By Waris Husain
May 30, 2014
As Nawaz Sharif and other heads of state and government from South Asia converged on New Delhi to witness Prime Minister Modi’s oath ceremony, the question of South Asian collaboration has come up once again. While South Asian countries have joined in some cooperative efforts through the South Asian Association of Regional Cooperation (SAARC), they are not as united as the European Union (EU) or the Inter-American agencies. Perhaps, most significant out of these institutions are the regional human rights courts like the European Court of Human Rights or the Inter-American Court of Human Rights. Though courts like these could serve as models that would provide innumerable benefits to the people of South Asia, a South Asian regional court has such little political viability that it can only be a fantasy.
Before discussing the need or efficacy of a regional court for South Asian nations, one must look to the great body of work the SAARC has accomplished with its members. Through the creation of the SAARC Development Fund, various projects, including technological and environmental studies, have brought together experts from across the subcontinent. SAARC has passed several major treaties to deal with problems like human trafficking and the suppression of crime and terrorism.
Furthermore, with regard to trade and business in the subcontinent, SAARC has created an Arbitration Council to address international commercial disputes. The Council would serve as a means to welcome international investors that wish to avoid litigation in foreign courts and prefer arbitration.
However, there are still major regional issues that threaten the prosperity of South Asia, including high trade and visa barriers between countries without a regional scheme to address the problem. This creates lost trading opportunities between regional partners while depriving people-to-people cultural exchanges.
In order to deal with similar problems between neighbouring countries, the Europeans created the EU, the Council of Europe and eventually the European Court of Human Rights. However, before creating a regional court, the Europeans signed the Convention on the Protection of Human Rights, which lays out several rights to which all Europeans are entitled. It provides a forum for their complaints through the European Court to increase access to justice.
This convention is dissimilar to the SAARC Charter of Democracy (CoD) in several ways. First, while the SAARC Charter commands signatories to obey their own constitutions, the European Convention goes one step further, enumerating a set of rights that Europeans are entitled to, regardless of their domestic constitution. Second, and most importantly, while the CoD sets out certain general responsibilities for South Asian countries, it does not provide a forum for the resolution of claims by South Asians against their countries the way the European Convention allows.
Even though Europe is witnessing the rise of anti-immigrant and nationalist parties through their recent elections, threatening to fracture the EU, the European Court may be an essential tool to prohibit discriminatory policies.
However, these political tensions are far greater in the South Asian region, leaving advocates for a regional international court lacking political capital and cohesion. How likely is it that military establishments from Pakistan to Sri Lanka would respect the punishment of a regional court for their transgressions? This also goes to the point that civilian democratic governance has had a fractured history across the subcontinent with varying degrees of control over their militaries.
It would be hard to imagine how a citizen from any South Asian country would fail to derive some benefit from the creation of a regional human rights court. Yet, it is equally hard to imagine the creation of such an organisation because it would threaten the military and political elites with judicial accountability, something they have been able to avoid at home for one reason or another. Yet, if a South Asian cooperation for the benefit of common people is something the new leadership in India and Pakistan wish to pursue, they may be well served in researching the creation and administration of regional human rights courts.
Waris Husain is an adjunct professor at the Howard University School of Law and holds a Juris Doctorate and LLM specialising in international law.