A Southasian Charter of Human Rights

At one point, the creation of SAARC was viewed with both optimism and anticipation, for two reasons. First, the organisation provided a forum in which member countries, who otherwise could barely tolerate each other, could thrash out their problems with some degree of civility. Second, SAARC also offered a historic opportunity to members, inasmuch as they could together chalk out strategies to neutralise, if not dissipate, harm being caused by the multiple ills that stalk the lives of the peoples of the Subcontinent. But the Association's achievements have been modest. Why SAARC has not been able to tap potentials that other regional organisations have exploited makes for interesting speculation, but it is more relevant to reflect on the direction in which SAARC should now plot its course.

When concerned inhabitants of Southasia begin to think about how SAARC can be rescued from its self-inflicted status as a 'talking shop', there can be only one answer. The region in which we live ranks high on the global conflict index, and low on the global development index. In both circumstances, the human rights of those who live in the region are seriously compromised. The logic of human-rights thinking is that governments must redress violations of these rights, punish the wrongdoer and compensate victims. But when governments are hijacked by military elites, and are reduced to catering for self-serving interests, who do the citizens approach? When governments are complicit in the massacre of their own people, especially minorities, to which institution should these groups appeal? When elected democracies cannot provide their own citizens with the basic prerequisites of a decent life, which organisation will step in and do so? The problem is not only that Southasians' human rights are systemically infringed upon; the issue is also that governments often mastermind these serious violations, or at least turn a blind eye to them.

It follows that national governments – preoccupied more with holding their territories together, and less with ensuring their people's basic rights – cannot be solely entrusted with the legislation of, implementation of, or rectification of violations of, assurances of human rights. For this reason, most regions around the world, from Sub-Saharan Africa to Europe, have accomplished two things: they have set up human-rights-focused charters, and have established regional courts to monitor the implementation of these charters. These agreements are legislated within the scope of the Universal Declaration of Human Rights, but they have an additional function of specifying rights that are relevant for the unique situation within the region. The courts have the power to ensure that individual constitutions include provisions mandated in the Charter, and to monitor human-rights records.

Scandalous deficiency
Southasia is the only declared region of the world not to have adopted such a Charter, despite multiple initiatives. This is scandalous, if for no other reason than the fact that the region is marked by the most serious of human-rights violations. Since governments refuse to do much about these violations, ordinary citizens must be allowed an authority to which to appeal beyond their own governments. What we urgently need is the enactment of a Charter of Southasian Human Rights, as well as a Southasian Court of Human Rights, charged with enforcing region-wide human-rights obligations. The court will have the status of a supranational body, which has the power to review the laws of a member state, to neutralise any legislation that conflicts with the Charter, to enforce strictures against any government that violates the human rights of its people, and to rectify injustices. Eminent jurists who command confidence across the region would be appointed to the court.

But why, the question could arise, should citizens of democratic countries opt for an unaccountable supranational organisation that would have power over an elected and accountable legislature? The first reason has to do with the imperfections of electoral democracy: majority rule. Majority rule is practical when it comes to making decisions, but it cannot be morally justified simply due to the fact that it violates the basic rights of a minority to its voice. And, when the minority happens to belong to an ethnic group, it inevitably becomes a permanent minority. The subsequent systemic injustice paves the way for politically explosive situations. If minorities were able to appeal to a court that stood above individual countries, the risk of civil war, which threatens the life and livelihood of hundreds of thousands of people, could be minimised.

Second, if a regional court were to uphold the provisions of an agreement that coded basic human rights, from the right to liberty to the right to political participation, the repeated bouts of military rule that bedevil much of the region could be pre-empted. The Charter would simply outlaw any government other than that which is periodically elected by the people, and which is accountable to them. Third, victims of human-rights violations would be empowered to appeal to the court for redressal of their rights. Individuals have a basic right to justice; if their own governments do not give them justice, they need to be allowed to approach a higher power to do so.

For too long, the people of Southasia have lived with imperfectly democratic states, or with rankly undemocratic states. But SAARC has shied away from discussing human rights. For that reason alone, the Association fails to make an impact on lives of ordinary Southasian citizens. The organisation is simply irrelevant. As such, in the current context, SAARC needs either to seriously take up the task of mandating a Human Rights Charter and Court, or to close up shop. We do not need more talking; we need immediate official cognisance of the basic human rights of Southasians – and on a region-wide level. National governments can no longer hide behind the fig leaf of national sovereignty, because today violations of basic human rights spill over the jurisdiction of 'sovereign' governments, and have become a cause for universal concern. A regional court focused on human rights has become our right as inhabitants of the region called Southasia.

~ Neera Chandhoke is professor of political science at the University of Delhi, and Director of its Developing Countries Research Centre.