View Points

The views included here were expressed as the key notes during the Second Sub-Regional Workshop on Human Rights Mechanism in South Asia jointly organized by Asian Forum for Human Rights and Development (FORUM-ASIA) and Informal Sector Service Center (INSEC) in Kathmandu, 25-26 July 2011. INFORMAL has published the edited views of distinguished personalities in this edition.

 

Hina Jilani,

Former Special Rapporteur on Human Rights Defenders

 

Asian states present a broad range in the level of democracy, economic development and social diversity. Several countries in the region have emerged or are in the process of transition from authoritarian rules, armed conflict or struggle for the right to self-determination. Many countries have adopted national constitution with strong guarantees for the protection of human rights. Several south Asian countries have become parties to the core international human rights instruments. National intuitions for the protection of human rights also exist in many of these states. With a few exceptions, most of the countries in the region have had periods of political stability during which credible elections were held. Yet, political and economic conditions in most of our countries remain volatile. Repeated and prolonged periods of political crisis and economic instability have restrained progress towards a stable environment in which respect for human rights finds the best guarantees. Some of these countries have visible signs for reversal of the initial advancement and are trapped in a perpetual state of transition. Consequently, prospects for peace and security in the region remain uncertain. Weakening of the rule of law has been observed in different countries of the region where insufficient, not genuinely representative democracies prevail, with little or no space for citizens� participation and without accountability or transparency.

 

Internal monitoring procedure and efficient control of public institutions are noticeably absent. Lack of independent judiciaries has resulted in denial of protection that is normally available under the constitutional framework. Exception to the rule of law, for example, through special legislation and security not only confer legitimacy on violations of human rights by the states but also weaken the ability of national judicial systems to protect people from arbitrary actions. The climate created in the wave of counter terrorism has created instability without assuring security. Anti-terrorism measures have been adopted in environments charged with political conflicts and in many cases under economic depression. Governments have frequently used the current climate to abuse the enhanced powers gained in the campaign against terrorism to target movements for self-determination, the peoples� rights to protest as well as the political opposition and those defending human rights. These measures are seriously undermining human rights on the one hand and on the other diminishing the respect for rule of law by raising the perception that the security imperatives justify deviation from recognized standards of due process and fair trial. Increased militarization of south Asian states is both impediment to development and as well as a threat to sustainable democracy.� Enhanced power of the military in order to deal with security situations has allowed encroachment upon political spaces.�Military presence still dominates the structure of authority and democratic culture becomes difficult to promote. That there is a marked link between severity of human rights violations and expanding role of the military in many countries of the region is now quite apparent.� While states have progressively enhanced their power of�� control the roles of the states in protection has diminished. Floors in the agendas of economic development pursued by many states in the region are amply reflected in the growing poverty and social exclusion of a large section of the population. Severe violations of economic, social and cultural rights have become a grave inaction of the states. Exploitation of labor and depletion of the environment are some of the serious forms of these violations. Internal displacement, eviction from land and other trends are affecting sustainable livelihood and feed into an already unsustainable environment that creates conflicts and political tension. In many countries, state policies have ceased to respond to peoples� needs and are formulated to accommodate the demands of powerful economic interest. Affected populations find that in the current environment of globalization their own governments are either unable or unwilling to redress the difficulties they confront.

 

Multinational cooperations and other non-state agents have acquired an enormous degree of control over the life and security of the people of this region. In many countries of the region stability rather than development has become an imperative to be achieved through the use of state force in order to repress popular movements and quell the voices of protest. Freedoms of movements and assembly and access to information are particularly affected and more risk is felt now in defending economic social and cultural rights. Such an act has resulted in increased public resentment against authorities.� They have also diminished the space for dialogues to reconcile economic policies with people�s rights to safe environment, control over their own resources and labor practices without exploitation.� Some other important trends in the region that have become the source of conflict and political tension arise from the politics of identity, greater difficulties in the management of pluralism and diversity, increasing poverty and diminishing role of the states in providing social security. The situation of women in many countries in the region is a particular concern. Their rights are violated in the name of religion and culture, and particularly vulnerable to prejudice, exclusion and public repudiation not only by state forces, but also by social actors. While most countries in the region have made some progress on initiative on children, comprehensive protection systems are still missing and child abuse and neglects remains a serious concern in all countries in the region.� One positive development in the region is the growing strength and capacity of civil societies. Strong and active regional collaboration has given support to the national efforts for the protection of rights. Networking not only has transferred capacity but also knowledge. A focus on human rights research has given an intellectual feedback to activism in the region and informed advocacy. Regional networking among the civil society organizations has shown good results in making visible the common trends in the region that result in weakening democracy, rule of law and respect for human rights. Several joint initiatives are being carried out that have impacted national situations and people to people engagement has visibly grown. It is in the backdrop of concerns and aspirations that civil societies in this region have been calling for a regional intergovernmental initiative for the promotion of freedom, justice and peace.

