{"id":86557,"date":"2019-03-20T03:36:39","date_gmt":"2019-03-20T10:36:39","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=86557"},"modified":"2019-03-20T03:46:02","modified_gmt":"2019-03-20T10:46:02","slug":"the-danger-inherent-in-co-sponsoring-yet-another-unhrc-resolution%ef%bb%bf","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2019\/03\/20\/the-danger-inherent-in-co-sponsoring-yet-another-unhrc-resolution%ef%bb%bf\/","title":{"rendered":"THE DANGER INHERENT IN CO-SPONSORING YET ANOTHER UNHRC RESOLUTION\ufeff"},"content":{"rendered":"\n<p class=\"has-medium-font-size\"><strong>DHARSHAN WEERASEKERA, 19<sup>TH<\/sup> March 2017\u00a0 <\/strong><\/p>\n\n\n\n<p>[<strong>Author\u2019s\nnote<\/strong>:&nbsp; The present paper is part of a\nmuch longer paper being reviewed for publication in an international\njournal.&nbsp; I am posting it here because of\nthe urgency of the hour, given that the Government is planning on co-sponsoring\nyet another resolution at the UNHRC, a resolution that will reaffirm Sri Lanka\u2019s\ncommitment to resolution 30\/1 of October 2015.&nbsp;\nVery briefly, l think the co-sponsorship is a mistake, because it binds\nSri Lanka to fulfilling the remaining provisions of resolution 30\/1, the most\ndangerous of which is the recommendation to enact constitutional measures to\nfacilitate a \u2018political settlement\u2019 for the problems of the minorities,\nespecially the Tamils (Paragraph 16).&nbsp;\nThe recommendation in the way it is phrased in resolution 30\/1 seems\ninnocuous on the face of it, but can be exploited at a future date by Sri Lanka\u2019s\nenemies to get the international community to endorse a referendum on secession\nfor the Tamils.&nbsp; Such a thing would be\nvery useful if a pro-nationalist Government were to take over in Sri Lanka, say,\nstarting in January 2020, and the international community needs a tool with\nwhich to destabilize the country and topple such Government.&nbsp; So, it is crucial that the <em>Sinhalayo<\/em> prepare for the \u2018worst-case\u2019\nscenario, namely, the moment a new Government is installed in Sri Lanka, the\ninternational community including the Tamil Diaspora starting the drumbeat for\nan international endorsement for a referendum on secession for the Tamils,\nclaiming that the Government has failed to live up to its \u2018commitments\u2019 under\nthe co-sponsored resolution.&nbsp; If the\n\u2018worse-case\u2019 scenario does not materialize, that\u2019s fine, because then the <em>Sinhalayo<\/em> will have won.&nbsp; However, if it does, the <em>Sinhalayo<\/em> need a plan with which to fight it, and the sooner they\nstart devising one the better.]<\/p>\n\n\n\n<p>One of the key goals of the Constitutional\nReformists in Sri Lanka\nhas been to provide a political settlement\u201d to the purported problems of the\nminorities, especially the Tamils.<a href=\"#_ftn1\">[1]<\/a>&nbsp; The international community especially the\nUNHRC has also been keen that such a \u2018settlement\u2019 be reached.<a href=\"#_ftn2\">[2]<\/a>&nbsp; Paragraph 16 of resolution 30\/1 not only\ncalls for a \u2018political settlement\u2019 in Sri Lanka, but sets out the Council\u2019s\nview on what the settlement should be, that is, the form and substance of the\nsettlement.&nbsp;&nbsp;&nbsp; <\/p>\n\n\n\n<p>In this section, I shall discuss how\nParagraph 16 might be exploited by interested parties to do mischief to Sri Lanka, for instance, to encourage, incite or\nfoment separatism or secessionism in the country in order to destabilize the\ncountry and thereby make it more amenable to control by outsiders, reminiscent\nof events in Kosovo and South Sudan. For now,\nI shall not discuss who might want to do this or why, and the probability or\nlikelihood of it happening. (I shall turn to those issues in the next two\nsections.)