Introduction


The first meeting of the inter-governmental South Asia Association for Regional Cooperation (SAARC) was in 1980, convened by the late Bangladeshi President Ziuar Rahman. After the regional leaders accepted the proposal of President Rahman to convene this meeting, the Foreign Ministers of seven countries; India, Pakistan, Bangladesh, Sri Lanka, Maldives, Nepal, and Bhutan met several times to draft a declaration to form a regional body. The Declaration on South Asian Regional Cooperation, was accepted and finalized in August of 1983. The first official SAARC meeting by the Heads of Government of the aforementioned states was then held in Dhaka, Bangladesh in December of 1985 where the Dhaka Declaration of the Heads of States, later referred to as the Government of the Member States of South Asian Association for Regional Cooperation, was adopted. SAARC now maintains the original seven member States with the addition of Afghanistan as a member and several entities as observer states: the European Union, United States, Australia, China, Japan, Iran, Mauritius, Myanmar, and South Korea.

The North and South American continent have the Organization of American States, the European continent has the European Union, the African continent has the African Union, and the South Asian region has the South Asia Association for Regional Cooperation. The key difference between the aforementioned inter-governmental organizations and SAARC is all except SAARC have their own regional court to handle affairs of the continent. South Asia has a very high amount of violations of international law and has to resort to the United Nations (UN) to adjudicate these disputes. Violations of customary international law and human rights laws become non-enforceable at times as vetoes at the U.N. Security Council usually ensure no meaningful case from the region makes it to the International Criminal Court (ICC) and with the exception of Bangladesh and Afghanistan, no permanent member is signatory to the Rome Statute. This is in line with the popular concern as governments believe the U.N. and ICC are overreaching their mandate and furthers the case for regional courts to be established by SAARC.

South Asia has seen its fair share of wars where no justice has been provided for the victims. From the inception of SAARC in 1985; there has been intervention in Sri Lanka by the Indian Peacekeeping Forces (IPKF), the Kargil War between India and Pakistan in 1997, and countless allegations of human rights violations from each war and situation spanning in each nation. Situations of particular concern with regard to human rights in the region are the situation in Kashmir, the rights of the Tamils of Sri Lanka, the Hazaras of Pakistan, the Rohyngas of Myanmar, the plight of Afghan refugees, and victims of extra-judicial killings linked with government forces.

Violation of human rights laws enshrined in the Universal Declaration of Human Rights (UDHR) or International Covenant on Civil and Political Rights (ICCPR) are not the only issue which justify creation of the South Asian Court of Justice. Legal opinions on interpretations of bilateral and international treaties may also be handled regionally before being taken up at last resort institutions such as the International Court of Justice (ICJ). There has also been the question of how to enforce the SAARC Conventions. One possible means to enforce the SAARC legislation and international law without the interference of the international community would be reducing the scope to a regional voting system for referring issues to the Court. Abuse of the voting by the regional superpower India is a legitimate concern but is balanced by the current geo-politics due to the support Pakistan may receive with Sri Lanka and observer State participation can also be taken into consideration in the referral system. Interpretations of these treaties or conventions and final judgments may be best fit to be handled at the regional level where judges will have greater insight into the political and historical background.

At present, the member States of SAARC are bound by the SAARC Charter, SAARC Charter of Democracy, SAARC Conventions, and subsequent agreements which mainly focus on trade which has merited the formation of an SAARC Arbitration Council. Observer States are bound by a four point agreement which governs their level of participation in meetings.

The SAARC Charters and Justice


Provisions for creation of a South Asian Court of Justice and subsequent bodies are justified under the basic charters and conventions of the organization. A two day international conference in Dhaka in 2012 organized by the Bangladesh Institute of International and Strategic Studies (BIISS) chaired by SAARC Secretariat Maj. General Imrul Quayes recommended creation of such a legal institution through amendments to the SAARC Charters similar to the creation of the European Court of Justice (ECJ) by amendments to the founding documents of the EU. There remains the issue of surrendering sovereignty if the EU model is adopted and directives are imposed upon South Asian nations. Therefore, the creation of the Court may also be done independently but in association with SAARC through its own statute just as the Rome Statute created the ICC in association with the UN Charter.

Justice in SAARC nations is far from ideal in comparison with international standards as political corruption, impunity, and poverty hinders progress. Therefore, there have been increasing calls for the U.N. to intervene in conflict in South Asia. Thus, the Court created by SAARC to deal with the issues of violations of international law or human rights must keep in mind the geo-political realities of the region and this further reinforces the need to create such a Court so that western standards are not imposed on eastern nations. The African Union (AU) went through the same deliberations when creating the African Court of Justice (ACJ) via the African Charter and keeping in mind to create a special chambers for international involvement and institutions for servicing the court.

