REGIONAL HUMAN RIGHTS INSTRUMENTS:
Scoping of Rights and Wrongs
2022-23
Commissioned by:
Japan NGO Center for International Cooperation (JANIC)

fanpop.com

Lead Researcher
Gopal Krishna Siwakoti, PhD
President
INHURED International
Expert Contribution
Ms. Shreejana Pokhrel
Research Associates
Adv. Sabina DhakalAdv. Ashma Khatiwoda
Ms. Dechen Dolker Piya
Ms. Aarya Ghimire
Mr. Sandessh Sapkota~1~

TABLE OF CONTENTS
1.

ACRONYMS AND ABBREVIATIONS

2.

EXECUTIVE SUMMARY3.

REGIONAL HUMAN RIGHTS TREATIES: BRIEF REFLECTION

4.

REGIONAL HUMAN RIGHTS REGIMES

5.

ASEAN DECLARATION AND AICHR: COMPLIANCE AUDIT

6.

SAARC: SCOPE FOR HUMAN RIGHTS SAFEGUARDS

7.

CONCLUDING OBSERVATIONS

8.

RECOMMENDATIONS FOR REFORM

9.

MAJOR WEB SITE REFERENCES~2~

ACRONYMS AND ABBREVIATIONS
ACFC: Advisory Committee of Independent Experts of the Framework Convention
for the Protection of National Minorities.

ACHPR: African Charter on Human and Peoples’ Rights

ACHR: The American Convention on HR

AFET: Committee on Foreign Affairs of the European Parliament

AICHR: ASEAN Intergovernmental Commission on Human Rights

APRM: African Peer Review Mechanism

APT: Commission and the Association for the Prevention of Torture

ASEAN: Association of Southeast Asian NationsAU: African Union

CDDH: Steering Committee for Human Rights

CERD: The Committee on the Elimination of Racial Discrimination

CoE: Council of Europe

CoM: Committee of Ministers

CPT: European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment

CSCE: Conference on Security and Cooperation in Europe

DROI: Subcommittee on Human Rights

ECHR: European Convention on Human Rights

ECJ: European Court of Justice

ECRI: European Commission against Racism and Intolerance

ECSR: European Committee of Social Rights

ECHR: European Court of Human Rights

EIDHR: European Instrument for Democracy and Human Rights

EIPR: Egyptian Initiative for Personal Rights

ESC: European Social Charter

EU: European Union

EUMC: European Monitoring Centre on Racism and Xenophobia
~3~

FRA

: European Agency for Fundamental Rights

GHM: The Greek Helsinki Monitor

GRETA: The Group of Experts on Action against Trafficking Human Beings

HCNM: High Commissioner on National Minorities

HRD: Human Rights Defenders

ICJ: International Commission of Jurists

JANIC: Japan NGO Center for International Cooperation (JANIC)LAS: League of Arab States

LIBE: Committee of Civil Liberties, Justice, and Home Affairs

NEPAD: New Partnership for Africa’s Development

NGO: Non-Governmental Organization

OAS: Organization of American States

OAU: Organization of African Unity

ODIHR: The Office for Democratic Institutions and Human Rights

OHCHR: Office High Commissioner of Human Rights

OSCE: Organization for Security and Co-operation in Europe

PIF: Pacific Island ForumSA: South Asia

SAARC

: South Asian Association for Regional Cooperation

SAPA: Solidarity for Asian People’s Advocacy

SAVE: South Asian Visual Exchange

SCHR: Standing Committee on Human Rights in the LAS

TOR: Terms of Reference

UDHR: Universal Declaration of Human Rights

UN: United Nations~4~

EXECUTIVE SUMMARY
The normative and institutional evolution of international human rights law at the global levelplayed a prominent role in encouraging the creation of regional human rights systems in
Europe, the Americas, Africa, and more recently the emerging systems in Asia and the ArabStates. The U.N.'s role in encouraging the creation of regional human rights systems must be
saluted." Regional systems have served as both institutional and normative building blocks
and instruments for the realization of human rights at the grassroots.
Over the years, regional systems, particularly those established in Europe and the Americas,
have provided the necessary intermediary between state domestic institutions which violate
or fail to enforce human rights and the global human rights system which alone cannot
provide redress to all individual victims of human rights violations. At the global level, nopermanent human rights court has thus far been created to allow individual complaints
against governments for violations of human rights. It was at the regional level, in Europe,that the first system allowing for effective individual complaints against governments forviolations of human rights was created. This system became the model of human rights
realization in the other regional systems-the Inter-American system has a court, and theAfrican system is in the process of creating one. Regional systems have served to fill gaps in
the global human rights mechanisms. They have fruitfully complemented the global humanrights system by impacting and influencing domestic human rights practice in member states.
Although each regional system has its own issues and concerns arising out of diversity ineach system's origins, all of them have elements of uniformity.
All regional systems began as the global human rights system was developing and they were
inspired by universal norms as embodied, inter alia, in the UDHR. Regional systems are
better placed and can therefore be more effective than systems with universal scope. Regional
systems are flexible and have the ability to change as conditions around them change andsometimes do so quickly. This is because proposals for change in regional systems are likely
to be meet less resistance than those of the global system. The great number of states withdifferent traditions that are involved in the global system make implementation more
complicated. On the other hand, shared legal, political, socioeconomic, intellectual, andcultural traditions and aspirations within a regional setting are more likely and do serve as
cardinal bases for particularized and effective human rights protections at the regional level.
The drafters of the African Charter were well driven by this conviction.'" Within the regional
arena, shared traditions create homogeneity which facilitates debate over the substance of therights protected and assist in the development of more or less familiar systems of redress,
thereby enhancing the actual promotion and protection of human rights.

~5~

The regional arrangements in Europe have been functional and have worked in an
atmosphere of confidence, that is to say, they have always had the confidence ofgovernments, of NGOs and served to facilitate co-operation in the promotion and protectionof human rights, while recognizing the success of the European system in protecting
individual rights, in supervising the exercising of emergency powers by governments, inunearthing defects of legal system of various countries. However, it has been unable to deal
effectively with human-rights unfriendly regimes in a state party to the European Convention.
The Inter-American arrangements for the protection of human rights has also been normallyconstructive but have sometimes allegedly failed to maintain compatibility in addressing thehuman rights questions in all member states. The recently formed ASEAN Intergovernmental
Commission on Human Rights (AICHR) is a huge step forward towards setting a common
threshold on human rights protection and promotion in that part of Asia region althoughcritics say that it would be powerless to tackle rogue members such as Myanmar and thejusticilability part of the instrument in regards to individual's rights violation and redress isquite weak.
Most of these treaties have contributed to important changes in the laws of many countries,
and, in view of the large number of States having ratified, acceded or adhered to them, they
are also becoming particularly important for the work of judges, prosecutors and lawyers,
who may have to apply them in the exercise of their professional duties. Many of theprovisions of the general treaties have been extensively interpreted, inter alia with regard to
the administration of justice and treatment of persons deprived of their liberty; and this caselaw constitutes an important source of information and guidance for judges and lawyers.
In such context, it is highly desirable to deeply perceive the designablility, feasibility andtimeliness of setting up a regional arrangement for the SA region so that the potential value ofa regional instrument would be well recognized and shall be in conformity with the globally
accepted norms and values of human rights instruments. The geo-political, economic, culturaland social conditions as well as ethnic and cultural diversity cannot be the justification for
inopportune to consider the establishment of a mechanism on human rights for SA region.

~6~

~7~

REGIONAL HUMAN RIGHTS TREATIES:A BRIEF REFLECTION
Regional human rights mechanisms play an important role in monitoring government
compliance with human rights obligations. Europe, the Americas, and Africa have their own
active regional human rights systems. Each system has many things in common with theUnited Nations’ human rights system, and the regional systems often look to each other andto their UN counterparts for guidance in interpreting human rights language and addressing
human rights violations. Nonetheless, each regional system has its own distinct mechanisms
and procedures. Individuals and groups concerned about human rights issues in these regions
should consider the advantages of engaging with the relevant regional human rights system.1
The regional human rights mechanisms have become an integral part of the human rights
system as they:
1. Act as a check and balance on national process
2. Promote regional peace, security and human rights
3. Provide regional input to the development of international human rights standards andthe improvement of international human rights mechanisms
4. Help national governments to better address human rights concerns that cross national
borders; for example, human rights violations and abuses that come from organizedcrime, including terrorism, human trafficking, migration etc.2
Geographical proximity and cultural propinquity inherent within a regional framework makemore probable the investigation and remedying of human rights violations. In the absence ofa regional or global police force or army or prison to enforce compliance with international
human rights obligations, supra-national institutions have to rely more on shame and pressure
mechanisms, such as economic sanctions, the severance of diplomatic relations, sport, andother ties against the recalcitrant state. These mechanisms are likely to be more effective inrespect of those states in a regional arrangement where states are in constant contact.
Geographical proximity in regional systems leads to socioeconomic, environmental, andsecurity interdependence which more easily forces a recalcitrant state once isolated to comply
with its international human rights obligations. These realities place regional human rights
systems in a strong position to enforce universal human rights norms.
The existing regional human rights instruments and institutions for the promotion andprotection of human rights in Europe, Americas, Africa, and in the Arab region, have drawn
upon various essence such as the restatement of universal norms on human rights within thecontext of a regional instrument; the use of promotional measures, e. g., measures for the1

https://www.newtactics.org/engaging-regional-human-rights-mechanisms

2

The Role of Regional Human Rights Mechanisms, Directorate-General for External Policies Policy Department, European Parliament~8~dissemination of information, teaching, training, education, and encouragement of civilsociety organizations; the provision of assistance to governments in drafting legislation or inadministering national or local institutions for the promotion and protection of human rights;
making procedures available for individual petition (the European Convention on Human
Rights, the American Convention on human rights, the African Charter on Human Rights);
making procedures available for interstate complaints (the European Convention, theAmerican Convention and the African Charter); providing judicial arrangements (forexample, the European Court of Human rights and the American Court of Human rights).3
The African Charter on Human and Peoples’ Rights-1981
The adoption of the African Charter on Human and Peoples’ Rights in 1981 was the
beginning of a new era in the field of human rights in Africa. It entered into force on 21
October 1986. Although strongly inspired by the UDHR, the two International Covenants onhuman rights and the regional human rights conventions, the African Charter reflects a highdegree of specificity due in particular to the African conception of the term “right” and theplace it accords to theAfrican Court Order to Libyan Government to Adopt Provisional
responsibilities of human
Measuresbeings. The Charter
In early February 2011, Libyan security forces in the city of Benghazi contains a long list ofviolently suppressed peaceful demonstrations against the detention of an rights, covering a wide
opposition lawyer, and the violence quickly spread to other parts of the spectrum not only of civil
country. On February 28, the Egyptian Initiative for Personal Rights (“EIPR”),
Human Rights Watch, and INTERIGHTS submitted a joint communication to and political rights, but
the African Commission. A few days later, the commission referred the also of economic, social
matter to the African Court. In its application to the court, the commission and cultural rights. The
called for the Government of Libya to “set up an exhaustive inquiry and African Charter further
prosecute the authors of these violations,” compensate victims and family
members, and “include human rights in the training programmes of its c r e a t e d t h e A f r i c a n
security forces.” On March 25, 2011, in light of the extreme gravity and Commission on Humanurgency of the matter, the African Court issued an order for provisional and Peoples’ Rights, “tomeasures. The order called on the Government of Libya to: (1) Immediately p r o m o t e h u m a n a n d
refrain from any action that would result in loss of life or violation of physicalintegrity of persons, which could be a breach of the provisions of the Charter peoples’ rights and ensure
or of other international human rights instruments to which it is a party; and t h e i r p r o t e c t i o n i n(2) Report to the Court within 15 days from the date of receipt of the Order Africa” (Art. 30). In 1998,
on the measures taken to implement the Order. Due to the chaos and the Protocol to the Charter
eventual change in government in Libya, the court was not able to enforce
on the Establishment of anits order.
African Court of Human
Source: Organization of American States, “IACHR Takes Case involving Panama to the Inter-American Rights was also adopted.
Court,” Apr. 4, 2013, http://www.oas.org/en/iachr/media_center/PReleases/2013/022.asp.
L a s t l y, w o r k o n t h eelaboration of anadditional protocol
concerning the rights of women in Africa is in progress within the framework of the African
Commission on Human and Peoples’ Rights, the Commission being assisted in this task by
the Office of the United Nations High Commissioner for Human Rights.4

3

Ibid

4

Major Human Rights Instruments, Lalit Kumar Arora, Isha Books-2006~9~

The American Convention on HR-1969
The American Convention on Human Rights, 1969, also commonly called the Pact of San
José, Costa Rica, since it was adopted in that capital city, entered into force on 18 July 1978
following the denunciation of the treaty by Trinidad and Tobago on 26 May 1998. The
Convention reinforced the Inter-American Commission on Human Rights, which since 1960
had existed as “an autonomous entity of the Organization of American States”.5

It became a treaty-based organ
which, together with the InterAmerican Court of Human Rights,“shall have competence withrespect to matters relating to thefulfillment of the commitments
made by the States Parties” to theConvention (art. 33). In 1988, theGeneral Assembly of the OAS
further adopted the Additional
Protocol to the American
Convention on Human Rights in
the Area of Economic, Social andCultural Rights, also called theProtocol of San Salvador. This
Protocol develops the provisions ofarticle 26 of the Convention
whereby the States parties ingeneral terms “undertake to adopt
measures, both internally andthrough international cooperation, ... with a view toa c h i e v i n g p r o g r e s s i v e l y, b ylegislation or other appropriate
means, the full realization of therights implicit in the economic,
social, educational, scientific, andcultural standards set forth in the Charter of the Organization of American States as amended
Refers case to the Inter-American Court
by the Protocol of Buenos Aires”.

the case of the Kuna Indigenous People of Madungandí andmembers against the State of Panama to the Inter-American
economic compensation to the indigenous peoples for the
tories stretching back as far as 1969. The Inter-American
American Court in order to push for compensation and to5
Human Rightsgroups,
Instruments,
Lalit Kumarve the human rights
ofMajorthe indigenous
including
by Arora, Isha Books-2006

nvolving Panama to the Inter-American Court,” Apr. 4, 2013,
asp.

