{"id":111160,"date":"2021-01-30T17:25:37","date_gmt":"2021-01-31T00:25:37","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=111160"},"modified":"2021-01-30T17:25:37","modified_gmt":"2021-01-31T00:25:37","slug":"counselling-the-human-rights-council-a-perspective-by-the-pathfinder-foundation","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2021\/01\/30\/counselling-the-human-rights-council-a-perspective-by-the-pathfinder-foundation\/","title":{"rendered":"Counselling the Human Rights Council: A perspective by the Pathfinder Foundation"},"content":{"rendered":"

Pathfinder View Point <\/strong><\/em><\/span><\/h2>\n\n\n

As the 46th<\/sup>\nsession of the UN Human Rights Council (HRC) looms large in about a month\u2019s\ntime, the debate on its controversial Resolution 30\/1 of 2015, which the\n\u2018Yahapalana Government\u2019 co-owned in an un-precedented and unwise move, has\nresumed with renewed vigour. This is because the Res. 30\/1 adopted in 2015\n\u2018runs out\u2019 this year and the HRC egged on by the so called \u2018core group\u2019 of\nWestern countries – the pilots of 30\/1- will feel obliged to take stock of the\nsituation and see where they want to go from here.<\/p>\n\n\n\n

That Resolution 30\/1 is\nin a class by itself in both form and content would be obvious to any\nreasonably literate person, including to its most ardent supporters. Even the\nharshest critic of Res. 30\/1 and its spin-offs must concede that it was a bold\nmove about a seemingly intractable situation. However, it is also probably the\nfirst instance in the history of the HRC, a supposedly sovereign and\nindependent country co-authored a UN Resolution containing an array of highly\nintrusive, unconstitutional and un-implementable demands directed at itself. It\nprobably scores another first in that the self-authored Resolution touches upon\na range of governance matters, which are generally considered the exclusive\npreserve of the domestic jurisdiction of the authoring Member state itself viz,\nSri Lanka. There does not appear to be any precedent of such self-inflicted\nState action in UN records. In advance of the 34th<\/sup> Session, way back\nin 2017, the Pathfinder Foundation urged then government to undertake\nre-negotiation of the HRC resolution, based on ground realities in Sri Lanka,\nrather than seeking a postponement of consideration of the situation in the\ncountry.<\/p>\n\n\n\n

It may be unique as\nwell, for the reason that in no other democratic country a HRC resolution had\nbeen so instrumental in delivering so massive an electoral defeat to the\nincumbent government that cosponsored the resolution. The HRC and the fellow\ninternationals that generally get busy exploring how to \u2018helpfully intervene\u2019\nin Sri Lanka about this time every year, must understand the reality that it\nis  a function of the free franchise in one of the two oldest democracies\nin South Asia. There was a groundswell of opinion in this country against the\nresolution, which was initiated by a group of countries, who had only a limited\nunderstanding of Sri Lanka. It was seen as a blatant interference in a small\nsovereign nation, by virtually forcing it to \u2018out-source\u2019 the oversight of and\njudgment on  many governance matters to a secretariat in distant Geneva.\nEven those in Sri Lanka and abroad, who believed that  successive regimes\nin Sri Lanka have accumulated quite an inventory of post conflict challenges to\naddress, felt that Resolution 30\/1 was a \u2018bad template\u2019 for HRC to promote\ninternational cooperation on human rights. This was because some provisions of\nthat resolution had failed elsewhere (the so-called Hybrid Courts in Cambodia);\nsome were unconstitutional\/un-implementable (foreign judges): a watching brief\non governance matters was conferred on a Secretariat based in Geneva and a dedicated\nUN office in Colombo was proposed for the oversight of these activities. That\nall these were at variance with the UN Charter, was of no concern to the\nill-advised Core- Group on Sri Lanka. <\/p>\n\n\n\n