<\/p>\n\n\n\n<p>At the outset, it is necessary to address\ntwo crucial legal questions, the answers to which help highlight the advantage\nthat Paragraph 16 gives to interested parties that for whatever reason might\nwish to destabilize Sri Lanka.&nbsp; The two\nquestions are:<\/p>\n\n\n\n<ol class=\"wp-block-list\"><li>Does a resolution constitute\ninterference for purposes of Article 2(7) of the U.N. Charter?<\/li><\/ol>\n\n\n\n<ul class=\"wp-block-list\"><li>How is the term matters that\nfall within the domestic jurisdiction of states,\u201d defined or understood for\npurposes of Article 2(7)?<\/li><\/ul>\n\n\n\n<p>I rely on the authoritative book, <em>The Charter of the United Nations:&nbsp; Commentary and Documents<\/em>, by Leland M.\nGoodrich and Edward Hamro (1949) for the answers to these two questions.&nbsp; The answer to the first question is that, a\nresolution could constitute interference for purposes of Article 2(7).&nbsp; For instance, Leland and Goodrich state:<\/p>\n\n\n\n<p>The practice of\nthe United Nations makes it clear, as indeed does the phraseology of Article\n2(7), that the word intervention\u201d as used in the paragraph is not to be given\na narrow technical interpretation.&nbsp; While\ndiscussion does not amount to intervention, the creation of a commission of\ninquiry, the making of a recommendation of a procedural or substantive nature,\nor the taking of a binding decision constitutes intervention under the terms of\nthe paragraph.<a href=\"#_ftn3\">[3]<\/a><\/p>\n\n\n\n<p>A resolution of the U.N. or one of its\nsubsidiary organs contains various recommendations of a procedural or\nsubstantive nature\u2014for instance as Paragraph 16 does\u2014that the target of that\nresolution is expected to carry out.&nbsp;\nTherefore, in my view, a resolution would constitute an \u2018intervention\u2019\nunder Article 2(7).<\/p>\n\n\n\n<p>The answer to the second question is that,\na matter that falls within the domestic jurisdiction of a state,\u201d is\nunderstood as any matter that has not been <em>internationalized<\/em>\nin some way or other.&nbsp; The relevant\npassage from Goodrich and Hamro is as follows:<\/p>\n\n\n\n<p>The rule of\ninternational law that a matter ceases to be within the domestic jurisdiction\nof a state if its substance is controlled by the provisions of international\nlaw, including international agreements, has been accepted [vide <em>Advisory Opinion of the PCIJ in the case of\nthe Nationality Decrees in Tunis and Morocco<\/em>, PCIJ Publications, Series\nB.&nbsp; No. 4]<a href=\"#_ftn4\">[4]<\/a><\/p>\n\n\n\n<p>There are two important points in the above\nthat are relevant to Sri\n  Lanka.&nbsp;\nFirst, the form and substance of a political settlement in a country,\nwhich under normal circumstances would be up to the citizens of that country to\ndecide and therefore essentially a matter within the domestic jurisdiction of\nthat country, would cease to be so if it is internationalized in some way or\nthe other by being brought under the purview of an international instrument or\nagreement.&nbsp; <\/p>\n\n\n\n<p>Second, by necessary inference, if a\ncountry were to co-sponsor a resolution, or a impose a resolution on itself,\nsuch a resolution would for all practical purposes constitute an agreement\u201d\nbetween the country in question and the U.N. organ that ultimately adopts the\nresolution.&nbsp; This because, by\nco-sponsoring, the country is question is voluntarily agreeing to carry out the\nconditions set out in the resolution.&nbsp;&nbsp;&nbsp;\nThe picture as to what exactly has happened to Sri Lanka by virtue of Paragraph 16\nnow becomes clear.&nbsp; <\/p>\n\n\n\n<p>Under normal circumstances, the UNHRC could\nnot and should not have been able to make recommendations as to the form and\nsubstance of a \u2018political settlement\u2019 in Sri Lanka.&nbsp; However, since Sri Lanka co-sponsored resolution\n30\/1, that bar has now been removed.