~10~

The European Convention on HR-1950
The European Convention on Human Rights was adopted by the Council of Europe in 1950,
and entered into force on 3 September 1953. The Convention originally created both aEuropean Commission and a European Court of Human Rights entrusted with the observanceof the engagements undertaken by theHigh Contracting Parties to theConvention, but with the entry into
force of Protocol No. 1137 to theConvention on 1 November 1998, thecontrol machinery was restructured sothat all allegations are now directly
referred to the European Court of
Human Rights in Strasbourg, France.
This Court is the first, and so far only,
permanent human rights court sitting
on a full-time basis. The rights
protected by the Convention have been
extended by Additional Protocols Nos.
1, 4, 6 and 7. Protocol No. 12
concerning the prohibition of
discrimination was opened forsignature on 4 November 2000 inRome, in the context of the fiftiethanniversary celebrations of theConvention itself, which was signed in
the Italian capital on 4 November 1950.
Finally, Protocol No. 13 was opened forsignature in Vilnius on 3 May 2002.
This protocol concerns the abolition of the death penalty in all circumstances.

The Arab Charter on Human Rights-1994~11~

The Arab Charter on Human
Rights was adopted by the Greek Helsinki Monitor Brings Case to European Court of Human
RightsArab League in 1994.
However, although it was The Greek Helsinki Monitor (GHM), a non-governmental organization,
advocated on behalf of 23 Roma schoolchildren against school
widely criticized at the time segregation and the limited access to education for Roma students inby many human rights Greece. Almost 400 Roma families live in the Greek town of Sofades, andorganizations both within nearly all of them live in Roma housing estates. Many of these estates
are close to public schools that non-Roma children attend, but all of thethe region and beyond as Roma housing estates are in the attendance area for a school that caters
failing to meet international almost exclusively to Roma children. GHM appealed to the Ministry of
Education, pointing out “a clear ethnic segregation which violates bothhuman rights standards, not Greek law and international human rights norms including the European
one Arab League State was Convention on Human Rights.” No action was taken. GHM then looked to
the European Court of Human Rights to end social exclusion faced by the
prepared to ratify it. The Roma schoolchildren in Sofades. The court ruled in favor of the pupils,
Council of the Arab League stating that “the continuing nature of this situation and the State’s refusal
adopted resolutions in 2002 to take anti-segregation measures implied discrimination and a breach of
the right to education.”
encouraging
the‘modernization’ of the Source: Amnesty International, “European Court again chides Greece overdiscrimination against Roma schoolchildren,” accessed June 24, 2013,
Charter to correspond with http://www.amnestyusa.org/news/news-item/european-court-again-chides-greeceover-discrimination-against-roma-schoolchildren.
international human rights
standards. A revised text of
the Charter was adopted at the Summit of Heads of Member States of the League in May
2004.6 Many of those who followed the revision process continue to debate whether the newversion is consistent with international human rights standards and should be ratified or
rejected. This article sheds some light on this debate by analyzing whether the revised
Charter is an improvement on the original text in terms of international human rights law. It
does not aim to be a comprehensive review of all the Articles of the Charter, but rather aims
to give a general overview of an instrument about which there is relatively little knowledge
and understanding outside the Arab human rights community in the hope that this generates
increased interest.
The 2004 Arab Charter on Human Rights is a binding treaty since its entry into force inMarch 15, 2008. What is new and important in the new version of the Arab Charter on
Human Rights is the confirmation of equality between men and women in the Arab World(article 3 & 3). The new version also guarantees children's rights (article 34 & 3) and therights of handicapped persons (article 40). However, the main criticism of the old version
remains unresolved in the new one: there is no effective enforcement mechanism. The
mechanism of the Arab Charter needs improvements and modifications. One of these
improvements and modifications should be the creation of an Arab Court of Human Rights.

6

Arab Charter on Human Rights, UN Office of the High Commissioner for Human Rights; League of Arab States, 2004

~12~

ASEAN Intergovernmental Commission on Human Rights -2009
The establishment of the AICHR is yet another significant milestone in the evolution of
ASEAN as it provides the concrete expression of Article 14 of the ASEAN Charter and
ASEAN’s commitment to build a more people oriented ASEAN Community. The body is
mandated to promote and protect human rights by promoting public awareness and education,
providing advice and capacity building to government agencies and ASEAN bodies,developing regional norms, obtain information from Member States, engaging withstakeholders and other institutions, conducting studies on thematic issues.
The mandate includes developing strategies for the promotion and protection of human rights
and fundamental freedoms to complement the building of the ASEAN Community and an
ASEAN Human Rights Declaration with a view to establishing a framework for human rights
cooperation through various ASEAN conventions and other instruments dealing with humanrights.7 The other mandate of the mechanism is to enhance public awareness of human rights
among the peoples of ASEAN through education, research and dissemination of informationand promote capacity building for the effective implementation of international human rights
treaty obligations undertaken by ASEAN Member States as well as to encourage ASEAN
Member States to consider acceding to and ratifying international human rights instruments.8
In the promotion front, it envisions the full implementation of ASEAN instruments related tohuman rights and provides advisory services and technical assistance on human rights matters
to ASEAN sectoral bodies upon request and helps engage in dialogue and consultation withother ASEAN bodies and entities associated with ASEAN, including civil society
organizations and other stakeholders
The mandate also has a provision for consultation, as may be appropriate, with other national,
regional and international institutions and entities concerned with the promotion andprotection of human rights; obtain information from ASEAN Member States on the
promotion and protection of human rights; develop common approaches and positions onhuman rights matters of interest to ASEAN. Finally, its has also a mandate to prepare studies
on thematic issues of human rights in ASEAN and to submit an annual report on its activities,
or other reports if deemed necessary, to the ASEAN Foreign Ministers Meeting.
In Africa, the Americas, and Europe, the regional human rights systems have all or most of
the following functions:● a State reporting process, through which governments inform on their own
implementation of regional human rights treaties

7

Terms of Reference of ASEAN Intergovernmental Commission on Human Rights Jakarta: ASEAN Secretariat, October 2015

8

Ibid

~13~

●
●
●

●
●

monitoring human rights conditions through “rapporteurs” and other special
mechanisms focused on particular countries or themes
deciding complaints concerning alleged human rights violations by a Member State,
and directing the State to provide redress where appropriate
requesting or ordering emergency protection (often called interim, provisional or
precautionary measures) when an individual or the subject of a complaint is in
immediate risk of irreparable harm
conducting public hearings, conferences, and seminars on human rights topics ofconcernissuing advisory opinions on the interpretation or application of regional human rights
standards9

The table reproduced below summarises the core characteristics of each system to beinterpreted and compared in the light of the four guiding principles/yardsticks proposed in the
introduction of this study. This summary establishes the benchmark of regional human rights
protection systems:
1. Controlling Organs
Political Organs
composed of therepresentatives ofgovernments

Independent expert
bodiesPermanent or
non-permanent
judicial organs

Committee of
Ministers of the

1. European
Committee forSingle andpermanent

Council of Europe

the Prevention of
Torture andEuropean Courtof Human(implementation of theInhuman and
Degrading

Rightsjudgments of the
ECHR)

Treatment (CPT)(established in
1998; 47

2. European
Commission

judges,Strasbourg)

against Racism
andIntolerance(ECRI)

9https://www.newtactics.org/engaging-regional-human-rights-mechanisms~14~

3. European
Committee of

EUROPE

Social Rights(ECSR)
4. Advisory
Committee
under theFramework
Convention for
the Protectionof National

CouncilofEuropeMinorities (ACFC)
5. Group ofExperts on
ActionagainstTrafficking
Human
Beings (GRETA)
6. The European
Commissioner on
Human
RightsEuropean Council (art.
7 TUE)

1. European
agency of

Court of justiceof theEuropeanFundamental
Right

European Union

Union

2. European
Ombudsman
3. European Data
Controller~15~

AMERICASAFRICA

1. Permanent Council
2. Inter-American
Council for
IntegralDevelopment

1. Commission
on therevention,
Punishment
andEradication ofViolence
againstWomen
2. Committee
on theEliminationof All Formsof
Discriminati
on against
Persons with
Disabilities

1. QuasiJudicial
InterAmerican
Commission
establishedin 1959, 7
members,
Washington
D.C
2. NonpermanentInterAmerican
Court on
Human
Rights,established in
1979, 7
judges San José

1. Assembly of Heads of Stateand Government of theUnion
2. Executive Council of
Ministers of the Union
3. Commission of the African
Union;The African
Committee on
the Rights andWelfare of theChild

1. Quasijudicial
AfricanCommission
on Humanand People’s
Rights;establishedin 1987, 11
members,
Banjul
2. Nonpermanent
AfricanCourt on
Human
Rightsestablished2004, 11judges,Arusha~16~

1. Council
2. Secretariat

1. Arab Human
RightsCommittee,
establishedin 2009, 7
members
2. SubCommission on
Human Rights

ASEAN Summit
1. A S E A N C o o r d i n a t i n g
Council, SEAN PoliticalSecurity Community
Council, ASEAN Economic
Community Council, and
ASEAN Socio-Cultural
Community Council,
2. Committee of Permanent
Representatives

ASEAN
Intergovernmen
tal Commission
on HumanRights (AICHR)
established2009, 10members,

ARAB
STATESASIAPACIFIC(ASEAN)~17~

REGIONAL HUMAN RIGHTS REGIMES[Overall Scoping]
Organizations

Instruments

Preamble

Jurisdiction

Limitations

The African
Union

AfricanCharter on
Human andPeoples'
Rights

1. To provide institutionalframework for theprotection of human andpeoples’ right.
2. Freedom, equality,
justice, and dignity forthe achievement oflegitimate aspirations ofAfrican peoples.
3. Eradicate all forms ofcolonialism from Africa,
4. Enjoyment of rights andperformance of duties torespects another’s right.
5. Recognize and enhanceinterrelationship between
civil and political rights
with economic, social,and cultural rights alongwith right todevelopment,
6. Total liberation byeradicating all forms of
discrimination based on
race, ethnic group, color,
sex, language, religion,
religion, or politicalopinions.

The jurisdictionof the African
Charter on
Human andPeoples’ Rights
extends to thefifty-four African
Union Member
States who have
ratified theCharter.

Claw back clause within
the Charter restricts
protection of individual
against State abuse. It
allows the domestic
laws to restricts rights
guaranteed by theCharter. The charter has
no defined limitationsof Sate action towards
its subjects in thefollowing rights:-The Right to Liberty-The Right to receiveand disseminate
information.
-Freedom of Assembly-Freedom of
Movement.
-Right to Participate
Freely in Government-Right o Property
2. It doesn’t include theobligation of State party
to criminalize Inhumanand degrading
punishments andtorture.
-The instrument doesn’t
have prvoisons toensure “Right to fairtrial” as per the
standards of ICCPR.
-Omitted to include
rights of migrant
workers.

~18~

Organizationof American
StatesAmericanConvention
on HumanRights-System of personal
liberty and social justice
within the framework of
democratic institution.
Human rights are based
upon the attribute ofhuman personality.
In accordance with theprinciples of the
Universal Declaration of
Human Rights.
Establishment ofstructure, competence,and procedure to ensure
civil and political,
economic, social, andeducational rights.

Among the 34
signatories only
22 MemberStates haveacknowledged
the recognition of
the jurisdiction of
the courts. Some
States like
Dominica have
ratified theConvention,
however, do notrecognize thejurisdiction of thecourt.

One of the limitationsof the instrument is tobroadly define andclarify Economic,
Social and Culturalrights. Even though the
instrument enshrines
such rights as
progressive rights it
hasn’t yet developed acoherent strategy to deal
with justiciability ofthese right under theConvention.
-It Convention doesn’t
include the obligationof State party tocriminalize Inhumanand degrading
punishments andtorture.

universal and effective
recognition andobservance of theRights.
ii. achieving greater unity
among member statesby realization of humanrights and fundamental
freedoms.
iii. have a common heritageof political traditions,
ideals, freedom and therule of law, for thecollective enforcementof certain of the rights
stated in the Universal
Declaration.

