{"id":66556,"date":"2017-06-01T16:27:17","date_gmt":"2017-06-01T23:27:17","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=66556"},"modified":"2017-06-01T16:27:17","modified_gmt":"2017-06-01T23:27:17","slug":"unhrc-resolutions-violate-sri-lankas-sovereignty","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2017\/06\/01\/unhrc-resolutions-violate-sri-lankas-sovereignty\/","title":{"rendered":"UNHRC resolutions violate Sri Lanka\u2019s sovereignty"},"content":{"rendered":"

By Neville Ladduwahetty\u00a0Courtesy The Island<\/em><\/span><\/h2>\n

June 1, 2017, 9:49 pm<\/span><\/p>\n

The UNHRC Resolution A\/HRC\/34\/L.1 of 15 March 2017 “requests the Government of Sri Lanka to implement fully the measures identified by the Council in its resolution 30\/1 that are outstanding”. While the language in the 2017 Resolution was a “request”, the language in the 2015 Resolution was stated as: “encourages the Government of Sri Lanka to implement the recommendations contained therein when implementing measures for truth-seeking, justice, reparations and guarantees of non-recurrence”.<\/p>\n

It was the 2015 Resolution which “encouraged” the Government of Sri Lanka to implement the provisions in the Resolution that was co-sponsored by the Government. By doing so the Government undertook to implement provisions imposed on Sri Lanka by an external agency. The very act of co-sponsoring means that the original prescription for Reconciliation had been developed outside Sri Lanka. It further confirms that it was NOT the People of Sri Lanka who self-determined how they were to bring about reconciliation,because it was not a product of the “powers of government”, an integral component of Sovereignty enshrined in Article 3 of the Constitution. This is thus a violation of the Peoples\u2019 sovereignty as explained herein.<\/p>\n

Despite the use of language such as “requests the Government of Sri Lanka”, or “encourages the Government of Sri Lanka”, the implementation of the provisions of both Resolutionsshould be treated with the seriousness expected if dire consequences are to be avoided. If instead, they are treated casually, the consequences Sri Lanka would have to face woulddepend on the individual or collective mood of the 47-member Human Rights Council.<\/p>\n

PROVISIONS of RESOLUTION 30\/1 that IMPACT on SOVEREIGNTY<\/p>\n

Article 3 of the Constitution of Sri Lanka states:<\/p>\n

“In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”.<\/p>\n

It is under “powers of government” that the Government would be implementing provisions of Resolution 30\/1. It is under “powers of government” that sovereign States exercise their right of self-determination. “By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (Article 1 of Covenant on Economic, Social, Cultural Rights and Covenant on Civil and Political Rights and other international instruments).<\/p>\n

The right of self-determination to address issues relating to reconciliation, accountability and human rights in keeping with Sri Lanka\u2019sown social and cultural values as assured by the above covenant is denied to the Government of Sri Lanka by the UN Resolutions A\/HRC\/34\/L.1 and A\/HRC\/30\/L.29 for the following reasons:<\/p>\n

1. Paragraph 4 of Resolution 34\/L.1 states:<\/p>\n

“Requests the Office of the High Commissioner to continue to assess progress on the implementation of ITS (emphasis added) recommendations and other relevant processes relating to reconciliation, accountability and human rights in Sri Lanka\u2026”.<\/p>\n

Paragraph 1 of Resolution 30\/L.29 states:<\/p>\n

“Takes note with appreciation of the oral update presented by the United Nations High Commissioner to the Human Rights Council at its twenty-seventh session, the report of the Office of the High Commissioner on promoting reconciliation and accountability in Sri Lanka (A\/HRC\/30\/61) and its investigation on Sri Lanka requested by the Human Rights Council in its resolution 25\/1 (A\/HRC\/30\/CRP.2.), including its findings and conclusions, and encourages the Government of Sri Lanka to implement the recommendations contained therein when implementing measures for truth-seeking, justice, reparations and guarantees of non-recurrence”(emphasis added).<\/p>\n

The paragraphs that follow elaborate on the recommendations that need to be implemented by the Government of Sri Lanka. The recommendations in the report of the High Commissioner and its investigation on Sri Lanka requested by the Human Rights Council therefore become a prescription initiated by the UNHRC to achieve reconciliation, accountability etc. This is a violation of the sovereignty of the People of Sri Lanka to which the Preamble to the Resolution reaffirmed stating “its commitment to the sovereignty, independence unity and territorial integrity of Sri Lanka”. It is therefore made clear that it is not the People of Sri Lanka who developed the mechanisms to achieve reconciliation, accountability etc. Consequently, what the Government is expected to implement are a set of recommendations imposed on Sri Lanka. This is a violation of Sri Lanka\u2019s sovereignty which includes the right of self-determination that All Peoples of sovereign States are entitled to.<\/p>\n

The “DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW CONCERNING FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS\u2019 states under “The principle of equal rights and self-determination of peoples” as follows:<\/p>\n

