Visit of Louise Arbour
Benevolent despotism
Prof. G.L.Peiris
Courtesy Lakbima 28/10/2007
The visit of Louise Arbour, the United Nations High Commissioner for
Human Rights, has served as the impetus for a vigorous debate on many
important issues relating to human rights, security, accountability
and the respective roles of national government and the international
community, the substance of the debate transcends the particular circumstances
of the Sri Lankan situation. It has a crucial bearing on the well-being
and aspirations of the developing world.
During the last few months, Sri Lanka has been visited by many high
ranking officials of the United Nations system. Alan Rock, John Holmes,
Philip Aston, Manfred Novak and Louise Arbour have all come to our country
within a brief period.
These visits naturally have been a catalyst for the expression of a
wide range of views. As the hallmark of a vibrant democratic society,
this is unreservedly welcome. However, in the midst of increasing polarization
and an emotive approach to issues, clarity of definition and content
in respect of the underlying issues is essential.
UN monitoring
The claim has been made in some quarters that Louise Arbour called
for the establishment of a UN monitoring mission in Sri Lanka - this
is factually incorrect. Nowhere in her public utterances, made during
her stay in our country, has she committed herself to such a position.
Those who seek to put words into her mouth and then profess by raising
their own voices, to support a position which she never adopted, must
be told that they are certainly entitled to hold and express their opinions.
But they must do so in their own name and on their own responsibility.
What needs to be stressed, in the immediate aftermath of Louise Arbour,
is not only that she did not call for the mandatory setting up of a
UN Monitoring mission in Sri Lanka but that any purported imposition
on these lines strikes at the very root of values and assumptions which
underpin established international law and comity at this time.
In the international architecture of human rights today, the Human Rights
Council in Geneva is a pre-eminent institution. The insights of the
international community, responding to the priorities of our time, are
clearly reflected in the origins of the Human Rights Council.
The life of this pivotal body began with the celebrated Resolution
60/251 adopted by the General Assembly of the United Nations on 15th
March 2006 [60th session, agenda items 46 and 120].
The operative paragraph 5[a] of this resolution declares that "The
council shall promote human rights education and learning as well as
advisory services, technical assistance and capacity building, to be
provided in consultation with and with the consent of Member States
concerned". [Emphasis added]
The qualifying phrase puts beyond a doubt the intention of the General
Assembly that the will of the receiving state is a dominant consideration.
There is no room for coercive or compulsory intervention, in terms of
this instrument. This is reinforced by the explicit statement, in the
preambular sections of the resolutions, that the 'The promotion and
protection of human rights should be based on the principles of co-operation
and the genuine dialogue and aimed at strengthening the capacity of
Member States'.
The rationale of this principle is self-evident. Collaboration in the
context of a mutually supportive relationship, based on empathy and
understanding, is a condition precedent for accomplishment of the desired
results on the ground. Nothing can be destructive of the professed aims
and objectives as the spirit of confrontation deriving from adversarial
or combative attitudes to sovereign states.
Human Rights Council
Indeed, recognition of this reality is the bedrock of the instrument
which brings the Human Rights Council into being. This is apparent from
the sequence of the events culminating in the adoptions of Resolution
60/251.
It will be recalled that the predecessor of the Human Rights Council,
the current body, was the Commission of Human Rights, with particular
reference to the work of the office of the United Nations high commissioner
for human rights, as decided by the General Assembly in its resolution
48/141 of 20th December 1993.
There is a cogent explanation for this. A fundamental change has occurred
in respect of the international community's conception of the content
and scope of the functions of the Human Rights Council in the contemporary
world. There is ample evidence of this in other provisions of the Resolutions
60/251 as well.
It is fair to infer, I think that there are two basic values pervading
the thought of the international community, as encapsulated in Resolution
60/251.
The first of these is effectiveness. Paragraph 1 makes it clear that
the Human Rights Council as a subsidiary organ of the General Assembly
derives its authority directly from the latter. Paragraph7 fixes the
number of members of the Human Rights Council at 47.
The overwhelming majority of members of the General Assembly considered
this number not unwieldy. A small minority dissented on the ground that
the stipulated number, being excessive, was an impediment to effective
action.
The second consideration is no less important. It signifies the reaction
of judgmental postures, because they were as arrogant and insensitive,
and strikingly out of harmony with the mood and culture of the modern
world. The need of the hour is that the institutions of the UN should
be encouraged, in keeping with their structures, to reach out to governments
to engage them in the search for solutions to complex problems rooted
in the circumstances of their own domestic situations.
If this task to be achieved, even to a modest extent, it must be addressed
in a genuinely collaborative spirit. Hectoring, upbraiding and talking
down represent the very opposite of the components of a hopeful approach.
Benevolent despotism is singularly out of step with the mores of our
time.
A few days after Louise Arbour left our shores, it is appropriate to
reflect on the relevance of these considerations to the situation in
Sri Lanka. Ms Louise Arbour, it seems to me, was certainly right in
recommending a closer examination of the relationship between the office
of the UN High Commissioner for Human Rights and the mechanisms in place
in Sri Lanka. It is not as though her office has no role or influence
at all in our country today: on the contrary, her office and more generally,
the United Nations system are engaged in a variety of beneficial activities
in Sri Lanka at this time.
The nature and scope of these activities legitimately call for imaginative
scrutiny from time to time. Some elements may need to be strengthened
or expanded, others modified in light of changing circumstances, and
yet others perhaps phased out because they have grown obsolete. Technical
assistance and capacity building, as contemplated by paragraph 5[a]
of the enabling Resolution, are admittedly mattes of high priority in
relation to many aspects of the system of criminal justice during a
turbulent period. However, it cannot be emphasized too strongly that
this whole range of matters requires a consensual mode of treatment,
involving sustained engagement with the Government of Sri Lanka. An
aggressively intrusive or interventionist approach, anchored in nothing
more than vague and subjective criteria, is wholly indefensible either
in terms of the applicable legal instruments or on the basis of realistic
concepts of public policy.
|
Prof. G.L.Peiris, Sri
Lanka's Minister of Export Development & International Trade,
read for his Doctorate in Philosophy from both the Universities
of Oxford (1971) and Colombo (1974) and had completed both Doctorates
by the relatively young age of 28. He was a Rhodes Scholar of
the University of Oxford (1968-1971) and All Souls College also
of the University of Oxford in 1980-1981.
He was a visiting fellow of the Institute of Advanced Legal Studies
of the University of London in 1984, distinguished Visiting Fellow
of Christ College, University of Cambridge and SMUTS Visiting
Fellow in Commonwealth Studies at the Cambridge University (1985-1986).
He was also Associate member of the International Academy of Comparative
Law in 1980 and Senior British Council Fellow in 1987.
Prof. Peiris was Professor of Law, Dean of the Faculty of Law
and later Vice Chancellor of the University of Colombo before
he took to politics. He was appointed as Minister of Justice and
Constitutional Affairs and Deputy Minister of Finance in 1994.
In a subsequent Cabinet reshuffle, he was given two additional
portfolios- Ethnic Affairs and National Integration - which were
hitherto held by the President. During his tenure as Justice Minister,
he brought in over 30 pieces of new legislation.
|
|