The jurisdictionof the European
Convention on
Human Rights
covers all the 46
members of theCouncil ofEurope as all of
the members
have ratified theConvention.

-It Convention doesn’t
include the obligationof State party tocriminalize Inhumanand degrading
punishments andtorture.
-Omitted to include
rights of migrant
workers---

Council ofEuropeEuropeanConvention
on HumanRightsi.

~19~

Arab League

Arab
Charter on
Human
Rights

Association ofSouth East
Asian Nations

ASEAN
Human
RightsDeclarationi.

Respect for andprotection andpromotion of humanrights and fundamental
freedoms, as well as theprinciples of democracy,
rule of law and good
governance.
ii. Commitment to the
UDHR, UN Charter andthe other international
human rights
instruments to with
ASEAN member states
are parties. .
iii. ASEAN’s effort inpromoting human rights
including the
Declaration of theAdvancement of
Women in the ASEAN
Region and the
Declaration on the
Elimination of Violenceagainst Women in the
Asian Region.
iv. Establish a frameworkfor human rights cooperation.

~20~

Out of the 22
member states of
the Arab League,
only 16 members
have ratified theCharter.

-Strong emphasis ofreligion in the charterhas become
controversial on the
grounds onInternational principalof religious neutrality.
- The Charter doesn’t
abolish death penalty
but regularize it.
-It doesn’t include rightto political organizationand participation.
-Fails to recognize
fundamental Economic
and Social rights likeright to housing andright to food.
-Limitation on right tofree association like toform trade union.
-Vague exception of
implementation ofrights in context ofnational law limits the
freedom granted by the
instrument.

The 10 membersof ASEAN haveunanimously
ratified the
Declaration.

-The Declaration fails to

include basic rights andfundamental freedoms:
the right to freedom of
association and the rightto be free from enforced
disappearance.

South Asian
Association
for Regional
Cooperation

SAARC
Charter on
Democracyi.

Welfare of the people,
safeguarding diverse
identities with
opportunity to live inliberty, dignity, peaceand happiness.
ii. Promote freedom andsocial justice, rule oflaw, equal rights andopportunities of all
citizens.
iii. Ensure the fulfillment offundamental humanright along withinstitutionalizing
equitable andsustainable
development.
iv. Broad based
participation of people
in governance anddemocratization within
political parties forstability.
v. Acknowledging linkage
between democracy anddevelopment, poverty
eradication, good
governance andaffirmative action fulfill
the process of
democratization.
vi. gender inequality,
exclusion and violenceagainst women hinders
development andwomen’s participation
and representation indecision making, andaddressing the issues ofindigenous people andmarginalized including
women in peace processcontributes tosustainable peace.
Effective measures tocounter religious, ethnic
and any other form of
extremism.

All the SAARC
members areparty to thecharter.

The convention doesn’t
focus specifically in
Human Rights andFundamental freedom.
It doesn’t qualify as
sub-regional Human
Rights Instruments. It
highlights the need ofregional Human Rights
Instruments for
SAARC.

REGIONAL HUMAN RIGHTS REGIMES[Treaty-wise Prominence]

Inst
rum
ents

AfricanCharter on
Human andPeoples'
RightsAmericanConvention on
Human Rights

EuropeanConventio
n on Human Rights

~21~

Arab
Charteron
Human
RightsASEAN
Human
RightsDeclaration

SAARC
Charter on
Democracy

UDHR - Every
individual isentitled to thefundamental
rights enshrinedin thedocuments
regardless of
their race,
colour, sex,
language,religion,political orother opinion,
national orsocial origin,property, birth,or other status.
-Everyindividual isborn equal
before the law.
-Prohibition ofslavery, torture,inhuman ordegradingtreatment or
punishment.
-Right to life,
liberty, andsecurity of theirperson.
-Right to a fairtrial.
-Right to be
free form
arbitrary arrest
or detention.
-Freedom of
conscience,
thought, andreligion.
-Freedom of
expression andthought alongwith the right toseek, receive
and impart
information.
-Freedom of
movement.
-Right toparticipate intheirgovernment
and to accesspublic service.
-Right to own
property.
-Right to work
under equitable
and safe
conditions andshall receive
equal pay for
equal work.
-Right to enjoy
the best
attainable
health.

-Every individual isentitled to thefundamental rights
enshrined in the
documents
regardless of theirrace, colour, sex,
language, religion,
political or other
opinion, national orsocial origin,property, birth, orother status.
-Right to recognition
as a person before
the law.
-Prohibition ofslavery, torture,inhuman ordegrading treatment
or punishment.
-Right to liberty andsecurity.
-Right to fair trial.
-Right to privacy.
-Freedom of
conscience, thought,
and religion.
-Freedom of
expression andthought along withthe right to seek,
receive and impart
information.
-Freedom ofpeaceful assembly
and association.
-Rights of thefamily.
-Right to nationality.
-Right to property.
-Freedom of
movement andresidence.
-Right to participate
in Government.
-Right to equal
protection.
-Right to effective
remedy (judicial
protection).

-Right to life.
-Prohibition of
torture or toinhuman ordegradingtreatment or
punishment.
-Prohibition ofslavery andforced labour.
-Right toliberty andsecurity of
person.
-Right to a fairtrial.
-Prohibition
on arbitraryarrest,detention, or
exile (nopunishment
without law).
-Right torespect for
private andfamily life.
-Freedom ofthought,
conscience,and religion.
-Freedom of
expression
and thought
along with theright to seek,
receive andimpartinformation.
-Freedom ofassembly andassociation.
-Right to
marry.
-Right toeffective
remedy.
-Freedom of
movement(Protocol).
-Prohibition of
discrimination.
-Right toeducation(Protocol).

~22~-Everyindividual isentitled tothefundamental
rightsenshrined inthedocuments
regardless of
their race,
colour, sex,
language,religion,political orotheropinion,national orsocial origin,property,
birth, orother status.
-Right to life,
liberty, andsecurity of
person.
-Prohibition
on arbitraryarrest or
detention.
-Right to afair trial.
-Everyindividual isborn equal
before thelaw.
-Prohibitionof torture or
to inhumanor degrading
treatment or
punishment.
-Right to
private andfamily life.
-Right toparticipate ingovernment.
-Freedom of
movement
andresidence.
-Right tonationality.
-Right toproperty.
-Freedom ofthought,
conscience,and religion.
-Freedom ofpeaceful
assembly andassociation.
-Right toform tradeunion.
-Freedomfrom forced-Every individualis entitled to thefundamental
rights enshrinedin the documents
regardless of
their race, colour,
sex, language,
religion, politicalor other opinion,
national or social
origin, property,
birth, or otherstatus.
-Every individualis born equal
before the law.
-Right toeffective remedy.
-Right to life.
-Prohibition of
torture or toinhuman ordegradingtreatment or
punishment.
-Prohibition ofslavery andforced labour.
-Freedom of
movement andresidence.
-Right toproperty.
-Right tonationality.
-Protection offamily.
-Right to fairtrial.
-Freedom ofthought,
conscience, andreligion.
-Freedom ofpeaceful
assembly andassociation.
-Freedom of
expression andthought alongwith the right toseek, receive andimpartinformation.
-Right toparticipate ingovernment.
-Right to workand to enjoy justand safe
conditions ofwork.
-Right to form
trade unions.
-Right toadequate
standard ofliving.
-Right to enjoy-Right toparticipate ingovernment.
-Freedom fromdiscrimination
and right toequal treatment.

ICCPR- R i g h t t o RIGHT TO
freedom from JURIDICAL
discrimination. PERSONALITY.
-Right to
Equality before
the Law andE q u a lProtection of
the Law-Right to Life

Prohibition of
tortureRIGHT TO LIFE
RIGHT TOHUMANE
TREATMENTFREEDOM FROMSLAVERY-Prohibition of
To r t u r e a n d RIGHT TO
Cruel, Inhuman PERSONAL
and Degrading LIBERTY.
Treatment
RIGHT TO A FAIR
- R i g h t t o TRIAL
P e r s o n a l
L i b e r t y a n d FREEDOM FROM
Protection from "EX POST FACTO"
Arbitrary Arrest LAWS.
-Right to Fair RIGHT TOCOMPENSATIONTrial- R i g h t t o RIGHT TO
F r e e d o m o f PRIVACY
Conscience
FREEDOM OFCONSCIENCE- R i g h t t o AND RELIGION.
R e c e i v e
I n f o r m a t i o n FREEDOM OFandF r e e THOUGHT AND
Expression
EXPRESSION.
-Right toF r e e d o m o f RIGHT OFASSEMBLY
Association- R i g h t t o FREEDOM OF
F r e e d o m o f ASSOCIATION.
Assembly
RIGHTS OF THE- R i g h t t o FAMILY.
Freedom of
RIGHT TO A
Movement
NAME.
-Right to
Participate in RIGHTS OF THE
Government
CHILD.
-RightProperty

Right to life

Prohibition ofslavery andforced labor
Right toliberty andsecurity
Right to fairtrial

Right to selfdetermination.
Right against
discriminationEquality of
men andwomen.
Right toderogation

Right to life
Right to personal
liberty andsecurity
Right against
slavery
Right against
torture.
Right to freedomof movement andresidence.

Right to life
No
Punishment
without law
Right torespect for
private andfamily life.
Freedom ofthought,
conscienceand religion
Freedom of
expression
Freedom ofassembly andassociation.
Right tomarriage.
Right to aneffective
remedy.
Prohibition of
discrimination.
Right toderogationt o RIGHT TO
NATIONALITY

Right to property
Right tojuvenile
justiceRight against
torture.
Right toHumanetreatment.
Right against
slavery andtrafficking.
Equality
before law.
Right to fairtrial.
Right toliberty andsecurity.

Right to privacy.
Right to Freedomof thought,
conscience andreligion.
Right to freedomof opinion andexpression.
Right to freedomof peacefulassembly.

Right to due
process oflaw.

Right to vote.

Right against
doublejeopardy.

Freedom of
associationand peacefulassembly.
Right tominorities
Right tofreedom of~23~

No crime without
law.

Right toparticipate ingovernment.

Right toeffective
remedy.

-Right of All RIGHT TO
P e o p l e s t o PARTICIPATE IN
Equality and GOVERNMENT
RightsRIGHT TO EQUAL-Right to Self- PROTECTION.
Determination
RIGHT TO

Right to family.

Nopunishment
without law.

Right toprivacy.

- Right to
RIGHT TOWork
PROPERTY.
-Protection of
the Family and FREEDOM OF
V u l n e r a b l e MOVEMENT AND
RESIDENCE.
GroupsRight tonationality.

ICESCR- Right to workand equal pay
for equal pay
with safe
working
conditions.
- Protection offamily.
- Right toenjoy the best
attainable
health.
- Right toeducation.
- Right toparticipate incultural life.
- Eliminationof
discriminatio
n against
women.
- Right tofreely disposeof their
wealth andnaturalresources.
- Right toeconomic,social, andculturaldevelopment.
- Right to selfdetermination.

- Protection offamily.
- Right toeconomic, social,and culturaldevelopment.
- Educationalrights.

- Right to- Right toeducation.
control(Protocol)
theirwealth and- Protection
naturalof property.
resources.
- Right toform and- Right tojoin trade
work and
unions.
infavourable- Protection
and safe
of family.
conditions.
Equal payfor equalwork.
- Right toform andjoin tradeunions.
- Right toeducation.
- Right toparticipate
in culturallife.
- Protectionof family.

~24~- Right toproperty.
- Right to work
and infavourable
and safe
conditions.
- Right to formand join tradeunions.
- Right toadequate
standard ofliving.
- Right to enjoy
the highest
attainable
standard ofhealth.
- Right to social
security,
includingsocialinsurance.
- Specialprotection of
mothers
before andafterchildbirth.
- Right toeducation.

CERD

-

-

-

-

-

-

-

-

-

-

Elimi
nationofapartheid.
Equal
treatment
before
the
law.
Right
to thesecurity ofhisperson.
Right
topartici
pate in
Gover
nment
.
Freed
om of
move
ment
and
reside
nce.
Right
to
proper
ty.
Freed
om of
conscienceandreligio
n.
Freed
om of
opinion andexpres
sion.
Freed
om of
peacef
ul
assem
bly
and
association.
Economic,social,andculturalrightsregardless ofone’s
backg
round.

-

-

-

-

-

-

-

Equal
treatment
before thelaw.
Right tosecurity.
Freedomof thought
andexpression.
Freedomof peacefulassemblyandassociation.
Right tonationality.
Right toproperty.
Right tomovement
andresidence.
Right toparticipate
inGovernme
nt.
Economic,social,educational, andculturalrightsregardlessof one’sbackground.
Right toremedy.