“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter, all peoples have the right freely to determine, WITHOUT EXTERNAL INTERFERENCE, (emphasis added) their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter”.<\/p>\n

CO-SPONSORING the RESOLUTION<\/p>\n

The act of co-sponsoring the Resolution commits the SL Government to implement provisions in the Resolution. Some of these provisions may require revisions to the Constitution while others may require amending existing laws. Consequently, some provisions may require special majorities such as 2\/3 approval of Parliament and approval of the People at a referendum, while others may require either 2\/3 approval of Parliament or simple Parliamentary majorities.<\/p>\n

For instance, paragraph 4 requires the Government “to give each mechanism the freedom to obtain financial, material and technical assistance from international partner” ; paragraph 6 requires “participation in a Sri Lankan judicial mechanism, including the special council\u2019soffice, Commonwealth and other foreign judges, defence lawyers and authorized prosecutors and investigators”; paragraph 7 requires “the Government of Sri Lanka to reform its domestic law to ensure\u2026 trial and punishment of those most responsible for the full range of crimes under general principles of law recognized by the community of nations”; paragraph 8 requires “Sri Lanka to introduce effective security sector reforms”; paragraph 12 requires “review of Public Security Ordinance Act”; and paragraph 16 requires the “Government to ensure that all Provincial Councils are able to operate effectively in accordance with the thirteenth amendment”.<\/p>\n

The Government has realized of late that the “participation” of foreign judges, defence lawyers and authorized prosecutors and investigators would require the special majority of 2\/3 approval by Parliament and approval of the People at a referendum. In consequence of this requirement, the Government has declared that only local judges would be engaged in the judicial processes. Despite this declaration of the Government, the language in the Resolutions remains unaltered. Another instance that would require special majorities relate to how the functioning of Provincial Councils are to be made “effective”, since attempts to abolish the existing Presidential system would severely derogate the powers of the Governor to the point of making the position redundant. This would seriously dismantle the unitary character of the State. Furthermore, whether other provisions require special majorities or not, may not have been explored.<\/p>\n

Whatever the case may be, the implementation of these provisions would require either 2\/3 approval by Parliament or simple Parliamentary majorities. All this is yet to be done. In the meantime, the fact that the Government has co-sponsored the Resolution means it has undertaken to implement provisions imposed externally on Sri Lanka in violation of its Sovereignty which includes the right of self-determination by the People.<\/p>\n

CONCLUSION<\/p>\n

Whether the Government addresses the implementation of the provisions in Resolutions A\/HRC\/34\/L.1 and A\/HRC\/30\/L.29 individually or collectively, the fact remains that by co-sponsoring the Resolution the Government has become a party to implement recommendations imposed externally on Sri Lanka that violatethe sovereignty of the People,the bedrock of which is the right of self-determination to develop its own mechanisms to address reconciliation, accountability and human rights, in keeping with its social and cultural parameters.<\/p>\n

The imposition by the UNHRC violates the sovereignty of the People of Sri Lanka because it has denied the right of the People of Sri Lanka to determine for themselves through their “powers of government” mechanisms that would be in keeping with their own cultural and social values such as restorative justice to achieve reconciliation. By co-sponsoring the Resolutions the Government has become a party to violating the People\u2019s right of self-determination because it is only the sovereign People of a sovereign State that has the right to exercise the right of self-determination. Therefore, the Government is obligated to follow the constitutionally defined procedures prior to proceeding with implementation of the provisions in the Resolutions.<\/p>\n

A determination as to whether or not both Resolutions violate the sovereignty of the People has to be made by the Supreme Court. Such a determination could be precipitated by filing a petition by a Public Interest Group on grounds that there is an imminent infringement by executive action of the fundamental right of the People to self-determine a mechanism to address reconciliation. If the determination is that UNHRC Resolutions violate the sovereignty of the People, the Government would be constitutionally required to seek a 2\/3 approval of Parliament and approval of the People at a referendum to implement the provisions in the Resolutions.<\/p>\n

A serious omission on the part of successive Governments and Commissions appointed to address accountability is that no attempt was made to claim the sovereign right of Sri Lanka to determine for itself the appropriate mechanisms to address reconciliation, because at the end of the day the greatest beneficiaries of reconciliation are the Sri Lankan people themselves. Clearly, such a self-determination should be based on restorative justice because it resonates not only with Sri Lanka\u2019s core values but also those of a common humanity, and not on retributive justiceas is imposed by the UNHRC, and is based on accountability and punitive measures that perpetuate bitterness between winners and losers<\/p>\n","protected":false},"excerpt":{"rendered":"

By Neville Ladduwahetty\u00a0Courtesy The Island June 1, 2017, 9:49 pm The UNHRC Resolution A\/HRC\/34\/L.1 of 15 March 2017 “requests the Government of Sri Lanka to implement fully the measures identified by the Council in its resolution 30\/1 that are outstanding”. While the language in the 2017 Resolution was a “request”, the language in the 2015 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-66556","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/66556","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=66556"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/66556\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=66556"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=66556"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=66556"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}