If India is to establish its credibility as a country genuinely interested in the protection and promotion of human rights, it has to accept the jurisdiction of committees under the international system.
TODAY, JUNE 19, 2006, the Human Rights Council of the United Nations, which replaces the Commission on Human Rights, will have its first meeting at Geneva with 47 states as its members. While this is a historic opportunity for the international community to work towards developing a consensus on implementation, there are genuine fears that individual states may not go beyond the rhetorical recognition of human rights. The politics of human rights seems to have inhibited the development of enforcement mechanisms at the international level, although there have been remarkable achievements in formulating norms and standards over five decades and more.
The Council will have to address the notion of sovereignty and its contemporary relevance insofar as it affects the protection and promotion of human rights. The Westphalian notion of sovereignty has dramatically changed in the post-Second World War period. The formation of the U.N. and the passing of the Universal Declaration of Human Rights gave hope for new understandings and development of the discourse on sovereignty. However, the cold war rivalry further legitimised special sovereign prerogatives, even though the human rights discourse has continuously challenged it.
The human rights challenge to sovereignty was born out of a moral response to the massive violations that were committed in different parts of the world. The U.N. Security Council became the forum in which issues relating to international peace and security were discussed and responses were formulated. Notwithstanding that the permanent members have cited sovereignty arguments at different points of time to choose non-intervention over other methods, there have been a number of cases in which intervention was authorised as a response to massive human rights violations or breach of peace. The establishment of the Council presents a unique opportunity to move beyond the challenges posed by sovereignty in institutionalising a culture of human rights worldwide with emphasis on enforcement and implementation by all countries.
India was elected to the Council by securing 173 out of 191 votes in the U.N. General Assembly. It got the maximum number of votes in the Asian group, demonstrating the vast support it enjoys among the member states. But this does not mean much if India does not take certain important steps immediately to establish its credibility as a country that is genuinely interested in the protection and promotion of human rights.
While making its submission to the international community as a candidate for election to the Council, India pledged that it “… will work to make the Human Rights Council a strong, effective and efficient body capable of promoting and protecting human rights and fundamental freedoms for all.” While these pledges are encouraging, there is a need for India to manifest its commitments in some tangible form by doing the following before it can be taken seriously for the pledges it has made.
India should immediately ratify the U.N. Convention against Torture (CAT). For India to play a meaningful role in the Council, it has to commit itself to one of the most important international human rights instruments. The National Human Rights Commission has reiterated the importance of India ratifying the CAT. Successive chairpersons of the NHRC have written letters to the Prime Minister and discussions have been held at the highest levels for this ratification, but, unfortunately, it has not taken place. With domestic human rights jurisprudence having developed in protecting against torture and other violations, it is quite natural for India to ratify the CAT.
So far India has not fully embraced the mechanisms under the U.N. special procedures. Most of the time, the rationale behind this is that since India has a robust constitutional and domestic human rights framework, a vibrant democratic culture, an independent judiciary, there is no need for an “external” oversight. This argument is no longer valid in the context of contemporary development of international human rights law. As a member of the Council, India along with other members has to assume leadership on matters relating to human rights. It will be very difficult for India to seriously persuade other countries to commit themselves to the U.N. special procedures if the country itself has not done so. This issue is one of legitimacy of the argument to commit to special procedures. An important case in point is that the request for the visit of the U.N. Special Rapporteur on Torture to India has been pending for so many years and it is very unfortunate that this has not been accepted. This should change and India’s entry into the Council should be a good time when such attitudes towards international monitoring should give way to greater transparency and accountability.
There is a need for India to consider accepting the jurisdiction of certain important committees under the international human rights system. This is not only because its own record in protecting and promoting human rights will come under international scrutiny, but also for India to continue to play a leadership role in persuading other developing countries to consider accepting the jurisdiction of these committees. The Asian Human Rights Commission has observed: “Concerning the use of available international mechanisms, India has opted out from the jurisdiction of all UN Treaty Bodies, thereby completely ruling out the possibility for Indian citizens to approach and make use of these mechanisms by making individual complaints. For example India has opted out from the jurisdiction of the Human Rights Committee, CEDAW Committee, CESR Committee and the CERD Committee.”
The protection and promotion of human rights are clearly important functions of the state. While fundamental rights are generally couched in the language of negative rights against the state, the state apparatus ought to function in an active manner that protects the rights and freedoms of its people. In fact, the important wings of government — the legislature, the executive and the judiciary — function with a view to ensuring the rights and freedoms of people. But there is something fundamental and basic about the NHRC that is different from the state and its aforementioned instrumentalities.
Unlike other institutions, which are vested with the task of governing a country (legislature and executive) and the administration of justice (judiciary), the NHRC’s exclusive mandate is to protect and promote human rights. While various functions of other institutions can ensure the protection and promotion of human rights, this is the core mission and fundamental purpose of the NHRC. While there is a lot of emphasis in India’s pledge for election to the Council on domestic human rights protection, the NHRC is working with limited powers of enforcement. It functions largely on the basis of the credibility of the members of the commission and not on the basis of the institutional powers and sanctity of the orders and directions it can issue. In fact, it can only make recommendations.
The NHRC was established more than ten years ago and it has gone through little internal institutional reform. There is an urgent need for the NHRC and the State Human Rights Commissions to have greater powers of enforcement. India’s entry into the Council is a good time for the government to consider expanding the powers of the NHRC and, in particular, ensuring that its “recommendations” and those of the SHRCs do not remain merely wishes and aspirations, but are given genuine legal status for their enforcement and implementation.
This package of reforms can fulfill the enormous social expectations that human rights institutions have generated in India. This will also help Ind
ia in protecting its own credibility in the Council. While the contribution of the U.N. in formulating international human rights standards and creating an international machinery is very useful, as is the work of international NGOs engaged in human rights advocacy, the key element of enforcement happens domestically within a country and at times locally within a place.
The struggle worldwide has repeatedly demonstrated that the shift from mere normative recognition of human rights to their actual enforcement is a big leap. It is here that the members of the Council including India can play a critical role. The human rights discourse will increasingly become more inclusive, not merely about international norms. It will include the policies and practices adopted by countries, and how these reinforce domestic constitutional obligations and commitments on human rights. India has an opportunity as a member of the Council and it has to take this responsibility seriously.
(The writer, C. Raj Kumar is with the School of Law, City University of Hong Kong. He is also Honorary Consultant to the National Human Rights Commission in India. [email protected])