-

-

-

-

-

-

-

-

-

-

Righ
t to
secur
ity.
Free
dom
of
thou
ght,
cons
cienc
e,
and
religi
on.
Free
dom
of
expre
ssion
.
Free
dom
of
asse
mbly
and
assoc
iatio
n.
Proh
ibition ofdiscri
mina
tion.
Righ
t to
form
and
join
trade
unio
ns.
Righ
t to
educ
ation
.
(Prot
ocol)
Free
dom
of
move
ment
.
(Prot
ocol)
Prot
ectio
n of
prop
erty.
Righ
t to
effec
tive
reme
dy.

~25~

-

-

-

-

-

-

-

-

-

Rig
ht to
prop
erty.
Rig
ht to
secu
rity.
Rig
ht to
equa
l
judic
ial
treat
ment
.
Rig
ht to
mov
eme
nt
and
resid
ence
.
Fre
edo
m of
thou
ght,
cons
cien
ce,
opin
ion,
and
relig
ion.
Fre
edo
m of
asse
mbl
y
and
asso
ciati
on.
Rig
ht to
form
and
join
trade
unio
ns.
Rig
ht to
wor
k.
Rig
ht to
parti
cipat
e in
Gov
ern
ment
.

-

-

-

-

-

-

-

-

-

-

-

-

Equal
treatment
beforethe law.
Righttoeffective
remedy.
Right
tosecurity.
Right
tofreedomofmovem
ent andresidenc
e.
Right
to
property.
Right
tonational
ity.
Freedom ofthought,
conscience, andreligion.
Freedom ofopinionandexpression.
Freedom ofassembly.
Righttoparticip
ate inGovern
ment.
Econo
mic,
social,andculturalrightsregardle
ss of
one’s
background.
Right
to work.
Right
to formand join
tradeunions.
Right

CEDA
W

-

-

-

-

-

-

-

Right
to
partici
pate in
Gover
nment
.
Elimi
nationofdiscriminationagains
t
wome
n.
Right
to
education for
all.
Right
to
work
and to
work
under
safe
and
equitable
condit
ions,
equal
pay
for
equal
work.
Every
individual isequal
before
the
law.
Freed
om of
move
ment
and
residence.
Equalrightsregarding
property.

- Right toparticipate in
Government.
- Every individual
is equal before
the law.
- Freedom of
movement andresidence.
- Right toeducation.
- Prevention of
discrimination on
the grounds ofmarriage.
- Equal rights
regardingproperty.

-

-

-

-

-

-

Prev
entio
n of
discri
mina
tion
on
the
grou
nds
of
marri
age.
Proh
ibition ofdiscri
mina
tion.
Righ
t to
educ
ation
for
all.
Ever
y
indiv
idual
is
equal
befor
e the
law.
Free
dom
of
move
ment
and
resid
ence.
Equ
al
right
s
regar
ding
prop
erty.

~26~

- Every
individual
is equal
before thelaw.
- Right towork.
- Right toeducation.
- Freedomofmovement andresidence.
- Equalrightsregardingproperty.

-

-

-

-

-

-

Every
individu
al is
equal
beforethe law.
Freedom ofmovem
ent andresidence.
Equalrightsregardingproperty.
Right
to work
and towork
undersafe andequitableconditions.
Right
to enjoyadequate living
conditio
ns(housing,sanitation,water)
Righttoeducation.

CRC

Ensures
protection ofChild asstipulated inInternational
Declarations
andConventions-Right to Child- Right to name
- Right against
Capital Punishment
for minors.
-Separate Criminal
proceedings forminors.

-Right tolawfuldetention ofminor.

-RightagainstCapitalpunishment(unless
stipulated bylaw at thetime ofcommissionof crime)-Right to children
as inalienable,
integral andindivisible part ofhuman rights andfundamental
freedoms.
-Right againstchild labor.
-Right againstsocialexploitation ofchild.
-Right to equalsocial protection.
- Special benefits
during and afterchildbirth tomothers.
-Right tomaternal leave.

CAT-Prohibition of
torture andinhumantreatment.

-Right to humane
treatment-Prohibition of
torture, cruel,inhumane, anddegradingpunishment.

-Prohibitionof physicalor
psychologica
l torture or tocruel,
degrading,humiliating
or inhumantreatment.
-Criminalizat
ion oftorture, cruel,degrading,humiliating
or inhumantreatment.

-Prohibition of
torture, cruel,inhumane, anddegradingpunishment.

CRPD-Right to
specialmeasures ofprotection toensure physicaland moral
needs.

-No exclusive rights
to persons withdisability.

-No exclusive
rights toperson withdisability.

-Obligationof state party
to ensurerights andfreedoms of
persons withphysical andmentaldisability.
-Right towork-Person withdisability entitled
to rights andfreedom.
- Right ofpersons withdisabilities
inalienable,
integral andindivisible part ofhuman rights andfundamental
freedoms

~27~

UNTC

-Charterdoesn’tenshrinemigrant worker
rights.
-Adopted 114
Resolution on
Migration and
Human Rights.

- Migrant worker
rights is notenshrined on the
instrument.
-Established
INTERAMERICAN
PRINCIPLES ON
THE HUMAN
RIGHTS OF ALL
MIGRANTS,REFUGEES,STATELESSPERSONS AND
VICTIMS OF
HUMAN
TRAFFICKING-The
convention
doesn’tenshrine
Migrant
worker rights.

-Each State
party shallensure toworkers who
migrate to its
territory therequisite
protection inaccordancewith the laws
in force.

- Right ofMigrant as an
inalienable,
integral andindivisible part ofhuman rights andfundamental
freedoms.

CPPE
D-The instrument
has omitted
protection
againstenforceddisappearance.
- The
Commission
has established“Guidelines on
the protectionof all persons
againstenforceddisappearancesin Africa”-The instrument
omitted enshrine
protection against
enforceddisappearance.
- The Organizationof American States
has establishedInter-American
Convention on
ForcedDisappearance of
Persons.

-The
instrument
doesn’tenshrine
protection
againstenforceddisappearance.
- The
European
Court has
howeverinterpreted
Enforceddisappearance
under
Right to life,
Prohibition of
torture, Right
to Liberty andSecurity andRight to aneffective
remedy.

-The
instrument
omitted toenshrine any
protection
againstenforceddisappearance.

-The instrument
omitted toenshrine any
protection against
enforceddisappearance.

2.Modalities of Control
Inter-statecomplaints

Individualcomplaints

Regular Reports

EUROPEYes

Yes

AMERICAS

Yes

Yes (via Commission)

Reports by expert bodies; state
reports of and to theCommission

AFRICAYes

Yes (via Commission)

Reports by expert bodies; state
reports of and to theCommission

ARAB STATES

Yes

No

State reports to the Arab
Human Rights Committee

ASIAPACIFIC(ASEAN)

No

No

No

~28~

Report by expert bodies

3.Implementation of Control
Judgement

Advisory

Reports

Recommend
ationsopinionMonitoring of the
Implementation of theJudgement

EUROPE

Yes

Yes

Yes

No

Yes (Committee of
Ministers)

AMERICAS

Yes

Yes

Yes
(Com
mission)

Yes(Commission)

No (Written procedure
between the Court and thestateconcerned)

AFRICA

Yes

Yes

Yes
(Com
mission)

Yes(Commission)

Executive Council andAssembly of the AU

ARABSTATES

No

No

No

No

No

ASIAPACIFIC

No

No

No

No

No

(ASEAN)REGIONAL HUMAN RIGHTS REGIMES[Redress Avenues]
Organizati
ons

Instruments

Civil Society
SpaceComplaint
Mechanisms~29~

Emblematic Cases

The
African
Union

AfricanCharter on
Human andPeoples'
RightsThe African
Charter provides
that the African
Commission mustcooperate withother African andinternational
institutions that areconcerned withpromoting andprotecting humanand peoples’
rights.

Article 26 of
the African
Charter on
Human andPeople’s
Rightsrequires for
the State
Parties to have
independent
courts andmust establish
and improve
national
Civil Society can
institutions
take complaints of that promoteviolation of human and protect
rights by the state the rights andparty to thefreedoms.
Charter.
‘The African
Commission
NGO Observer
on Human andStatus: Observer
People’sstatus is a formal
Rights’ (therecognition of an
Commission)
NGO and its
is establishedauthority tothrough article
participate at the
30 for theCommission.
promotion andNGOs withprotection ofobserver status
human andmay makepeople’s rights
statements andin Africa.
answer questions
According toduring thearticle 47, if a
Commission’sState Party
public sessions.
has good
They may also be reason to
invited to attend
believe thatclosed sessions
another Statedealing with issues Party isthat are ofviolating theparticularCharter, theimportance to their former State
organization.
cancommunicate
NGOs within writing toobserver status can the latter andsuggest items that they would
relate to any
have threehuman rights issue months tofor inclusion in the respond.
AfricanAdditionally,
Commission’s
article 49 also
provisional
allows foragenda.
State Parties~30~

Commission:
1. Social and Economic Rights
Action Center(SERAC) v. Nigeria(2001)
AHRLR 60 (ACHPR 2001)
The communication alleges that the
military government of Nigeria has
been directly involved in oil
production through the State oilcompany, the Nigerian National
Petroleum Company (NNPC), themajority shareholder in a consortiumwith Shell Petroleum Development
Corporation (SPDC), and that these
operations have caused
environmental degradation andhealth problems resulting from thecontamination of the environment
among the Ogoni People.
The African Commission heldthat Nigeria violated Articles 4, 14,
16, 18, and 24 of the African Charterby condoning and facilitating
environmentally degrading andpolluting practices of oil companies
in traditional Ogoniland, throughmilitary force.
DRC v Burundi, Rwanda and Uganda(2004) AHRLR 19 (ACHPR 2003)
This communication was filed by the
Democratic Republic of Congo(DRC) against the Republics of
Burundi, Rwanda and Uganda. DRC
alleged that Burundi, Rwanda andUganda (respondent states) had
committed grave violations ofhuman and peoples’ rights in theCongolese provinces through theactivities of rebels groups which theapplicant alleged were supported by
the respondent states
The Commission concluded that the
respondent states were in violationof several provisions of the African
Charter and urged them to takemeasures to abide by their
obligations under the UN Charter,
the OAU Charter and the African
Charter and to further pay adequate
reparations to the victims of theviolations.

Organizati
on ofAmericanStatesAmericanConvention
on HumanRights

Civil Societies
provideinformation during
in loco visits by
the InterAmerican
Commission of
Human Rights.
CSOs provide firsthand documents
on human rights
violation.

Article 33 of
the American
Convention
on HumanRights (theConvention)
establishes theInterAmerican
Commission
on HumanRights (theCommission)
CSOs can also file and the Interthe complaints on American
behalf of the
Court ofvictim against the Human Rights
violation of human (the Court).
rights by the state. Article 44
allows ‘any
CSOs participate person orin the joint
group ofmeetings with the persons, orWorking Groupany
and innongovernme
consultations.
ntal entity
legally
recognised in
one or morememberstates’ tolodge petition
regardingdenunciationor complaintsof violation oftheConvention
by a State
Party to theCommission.
Article 45
states that theprovision forcommunication by a State
Party
regarding a
violation byanother State
Party can only
be utilised ifthey haveofficiallyadhered to theConvention or~31~

IACHR:
1. Lezmond C. Mitchell.
United States of America(IACHR, Report No. 211/20.
Case 13.570)
On April 3, 2017, the Inter-American
Commission on Human Rights
received a petition and request forprecautionary measures alleging theinternational responsibility of theUnited States of America for theviolation of the rights of LezmondM., a citizen of the United States anda member of the Navajo Nation, who
is on federal death row.
On April 26, 2018, the Commission
notified the parties of the applicationof Article 36 (3) of its Rules ofProcedure, since the petition falls
within the criteria established in its
Resolution 1/16, and placed itself at
the disposition of the parties to reacha friendly settlement.
The Court:
Claude Reyes et al. vs. Chile ( 2006)
After requests and appeals foraccessing information on government
contracts were denied by the Chilean
government and the Chilean Supreme
Court, a civil society organisation
brought this case to the InterAmerican Court. The Court ruled that
the Chilean government must provide
the requested information and adopt
the necessary measures in terms ofadopting or modifying its domestic
law to ensure the right of access tostate-held information.
This decision inspired the adoption of
FOIAs in other countries under thejurisdiction of the Inter-American
Court, such as Nicaragua (2007),
Chile (2008), Guatemala (2008),
Uruguay (2008), El Salvador (2011)
and Brazil (2011). In countries
without a FOIA, such as Colombia,
Costa Rica and Argentina, civilsociety has used this ruling tosuccessfully request public
information from their governments.

Council ofEurope(CoE)

EuropeanConvention
on HumanRightsThe CoE deems
the participation of
Civil Society to be
essential as it is apart of preserving
the democratic
process. NGOs areable to apply for aparticipatory status
within the CoE.
The INGOs
enjoying
participatory
status:a.
mayaddress
memoranda to theSecretary General;b.
shall haveaccess to theagenda and public
documents of the
Parliamentary
Assembly in orderto facilitate theirattendance atpublic sittings of
the Parliamentary
Assembly;c.
are invited
to the public
sittings of theCongress of Local
and Regional
Authorities and tocontribute to its
work according to
its rules;d.
are invited
to attend seminars,
conferences,colloquies ofinterest to theirwork according to
the applicableCouncil of Europe
rules;
e.
may beinvited tocontributeindividually or
through theConference ofArticle 19 oftheConvention
establishes theEuropean
Court of
Human Rights(the Court).
According toarticle 33, aState party totheConvention or
its Protocols
can take acase regarding
a violation byanother States
party to theConvention or
its Protocols
to the Court.
Furthermore,
article 34
allows forindividualcomplaints byany person,
nongovernmentalorganisation
or group ofindividuals
who claim to
be victims of
violation by
one of theState parties
to theConvention or
its Protocols.
Article 35 lays
out the criteria
foradmissibility.

