Countries in South Asia consider human rights to be a ‘domestic’ matter and are averse to international scrutiny. This is not a uniquely South Asian phenomenon. However,  regional mechanisms in other parts of the world have been known to push the envelope at certain points – for example ASEAN giving Myanmar a not-so-gentle rap on the knuckles. SAARC, on the other hand, has remained doggedly insular, refusing to consider any issue that would demand greater government transparency and accountability, and which would raise the quality of rights and freedoms of the people of South Asia. 

The SAARC Trafficking Convention, which is routinely cited by governments in the region to proclaim their human rights credentials, sorely lacks a human rights perspective, and as pointed out in Human Rights Features earlier, “was primarily drawn up to protect the state party’s interest in clamping down on criminal activity instead of upholding the rights of the individual.” (see “Sub-regional initiatives wide off the mark”, Human Rights Features special edition for the 10th annual meeting of the Asia Pacific Forum of National Human Rights Institutions. For a detailed critique of the SAARC Convention Against Trafficking, see HRF/90/03 – “Human trafficking in South Asia: Need to revise priorities). 

During the 14^th SAARC Summit to be held in New Delhi on 3-4 April 2007, member states must demonstrate a commitment to the protection and advancement of human rights. This must involve conformity, in letter and spirit, to international human rights norms and standards. 

Ratification record 

Bhutan and Pakistan have still not ratified the International Conventions on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR). Sri Lanka is the only member to have ratified the Convention on the Rights of Migrant Workers. Bhutan and Pakistan have neither signed nor ratified the Convention Against Torture (CAT), and India has shown no signs of ratifying thus rendering its signature in 1997, a mere cosmetic exercise.  

The majority of SAARC member states are also yet to ratify the Optional Protocol (OP) to the ICCPR and the OP to the Convention on the Elimination of Discrimination Against Women (CEDAW), which enable the respective treaty-based Committees to receive complaints from individuals. Only Maldives and Sri Lanka have ratified both Protocols, while Nepal has ratified only the OP to the ICCPR. Again, the OP to CAT – which “aims to create a global system of inspection of places of detention as a way of preventing torture and ill-treatment” and provides for a Sub-Committee empowered to carry out missions to places of detention – has been ratified only by the Maldives. This, however, is a country that can hardly be said to set an example for the rest of South Asia. It routinely and blatantly flouts the provisions of CAT and has yet to adequately empower its national human rights commission or any other body to carry out anti-torture missions. 

Unsustainable reservations 

While India has not made a formal declaration or reservation to Article 1 of the Convention on the Elimination of Racial Discrimination (CERD), the government has obdurately maintained that caste-based discrimination does not fall within the purview of the definition of racial discrimination. The Indian Government must act on the CERD Committee’s observation that caste-based discrimination is well within the ambit of Article 1.  

Bangladesh has made a reservation to the right of an accused to be present during his or her trial and a declaration to the right to legal aid. India continues to maintain a declaration that denies the existence of a right to compensation for arbitrary detention even after the Supreme Court’s observation in D.K. Basu v State of West Bengal that the declaration “has lost its relevance”.

Pakistan has declared that it will progressively implement the provisions of the ICESCR in keeping with the existing economic conditions and development plans of the country and will implement the provisions of CEDAW in keeping with its Constitution.  

CEDAW prohibits reservations that are incompatible with the object and purpose of the treaty and regards Article 2, which lays down the principle of equality and non-discrimination, and Article 16 that promotes equality in marriage and family relations as its core provisions. While Bangladesh has made a reservation against the core provisions, India has declared that it shall not take on the responsibility of reforming laws and practices that reinforce the inferiority or superiority of either men or women or prejudices in keeping with its policy of non-interference in personal affairs. Maldives has stated that the rights under Article 16 are subject to the Islamic Sharia.  

In terms of the Convention on the Rights of the Child (CRC), Afghanistan, Pakistan and Maldives have made reservations to provisions that do not befit the laws of Islam.; India has declared that the CRC laws can only be “progressively implemented”, owing to availability of resources in contradiction of the resolve to “eliminate the evil of child labour” proclaimed in the SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia.  

All SAARC members must withdraw reservations or declarations having the effect of reservations that offend the spirit of the treaty and are incompatible with its objectives.  

Refugee protection  

There is no binding regional agreement relating to refugees in South Asia as exists in Africa (the OAU Convention), nor is there an accepted declaration as in the Americas (the Cartagena Declaration). India has been host to some of the largest influxes of refugees in history since gaining independence, yet despite this, there is no national law relating to the recognition and treatment of refugees in India. Refugees in India are dealt with on an “ad hoc basis and are vulnerable to the shifting objectives of the Indian government’s foreign policy and political expediency”.  

It is recommended that each of the member states of SAARC construct a national immigration and refugee board to deal with pressing refugee issues. Members must also take steps towards the formulation of a regional agreement on refugee protection. It would be useful for SAARC members to ratify the 1951 Convention relating to the Status of Refugees and the 1967 Protocol. Afghanistan is the only member of SAARC to have ratified both the Convention and its Optional Protocol—with a declaration. 

Rights of Indigenous and Tribal Populations 

Bangladesh, India, and Pakistan are the only members of SAARC to have ratified the Indigenous and Tribal Populations Convention, 1957 (No. 107) under the International Labour Organization (ILO). Convention No. 107 protects these groups from the removal from the territories that they occupy and from discrimination in the workplace. The Convention also guarantees the right to vocational training facilities, social security, and to education. None of the eight SAARC members has officially ratified the ILO’s Indigenous and Tribal Peoples Convention, 1989 (No. 169) which guarantees the “effective protection of [indigenous and tribal peoples] rights ownership and possession” of land. All SAARC members must sign both conventions in order to protect the human rights of their indigenous and tribal populations.  

Abolition of the death penalty

The death penalty is an affront to human dignity and goes against the basic tenet of human rights that is the right to life. Only Nepal has ratified the Second Optional Protocol to the ICCPR aimed at the abolition of the death penalty. Bhutan has abolished the death penalty for all crimes although it has not ratified the second Optional Protocol to the ICCPR. There are certain countries that have not officially abolished in death penalty; however there has not been an execution in the past ten years. In Maldives for instance the last known execution was in the year 1952 and in Sri Lanka the last death penalty execution was in 1976. Afghanistan, Bangladesh, India, and Pakistan have all retained the death penalty. It is recommended that all the remaining SAARC countries ratify the Second Optional Protocol to the ICCPR at the earliest and amend their criminal laws accordingly.  

Independent NHRIs 

Pakistan and Bangladesh do not have National Human Rights Institutions. However, Pakistan is currently drafting a bill to develop its own commission, under an act known as the National Commission for Human Rights Act 2005. On 21 March 2007, Bangladesh, yet again, announced that it hoped to set up a National Human Rights Commission shortly, the first such announcement having been made more than ten years ago.  

All SAARC members without human rights commissions must work to create one. All SAARC members that do must ensure that their human rights commissions comply with the minimum standards set out by the Paris Principles in order to responsibly and effectively carry out their duties.  

Conclusion 

SAARC’s commitment to protecting human rights rings hollow in the absence of ratification of key international human rights instruments, the declarations and reservations to treaties, the reluctance to extend invitations to the United Nations Special Procedures, and the disregard for national human rights institutions. 

Human rights organisations and activists, for their part, must be wary of calling for regional human rights instruments and mechanisms. These will allow states to set standards far below those available in international mechanisms, and will lay the ground for the whittling down of rights and protections available to the people of the region. SAARC has a regional agenda, but where human rights are concerned, its outlook must be universal.

 Human Rights Features