respect, good governance and human rights;
“Recognizing that the full enjoyment of fundamental rights by women and girls is an inalienable, integral and indivisible part of universal human rights and that gender-based violence and discriminatory practices constitute a violation of fundamental rights;
“Direct the convening of an Inter-governmental Expert Group Meeting to discuss the establishment of a regional mechanism to ensure empowerment of women and gender equality in the region, with focus on national legislations, including timely realization of the MDGs and SDGs.”
Pressure from civil society
The idea of a comprehensive regime or a regional mechanism to protect and promote human rights in South Asia was raised at the 16th SAARC Summit, Thimpu, 2010 after numerous attempts by regional human rights organizations to persuade SAARC to consider a South Asia human rights mechanism. Since the 2010 SAARC Summit in Bhutan, calls for a South Asian regional human rights mechanism have gained considerable momentum with a number of regional and national civil society organizations urging the SAARC to consider an effective human rights mechanism for South Asia.
Subsequently, in the Addu Declaration adopted at the 18th SAARC Summit in 2011, the SAARC countries agreed to “convene an Inter-Governmental Expert Group meeting to discuss the establishment of a regional mechanism to ensure empowerment of women and gender equality in the region” and “finalize the work on the elaboration of the SAARC Regional Convention on Preventing and Combating trafficking in Women and Children for Prostitution”.
Also, the South Asian Association For Regional Co-operation in Law (SAARCLAW) – an association of the legal communities of the SAARC countries comprising judges, lawyers, academicians, law teachers, public officers and a host of other law-related persons – duly registered with the SAARC Secretariat at Kathmandu and awarded the status of a Regional Apex Body Of SAARC, has also recently taken up issues relating to human rights.
The Thimpu Declaration, 2013 of SAARCLAW recognizes human rights as the core component of democracy and good governance and as a necessary ingredient for social and economic development and fostering peace and progress in the region. In the Seminar titled “Securing Access to Justice in the Enforcement of Human Rights”, SAARCLAW specifically discussed issues including access to disadvantaged, health, women, children and the disadvantages as well as the need for cooperation towards greater protection of human rights.