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Understanding Regional Human Rights Mechanisms & The Need for A South Asian Human Rights Mechanism CONTENTS 1. Introduction 7 2. Why a Regional Human Rights Mechanism ? 8 3. Establishment of RISAHRM 12 National Workshops 15 Other activities and strategies 17 4. Prospective South Asia Human Rights Mechanism 19 5. SAARC and Human Rights 21 Annex 1: Terms of Reference for the Task Force on RISAHRM Regional Initiative for a South Asian Human Rights Mechanism (RISAHRM) 29 Annex 2: SAARC Instruments and Conventions Contributing to Human Rights 35 Annex 3: Kathmandu Declaration, 2010 40 Annex 4: Kathmandu Statement 2011 44 1 Introduction he Regional Initiative for a South Asian Human Rights TMechanism (RISAHRM) is a collaborative platform of South Asian civil society and individuals committed to the cause of human rights and peace in the region. The mission of RISAHRM is to advocate for and help create an environment conducive for the establishment of a regional human rights mechanism in South Asia. South Asia has made great strides in economic progress in recent years. However, the region continues to grapple with grave human rights violations. Poverty, terrorism, extremism, intolerance, corruption and deficiencies in democratic institutions are but some examples of issues that pose serious challenges to human rights. These often go beyond national boundaries and take on a regional (RISAHRM) Mechanism Rights Human Asian a South for Initiative Regional character, affecting people of all walks of life and social strata, and further marginalising women, children, elderly people and minority communities. Domestic Courts and other judicial mechanisms are not structurally equipped to handle and remedy these challenges. National Human Rights Institutions can mitigate some of them at the national level. However, lack of resources and other structural constraints often prevent them from fulfilling their statutory obligations. All this underscores the need for greater standards of human rights protection at the regional level. RISAHRM emerges from this need. 7 2 Why a Regional Human Rights Mechanism? rotection and promotion of human rights is an obligation of PStates. This obligation arises from States being members of the United Nations and party to international human rights standards. States are required to create an environment in which everyone is treated equally and with respect. Equal treatment and respect for diversity bring dignity, which is central to human rights. It is also the obligation of States to take all measures necessary to protect socio-culturally marginalised communities and other sections of society, and empower them so they are able to participate in decision-making processes about issues affecting their lives both as an individual and as members of their community. Human rights protection systems –ranging from human rights policies and laws, to National Human Rights Institutions, Courts and quasi-judicial agencies – are created with responsibilities to protect and promote human rights at the national level. These institutions apply international human rights norms to address human rights violations at home and provide protection to victims. They also engage in human rights promotion by, for example, advising Governments on measures to be taken to address the root of human rights violations. International human rights mechanisms help address domestic human rights constraints and challenges, such as lack of human Regional Initiative for a South Asian Human Rights Mechanism (RISAHRM) Mechanism Rights Human Asian a South for Initiative Regional 8 rights policies and institutions, by setting norms and standards at the international level. States are expected to follow these norms and standards towards ensuring adequate protection and promotion of human rights at the national level. There is often a gap between national human rights practices and international standards. Lack of adequate resources, lack of essential know-how, socio-cultural practices and preferences, and policy priorities are used as justifications for this gap. The physical distance and contextual differences between the national and international have also contributed to the lacklustre approach to domestic implementation of human rights instruments. This is where regional human rights mechanisms start playing a role. They can help answer some of the questions at the national level and generate political will, which the human rights agenda often fails to attract. As such a regional human rights mechanism is necessary to assist in the implementation of internationally recognised human rights norms and standards at the national levels, and to facilitate a (RISAHRM) Mechanism Rights Human Asian a South for Initiative Regional regional solution to a human rights problem that triggers regional consequences. Regional human rights mechanisms do not replace national and international systems. They provide an additional layer of protection when domestic system fails to address violations adequately, thereby bridging the gap between international treaty obligations and domestic laws and policies.1 There is a strong incentive for Governments to promote and protect human rights within their region, as severe violations of people’s 1 Christof Heyns and Magnus Killander, “Towards Minimum Standards for Regional Human Rights system’, in Looking to the future: Essays on international law in honour of W Michael Reisman, ed. Mahnoush H. Arsanjani et al. (Leiden: Martinus Nijhoff Publishers, 2010) 9 rights can lead to conflicts and instability in neighbouring countries.2 Greater protection of human rights within a region can ultimately result in enhanced regional peace, security and development. A study3 by the European Parliament found regional systems to be complementary to their universal counterparts. Noting that systems at the regional level have the potential to strengthen those at the international level, the study recommends ‘the strengthening of regional systems is one of the key avenues to take in order to increase the level of protection of human rights and fundamental freedoms worldwide.’ On the basis of study and experience, a regional human rights mechanism is found to be necessary to: (a) Assist national Governments in the implementation of their international human rights obligations arising from the conventions to which they are party to; (b) Help national Governments to address human rights issues that cross national borders, such as violations and abuses connected to terrorism, human trafficking, sexual exploitation of children, migration and endemic diseases; (c) Create a platform for the peoples of the region to express their issues and concerns vis-à-vis human rights, and bring those voices to the attention of the States; (d) Provide regional inputs to the development and improvement of international human rights standards; 2 Carole J. Petersen, “Bridging the Gap? The Role of Regional and National Human Rights Institutions in the Asia Pacific, “Asian-Pacific Law and Policy Journal 13, no.1 (20110: 174) 3 In an observation related to RISAHRM, the study notes the experience of the United Nations Office of the High Commissioner for Human Rights (OHCHR) in promoting an Asia-Pacific level human rights mechanism. Concluding that the cultural and political diversity of the region and lack of political will of the governments may not be conducive to the establishment of Asia-Pacific level human rights mechanism just now, the study promotes sub-regional mechanisms as an important step towards the Asia-Pacific level one. European Parliament, The Role of Regional Human Rights Mechanism. Available online at: http://www.europarl.europa.eu/RegData/etudes/etudes/join/2010/410206/ EXPO-DROI_ET(2010)410206_EN.pdf Regional Initiative for a South Asian Human Rights Mechanism (RISAHRM) Mechanism Rights Human Asian a South for Initiative Regional 10 (e) Protect people from human rights violations when national mechanisms fail to do so; (f) Provide advisory services to national institutions and help them work better at the national level; and, (g) Promote regional peace and security through the promotion and protection of human rights and by acting as a bridge between national realities and international aspirations. Members of the Task Force during a discussion in Kathmandu, Nepal (RISAHRM) Mechanism Rights Human Asian a South for Initiative Regional 11 3 Establishment of RISAHRM ISAHRM was initiated in July 2012. Its aim is to launch and Rcoordinate advocacy and awareness campaigns towards the establishment of a regional human rights mechanism in South Asia to bridge national processes and