~32~

Ireland v United Kingdom (5310/71)
Ireland v United Kingdom is alandmark European Court of Human
Rights case which has become crucial
concerning cases regarding ‘cruel andunusual treatment’. The Court ruledthat the UK government was guilty of"inhuman and degrading treatment",of men interned without trial. The
Court found that while theirinternment was an interference of theconvention rights, it was justifiable inthe circumstances. However, theyruled that the practice of the fivetechniques and the practice of beating
prisoners constituted inhumane anddegrading punishment in violation of
the convention, although not torture.

ArabLeagueArab
Charter on
Human
RightsLeague of ArabStates grantobserver status to
CSOs, only thoserecognized by
Member States, toobserve meetingsof the LAS and its
Committees.
NGOs are only
able to present
theirrecommendation
two months inadvance and if a
Member Stateagrees. NGOs areable to contributeto the deliberationsof Arab Human
Rights Committee,
however, they
restricted and highregulated.

Currently
there is nocomplaint
mechanism
within the
Arab regime.
The Statute of
the Arab
Court of
Human Rights
2014 wasformulated fortheestablishmentof an Arab
Court.
However, theStatute has yet
to be ratified
by the sevenrequisite andthe Court has
yet to beestablished as
well.
The Arab
Additionally,
Permanent
there has been
Committee on
significant
Human Rights
criticism
does not haveregarding theability to accept
Statute of theindividual
Arab Court ofcomplaints or
Human Rights
conduct country
for not having
inquiries bysuitablerequest of CSOs.
measures andOfficially, thenot meeting
Committee caninternational
only
standards.
receive reports and Article 40 of
information fromthe Charter
CSOs officiallyestablishes theregistered asCommittee forNGOs in their
human rights.
countries of origin. However, they
do not have
When Member
the ability toStates prepare
accepttheir reports, CSOs individual
are invited tocomplaints or
prepare a shadow/ conductparallel report for country
the Arab Humaninquiries by
Rights Committee. request of
When theCSOs.
Committee meets
Officially, the~33~

Associationof South
East Asian
Nations

ASEAN
Human
RightsDeclaration

ASEAN
Intergovernmental
Commission on
Human Rights(AICHR) is
capable of having
consultative
relationship with
CSOs. The
accredited CSOs
are able to give a
written statement
regarding
AICHR’soperations to theASEAN
Secretariat who
would circulate itto the AICHR. The
relationship allows
for AICHR to
consult CSOs fortheir views andadvice, however,
AICHR is notbound to theadvice. Seminars
can be held toprovideinformation andworkshops forintensive
discussions todeveloptechniques, skills
and methods inrelevant fields.
Accredited CSOs
could be requested
to do specificstudies by the
AICHR. CSOs canhelp implement
projects carriedout by AICHR.
There are Annual
Conferences ofCivil Society
based upon aconglomeration ofcivil society actors
in the ASEAN.

Currently
there are nocomplaint
mechanism
for the
ASEAN.

~34~

SouthAsian
Associati
on forRegional
Cooperation

SAARC
Charter on
Democracy

Currently
there nocomplaint
mechanism
for theSAARC.

REGIONAL HUMAN RIGHTS REGIMES[Critical Review]
Organizations

Instruments

Non-Conformity w/
International Instruments~35~

Areas of
Improvement

Remarks

The African
Union

African Charteron Human andPeoples' Rights

●

●

●

●

●

●

●

Omitted to recognize‘Right to Privacy’and ‘Right Against
Forced orCompulsory Labor’
explicitly.
Article 7 mentions
Right to Fair Trial
which is inadequate
as compared to theprovisions
mentioned in the
ICCPR.
Article 13 provisionson ‘Right to Political
Participation’ isincomplete incomparison tointernational
standard.
Existence of Clawback clauses. Clawback clauses ‘permit
a state, in its almost
unboundeddiscretion, to restrict
its treaty obligationsor the rights
guaranteed by theAfrican Charter.
Non-inclusion of‘Right to trade
Union’ when there’s
provision on ‘Right
to Free Association’.
Excludes the right tohousing, food andsocial rights
mentioned in the
ICESCR.
Individuals owe
duties to the “family
and society”, this canbe seen as protecting
oppressing family
structure andpredicted to clash
with women rights.

~36~

African Charteron Human andPeople’s rightembodying theprinciple ofUniversality, hasa gap in a form ofclaw-back clause
to address.
-There is a needto broaden thescope ofprotection under“Right to Free
Association”
through inclusionof trade union.
- Derogation
clause could be agood addition tolimit the action ofstate and protect
individual
freedom andliberty.

The inclusion ofterm “ethnic group”
on nondiscrimination
provision has
broadened thehorizon ofprotection ofminority. However,African Charter
doesn’t fully
embody the spirit ofInternational
Human Rights
Instruments. Thereis a vacuum of
enforcement
mechanism.

Organizationof American
StatesAmericanConvention on
Human Rights● Omitted to recognise‘right to health’,● Inadequate
mechanism to address
justiciability of
Economic, Social andCultural Rights.

- The
Commission is
not able todirectly refer acase to the
Court. A
straightforwardmanner ofcommunication
regarding cases
must bedeveloped
between the
Court and theCommission.

The Convention
adequately embody
Civil and Political
Rights in the spiritof International
Human Rights
Instruments.
However, there is a
gap in addressableof Economic,
Cultural and Social
Rights. The
Organization has
adopted various
treaty to addressrights notadequately
addressed in theConvention,
however it stilllacks anymechanism toensure justiciability
for violation of
Economic, Social
and Cultural Rights.

Council ofEuropeEuropeanConvention on
Human Rights-The instrument doesn’t
recognize Rights ofMigrant workers alongwith Protection Against
Enforced
Disappearances.

The Convention
hasn’t explicitly
enshrined
protection against
enforceddisappearance.
The courts havebeen interpretingcases of enforced
disappearance incontext of Civil
and Politicalrights addressedin theConvention.
There would be agreater scope ofindividual
protection against
State action if theparticular
protection would
be enshrined.

The Convention has
embraced the spirit
and the principles
of International
Human Rights
instrument.
However, thejurisdiction of theconvention would
be further
strengthened if it
could address
enforceddisappearance andobligation of state
to criminalize
torture and inhumanpunishment.

~37~

Arab League

Arab Charter on
Human Rights-Arab Charter doesn’t
embody the International
Principle of “Religious
Neutrality” because of
the Charter’s references
to religion.
-It further limits therights enshrined within
the Charter by failing tolimit State’s Action
against individuals
including in rights.
-It has omitted toenshrine Protection
against Enforced
Disappearances alongwith limiting Right tofreedom of Association.
-Charter recognizes theright to life, freedom andsecurity of person (art5),t does not prohibit thedeath penalty or
encourage its abolition
but only regularize it.
-The Charter however
fails to provide for theright to politicalorganization andparticipation.
-It’s standards falls shortfrom the International
Instruments on protectionof “Right to fair trial”.

~38~-The Charter has
regionlized theessence ofUniversal Human
Rights. Rather
than seeking theStates to change
their domestic
laws, the Charter
limits its rights
by providing
discretionary
power to local
laws.

The Charter acts asa regulatory tool forthe party states. The
demarcation ofregulatory role of
the Charter blurs as
the Charter allows
the supremacy ofdomestic laws over
Universal Human
Rights and its
principles.

Associationof South East
Asian
Nations

ASEAN Human
RightsDeclaration-The rights enshrined ismade subject to nationallaws, instead of requiringthat the laws be
consistent with the rights.
-Declaration fails to
include the right tofreedom of associationand the right to be freefrom enforced
disappearance.
-Balancing Human
Rights with individual
duty in ASEAN space forgovernment intervention
and regressive state
action.

-ASEAN hasvarious claw backclause, forexample “Inaccordance tolaw” in Right tolife. It limits thescope of rights
within the
Declaration.
-Furthermore it
needs to have aconcrete languageof limitation in
Rights instead ofvague terms like
“morality”. The
open spaces forState’s intrusion
in Rights are thefundamental Gap
in the declarationthat needs to beaddressed.

-ASEAN Human
Rights Declaration
through its claw
back clause andvague terminologies
limits the protectionof individual rights
against state.
- It further morelack acomprehensive
independent Human
Rights mechanism,
independent bodyto promulgate
binding laws, anindividualcomplaint
mechanism andindependent
investigative
bodies.

South Asian
Association
for Regional
Cooperation

SAARC Charteron Democracy-SAARC Charter hasn’t
been adequately emulated
Civil and Political rights,
Economic, Social andCultural Rights, Rights toChildren, Right of
Persons with disability,
Right against Torture,
Protection against
Enforced Disappearancesalong with Rights ofMigrant workers as
enshrined byInternational Human
Rights Instruments.

SAARC Charteron Democracy
doesn’t qualify asa Regional
Human Rights
Instrument,
however it is the
only instruments
that
acknowledges
Universal Human
Rights like Civil
Political andSocio-economic
rights. However,
the instrument is
notcomprehensive
instrument toaddress Regional
Human Rights
and its
implementation.

There is an urgencyof adoption of acomprehensive andbinding Human
Rights Instrument
for the SAARC
region.

ASEAN DECLARATION AND AICHR: COMPLIANCE AUDITContextual Background~39~

The promulgation of the ASEAN Charter in 2008 was described as ASEAN’s constitutional
moment. Negotiated during the course of 2007 by the High-Level Task Force (HLTF), theASEAN Charter came into force in December 2008. It gave ASEAN a legal personality, andsought to establish ASEAN’s values and norms, including the rule of law, democracy andgood governance. The ASEAN Charter is currently slated for a review.10 However, ASEAN
leaders, policymakers and experts are divided on the very topic of whether the Charter needs
review; and, if so, what the priority areas are. Many differences of opinion stem from the factthat the vision for ASEAN’s future is varied and contested. Should ASEAN proceed withdeeper integration and community building? Should it hold on to its principles of noninterference and sovereignty? Are the principles and institutions of ASEAN sufficiently
effective for community building? Ideas about sovereignty and regional community andinstitutions are not mutually exclusive. There is however a tension between one and the otherthat reflects an underlying and largely unresolved question in the ASEAN Charter and the
movement towards ASEAN Community. The year 2022 marks the 13th year since the Charter
entered into force. This occasion presents an opportunity for ASEAN to review the provisionsof the Charter document, and to also review ASEAN’s progress on human rights safeguards
and promotion.11
ASEAN on Human Rights Arena
On human rights front, there are still massive differing views. The inclusion of human rights
in the ASEAN Charter – as a principle for the group and with a human rights commission –was controversial.12 While some ASEAN countries tend to regard such an agenda as aplatform to interfere with their domestic politics, a number of members like the Philippines
are pushing for more robust human rights protection in the region. The inclusion of humanrights into the agenda shows that ASEAN has to respond to the challenges arising from theassertion of human rights as universal values. This goes beyond the defensive policy of themid-1990s, when “Asian values” were asserted in contrast to human rights as “Westernvalues”.13 The ASEAN Charter refers to universal principles in terms of democracy andhuman rights. However, Article 6 of the ASEAN Human Rights Declaration clearly statesthat it is the responsibility to protect and promote human rights lies with ASEAN member
states. This is a state-centric approach rather than entrusting such roles on the regional

10

Article 50 of the ASEAN Charter states that “This Charter may be reviewed five years after its entry into force or as otherwise
determined by the ASEAN Summit”

11

Ibid

12

See for instance: Koh, Tommy (2009) “The Negotiating Process”, in Tommy Koh, Rosario G. Manalo and Walter Woon (eds) The
Making of the ASEAN Charter (Singapore: World Scientific), pp. 58-9.

13

Ibid

~40~

community as a whole, or by empowering individual citizens and non-governmentalorganizations.
Ratification Record of ASEAN Member States
Country

CER
D

ICCP
R

ICES
R

Brunei

CEDAW

CAT

X

CRC

CMW

CED

X

Cambodia

X

X

X

X

X

X

Indonesia

X

X

X

X

X

X

Laos

X

X

X

X

X

X

CRP
D

Signed

X

X

X

Signe
d

X

Signe
d

X

Malaysia

X

X

X

Myanmar

X

X

X

Philippines

X

X

X

Singapore

X

X

X

Thailand

X

X

X

X

Vietnam

X

X

X

X

X

X

X

X
X

X
X

X
X

Signe
d

X
SignedNote: ‘X’ meansratified/acceded.
Source: United Nations Office of High Commissioner on Human Rights website, <http://www.ohchr.org/EN/Pages/WelcomePage.aspx>.