 

Neither democracy nor the rule of law can be safeguarded without embedding respect for human rights in every aspects of governance. This interest will therefore gain credibility only if it moves well beyond the proclamation of the charter of democracy and to establish mechanisms that oversee progress in developing national systems that deliver social justice and ensures accountability for failure to comply with the commitments made at this forum. Such a move forward requires that the legitimate pursuit of state to further the strategic interest in the regional context is well balanced by a perspective that places dignity and security of the people at the center of any strategic interest of the states. I say this because at the international level the disconnectedness of the human rights system of the UN from its political initiatives affects the potential of that organization to deliver peace and freedom.

 

The aims of SAARC, the Social Charter, and the Charter of Democracy cannot be realized without genuine engagement with the regional civil society that actually brings the peoples� dimensions to strategic interests. When states affirm their sovereignty, they must be fully conscious that they claim it in the name of the people. Sovereignty of the people is indefensible if violation of their dignity and freedom remain immune from accountability. An effective human rights mechanism in south Asia to supplement the national capacity is therefore a logical outcome of SAARC initiative on democracy, social justice and the rule of law. Expressions such as inclusive and participatory governance become meaningless phrases without the recognition of civil society as the part of the governance process and insuring space for it in any deliberation on the subject. Together, states and the civil societies in the region should move forward to create and achieve a vision of south Asia where peace and tolerance prevail and where institutions have the strength not only to guide human rights initiatives and respect for human rights but also to ensure that human rights for all is a realizable and practical reality in our life rather than just a dream.

Kulchandra Gautam

Former Assistant Secretary General of the UN

 

Recognition and respect of human rights and their universality are among the greatest markers of modern human civilization. Having rights only on paper is not enough. Mechanisms are needed for their effective implementation. In a world of sovereign states, the most important and effective mechanism are, of course, at the national level. But, as governments often trample on their peoples� rights often invoking sovereignty and national interests as their justification, some mechanisms are needed above and beyond the national level as well if the universality of human rights is to be genuinely guaranteed.

 

We have plethora of regional and sub-regional mechanisms. Europe, America and even Africa have complied with the call of the UN and they have set up regional mechanisms. But, curiously, Asia has lagged behind. We Asians are usually very quick to adopt new ideas and technologies but we have been so slow and reluctant to set up a regional human rights mechanism. Many authoritarian governments in Asia and some intellectuals as well tended to view human rights as a western concept. In the post-colonial period when it was fashionable to blame all our problems on the legacy of colonialism, some leaders insinuated that human rights were a wedge for imposing western hegemony on newly independent nations. During the cold war, the Soviet Union used to emphasize that the economic and social rights were much more important than civil and political rights. Many authoritarian Asian leaders sided with the Soviet Block on this issue as it gave them a perfect issue to trample on people�s civil liberties.

 

Some went to the extent of theorizing that human rights are somehow inconsistent with the so-called Asian values. Now, scholars like Amartya Sen have thoroughly debunked the Asian values argument. We have now moved on to accept the universality of human rights, at least in principle. But, there is still a certain lack of enthusiasm for robust human rights monitoring mechanisms among most Asian governments. This, I believe, is among the main reasons for slow progress in establishing any effective and credible regional human rights mechanism in the Asia pacific region. With a few exceptions, we find most Asian governments still are unenthusiastic about setting up a strong human rights monitoring and enforcement mechanism whether at the national level or regional or sub-regional level. It has, therefore, fallen on civil society organizations to champion for a strong human rights mechanism. Thanks largely to the persistence and perseverance of the civil society organizations, we now have regional mechanisms in ASEAN and in the Arab region. It is too bad that our sub-region, South Asia, continues to lag behind although many organizations in the region are pressing the case for a mechanism in the region.