&nbsp;\nFurthermore, since the issue of the \u2018political settlement\u2019 is\ninternationalized, the international community can continue to agitate the\nissue at the UNHRC and other U.N. venues, as long as the original co-sponsored\nresolution is legally valid.&nbsp; <\/p>\n\n\n\n<p>Therefore, the protection that Sri Lankans\nwould normally be able to enjoy or claim under Article 2(7) of the U.N. Charter\nagainst attempts by the U.N. to intervene in the internal affairs of its\nmembers has arguably been removed, in respect of the very important issue of a\npolitical settlement\u201d to solve the purported problems of the minorities.&nbsp;&nbsp; <\/p>\n\n\n\n<p>I shall now turn to the substance of\nParagraph 16, and explain how an interested party can exploit it in order to\ndestabilize Sri Lanka.&nbsp; Admittedly, on the face of it, Paragraph 16\nseems quite innocuous.&nbsp; For instance, a\nskeptical reader might ask, All that Paragraph 16 seems to be saying is that\nSri Lanka should go beyond the 13A&nbsp; in\ndevolving power to the Provinces, and furthermore, comply with the provisions\nof the 13A that have already been enacted.&nbsp;\nSo, what is wrong with that?\u201d<\/p>\n\n\n\n<p>(For those\nunfamiliar with the 13<sup>th<\/sup> Amendment to the Sri Lanka Constitution, it\nwas enacted in 1987 and established a system of Provincial Councils.&nbsp; Successive governments have avoided\nimplementing two of the 13A\u2019s clauses, the first authorizing a separate police\nforce for each Province, and second giving the Provincial Councils power over\nState lands.&nbsp; Whenever one sees a\nreference to full implementation\u201d of the 13A it is a call to implement the two\naforesaid clauses as well.)&nbsp;&nbsp; <\/p>\n\n\n\n<p>There is nothing wrong with Paragraph 16 if\none forgets the lessons of Sri\n  Lanka\u2019s ordeal at the UNHRC over the past\nfew years.&nbsp; However, if one considers\nthose lessons there is plenty to worry.&nbsp;\nRecall that, the key component of the tactic that the U.S. perfected by experimenting with Sri Lanka is to first level a series of\nallegations against a country, and then, without ever substantiating those\nallegations, keep passing resolution after resolution in order to get the\ntargeted country to do what the U.S.\nwants. <\/p>\n\n\n\n<p>The genius of the tactic is that, no matter\nwhat the targeted country does to satisfy the terms of a particular resolution,\nas long as the U.S. and its allies get a majority of UNHRC members to back a\nvote on a resolution, <em>they<\/em> decide\nwhether or not to pass yet another resolution against the targeted country, and\nwhat extra conditions to impose.&nbsp;&nbsp; <\/p>\n\n\n\n<p>Therefore, the conditions have now been\ncreated for an interested party operating through the UNHRC to dictate the\ncontent as well as pace of a political settlement\u201d in Sri Lanka without\nreference to or independent of the practical realities that either the\nSinhalese on the one hand or the Tamils on the other may be facing at any given\ntime in the course of negations to make various concessions, and the merits of\ntheir arguments as to those difficulties.<\/p>\n\n\n\n<p>It is reasonable to suppose that, a problem\nthat led to a thirty-year civil war probably involves complexities that are not\nsusceptible of quick solutions.&nbsp; The\nvarious parties to the conflict are sure to have deep-seated prejudices and\nfears that need to be genuinely and thoroughly addressed if negotiations are to\nmove forward. <\/p>\n\n\n\n<p>I shall digress a moment at this stage to\naddress an important question.&nbsp; A curious\nreader might ask, Is there any particular reason for either the Sinhalese or\nthe Tamils, or both, to suspect that the other is negotiating in bad faith?\u201d&nbsp; I cannot speak for others, but, as a Sinhalese\nat least from my point of view there certainly is.