The ASEAN Charter also emphasizes the responsibilities of individuals. This contradiction
constitutes one of the fundamental problems the ASEAN Charter faces on the question ofhuman rights. The concerns of “interference” are even stronger in respect of specific rights.
For instance, Article 25 (2) of the ASEAN Human Rights Declaration states that citizens have“the right to vote in periodic and genuine elections”. Those ASEAN member states who do
not hold free elections will not accept a strict interpretation of such a clause.14 Yet while there
are objections to specific human rights provisions, there remains a more general mandate in
the ASEAN Charter for the protection of human rights. The codification of principles, norms
and practices in the Charter is in itself a rights-based approach towards community-buildingin ASEAN. Article 1 (7) of the Charter established that the promotion and protection ofhuman rights is one of the purposes of ASEAN. Recommendation: Focus on improving
publicity of AICHR’s work The very existence of the ASEAN Intergovernmental
Commission on Human Rights (AICHR) was a milestone and important start as a confidencebuilding measure towards greater public discourse in ASEAN on human rights. Despite this,
AICHR has faced much criticism from observers. Common criticisms include not only thatAICHR does not have powers to investigate and punish human rights offenders but they do
not respond quickly enough to issues. AICHR is accused of serving merely serves as a shield
14

ASEAN Human Rights Declaration, November 19, 2012~41~

for governments against criticism. The AICHR has been operating on a “promotion first,
protection later”15 approach with regard to human rights in ASEAN. Yet, there is little public
information about its work. Some ASEAN member states like the Philippines have taken it
upon themselves to brief civil society organisations on their work on human rights. However,
not all ASEAN members do so, and the process of providing information is largely
unsystematic.
Ten years since its establishment, AICHR has yet to fully function as a regional human rights
mechanism that meets the expectations of civil society. From 2010 to 2018, AICHR spentover six million USD conducting 121 activities approved by the AMS. Unfortunately, these
activities have not resulted in any significant improvement in the human rights situation on
the ground, or for the peoples of ASEAN who need its protection. Southeast Asia has faced
frequent numerous human rights violations and abuses, ranging from the worst crimes against
the Rohingya and other religious and ethnic minorities in Myanmar, to numerous enforced
disappearances across the region, to extra-judicial killings in the Philippines, attacks on
independent media, dissolution of the legal opposition, and the shrinking of civic space andfreedom of expression in the region. The human rights situation in the region is deteriorating,but all the issues remain unaddressed by AICHR.16
Despite having protection-related provisions in its Terms of Reference (TOR) that can becreatively utilised to meaningfully address the situation, AICHR tends to succumb to thepolitical will of ASEAN Member States. The human rights commission chooses to hidebehind the non-interference principle of ASEAN and to sideline the rule of law, democracy,
and respect for fundamental freedoms. This has resulted in the grave neglect of fulfillment
human rights on the ground and continually resulted in the irrelevance of AICHR and
ASEAN as a whole to address people’s struggles.17
It is evident that individually and collectively, the AICHR, AMS and ASEAN have failed tocreate or develop a viable human rights mechanism. The mechanism is considerably weakercompared to those in Africa, the Americas, and Europe, which have the power to investigate
and consider complaints. States often respectfully submit their positions to these bodies, andthe mechanisms take steps to prevent and stop violations, provide redress and accountability,and ensure that violations are not repeated.
Case Study of Lack of viable Human Rights Mechanism:

15

As often characterised, albeit by detractors of AICHR. See for instance, Robert Evans, ‘U.N. Rights Chief “Disappointed” On New
ASEAN Body’, Reuters India, 22 July 2009.

16

Ibid

17 Ibid~42~

In the context of Human Rights violations and strategic state violence in Myanmar, ASEAN
leaders adopted the ASEAN Five-point consensus. The consensus includes a provision ofhumanitarian assistance without discrimination. The consensus is still facing various
reservations within ASEAN states. UN Security Council has formulated a draft resolution on
Myanmar. However ASEAN members have shown various contentions regarding languageon the draft. China, India and Russia have shown strong emphasis on presidential statements
rather than a resolution.
This highlights the impaired agency of the UN Security Council in the context of the lack of a
Regional Human Rights Mechanism. Regional Mechanism exudes authority over their State
members, however, the lack of action mechanism within the frame work in the context of
ASEAN has impaired Humanitarian and Human Rights intervention in Myanmar. The
ASEAN is functioning on nominal approach that acts as ASEAN representative, which
doesn’t address question of accountability in the context of Human Rights Violation. There isa need of and independent body to make binding decisions that States are obligated to follow,
strong mechanism for independent investigation of Human Rights and a mechanism forindependent complaints.

HR Provisions in the Constitutions of ASEAN Member States
No.

Rights that are guaranteed

State

1.

Right to life and livelihood

Philippines, Thailand, Malaysia, Cambodia, Singapore,
Indonesia

2.

Right to equality, personal freedom

Philippines, Thailand, Malaysia, Cambodia, Myanmar,
Singapore, Indonesia

3.

Right to property

Philippines, Thailand, Cambodia, Myanmar, Vietnam,
Indonesia

4.

Right to safety

Philippines, Cambodia, Indonesia

5.

Right to be free from arbitrary arrest,
detention and raid

Philippines, Thailand, Malaysia, Laos, Myanmar, Vietnam

6.

Right to privacy on communication andcorrespondence

Philippines, Vietnam

7.

Freedom of opinion and expression, thepressPhilippines, Thailand, Malaysia, Cambodia, Laos,
Myanmar Singapore, Vietnam, Indonesia

8.

Freedom of assembly

Philippines, Thailand, Malaysia, Cambodia, Laos,
Myanmar, Singapore, Vietnam, Indonesia

9.

Right to deliver objection and petition

Philippines, Thailand, Laos, Vietnam

10.

Freedom to practice religion or belief

Philippines, Thailand, Brunei, Malaysia, Cambodia, Laos,
Myanmar, Singapore, Indonesia

~43~

11.

Right to information and communication

Philippines, Thailand, Vietnam, Indonesia

12.

Right to ajusttrial

Philippines, Thailand

13.

Right to be free from coercion, tortureand intimidation

Philippines, Cambodia, Indonesia

14.

Right to be presumed innocent until
proved guilty

Philippines, Thailand, Vietnam

15.

Right to be free from slavery and forced
labourPhilippines, Thailand, Malaysia, Singapore

16.

Right to be free from cruel and degrading Philippines, Myanmar, Indonesia
punishment

17.

Right to be free from imprisonment due
to the inability to pay debt or tax

Philippines

18.

Right to be free from being adjudicatedand punished twice for the same act

Philippines, Malaysia

19.

Right to be free from being punishedbased on retroactive legislation

Philippines, Thailand, Malaysia, Myanmar, Indonesia

20.

Right to take part in the government of
the country, directly or through freely
chosen representative (to participate inelections)

Philippines, Thailand, Brunei, Malaysia, Cambodia,
Laos, Myanmar, Vietnam, Indonesia

21.

Right of indigenous people, ethnic
group, tribe, and traditional community
to conserve local customs and wisdom

Philippines, Thailand, Laos, Indonesia

22.

Right to place of dwelling

Philippines, Thailand, Vietnam, Indonesia

23.

Right to healthcare

Philippines, Thailand, Cambodia, Laos, Vietnam,
Indonesia

24.

Right to protection and equality forfemale labour

Philippines, Cambodia, Myanmar, Vietnam

25.

Right to partake in social, political andeconomic life

Philippines, Thailand, Cambodia, Vietnam, Indonesia

26.

Right to education

Philippines, Thailand, Cambodia, Laos, Myanmar,
Singapore, Vietnam, Indonesia

27.

Right to be equal before the law andhave the protection of the law

Thailand, Malaysia, Cambodia, Laos, Myanmar,
Singapore, Vietnam, Indonesia

28.

Right to be free from discriminative
treatment on any grounds

Thailand, Cambodia, Laos, Indonesia

29.

Freedom of movement

Thailand, Malaysia, Cambodia, Vietnam, Indonesia

30.

Right to family’s right, dignity,
reputation and privacy

Thailand

~44~

31.

Right to confidentiality of personal data

ThailandThailand, Laos, Myanmar

32.

Right of children, juveniles, women,
pregnant women, elderly and persons
with disabilities to protection andservice

33.

Right to freedom of venture andoccupation, and guarantee of worksafetyThailand, Cambodia, Laos, Myanmar, Vietnam,
Indonesia

34.

Right to academic freedom

Thailand

~45~

35.

Right to welfare, public facility andrelief from the state for the poor andgroups with special needs

Thailand, Laos, Indonesia

36.

Right to sue government institution
owing to an action perpetrated

Thailand37.

Right to follow up and request
responsibility from political
officials

Thailand, Laos

38.

Right to form unions andassociations

Thailand, Malaysia, Cambodia, Laos, Myanmar, Singapore,
Vietnam, Indonesia

39.

Right to not be banished or
excluded

Malaysia, Singapore

40.

Right to social security

Cambodia, Indonesia

41.

Right of housewives to have thesame value as when they are
working outside the house

Cambodia

42.

Right to perform strikes anddemonstrations

Cambodia

43.

Right of women to be free fromdiscrimination and exploitation

Cambodia, Vietnam

44.

Right of children to life, growth anddevelopment, to obtain education,
protection and be free fromdiscrimination

Cambodia, Vietnam, Indonesia

45.

Right and freedom to performstudy, research and development ofscience and technology

Laos

46.

Right to establish a family and to
generate offspring through a lawful
marriageIndonesia

47.

Right of peoples to collectively
advance themselves in a fight for
their rights

Indonesia

48.

Right to nationality

Indonesia

49.

Right to prosper and deserve a
healthy environment

Indonesia

Source:ASEANHumanRightsWorkingGroup2012

SAARC: SCOPE FOR HUMAN RIGHTSOne of the most welcome developments in South Asia has been the emergence of the South
Asian Association for Regional Cooperation (SAARC) in 1985 which aims for promoting
regional cooperation to work together, in a spirit of friendship, trust and understanding, toimprove people's quality of life; to accelerate economic growth, social programs, cultural~46~

development, to strengthen self-reliance among South Asian states and to promotecollaboration in economic, social, technical and scientific fields. Even after the 36 years since
its establishment, no program has been effectively implemented to achieve the Charter goals
or to establish South Asian identity as an integrated region in addressing issues of humanrights and development despite repeated commitments from the member countries of the
SAARC expressed through their constitutional, legal and national policies as state party tointernational human rights treaties.18
Although it was witnessed in the recent years that the democratization process in the SAARC
region was gradually gaining ground, thus seemed to be moving in a positive direction.
Nevertheless, the long-standing issue of securing genuine democracy, protecting the humanrights of the people of the region and maintaining just peace is yet to be resolved. The south
Asian society is encountering the encroachment on non-derogable rights such as the right tolife, freedom from torture and bondage. Meanwhile the economic and political policies of the
Indian state are calculated to achieve the interest of expansionism rather than regional
cooperation. The incidences of systematic violation of human rights, military repression andrepressive laws to deal with the demand for democratic and fundamental human rights by thepeoples of South Asia particularly by various indigenous communities, dalits, the disabled,
women, children and other marginalized section of the society are the routine of the day.
The SA region is the homeland of the great majority of the population and natural resourcesof the global village. The SA region is the only region in the world where there is no any
regional instrument which governs human rights as enshrined in the 1948 Universal
Declaration of Human Rights and other international human rights treaties. Gross violation ofcivil and political rights has become a systematic and constant pattern in many South Asian
countries resulting in displacement, mass exodus, illegal detention, arbitrary arrest, extrajudicial execution, rampant torture, disappearance and so on.
People are equally deprived of their economic, social and cultural rights resulting in
malnutrition, infant mortality, homelessness, discrimination, poverty, hunger and other formsof social injustices. While the sub-continent has more than enough food, yet people starve todeath in some SA countries. The great majority of South Asians are poor because of theinequitable ownership and control of the means of production, capital, technology, land andother productive assets.19

18

Human Rights System for SAARC: Problems and Perspectives, HURIGHTS, Gyan Basnet, June 2014 - Volume Vol. 76,