 

In recent years, SAARC has taken some baby steps to strengthen human rights. The SAARC Convention on Child Protection and Against Trafficking were a good beginning. The SAARC social charter and Charter on Democracy provide additional building blocks for further strengthening this region�s commitment to human rights. I hope that the forthcoming SAARC Summit in the Maldives in November will be a milestone in finally setting up a South Asian mechanism for protection, promotion and fulfillment of human rights thus allowing us to hold our heads high that our region is not the last bastion to resistance to human rights.� We all agree that the most effective action for protecting and promoting human rights must take place at the national level. However, in south Asia, most of our national human rights institutions are still very weak. Having a regional mechanism would be beneficial as a complement to strengthen and reinforce the work of national human rights institutions. Moreover, there is a real value added in having a sub-regional mechanism to help tackle certain human rights issues that require cross-border and trans-boundary collaboration because, increasingly, human rights violators are getting very smart and cunning. They hide their tracks and avoid detection or prosecution by moving across national boundaries. A sub-regional mechanism would be particularly helpful in addressing issues such as as those concerning the human rights of refugees and displaced persons, victims of forced labor, human trafficking and migrant workers, which require cooperation at the regional level. Having a regional human rights body could help address and remedy some of the shortcomings of national human rights institutions and complementing existing international human rights mechanisms as well. While I was working at UNICEF for decades, I learnt from my own experience in other regions that such trans-national mechanisms can be greatly helpful in ensuring better protection of children�s rights including measure to protect them from hunger, diseases, malnutrition and lack of basic services.

 

Currently, SAARC has some instruments and mechanisms to deal with some trade and development related issues. It is high time for it to have more focused agendas on human rights with a robust institutional mechanism. To make this dream a reality, a concerted and consistent effort is needed from civil society organizations and other stakeholders both for the establishment of the SAARC level human rights mechanism and to ensure that such a mechanism, when established, follows the highest standards of international norms, transparency and integrity.

Jyoti Sanghera

Head of OHCHR-Nepal

 

The only region which doesn�t have regional human rights mechanism is the SAARC region. SAARC was established with an attempt to bridge gaps in the arena of human and economic development, however, it is yet to fulfill and address human rights protection and promotion. This sub region remains plagued by endemic levels of human rights deficit, deficit in the enjoyment of both civil and political rights as well as economic, social and cultural rights. We are aware of the scenario and sad stories of the region on human rights situation. So I am not going to go into the litany of the denial of rights captured by impunity, poverty, discrimination and inequality in this region.

 

Since decisions of the regional mechanisms are not legally binding, governments can ultimately choose to ignore the recommendations that are made. The role of civil society becomes critical to the efficacy of the commission in this connection. The human rights mechanisms of the region taken together are the part of the human rights system. The system helps national governments to better address the human rights concerns that cross national borders. For example, human rights abuses and violations that come from organized crime including terrorism and trafficking, migration, diseases and pandemics, economic development projects including dams, river diversion projects etc. food security and environmental issues such as pollution, toxic wastes constitute part of the deliberation of the regional human rights mechanism.

 

The South Asian states continue to be seriously thwarted by the security agendas. They are not yet ready; it seems, to adopt neither the ASEAN model of mutual respect, non-interference and consensus nor the European model of praxis of forging a regional cooperation by strengthening interdependence. Thus, the SAARC region and its governments oscillate between lacks of trust between each other.� The cold war within south Asia, it seems, has not been over yet. But, let�s not forget that it took some forty years for the formation of ASEAN and the adoption of the ASEAN Charter. In such a context the role of civil society and the national human rights institutions as prime movers and catalysts for setting up a regional human rights mechanism in the South Asian region become critical and crucial. And, there are, of course, some valuable lessons to be learnt from the neighborhood.

 

South Asian government�s initiatives have been somewhat slow, we have to admit it. It may be necessary to establish a track II process with a working group with key individuals who can engage effectively with the south Asian governments and these would necessarily come from the civil society as well as from Treaty Body Committee members and the independent experts from the region. Layers of shadow group may be needed to prepare the ground work at various levels.

 

All I would like to say is that OHCHR stands ready to support these processes in whichever way may be deemed necessary and provide support for the setting up of a regional mechanism for human rights in this sub-region.