&nbsp; <\/p>\n\n\n\n<p>The constraints of time do not permit to\ndwell on this matter at length, but, I draw the reader\u2019s attention to the\nfollowing two remarks by R. Sampanthan, the Leader\u201d of the Tamil National\nAlliance, the Tamil group that is demanding the political settlement.\u201d&nbsp; He makes these observations in the course of\na seminal speech in March 2012 at an Annual Conference of the Illangai Tamil\nArasu Kadchchi (ITAK) the political party under which members of the TNA\ncontest elections.&nbsp; He says:&nbsp;&nbsp; <\/p>\n\n\n\n<p>The softening of\nour stance concerning certain issues, and the compromise we show in other\nissues, are diplomatic strategies to ensure that we do not alienate the\ninternational community.&nbsp; They are not\nindications that we have abandoned our fundamental objectives\u2026.Our expectation\nfor a solution to the ethnic problem of the sovereignty of the Tamil people is\nbased on a political structure outside that of a unitary government, in a\nunited Sri Lanka in which Tamil people have all the powers of government to\nlive with self-respect and dignity\u2026.Our acceptance of this position does not\nmean that we consider the 13<sup>th<\/sup> Amendment to be an acceptable\nsolution, nor that, in the event of our right to internal self-determination is\ncontinuously denied, we will not claim our right under international law to\nexternal self-determination.&nbsp; It only\nmeans that this is the only realistic solution today.\u2019<a href=\"#_ftn5\">[5]<\/a><\/p>\n\n\n\n<p>He also says:<\/p>\n\n\n\n<p>The current\npractices of the international community may give us an opportunity to achieve,\nwithout the loss of life, the soaring aspirations we were unable to achieve by\narmed struggle.\u2019<a href=\"#_ftn6\">[6]<\/a><\/p>\n\n\n\n<p>To the best of my knowledge, no one from\nthe TNA has publicly objected to or rejected Mr. Sampanthan\u2019s sentiments above,\nwhich can be taken as evidence that he is expressing the general views of most\nmembers of the TNA.&nbsp; Three things become\nclear from Mr. Sampanthan\u2019s sentiments.&nbsp;\nFirst, he is quite forthright in admitting that any concession the TNA\nis willing to make is only a ruse to placate the international community.&nbsp; Naturally, a Sinhalese person would have a\nproblem with this.&nbsp; <\/p>\n\n\n\n<p>Second, on the 13<sup>th<\/sup> Amendment,\nhe is saying that his group does not consider the 13A an acceptable solution,\u201d\nmeaning that, even if the Sinhalese agree to implement the 13A completely (as\nfor instance Paragraph 16 recommends) Mr. Sampanthan and his friends might\nstill not be satisfied, and according to him, <em>retain<\/em> the right to move for external self-determination.\u201d&nbsp; In other words, no matter what the Sinhalese do\nto please the TNA, at the end of it they might still ask for a separate\nState.&nbsp; <\/p>\n\n\n\n<p>Finally, he is suggesting that his group\nshould exploit the current practices of the international community\u201d\u2014by which\nhe obviously means <em>geopolitics<\/em>\u2014to\ngain what they could not gain through force of arms.&nbsp; Again, a Sinhalese person might be forgiven\nfor having a problem with such a sentiment.&nbsp;\n<\/p>\n\n\n\n<p>The following matters are also\nrelevant.&nbsp; The TNA is generally regarded\nas having been the political arm of the LTTE.<a href=\"#_ftn7\">[7]<\/a>&nbsp; The LTTE sought to create a separate State\nencompassing the Northern and Eastern\n Provinces.&nbsp; This is exactly the area over which the TNA\nnow wants full internal self-determination.\u201d<a href=\"#_ftn8\">[8]<\/a>&nbsp; <\/p>\n\n\n\n<p>Today, the Northern Province is completely denuded of\nthe Sinhalese and Muslims. In October 1990, the LTTE gave 48 hours notice to\nthe Muslims (the Sinhalese had by then been driven out) to vacate the province\non pain of death.