19

Ibid

~47~

The human rights debate in South Asian countries is mired in concepts such as human rights
with a the South Asian perspective or South Asian flavor of human rights. The mostimportant distinction, however, is between the interests of the government and those of thepeople. In the context of public debate, only the interests of the government have been
projected. The existence of significant ongoing human rights abuses is either not
acknowledged or underplayed by the South Asian governments or their mainstream media.
South Asian governments have ratified some international human rights instruments.
However, in practice, the regimes of the region score one of the lowest in the world in
safeguarding the rights of their citizens. One cannot help but question whether South Asian
governments collectively care about their citizens' interest in having human rights enforced
through a regional platform.20
SAARC: Rights and Wrongs
The stated goals of the SAARC Charter are that the countries will work together, in a spirit offriendship, trust and understanding, to improve the people's quality of life; to accelerate
economic growth, social programs, and cultural development; to strengthen self-relianceamong South Asian states; and to promote collaboration in economic, social, technical, andscientific fields. Since its inception, SAARC has established the South Asian Visual
Exchange (SAVE) which produces a television series, broadcast to all eight member states,that periodically highlights the cultural heritage of each country and is designed to foster
cultural awareness.21 The SAARC countries have signed, several Conventions/Charters on
Narcotic drugs; combating trafficking in women and children for prostitution; promotion ofchild welfare, etc. Several agreements have also been signed on Food Security Resort andspecific social issues, which require concerted and coordinated actions for the effective
realization of their objectives. At the 1995 SAARC summit held in India, government
representatives even discussed long-term goals of eliminating poverty and expanding a visa
exemption system that allows citizens freer cross-border travel. In the 12th SAARC Summit,
a Social Charter was signed on 4th January 2004 at Islamabad. To date, however, no program
has been effectively implemented to achieve the Charter goals, and new ideas have not
moved past the discussion stage.22
South Asia region, the homeland of one-fifth of the world’s population is still grappling withdaunting human rights challenges, such as impunity, the lack of political will if not sheer
disinterest of a number of governments to comply with their human rights obligations,continued curtailment of civil and political rights as well as widespread poverty and20

Human Rights System for SAARC: Problems and Perspectives, HURIGHTS, Gyan Basnet, June 2014 - Volume Vol. 76,

21

Defining Human Rights: Auditing Regional Mechanisms, Gopal Krishna Siwakoti, PhD, Working Paper, 2008

22

Ibid

~48~

underdevelopment. Countries in the region are buffeted by increasing challenges frominternal strife and unrest, the threat of terrorist attacks followed by attack against democratic
rights, fundamental freedoms and civil liberties in the name of counter-terrorism measuresand national security legislations.
The establishment of the ‘South Asia Forum’ for the generation of debate and discussion
during the 16th SAARC held in Thimphu, and continuing the idea of the SAARC democracy
Charter have provided additional blocks for further strengthening the region’s commitment
to human rights.23 However, compared with development in the African, European, InterAmerican and ASAEN region, the activities and initiatives of SAARC are in a very
preliminary stage. South Asia is lagging behind to learn from the success stories and learned
lessons of other regional organization such as European Union which has already managed totranscend beyond the national borders among to work together towards enhancement of
democracy, human rights and economic integrity from various mechanisms including use ofEuro as a single currency. Likewise, the positive steps initiated by African regionalorganizations for security and human rights and the commendable work carried out by the
Latin American regional mechanism for the protection and promotion of human rights,
including making the concerned member states accountable to gross violation of humanrights including enforced disappearances. SAARC has immense opportunity to learn from theexisting regional mechanisms on its future policies on regional mechanisms for democracy
and human rights.24
The most effective action for the protection and promotion of human rights must take place atthe national level. However, in South Asia, most national human rights institutions are still
too weak and lack independence. Many critics are hesitant with reasonable doubt that
SAARC will not be able to yield effective results unless there is a guarantee of democracy
and the rule of law and adherence to and implementation of international principles of humanrights norms.
Ex-Maldivian president Mohammad Nasheed proposed a ‘SAARC Human Rights
mechanism’ during the 16th SAARC summit held in Thimpu, Bhutan. As the host of thissummit, the Maldives had a crucial role to play in including issues of human rights in theworking list in the 17th SAARC summit held on 10-11 December 2011.However, no concrete
proposal on human rights was discussed except the reiteration for a regional mechanism forthe promotion of good governance and human rights during the inaugural speech of President

23

16th SAARC Summit Declaration, Sixteenth SAARC Summit 28-29 April 2010, Thimphu Silver Jubilee Declaration

24

Ibid

~49~

Nasheed in Maldives Summit.25 Similarly, South Asian civil society had expectation that
South Asian countries will raise concern on human rights as India, with its proposal of South
Asia Forum, Bangladesh with its proposal of ‘SAARC Democracy Charter’, Nepal as the
supporter of a civil society-proposed human rights mechanism, Pakistan and Sri Lanka as
champions of climate change issue were expected to play an important role in the 17th
summit. However, as in the previous sessions the 17th summit held on also could not integrate
itself with the millennium expectations of SAARC citizens. The four ministerial agreements
signed during the summit namely
SAARC Agreement on Rapid Response to Natural
Disasters, SAARC Seed Bank Agreement, SAARC Agreement on Multilateral Arrangement
on Recognition of Conformity Assessment and SAARC Agreement on Implementation ofRegional Standards were endorsed without mentioning any direct linkage with human rights
and addressing the demand for the establishment of regional human Rights mechanism in theSouth Asia.26
Since the establishment of the SAARC, civil society has been encouraging the governments
for regional inter-governmental initiatives for the promotion of freedom, justice and peace.
The South Asia People's Forum:" People's SAARC"27 organized in 2005 brought together
national and international social activists, intellectuals and secular and democratic forcesinterested in the preservation of the secular, pluralistic and democratic fabric of the South
Asian society. In 2007 and 2008, SAAPE mobilized its resources and members to make
‘Peoples SAARC’, a broader and larger event. In 2010 representatives of non-governmentalorganizations and people’s movements across the SAARC region at the “First Sub-Regional
Workshop on South Asia Human Rights Mechanism”, gathered together in Kathmandu withcall for the establishment of the regional human rights mechanism in South Asia. As an
important follow-up to the Kathmandu workshop, a half day workshop was conducted by
FORUM-ASIA at the premises of “People’s SAARC” in India, New Delhi on 21 April 2010
to broaden, strengthen and consolidate efforts in building sub-regional campaigns on
establishment of human rights body for South Asia. Similarly, with aim to facilitate strong
advocacy for the regional mechanism, a seminar on “The need of Inter-Governmental Human
Rights Mechanism in South Asia” was organized in Islamabad, Pakistan on 16 November
2010.
The Fifth General Forum of the Solidarity for Asian People’s Advocacy (SAPA) Working
Group on South Asia held on 18th February 2011 in Dhaka, Bangladesh discussed on the25

16th SAARC Summit Declaration (29 April 2010), April 30, 2010, Thimphu Silver Jubilee Declaration "Towards a Green and Happy
South Asia”

26

Ibid

27

The South Asia People's Forum:" People's SAARC" organized by PVCHR, Wiros Lokh Institute, INSEC and LOKOJ held fromJanuary 15 to 17, 2005 brought together National and International social activists, intellectuals and secular and democratic forcesinterested in the preservation of the secular, pluralistic and democratic fabric of the South Asian society~50~issue of regional human rights mechanism in South Asia and SAARC Charter of Democracy
and came out with strong recommendation to the South Asian governments in addressing thesituation of human rights violation through human rights mechanism and participation ofcivil society in SAARC process. In addition to this, prominent civil society members
gathered in Kathmandu for the ‘Second Sub-Regional Workshop on Human Rights
Mechanism in South Asia’ on 25-26 July 2011 to develop concrete strategy to generatedialogue and discussion on establishing a regional human rights body in South Asia. The
workshop recommended an informal working group and identified need of full involvementof civil society in development of human rights instruments and mechanisms is essential forthe credibility and legitimacy of systems.
Charter of Democracy: A Ventilation of Opportunity?
In February 2011, the SAARC Council of Ministers have adopted the Charter of Democracy
which was mooted by Bangladesh at the 16th SAARC Summit in 2010. The charter gives
expression to the collective commitment of the member states to promote and preserve thevalues and ideals of democracy as well as democratic institutions. Among others, the Charterhas provision to ensure the supremacy of the Member States’ respective Constitutions anduphold their spirit; continue to strengthen democratic institutions and reinforce democratic
practices, including through effective coordination as well as checks and balances among theLegislature, the Executive and the Judiciary as reflected in the respective Constitutions. Oneof the key features of the Charter is to guarantee the independence of the judiciary andprimacy of the rule of law, and ensure that the processes of appointments to the Judiciary as
well as the Executive are fair and transparent.28
Interestingly, the Charter also enshrines a commitment to adhere to the UN Charter and otherinternational instruments to which Member States are parties. It advocates the recognition to
the role of political parties and the civil society in a democracy and renounces unequivocallyany unconstitutional change of an elected government in a Member State.29
Accordingly, the Charter also enshrines the provision for Member States to reinforce thelinkage of development and democracy, promote democracy at all levels of the government
along with sustainable development and alleviation of poverty through good governance,
equitable and participatory processes.30 The other characteristic include strengthening
democratic institutions and processes in all national endeavors with due focus on
decentralization and devolution, promoting equality of opportunity, equality of access andequality of treatment at the national level, in keeping with the respective constitutional
28

Defining Human Rights: Auditing Regional Mechanisms, Gopal Krishna Siwakoti, PhD, Working Paper, 2008

29

Ibid

30

SAARC Democracy Charter, 2010~51~

provisions, as safeguards against social injustices and stratification. The Charter embodies thenotion of ensuring gender mainstreaming in government and society and upholding
participatory democracy characterized by free, fair and credible elections.31
Lastly, the Charter encourages all democratic forces in South Asia, including elected
representatives of the people, to unite against any unconstitutional change in government in
any South Asian country, and work towards the restoration of democracy in keeping with the
SAARC Charter and promote adherence to these decisions and fulfillment of this Charter, if
necessary, through an institutional mechanism.32 Despite all these doctrines, principles andpledges, the Charter has failed to establish the notion of indivisibility and interdependence
between democracy, human rights, development and peace. Even more than two and half
decades in existence, no attempt has been made by SAARC to categorically discuss humanrights issues in the sub-region. Indeed, the promotion of human rights is not a goal listed by
the SAARC Charter. The SAARC member governments are wary of the very notion ofhuman rights, even though their representatives in international for a vouch for theircommitment to promote and protect human rights. The SAARC has, for instance, as a gestureof commitment to addressing regional issues, adopted the Child Welfare and Trafficking
Convention in 2002 but with narrow definition, weak implementation and laden with
contradictions and exceptions.33

CONCLUDING OBSERVATIONS
It is regrettable that not all countries around the world have ratified or acceded to the major
instruments on human rights and what is needed is a movement not to promote regional
institutions in isolation but to persuade and pressurize the governments to accede to thetreaties without further delay. In order to drive the endeavor along with a progressive track,
attention must be paid to proceed carefully and gradually, so as to win the confidence of all
governments of the regions.
Universal human rights standards are rooted in many cultures. We can learn from different
cultures in a pluralistic perspective and draw lessons from the humanity of these cultures todeepen respect for human rights. In our region, our countries represent a combination ofvarious peoples and religions. While we acknowledge the importance of respecting humanrights is the responsibility of all States regardless, of their political, economic or cultural
circumstances.

31

Ibid

32

SAARC Documents, SAARC Charter of Democracy, January 23, 201233

http://saievac.org/2012/01/23/saarc-charter-of-democracy-2~52~

As human rights are of universal concern and are universal in value, the advocacy of humanrights cannot be considered to be an encroachment upon national sovereignty. The
observance and protection of human rights are a global concern to which all States are called
upon to contribute. In the last nearly 75 years, human rights now form part of internationalcustomary law which have become an inter-state concern and are no longer a matter for the
exclusive determination by individual States. This is the substance of an emergent global
culture of human rights. Violation of civil, political and economic rights frequently resultsfrom the emphasis on economic development at the expense of human rights. Violation ofsocial and cultural rights is often the result of political systems which treat human rights as
being of secondary importance.
Finally, no country can attain genuine development if it is not truly free from the current
undue global economic and political nexus. International economic forces have great impact
on human rights which help divide between North and South in terms of global rights andresource base, compounded by elitism, perpetuates social and economic disparities. Thus, theStates in the region should refrain from derogating human rights standards for reasons ofnational security, securitization of migration, conditionalities of the international financial
institutions, maintaining law and order or the equivalent and to recognize that they are boundto respect all human rights for all in their totality in all circumstances through fostering atruly democratic culture.
Despite sustained efforts by civil society, the respective Governments especially in Asia
region have not made any serious effort to adopt a uniform Human Rights Code orConvention and to provide any common forum or mechanism to supervise adherence andimplementation of the same. The Asian regional instrument would be an appropriate
complement to the universal human rights processes of the UN due to, inter alia, greater
cultural similarity within the region.34 The regional mechanisms may prove also stronger,
with States agreeing to the adjudication of human rights cases by judicial bodies with powers
to make binding decisions, while judicialisation at the global level remains lacking.
Needless to say, the reasons which had led to the institution of regional arrangements in otherregions of the world are also valid for the Asia region. These include: the provision ofassistance to the individual against the State; the creation of the right atmosphere for thepromotion of human rights; increased awareness amongst governments and program in thehuman rights field; and increased awareness by the UN of problems peculiar to the region.
The establishment of a mechanism for the promotion and protection of human rights in Asia
could provide an impetus to the development of regional arrangements in other field of
endeavor such as economic and political co-operation. That would be the converse of the34