This kind of ham-handed\ninnovations to existing international law and institutions that can even\ncontribute to regime change is not a good model to propound, if the HRC is\nserious about encouraging and persuading countries,\nparticularly those of the developing world, to work in cooperation with the\nCouncil. Instead, the Council would have been well-advised to develop and\npropose robust and independent domestic accountability processes, supported\nwhere necessary, by international cooperation in technical assistance, advisory\nservices, best practices etc.<\/p>\n\n\n\n

Pathfinder believes\nsuch an approach, which is advisory, rather than retributive in nature will: <\/p>\n\n\n\n

–         \nwork within\nnormal national and international legal norms;<\/p>\n\n\n\n

–         \nserve as a\nmodel for other countries needing such services, to  cooperate with the\nUN; and<\/p>\n\n\n\n

–         \nnot function as\na dis-incentive for countries that are willing to voluntarily cooperate.<\/p>\n\n\n\n

So, it was no surprise\nthat the Sri Lankan Foreign Minister was obliged, consequent to the electoral\nmandate the newly elected government had received, to announce the government\u2019s\nwithdrawal of co-sponsorship of Res. 30\/1 at the 45th<\/sup> session of the\n HRC.<\/p>\n\n\n\n

So, what next?<\/p>\n\n\n\n

–         \nHas Sri Lanka\u2019s\ninventory of accountability and reconciliation issues become non-existent?\nObviously not.<\/p>\n\n\n\n

–         \nHas HRC\nenhanced its credibility for promoting templates to encourage countries with\ndifficult and complex issues in this field to cooperate with the Council?\nObviously not.<\/p>\n\n\n\n

–         \nWill countries\nwith a good track record of voluntary cooperation, continue to do so in the\nface of such new, intrusive and unconstitutional modalities? Obviously not.<\/p>\n\n\n\n

The current context\nand a way forward<\/strong><\/p>\n\n\n\n

On the High\nCommissioner for Human Rights (HCHR) side, the Secretariat has felt obliged to\nissue yet another heavily front \u2013 loaded report this year with even more\nintrusive recommendations. Some of them sound bizarre to say the least, as they\nrefer to now familiar western parlance of \u2018targeted measures, assets freeze\u2019\nand so on. Even if one sets aside the rather offensive and unrealistic nature\nof such utterances against a sovereign country, which had consistently and\ncontinuously cooperated with the HRC, it must be clear to anyone that these\n\u2018innovations\u2019 are counterproductive as far as addressing the real issues of\ncooperation were concerned, for no country will accept such invasive measures.\nSuch actions will face hugely divided votes in the UN General Assembly and\ndefinite vetoes in the Security Council. Apart from the feel-good factor for\nthe enthusiastic sponsors, they have little or no practical value for\naddressing the real issue at the ground level.<\/p>\n\n\n\n

On the GOSL side, even\nas it pulled out of the co sponsorship of 30\/1 owing to electoral compulsions,\nColombo has made it clear (at the HRC itself) that the withdrawal of co\nsponsorship does not mean a withdrawal of Sri Lanka\u2019s responsibilities\nconcerning reconciliation and accountability. President Rajapaksa himself,\nwhile emphasizing that the country will not rule out the possibility of walking\nout of any entity that will not respect the accepted principles of sovereignty\nand independence of countries, did affirm that his government is fully\ncommitted to international cooperation including with the UN on SDGs, which of\ncourse include human rights, peace and justice related matters. It is also a\nfact that Sri Lanka has continued to work effectively with various Special\nProcedure Mandates or Rapporteurs of HRC. If these Rapporteurs were unable to\nvisit the country in the recent past, that was not due to change of policy by\nthe government. As we all know, 2020 was an extraordinary year with COVID 19\ntaking its toll worldwide.<\/p>\n\n\n\n

There are openings one\ncan make use of and elements one can build upon, if we are serious about\nencouraging international cooperation among sovereign countries rather than\nunacceptable unilateral coercion.<\/p>\n\n\n\n

