Recently, the Asian Forum for Human Rights and Development called for an independent regional human rights body in the neighbourhood. Will South Asia adopt a regional human rights oversight mechanism? It remains one of the few regions in the world to not have a regional human rights treaty. In sharp contrast, regional human rights documents have been adopted in Europe, the Americas, Africa, Southeast Asia and West Asia.
Most South Asian countries also do not allow citizens to approach the United Nations human rights treaty bodies. For example, only Nepal and Sri Lanka are state parties to the First Optional Protocol of the International Covenant on Civil and Political Rights, which allows their citizens to approach the UN Human Rights Committee for redress and reparations.
The South Asian Association for Regional Cooperation is currently paralysed due to India’s boycott of the SAARC summit, the fall of Afghanistan to the Taliban and an internal embargo on the formation of new SAARC committees.
SAARC held its first summit in Bangladesh in 1985. The purpose of SAARC was to foster regional cooperation. The most well-known success of SAARC are its summits of governmental leaders, which were once held annually and then biannually, followed by the current prolonged paralysis.
The leaders of the neighbourhood’s perennial arch-rivals – India and Pakistan – would have a chance to get together during these summits and exchange handshakes. There would be lots of pleasantries and small talk.
SAARC Summits are occasions of pomp and pageantry, rich with symbolism and displays of cultural soft power. But has SAARC made much headway in terms of substance? Across the world, regional organisations have embarked on using public international law to improve the lives of millions of people, defend freedom and justice and promote intra-regional trade.
South Asia remains one of the least integrated regions in the world in terms of trade. SAARC has not even managed to foster cooperation in areas of non-traditional security like disaster management and weather forecasting.
In 2010, when all SAARC countries were being ruled by democratically-elected governments for the first time in history, Bangladesh proposed a SAARC Charter of Democracy. But the proposed text miserably fell short of universal standards of democratic governance. This brief spell with liberal democracy across the neighbourhood eventually evaporated.
Prime Minister Sheikh Hasina has been stressing the need to end poverty in South Asia. Ending poverty entails upholding human rights and dignity. The grave deterioration of human rights across South Asia in the last decade has seen national judiciaries struggling to keep up with the free fall. Indeed, the independence of judiciaries is under strain across South Asia.
In this context, it is important to relay to the public the potential for a regional human rights system. The key element of a regional human rights system is that when all legal avenues within a country are exhausted, then an aggrieved person may approach a regional human rights body for redress.
For example, after losing an appeal in the highest court of the country, the person may approach a regional human rights court. Alternatively, if a case is not investigated properly or stuck in a limbo, the aggrieved person may approach a regional human rights body for a quasi-judicial review.
Europe boasts of the European Convention on Human Rights under the Council of Europe. The convention was pioneered by British Conservatives in the aftermath of the Second World War.
Many countries in the Americas are state parties to the American Convention on Human Rights.
The African Union has the African Charter on Human and Peoples’ Rights. It is unique for its notion of peoples’ rights, which refer to collective environmental, economic, social and cultural rights.
The Arab League adopted a Charter on Human Rights in 2004. The ASEAN Human Rights Declaration was adopted in 2012.
The existing regional human rights courts include the European Court of Human Rights that is responsible for upholding the Council of Europe convention, the African Court of Human and Peoples’ Rights that is responsible for upholding the African Union human rights charter and the Inter-American Court of Human Rights that is responsible for upholding the human rights charter of the Americas.
A regional court of final appeal can have a broad mandate beyond human rights and cover issues of policy or other legal fields. The European Union has the European Court of Justice and the Caribbean Community has the Caribbean Court of Justice. A regional court can prove useful to SAARC. For example, the SAARC convention on mutual legal assistance in criminal matters can be enforced through a regional court.
These courts may adjudicate in disputes between an individual and a state or in interstate disputes.
Another model can be to follow the system of UN human rights treaty bodies. An aggrieved citizen can approach these committees and ask for a determination on whether a state party violated a UN human rights treaty. A determination can result in reparations. Several cases from South Asia have been heard before these committees, including Bhandari from Nepal and Peiris from Sri Lanka. This system can prove useful in the absence of a regional court of final appeal.
The most lacklustre model is to have a regional commission vet a case before allowing it to proceed to a court. This is the case with the Inter-American Commission on Human Rights, which scrutinizes cases before permitting hearings in the Inter-American court. An African commission also exists.
The experience of national human rights commissions in South Asia should tell us that such commissions often serve governments that want to brush up their human rights credentials without taking substantive action. Nevertheless, national commissions are vital institutions.
In all likelihood, a regional human rights system is a pipe dream in the current geopolitical context. South Asia desperately needs leadership that recognises the unfolding human rights crisis in the neighbourhood. Governments need to call out human rights abuses and take concrete steps to meet international obligations within their own boundaries.
Umran Chowdhury works in the legal field.
This article first appeared in Dhaka Tribune.