The implementation of human rights in Asia, Published online by Cambridge University Press: 05 December 2012~53~

experience of other regions but there was no reason why the experience of Asia should not be
different. If there were special characteristics in the region it would be preferable to adopt a"negotiational" rather than a "protective" approach. In any case, the negotiation must notundermine the basic internationally adopted and exercised principles, norms and values.35
On the other hand, there should be a cautious move that the necessary political will, a
prerequisite for evolving intergovernmental collaboration for the promotion of a regionalframework at the international level is no feasible. It is obvious that a regional approach in
Asia region, instead of offering a promise, is more likely to pose a threat to the cause ofhuman rights in as much as there are a number of authoritarian regimes in the regionalarrangements run the risk of being overwhelmed by the representatives of these regimes, withcounter-productive results for human rights.36

35

Defining Human Rights: Auditing Regional Mechanisms, Gopal Krishna Siwakoti, PhD, Working Paper, 2008

36

Ibid

~54~

RECOMMENDATIONS FOR REFORM

1. Regional Instruments in General*In Accordance to Vienna Declaration and Program of Action 1993
Litmus test for
Regional
Instruments

Universality/ NonCompartmentalization

Indivisibility/
Interdependence(Non-alienation)

All Human Rights Women Rights
for Allare Human
Rights

Universality, Indivisibility, and Interdependence● 1993 Vienna Declaration and Program of Action highlighted that universality,
indivisibility, and interdependence of International Human Rights must be embraced
on all fronts with no conditions/conditionalities attached and interpreted. Regionalism
in adopting human rights doctrine should be discouraged in favor of a universal global
approach. This exercises moral pressure on governments and governmentalorganizations to promote and protection of Human Rights. It allows the International
Community to crusade against gross violations of human rights such as arbitraryarrests, illegal detention, disappearance, displacement, destruction, and politicalkillings.
● Universal Human Rights should not be ignored on any ground in a regional context.
While advocating multiculturalism, those cultural practices which derogate fromuniversally accepted human rights, including women's rights, must not be tolerated.
Hence, while cultural and religious specificities have an impact on universal
standards, they can not be used as a pretext to justify their violations. Culturaldifferences must not be used to justify violations of human rights.
● All regional human rights instruments and mechanisms should be built as having
evolved and developed within their respective historical, and socio-cultural contexts.
Any proposed inter-governmental mechanisms should be evaluated based on politicalrealities in the region but without compromising internationally accepted norms,
values and standards.
Adhering to the Essence of recognized International Human Rights.
● The regional instruments under no circumstances should compromise the very
essence of internationally recognized civil, political, economic, social, cultural, anddevelopmental rights. The global and regional approaches to the promotion andprotection of human rights need to be mutually supportive and complementary.
Instruments Mandated without Reservation~55~

● If an instrument is indeed set up, it should be mandated to apply without reservation
the International Bill of Human Rights, CEDAW, the Convention Against Torture, theDeclaration of the Rights to Development, and other relevant human rights
instruments. The member states of the instrument must accede to major international
instruments before their membership to the arrangements. Similarly, the right ofindividuals and NGOs to petition the mechanism must be guaranteed and such
petitions or appeals should not preclude concurrent appeals to the various UN
mechanisms for the protection of human rights.
Ownership to Concluding Remarks of UN Treaty Body
● Regional Instruments must take ownership of the UN treaty body. The suggestion of
approaches to apply treaty provisions and the clarification of the State’s
responsibilities should be addressed and incorporated into the provisions of regional
instruments.
● Furthermore, the clarifications on the State’s responsibilities and application ofRegional Instruments should embody the spirit of concluding remarks of the UN
treaty body. Such recommendations should be effectively realized in the domestic
context.
Sustainable Development Goals and Human Rights● Regional Instruments should align with all the 17 Sustainable Development Goals,
2030 Agenda. Regional Instruments must recognize the interdependence of Human
Rights and social, economic, and environmental sustainability and incorporate themin the implementation of the instruments.
Climate Change, Forced Migration, and Human Rights● Forced displacement and migration due to Global Warming and Climate Change, is a
crucial issue regarding the Basic Human Rights of individuals. Regional Instruments
on Human Rights must gradually incorporate the Rights of victims of forced
displacement and migration. The Instruments must incorporate both rapid and slow
onset of the adverse effect of Climate Change and its effects on Human Rights.
Pandemic and Human Rights● Right to Health in the ongoing context of the Global Pandemic resulting in an adverse
impact on the most vulnerable society in terms of deprivation of the Right to Food,
Right to Education, Right to Health, and Right to livelihood. Instruments should
invest in a dedicated mechanism to address and confront this issue.

~56~Migration and Refugee Rights● Regional Instruments must incorporate, the 1951 Refugee Convention withprioritizing non-refoulment, and the International Convention on the Protection of theRights of all Migrant Workers and Members of their Families-1990.
● The Instruments must incorporate the Global Compact on Migration, 2016, andGlobal Compact on Refugees, 2018 within their regional framework.

2. ASEAN Declaration And AICHR
Clawback Approach● ASEAN Human Rights Instruments has a clawback approch that threatens theprinciple of Universality of Human Rights. This allows to limit State’s responsibilities
and limits individual protection against the State. There should be a standard
limitation of State’s right that echoes the spirit of Universal Human Rights Treaties.
Vague Interpretation● ASEAN Human Rights Instruments also incorporates vague clauses in its Article. It
lacks a concrete language of limitation in Rights, instead using vague terms like
“morality” in the context of Limitation State’s intrusion on individual rights. There isshould be a clarification comments regarding these vague interpretation and if
possible amendment of vague terminologies.
Amendment to Nominal Approach● ASEAN is functioning as a nominal body and lacks any independent body to makebinding decisions. There should be independent bodies to make dinding decisions that
Sates are obligated to follow. There should also be a formulation of strong Human
Rights Mechanism to conduct independent investigation of Human Rights Violations
and a mechanism for Independent Individual complaints. It further more should createa strong, impartial, effective, independent and competent mechanism for complainthandling and redress.

Cross-pollination of ASEAN Organs and AICHR● Cross-pollination with other ASEAN organs would serve the AICHR’s strategic
objective to promote human rights in the region. In addition to working closely with
the ACWC, the AICHR could also work with the ASEAN Institute for Peace andReconciliation34 to mainstream human rights in the process of reconciliation andpeace. The AICHR needs to establish its expertise and gain recognition from all~57~

ASEAN organs to be able to function as an overarching human rights body, as
stipulated in article 6.8 of the ToR.
Maximization of Civil Society Forum● AICHR is not popular among the general population in ASEAN states. This hampers
the capacity of AICHR to address, promote and raise awareness regarding regional
Human Rights issues. This can be addressed by maximization of outreach programs
through Civil Society Forums and events that can be maximized by the AICHR topromote its work and, more importantly, its mandate to protect human rights. For
example, the ASEAN Civil Society Conference (ACSC)/ASEAN People Forum35
can help raise awareness about human rights in ASEAN and of the AICHR’s role
among the citizens of all ten ASEAN countries.
Advisory Function● The AICHR needs to function as an advisory body as well as complement the existing
human rights measures and mechanisms. While the roles of the national human rights
institutions are limited by geographical jurisdictions, the AICHR can address crossborder issues such as trafficking in persons or migrant workers’ rights through its
advisory function.
Ratification of all Nine Human Rights Instruments:● ASEAN should persuade and encourage all Member States to become a State Party to
all widely ratified Nine International Human Rights instruments with a periodic
reporting obligation.
Civil Service Space● As there must be transparency and accountability to the peoples, AICHR should
actively and publicly respond to human rights crises, including through the creation ofa robust complaint mechanism that is accessible to vulnerable individuals and groups,
and the enhancement of engagement with CSOs as equal partners for the promotion
and protection of human rights in the region. It emphasizes on the transparency andaccountability to the general public.
● As uniform policies are absent within the region, a comprehensive human rights
approach and solution from the AICHR would help prevent victims from being
exposed to further dangers and risks of exploitation, trafficking and subjection toforced labour, abuse and discrimination.
~58~

● The AICHR should become involved in the process of drafting the ‘Instrument toProtect and Promote the Rights of Migrant Workers’, which is led by the ASEAN
Committee of the implementation of the Declaration to Protect and Promote theRights of Migrant Workers. Input from the AICHR would help establish a nexus
between human rights and migration in ASEAN. The other cross-border human rights
challenge under the competency of the AICHR is the rights of refugees. The AICHR
should be able to discuss the matter and help find regional solutions.
● The promotion of information about human rights more broadly across ASEAN can,over time, foster greater understanding and acceptance. It is recommended that
ASEAN focuses on improving the publicity (“promotion first”) of AICHR’s work,and seek to increase efficiency within AICHR’s current scope.
● AICHR should revamp and step up its communications strategy through new media toimprove publicity. Best practices in the promotion of human rights issues in otherregions of the world should be identified, while more ASEAN member states should
institute more consultation processes with civil society organizations.
3. SAARC Member States
Need of Human Rights Body
● Establishment of an independent, effective and accountable 'Human Rights
Commission' with an explicit mandate of monitoring, promotional andrecommendatory powers can assist South Asian member states in addressing humanrights concerns in their respective areas of jurisdiction; ensure that international
human rights laws are observed and implemented by SAARC countries who haveagreed to them; and help South Asian people to have a common understanding ofuniversal human rights issues and perspectives.
Need of Independent, Effective and Accountable Regional Human Rights
Mechanism● In order to translate the commitment expressed by SAARC through number offramework, Conventions, Declarations and established mechanisms, it should
establish an independent, effective and accountable regional human rights mechanism
by expanding the 'SAARC Social Charter' and 'SAARC Charter on Democracy'
through an enabling protocol with an explicit mandates of promoting, protecting andfulfilling human rights, through a process of wide consultation with nongovernmental organizations, people movements at national and regional level.
Space for Civil Society~59~

● SAARC should recognize the role of the National Human Rights Institutions (NHRIs)
and civil society in SAARC process towards consolidating democracy and humanrights in addressing the pressing human rights issues of the region including grossviolations of human rights and abuses, hunger, unemployment, and violence against
women and children. SAARC needs to review its
current practice merely
functioning by bureaucracy restricting access of civil society organizations in thedebate, dialogue and agenda setting. The voice of the people of South Asia and theiropinion mostly unheard more especially on how they want to pursue thedemocratization and human rights.
● The foreseen mechanism should recognize the role of national and local NGOs for thepromotion and protection of human rights and the activities of such organizations
should be encouraged and assisted. The need to protect the members of suchorganizations who stood up for the defense of human rights has become an important
issue in the region. Similarly, the role of NGOs in the area of education anddissemination of information of human rights should be considered as acomplementary task.
Adequate Reporting Mechanism from States● There should be a regular reporting system by states on their implementation ofinternal Human Rights Standards with NGO participation in the drafting of the reports
and the meetings of the mechanism and it deliberation should generally be open to the
public. More importantly, no aspect of government operation, including military andsecurity forces and no officials should be immune from scrutiny or investigate. The
member governments must be required to disseminate information on the mechanism,and how it operates.
● In the context of people in the region often encounter difficulties in obtaining
documents and other material of the UN system concerning the promotion andprotection of human rights, more human rights clearing houses to act as depositories
for such material should be established in each country of the region and that the UN
should examine how it could assist in establishing more of such clearing houses.

~60~

MAJOR WEB SITE REFERENCES
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●
●

East African Court of Justice Rules of Procedure, Rule 60(1). Also available online at
http://www.eacj.org/docs/RULES_OF_PROCEDURE_2013.pdf.
East African Court, Court User’s Guide, supra note 997, at 12.
East African Community, “East African Court of Justice - Review of Judgments,”
accessed Nov. 2013,
http://www.eac.int/index.php?option=com_content&id=24&Itemid=156&limitstart=5“Chapter 8: Article 33: Jurisdiction of National Courts,” in Treaty Establishing theEast African Community, accessed Jan. 16, 2014,
http://eac.int/treaty/index.php?option=com_content&view=article&id=99&Itemid=
East African Court ofwww.asean.org/22769.htm
www.rfi.fr/actuen/articles/115/article_4416.asp
www.ohchr.org/Documents/Publications/training9chapter3en.pdf
www.escr-net.org/.../resources_show.htm
www.un.org/.../comp303.htm
www.hrlr.oxfordjournals.org/content/10/3/504.full
www.refugeerightsasiapacific.org/pdf/APRRN-Newsletter-May-2011-1.pdf
www.law.monash.edu.au/castancentre/publications/hrs-mech-asia-pacific-sub.2.pdf
www.wcl.american.edu/.../saarc42.htm
http://www.aseansec.org/DOC-TOR-AHRB.pdf
www.Ohchr.Org/Documents/Publications/Training9chapter3en.Pdf
www.nationsencyclopedia.Com/.../Human-Rights-REGIONAL-HUMAN-RIGHTSINSTRUMENTS.H.
http://www.saarc-sec.org/SAARC-Charter-of-Democracy/88/
www.saape.org/cms/index.php?option=com_content...id
http://www.rediff.com/news/2007/mar/29saarc.htm
Emerging Regional Human Rights Systems in Asia , pp. 233 - 294
DOI: https://doi.org/10.1017/CBO9781139058445.005[Opens in a new window],
Cambridge University Press, 2012~61~