India’s first Prime Minister Jawaharlal Nehru placed the importance the non-interference in other nations which became a cornerstone of India’s foreign policy and this is reflected in Article 2(1) of the SAARC Charter. At the same time, the SAARC Charter remains conscious of the objectives of social justice and other objectives as set out in Article 1.

In addition, the SAARC Charter of Democracy, a separate instrument which all member States have subscribed to among other obligations, calls on member States to "promote equality of opportunity, equality of access and equality of treatment at the national level, in keeping with the respective constitutional provisions, as safeguards against social injustices and stratification."

It is required for the foundation of a regional justice system promoting social justice on the lines of equality keeping in mind the independence of nations which not only maintain their own constitutions and political systems in such a diverse region which nearly accounts for 25 percent of the world’s population, but their own culture dating back thousands of years embedded in culture and religion. The outline to create a South Asian Court of Justice is in the founding documents of SAARC itself as all member States are required to cooperate with each other for justice in a legal sense but also towards social justice in an economic sense. Reducing poverty through accepting the right to development as a human rights issue is required as per the U.N. Charter, which the Court can enforce in case of government obligations, bribery cases, or when corporate responsibility is not followed as corruption is widespread. For example, the caste system in India brings up cases of government negligence and the same can be said for communities treated as second class citizens in other countries. The obligations of observer States with such a Court would be up for debate as they do not have full rights and therefore cannot be expected to uphold the provisions of the Court in full and be contradictory to impose variant standard of care on western nations when it is not sought vice-versa. This is in similar fashion of the SAARC Arbitration Council which was set up to resolve economic disputes regionally.

The Legal Framework of the South Asian Court of Justice


The South Asian Court of Justice should not only be able to investigate and prosecute those responsible for serious violations of international law such as war crimes, genocide, crimes against humanity, terrorism or existing SAARC Conventions which are quite limited, but also open itself for hearing cases which could not be resolved at the national level and interpretation of treaties or conventions including establishing a unique relationship with the existing international legal systems. This will further the development of jurisprudence and South Asia will have contributed its unique legal ideas to the world as the Court would interpret SAARC Conventions while also adding customary case law which you might only find in South Asia. Creation of a specific arbitration councils offering not only mediation services such as other inter-governmental bodies (e.g. U.N. Office of the Ombudsman) but also facilitation of negotiations with terror groups for de-listing and removal of sanctions would also be of benefit for the region as unlike the west, South Asian governments are more willing to negotiate with militants. Although SAARC is secular, its officers will be able to provide the specific expertise which will help in this area as they are from the region. Such an office linked with the Court can also play mediation roles between nations.

This focuses on regional policing where enforcement of some of the existing legislature which South Asia has already developed such as the SAARC Conventions; the SAARC Convention on Narcotic Drugs, SAARC Regional Convention on the Suppression of Terrorism and its Additional Protocols, SAARC Convention on Combating and Prevention of Trafficking in Women and Children for Prostitution, SAARC Convention on the Welfare of Children, and SAARC Convention on the Mutual Assistance on Criminal Matters are required. “SAARCPOL”, South Asia’s version of Interpol, has been proposed through submissions of research papers to SAARC and police of various nations have been cooperating in training since the late 1990s. An expressly written Statute of the powers and limits of SAARCPOL would be required in addition to the creation of subsequent bodies to service it.

The creation of a regional court is not an easy task by any means as the first step will require all nations to agree on a framework but is very necessary in South Asia where impunity reigns and where disputes cannot be solved at the national level, further interpretation of any case can be taken to the regional level in a manner similar to the European legal system. Examples are the dispute of occupied Kashmir which local Kashmiri parties do not accept the view of the Supreme Courts of India nor Pakistan or the countless number of individual cases ranging from simple administrative issues to death penalty cases where the parties do not accept the ruling of the national courts and have no further redress. Several diplomats of these nations have conveyed their support for creation of such a court. Jurisdiction would require domestic incorporation of any treaty creating the Court to be adopted by each member State of SAARC for it to be effective. Once a treaty resolving to create such institutions are set up and incorporated into domestic law, the drafting of SAARC Conventions and additional protocols on human rights must be written to create a human rights system which would work for the region. The Court could consider cases of international treaties but just as national laws override any international laws in a country, regional laws would override any national or international laws. The drafting of such a document would require extensive deliberations and would need to consider the existing human rights treaties, conventions, and laws in place today being a product of a well thought process.

Summary


The proposal of a South Asia Court of Justice based upon the European models has been put forth by the Bangladesh Institute of International and Strategic Studies (BIISS) but the finer details of the Court’s legislation, jurisdiction, powers and limits, enforcement, and servicing institutions have not been adequately addressed which this article provides for initial insight.