– By Anjuman Ara Begum, South Asia Programme Officer, and Mukunda Kattel, Director, FORUM-ASIA –
The 20th century has witnessed an upsurge of self-determination movements across South Asia, replacing repressive colonial rule with democracy and written constitutions that promise the rule of law. However, the process of human rights standard setting and its enforcement remains poor domestically as well as regionally.
Even though some fundamental human rights instruments have been established in the last years, there is still a lack of actual implementation of these guidelines. Facing this fragmentary environment of human rights standards setting in the region, the establishment of a regional human rights mechanism in South Asia is highly significant. The Regional Initiative for a South Asia Human Rights Mechanism (RISAHRM) serves as an important facilitator in this process by providing a platform to bring together individuals, civil society organisations (CSOs) and people’s movements from across the region for the goal of establishing a regional mechanism for the protection and promotion of human rights.
The lack of progress in human rights standard setting and its enforcement in the region has made violations a common feature, including: extra-judicial killings; disappearances; torture; and gender- and caste-based atrocities. Those responsible for such atrocities are rarely investigated and hardly held to account. This makes South Asia a region with an institutionalised culture of impunity. Poverty, socially and culturally sanctioned inequalities, terrorism and militarisation add badly to this culture.
‘What we have in common in this region is a history of sufferings and injustices.’ This single sentence of Harsh Mander, a noted Indian social activist, aptly sums up the situation of human rights and justice in South Asia today.
In 1985, the South Asian Association for Regional Cooperation (SAARC) was established with a view to promote peace and stability in the region. To achieve this lofty goal would mean to repair the history Harsh has noted above. However, thirty years down the road, the situation in the region has not become any better.
This is not to say, however, nothing has happened over the years. Some useful human rights instruments have been adopted. The development and ratification of the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002), the Convention on the Promotion of Child Welfare in South Asia (2002), the Social Charter (2004) and the Charter on Democracy (2011) by several countries in the region are testaments to this.
However, these instruments only exist on paper. No mechanisms have been developed to oversee their implementation, which indicates the urgency of a regional human rights mechanism. In its absence, the promises of SAARC continue to remain hollow.
Hosting over one fourth of the world population, South Asia is home to some of the world’s most ancient civilisations, cultures, religions and languages. The people share historical ties and socio- cultural similarities in many ways. Yet, they remain disconnected and thus are deprived of exploiting the wisdom, which emanates from their civilisational richness, to benefit each other.
All States of the region – Afghanistan, Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka – have some form of domestic institutions to deal with human rights within their borders. All States are parties to almost all core international human rights instruments, barring Bhutan, which is only party to the conventions related to the rights of the child and women. All States also have constitutional and legislative remedies of one kind or another against human rights violations. However, all States have fallen short in the applications of these institutions, instruments, and remedies.
International human rights instruments provide for the equal protection and promotion of human rights to everyone without bias or favour. These instruments should be implemented at the domestic level, through appropriate domestic arrangements, for concrete outcomes. Actual protection and promotion of human rights thus depends on the ability and willingness of national Governments to implement the international standards. It is here the problem occurs. Human rights do rarely draw a national priority, less so in areas where people, the rights holders, are not able to assert themselves effectively and national Governments are adept at finding this or that excuse to justify why human rights are not their priorities.
South Asia is such a region. Dr Sima Samar, a noted human rights activist and the Chair of the Afghan Independent Human Rights Commission sees the need for a regional mechanism from a geopolitical perspective as well: ‘To promote human rights requires the Governments to work together, to collaborate and complement each other. But this rarely happens in our region as our Governments have problems with each other. A specific mechanism is thus necessary to bring them together and engage them in human rights standard setting and implementation.’
Role and expectation of Regional Human Rights Mechanism
Human rights protection and promotion is the responsibility of national Governments. This responsibility arises from them being a member of the United Nations and party to international human rights instruments. Central to the State’s responsibility is to take every measure necessary – political, legal, economic and social – to create an environment for the protection and promotion of human rights of everyone. National courts and human rights institutions closely monitor the implementation of the human rights responsibility of the State, and provide protection and redress in the event of a denial and violation. They do so by drawing authority and guidance from international human rights law.