If this is not done,\nand common ground is not created, Pathfinder is of the view that there are two\noptions available to the sponsors of the initiative and to Sri Lanka at the\nforthcoming HRC session:<\/p>\n\n\n\n

(a)   \nAcknowledge the\nneed to continue to address and resolve issues of accountability and\nreconciliation in Sri Lanka by preserving and building upon progress made so\nfar (e. g. Office of Missing Persons, Compensation, Rehabilitation,\nSocio-economic upliftment etc.) and in that regard, offer and receive\ninternational cooperation  where necessary, including with the UN, for\ntechnical assistance and advisory services. <\/p>\n\n\n\n

OR<\/p>\n\n\n\n

(b)   \nIf, however,\nthe sponsors continue to insist on undeliverable and unconstitutional solutions\n(e. g. as in Res 30\/1 and 40\/1), Sri Lanka to completely withdraw from the HRC\nprocess and work towards a domestic consensus on the matter.<\/p>\n\n\n\n

During the nearly 30\nyears of an injurious conflict, Sri Lanka remained a good example of\ncooperation with external entities including the UN on human rights and\nhumanitarian matters, despite many complex countervailing factors (security,\npolitical, diplomatic and economic). The UN Secretary General\u2019s Special\nRepresentative Olara Otunnu, who visited Sri Lanka in 1998 said so in reference\nto Govt\u2019s continued supply of food, medicine, health, education and other\nessential services to the \u2018LTTE controlled\u2019 areas. It would therefore be a pity,\nif such willing Member States are dissuaded from continuing such policy by HRC\npitching their prescription bars at an undeliverable and un-constitutional\nheight.<\/p>\n\n\n\n

In such an eventuality,\nSri Lanka and like-minded Member States will be obliged to press such resolutions\nto a highly divisive vote in the Council. Even if the resolution is adopted by\na slim majority, Sri Lanka is most likely to ignore it and pitch her bilateral\n\u2018economic tents\u2019 with countries that vote in its favour. Such a resolution will\nnot therefore help the cause of accountability and reconciliation one bit and\nwill simply add to the considerable number other resolutions already ignored by\ncountries like China, Cuba, India, Israel, the U.S., and so on. Even if it is\nelevated to the UNGA, it will suffer a highly divided vote and a definite veto\nin UN Security Council.<\/p>\n\n\n\n

Pathfinder believes\nthat only  a negotiated consensual way forward, rather than unilateral\nactions either by Sri Lanka or the initiators of any resolution, will advance\nthe cause of human rights in Sri Lanka at this difficult juncture. Adding to\nthe paperwork at the HRC with no prospect of implementation at the ground level\nwill not enhance the utility or credibility of HRC\u2019s tool kit for international\ncooperation in human Rights. Of course, such a resolution will help increase\nthe \u2018feel good factor\u2019 on the part of the Core-Group on Sri Lanka.<\/p>\n\n\n\n

In conclusion, the\nPathfinder Foundation would like to ask as to whether the Core-Group on Sri\nLanka expects to get its job done by resorting to confrontation and browbeating\na member state, instead of cooperating and engage in consultation? If the\nanswer is yes, then those countries representing the South in the HRC will\nthink deeply before they cast their vote in support of another meaningless and\nintrusive resolution.<\/p>\n","protected":false},"excerpt":{"rendered":"

Pathfinder View Point As the 46th session of the UN Human Rights Council (HRC) looms large in about a month\u2019s time, the debate on its controversial Resolution 30\/1 of 2015, which the \u2018Yahapalana Government\u2019 co-owned in an un-precedented and unwise move, has resumed with renewed vigour. This is because the Res. 30\/1 adopted in 2015 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[],"class_list":["post-111160","post","type-post","status-publish","format-standard","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/111160","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=111160"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/111160\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=111160"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=111160"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=111160"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}