Remarks by Kul Chandra Gautam
Second Sub-Regional Workshop on South Asian Human Rights Mechanism
Kathmandu, 25 July 2011
I want to thank the organizers of the workshop for kindly inviting me to say a few words. I might be a bit of a misfit here, as I have not attended any previous meetings on this specific subject, nor do I have any particular expertise to offer.
But human rights are a matter of vital concern for all of us. Indeed,I believe that recognition and respect of human rights – and their universality – are among the greatest markers of modern human civilization.
Until just a few centuries ago, there were no human rights as such. The world was governed through the concept of divine rights. Rulers – mostly monarchs – derived their legitimacy through what they claimed to be their divine rights. The only human rights that their subjects were entitled to were those granted through the rulers’ benevolence.
Even when great democratic revolutions took place – e.g. the French Revolution and the American War of Independence, the rights that people claimed were rights as citizens, rather than as human beings, as such.
Even these citizens’ rights were not universal. The French Revolution established “rights of man”, therefore, it excluded women. The civil rights enshrined in the US constitution excluded not just women, but blacks and other non-white populations, as well.
It was really the advent of the United Nations, and the Universal Declaration of Human Rights that it promulgated in 1948, which, for the first time, codified the universality of human rights. We now have women’s rights, children’s rights, the rights of people with disabilities, rights of indigenous population, etc., all grounded on the solid foundation of UDHR.
But we all know that having rights on paper is not enough. Mechanisms are needed for their effective implementation.
In a world of sovereign states, the most important and effective mechanisms are, obviously, at the national level. But as governments sometimes trample on human rights, often invoking sovereignty and “national interest” as their justification, some mechanisms are needed above and beyond the national level, if the universality of human rights is to be genuinely guaranteed.
Hence we have the UN’s Human Rights Council, now even an International Criminal Court, and a plethora of regional and sub-regional institutions.
For decades since the 1960s, the UN’s General Assembly and the erstwhile Human Rights Commission – now upgraded to Council – have been encouraging Member States to establish regional mechanisms for the protection and promotion of human rights.
Europe, the Americas, and even Africa have complied with this call and set up regional mechanisms. But curiously Asia has lagged behind.
We Asians are usually quite quick to adopt new ideas and technologies. But why have we been so slow and reluctant to set up a regional human rights mechanism?
In the background documents for this workshop, there is a very thoughtful paper by Professor Vithit Munthaborn of Thailand analyzing why the countries of Asia and the Pacific have been slow and reluctant to set up such regional mechanisms. He gives many reasons, but perhaps he was being a bit too diplomatic in not mentioning one major factor.
Many authoritarian governments of Asia – and some intellectuals as well – tended to view human rights as a Western concept. In the post-colonial period of the 1950s and 60s, when it was fashionable to blame all our problems on the legacy colonialism, some leaders insinuated that human rights were a wedge for imposing Western hegemony on newly independent countries.
During the Cold War, the Soviet bloc used to emphasize that economic and social rights were more important than civil and political rights. Many authoritarian Asian leaders sided with the Soviet bloc on this issue, as it gave them a perfect excuse to trample on people’s civil liberties.
Some used democratic India’s slow progress in economic development compared to that of China, and the fast-growing South-East Asian countries under authoritarian leaders like Park Chung Hee of Korea, Lee Kuan Yew of Singapore, Mahatir Mohammad of Malaysia, and even Suharto of Indonesia and Ferdinand Marcos of the Philippines to buttress their argument.
Some went to the extent of theorizing that human rights were somehow inconsistent with the so-called Asian Values.
Now, scholars like Amartya Sen have thoroughly debunked the Asian Values argument. And thank goodness, 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 mechanism among most Asian governments.
This, I believe, is among the main reasons for the slow progress in establishing any effective and credible regional human rights mechanism in the Asia-Pacific reason.
With a few exceptions, we find most Asian governments still unenthusiastic about setting up strong human rights monitoring and enforcement mechanisms, whether at the national level or at the regional or sub-regional levels.
It has therefore fallen to civil society organizations to champion for strong human rights mechanisms. Thanks largely to their persistence and perseverance; we now have regional mechanisms set up in ASEAN and in the Arab sub-regions. It is too bad that our sub-region, South Asia, continues to be a laggard.
We must thank Forum Asia, INSEC and other like-minded organizations in South Asia for pressing the case for establishing a South-Asian sub-regional human rights mechanism. It is badly needed, and its time has come.
In recent years, SAARC has taken some baby-steps to strengthen human rights. The SAARC conventions on child protection and against trafficking were a good beginning. The SAARC Social Charter and the 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 2011 will be a milestone in finally setting up a South Asian mechanism for the protection, promotion and fulfillment of human rights, thus allowing us to hold our heads high that our region is not the last bastion of resistance to human rights.
Now, we would 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 too weak. Having a regional mechanism would be beneficial to complement, strengthen and reinforce the work of NHRIs.
Moreover, there is real value-added in having a sub-regional mechanism to help tackle certainHR issues that require cross-border and trans-boundary collaboration.
Increasingly human rights violators are getting very smart and cunning. They hide their tracks; avoid detection or prosecution by moving across national borders.
A sub-regional mechanism would be particularly helpful in addressing issues such as those concerning the human rights of refugees and displaced persons, victims of forced labour, 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 NHRIs and complement existing international humanrights mechanisms.
If constituted through proper consultation, including with civil society, the academia and judicial authorities to ensure membership of individuals with high level of integrity and competence from throughout the region, such a mechanisms would command greater credibility and moral legitimacywhen it comes to the protection of especiallyvulnerable groups such as women, children and our region’s large historically marginalized and deprived communities.
Whileworking with UNICEF for several decades,I learned from my experience in other regions that such transnational mechanisms can be greatly helpful in ensuring better protection of children’s rights, including measures to protect them from disease, hunger, malnutrition and lack of basic services.
Currently, SAARC has some instruments and mechanism to deal withsome trade and development related matters in the region. It is high time for it to have a more focused agenda on human rights, with a robust institutional mechanism.
To make this dream a reality, concerted and consistent efforts are necessary from civil society organizations and other stakeholders both for the establishment of such mechanism and to ensure that it follows the highest standards of international norms, transparency and integrity.
As I said before, our first priority must be to strengthen our national human rights mechanism. Only on the foundation of strong national mechanism can we build an effective regional mechanism. However, there is a long way to go in this respect.
For example, right here in Nepal, many of us consider our NHRC to be rather toothless. Many of its recommendations, as well as those of the UN-OHCHR and other human-rights institutions,are ignored or only given pro-forma attention by the government.
On the contrary, attempts are being made right now to grant blanket amnesty to large numbers of violators of human rights during the decade of conflict, citing, against international norms, that conflict era crimes – some amounting to crimes against humanity – were political acts to be dealt by a Truth and Reconciliation Commission.
If we allow this to happen, this country will be haunted by a culture of violence and impunity for a long time to come, and victims of gross human rights violations will be denied justice.
The existence of a regional mechanism might not help solve all such issues, but it could serve as a peer support group to help NHRIs; to facilitate experience exchange; and to assure victims of gross human rights violations that they have access to a second level of possible protection against arbitrary decisions of their own governments.
I would hope and call onthe international community, including the United Nations High Commissioner for Human Rights (OHCHR), other UN agencies and development partners such as the European Union to lend their supportto complement the efforts of South Asian governments and civil societyfor the establishment of a robust SAARCregional mechanism for the protection, promotion and fulfillment of human rights.