Human rights standard setting and implementation follow an inverse order. While the process of standard setting follows a top-down order, the implementation of standards takes place bottom-up. The standards set at the international level are implemented in a country context. This means the implementation is largely a domestic business and is contingent upon the will and capacity of a State. It is therefore not surprising to see a huge gap between rhetoric (standards on paper) and reality (implementation on the ground) as they exist in a completely different context. The gap between standard setting and implementation also exists in absence of a mechanism needed to monitor the implementation of the standard, follow up progress, detect areas of improvement and initiate remedial actions where necessary.
A regional human rights mechanism becomes crucial here: to bridge the gap between the national and the international both in terms of standard setting and implementation. They provide an additional layer of human rights protection as a mediator between international treaty obligations and domestic implementation, including development of national laws and policies in line with the spirit of international standards.
Governments should have a strong incentive to promote and protect human rights within their region. It is proven that severe violations of people’s rights lead to internal conflicts with numerous spill over effects on neighbouring countries, while greater protection enhances peace and security of all States involved.
This is also true in the everyday experience of those involved in human rights defence, as reverberated in the following expression of Henri Tiphagne, an Indian human rights activist and the current Chairperson of FORUM-ASIA:
‘From Afghanistan to Sri Lanka, people suffer violence and numerous atrocities, while perpetrators continue to enjoy impunity. It is too much. Without any further delay, the people and Governments of the region must come together to prevent any further escalation of violence. This is the only way we can ensure peace and stability in the region. And the regional mechanism that we are aspiring to establish can bind these together.’
South Asia is among a few regions in the world that do not have a regional human rights mechanism. Europe was the first to establish such a mechanism. The Americas constituted an InterAmerican system after the Europeans, although they had adopted a declaration enshrining the human rights of their peoples much earlier. The Arab League also has a human rights committee, constituted following the adoption of the Arab Charter on Human Rights, to take care of human rights issues of the region. In Asia, the Association of Southeast Asian Nations (ASEAN) has established the ASEAN Intergovernmental Commission on Human Rights (AICHR) to deal with human rights issues within the ASEAN community.
‘A regional mechanism can also 35 Excerpts from the presentation made in the “National Workshop on Regional Human Rights Mechanism,’ held in Delhi, India in August 2014 contribute to standard setting’, as Miloon Kothari, the founding Convenor of the Task Force of the Regional Iniative for a South Asia Human Rights Mechanism argues. ‘Such a mechanism’, he adds, ‘can also monitor recommendations flowing from the UN treaty bodies, and their implementations at the national level ’. This is a very important function of a regional human rights mechanism. Regional standard setting and close monitoring of the conduct of the international bodies can bridge the cultural divide that exists now vis-àvis human rights practices, which are alleged to be biased towards those who have a strong voice.
Life and work of RISAHRM
RISAHRM is a loose network of human rights defenders and experts in South Asia, committed to the protection and promotion of human rights in the region. As a network, it serves as a collaborative platform of individuals, CSOs and people’s movements from across the region, and mobilises them in actions to achieve a regional outcome, which is the establishment of a regional human rights mechanism.
‘RISAHRM has a single aim’, says Subodh Pyakurel, Co-Convenor of the Task Force on RISAHRM and former Chair of FORUM-ASIA.
‘It is to establish a South Asian human rights mechanism that brings together national processes and regional aspirations. Human rights institutions exist in all South Asian countries, one way or another. All the countries have national laws protecting human rights. All, except Bhutan, also have national human rights institutions with mandates to promote those rights. However, the countries differ starkly in terms of the record of performance, with each having a poor record. A regional mechanism is needed to establish a regional bar of performance, which every state should reach at the very least. This is the aspiration we are working towards. To achieve the aspiration we collaborate with all concerned, both state and nonstate, with the highest spirit of inclusion and engagement.’
RISAHRM was established in July 2012 as the culmination of a long process that began much earlier. In 2010, the First Sub-Regional Workshop on South Asia Human Rights Mechanism was organised in Kathmandu, Nepal to initiate a focused discussion on the regional mechanism. It critically reviewed human rights problems and challenges faced by the people of the region, and concluded that the challenges could be addressed only by strengthening regional solidarity and cooperation through a regional human rights mechanism. One of the key features of the workshop was the strong call that South Asia should not remain isolated from the rest of the world.
