South Asian human rights charter: Legacy of failure

When I asked my students in the class to define human rights from the perspective of an ordinary person two answers usually came forth- the legal rights of the human or the rights to have food, accommodation etc.

Instead of correcting them, I asked them another question- why do you live in Bangladesh? Their typical answer was that we live in this country because we were born here, we love our country etc.

In the process of this discussion, I also asked them- why an individual does not go and live in the middle of the Bay of Bengal in an isolated island and declare it to be a state where they can fish, hunt and count the stars in the sky? Of course, the question led them to an uproar of laughter.

Our discussion led to social contract theory by Hobbes which explains that a social contract exists between the state and its citizens. In the state, citizens enjoy certain rights and protections from the state in exchange of payment of taxes in various forms and abide by the laws of the land. I then explained that it's like gaining a club membership and being an obedient member of the club and enjoy their benefits.

In our further quest to uncover the reasons for living in an artificial organisation like the state, my students tended to agree that people started living in groups, clans and eventually in a state because they needed protection.

In my view, the relationship between the state and citizens has three layers due to this need for protection of various kinds.

In the first layer, citizens get protection from external enemies. The whole defence machinery and diplomatic efforts have been dedicated to this layer of protection.

In the second layer, citizens get protection from internal bad elements of society. Police and other law enforcing agencies and the legal system help fulfil this obligation of the state.

The third layer of protection is a difficult one for the state. In this layer, citizens need protection from the protector (state) itself. This is where the human rights mechanism within the state plays a key role. Therefore, the human rights mechanism generally represents a vertical relationship between the state and citizens.

In a situation of violation of human rights, citizens need to go to a forum for seeking remedies. The most effective forum to seek and get remedies is an independent and impartial court.

This verticality was well-recognized since the origin of Westphalian sovereignty. The Second World War underscored the nature of the state as the "principal violator and essential protector" of its citizens. After the war, the leaders of the world put their heads together and accepted this verticality of the relationship between the state and citizens.

The insurmountable human sufferings and destruction of properties were caused by the state and people were persecuted, purged and segregated based on various artificial parameters. The creation of the United Nations in October 1945 subsequently led to the Universal Declaration of Human Rights (UDHR) in 1948.

Since then the UDHR became the conscience of the world and a formal human rights framework came into being with the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both became international law in 1976. The UDHR and these two covenants are known as the "International Bill of Human Rights."

However, the International Bill of Rights recognised to be soft law and lacks any enforcement mechanism. There is no judicial forum to seek remedies for the violation of any of the provisions of these laws. The laws dictate the high morale for the state but the ground reality is different because state machinery does not always uphold such values.

Following the establishment of the UDHR as the guiding principle of the state-citizen relationship, several other regional human rights mechanisms emerged. The ECHR is the first and leading regional human rights mechanism. As Europeans realised that the two great wars in the 20th century were staged in Europe, European human rights architects wanted to hold the state accountable for its violation of the rights of citizens.

The European Convention of Human Rights was aimed at promoting pluralism and justice. Although the proponents of the ECHR found their inspiration in the UDHR and natural justice principles, a fundamental structural difference with the UDHR was created through its enforcement mechanism. The European Court of Human Rights (ECHR) is the enforcement mechanism for the ECHR.

The footsteps of the ECHR were followed by the creation of the Inter-American Commission on Human Rights in 1959 and the establishment of the Inter-American Court of Human Rights in 1989. Similarly, the African Charter on Human and Peoples Rights came into force in 1986, creating an African Commission on Human and Peoples Rights. It established the African Court on Human and Peoples Rights in 1996.

For the Arab region, the Arab Charter of Human Rights 2004 became a symbol of acknowledgement of human rights by the Arab political establishment but it lacks gender rights and the enforcement mechanism remains weak. In the ASEAN, the Heads of State adopted the ASEAN Human Rights Declaration (AHRD) in 2012.

When it comes to the point of having a human rights charter for South Asia, it is nonexistent. The South Asian Association for Regional Cooperation (SAARC) is probably the only regional body which does not have a human rights mechanism. SAARC itself failed to continue its existence as the regional body to materialise the hopes and aspirations of regional cooperation.

What went wrong in its journey is not within the scope of this write-up. However, it is unbelievable to think that in the post-colonial period the South Asian aspiration was never expressed through a human rights lens. Interestingly, countries in this region adopted the UDHR as the inspiration for their independence and freedom from their previous masters but when it comes to governing their people as independent states that inspiration simply evaporated.

Did the regional leadership lack the understanding of human rights or it had always been the stepchild of the political establishment in this region? It manifests negligence about the aspirations of human dignity of the people of this region. In the Human Freedom Index 2019, all south Asian countries performed very poorly. All of the countries are ranked between 94 to 140 out of 162 countries.
Various forms of violation of human rights are endemic in this region. Although this region has a very rich history of national freedom movement we seem to have failed to transcend national freedom to the individual level.

Moreover, a regional human rights mechanism does not necessarily need to be attached to SAARC. The South Asian Convention on Human Rights (SACHR) can be established with a judicial body (maybe South Asian Court of Human Rights – SACHR). This human rights charter could be drawn based on the UDHR and the subsequent covenants reflecting the realities of the South Asian context.

In this global crisis of Covid-19, the need for a South Asian charter of human rights is even more relevant where the countries should be committed to the human rights of the people. Such a commitment should not only be limited to the adoption of such a charter.

There must be a strong enforcement mechanism so that the state remains accountable for its commitment to human rights. The continuous failure to adopt a robust human rights charter and mechanism will only fuel unrest.

Shahariar Sadat is the programme head of Human Rights and Legal Aid Services, Brac.