To fine-tune and firm up the ideas explored in the first sub-regional workshop, the Second Sub-Regional Workshop was held in Kathmandu in July 2011. This second workshop saw the formation of a working group of human rights experts from the region to continue the process, with Miloon Kothari from India as the coordinator. A year later, in July 2012, the working group met in New Delhi and formed a broad network of South Asian human rights expert-defenders, which they named the Regional Initiative for a South Asia Human Rights Mechanism (RISAHRM). In the meeting it was also decided to constitute a Task Force to lead the network regionally, and form a working group to develop a Terms of Reference (ToR) with mandates, functions and modus operandi of the Task Force. Miloon Kothari was given the responsibility to draft the ToR in consultation with other colleagues in the region.
In August 2014, human rights leaders and experts from the region met in New Delhi. They discussed the draft ToR and formed the first Task Force of RISAHRM with Dr Sima Samar (Afghanistan) as the Convener and Subodh Pyakurel (Nepal) as the Co-Convener; and, Dr Mizanur Rahaman (Bangladesh), Dr Rinchen Chophel (Bhutan), Miloon Kothari (India), Dr Ibrahim Ismail (the Maldives) and Hina Jilani (Pakistan) as members. Nimalka Fernando (Sri Lanka) came on board in March 2015.
Key milestones and challenges
Over the last three and a half years, RISAHRM has established a basic institutional infrastructure to lead the campaign for the regional human rights mechanism both at regional and national levels. The Task Force leads the campaign at the regional level, while national committees have been formed to steer national processes under policy guidance of the Task Force. To speak in concrete terms, RISAHRM has achieved the following milestones over the last years:
• A regional Task Force, with representation from all countries of SAARC, has been formed to oversee the campaign at the regional level, and provide policy guidance to national campaigns and processes.
• A ToR has been adopted, which lays down mandates and operational procedures, including the provision of a Secretariat, for the Task Force.
• National Core Committees have been formed in Bangladesh, Bhutan, India and Nepal to propagate the idea of a regional mechanism and create a national momentum in favour of the mechanism at the national level.
• In the run-up to the 18th SAARC Summit (November 2014), intensive lobby and advocacy efforts were undertaken in favour of the mechanism. Although, the agenda of the mechanism could not be included in the formal business of the SAARC Summit due to geo-political dynamics of the region, many state representatives expressed their commitment to the mechanism, and assured their support. The People’s SAARC, that brought together some 2500 representatives from CSOs and people’s movements from the entire region, included in its ‘People’s SAARC 2014-Declaration’, specifically the call for the establishment of a ‘human rights charter and an effective and participatory human rights mechanism as an apex body to promote, protect and fulfil all rights for all people of the region in conformity with international human rights law.’
• A plan of action has been developed to: organise national workshops in the remaining countries of the region and form national core committees; update and/or develop awareness and education materials for public education and action; establish a separate website; and enhance collaborative engagement with SAARC.
Hina Jilani, an acclaimed lawyer and former special representative of the UN Secretary General on human rights defenders, compares RISAHRM with ‘a good canvas with an image of immense possibilities.’ These possibilities include the peoples of the region to be connected and mobilised drawing on their ‘commonality of concerns’ and the States coming together to respond to the common concerns of the people. The drawing of the image, as Hina has figuratively highlighted, is in fact the greatest achievement of RISAHRM to-date.
The challenge is to add life to the image. It requires the Task Force and the Core Committees to make reticent SAARC listen to the ‘commonality of concerns’ of the people and respond to those concerns. Making SAARC work is not a small undertaking. However, there is no choice but to engage and engage again until there is a response. The canvas cannot afford to remain dull.
Anjuman Ara Begum, South Asia Program Officer, FORUM-ASIA
Anjuman Ara Begum serves as South Asia Programme Officer at FORUM-ASIA office in Kathmandu, Nepal. Anjuman holds a Ph.D in Law from Gauhati University, India. Before joining FORUM-ASIA in August 2015, she served as Steering Committee Member of Women in Governance India and worked as Program Officer-India Desk, at Asian Legal Resource Centre in Hong Kong and Public Affairs Liaison Officer at Cordaid, India.
Mukunda Kattel, Director, FORUMASIA
Mukunda Kattel serves as the Director of FORUM-ASIA since July 2014. Mukunda has been working in the human rights field since 1995. Before joining FORUMASIA, Mukunda worked as Impunity, Human Rights and Justice Adviser and Senior Adviser, Human Rights Organisations Component for Danida HUGOU and as Programme Manager for Rural Reconstruction Nepal. Beyond the promotion and protection of human rights, Mukunda focuses on constructive conflict-handling, post-conflict peace building and capacity building of civil society organisations and national human rights institutions. Mukunda is currently working on his Ph.D.