<a href=\"#_ftn9\">[9]<\/a>&nbsp; In the Jaffna Peninsula,\nthey were given as little as two hours notice.<a href=\"#_ftn10\">[10]<\/a>&nbsp; But, in the Eastern Province,\nthe three ethnic groups still live side by side in roughly equal proportions.<a href=\"#_ftn11\">[11]<\/a><\/p>\n\n\n\n<p>I leave it to the reader to decide whether,\ngiven what happened in the Northern\n  Province, a Sinhalese person would have a legitimate\nconcern as to what might befall the Sinhalese and the Muslims in the East if a\ngroup that avowedly shares the soaring aspirations\u201d of the LTTE were to take\nfull control of the area.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <\/p>\n\n\n\n<p>To return, Paragraph 16 permits an\ninterested party, if they can muster enough votes at the UNHRC, to decide <em>a priori<\/em> what is the best political\nsettlement\u201d in Sri Lanka and the pace at which such settlement\u201d should be\npursued, and if at any given time they decide that it is not being pursued in\nthe manner or at the pace they like, regardless of the reasons that the Sri\nLankans may give as to <em>why<\/em> they are\nhaving difficulties with negotiations, impose further conditions.<\/p>\n\n\n\n<p>Under the circumstances, just as the series\nof accountability\u201d resolutions began with a two-paragraph resolution calling\non the UNHRC to monitor\u201d the situation in the country, an interested party\ncould obtain a resolution calling on the Council to monitor\u201d the progress of\nthe political settlement,\u201d and in subsequent resolutions ratchet-up the\npressure until, claiming that the Government is shirking its responsibilities,\nadopt a resolution authorizing the Council to intervene in order to bring about\nthe settlement.<\/p>\n\n\n\n<p>In this situation, it is conceivable that\nan interested party might at some future date move a resolution calling on the\nCouncil to endorse a referendum on secession for the Tamils. And if this\nhappens, in my view, it could potentially set up a repeat of the type of events\nthat have transpired in Kosovo and South Sudan.&nbsp; (I discuss the situations in those countries\nin Part Eight of this essay.)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <\/p>\n\n\n\n<p>The important point is that, all of this\ncould happen without a consideration of the merits of the arguments that the\nGovernment might present as to why the political settlement\u201d has stalled if it\nhas, or rather, in spite of them.&nbsp; &nbsp;On the other hand, if Sri Lankans had been\naccorded the protection of Article 2(7) of the U.N. Charter, they would never\nhave had to face this situation to begin with.&nbsp;\nSo, that is the danger in Paragraph 16.<\/p>\n\n\n\n<p>I shall now turn to the question as to how\nprobable or likely it would be that an interested party will exploit Paragraph\n16.&nbsp; For instance, a skeptical\ninternational reader might ask, Is there really an interested party with the\nmeans and the motive to do something like this?\u201d&nbsp; There are at least two:&nbsp; The U.S. and the U.K.&nbsp; I shall start with the latter.&nbsp;&nbsp;&nbsp; <\/p>\n\n\n\n<p><em>To be continued\u2026.<\/em><br><\/p>\n\n\n\n<hr class=\"wp-block-separator\"\/>\n\n\n\n<p><a href=\"#_ftnref1\">[1]<\/a> See for instance, Ranil promises radical constitutional reforms to\nsolve \u2018national problem,\u2019\u201d Saman Indrajith, <em>The\nIsland<\/em>, 21<sup>st<\/sup> January 2015 <\/p>\n\n\n\n<p><a href=\"#_ftnref2\">[2]<\/a> See for instance, Report of the U.N. High Commissioner for Human\nRights, A\/HRC\/32\/CRP.4, 28<sup>th<\/sup> July 2016, <a href=\"http:\/\/www.ohchr.org\/\">www.ohchr.org<\/a>, paragraphs 8-9; also, Report of\nthe U.N. High Commissioner, A\/HRC\/34\/20, 10<sup>th<\/sup> February 2017, <a href=\"http:\/\/www.ohchr.org\/\">www.ohchr.org<\/a>,&nbsp;\nparagraphs 24-26; also Report of the U.N. High Commissioner for Human\nRights, A\/HRC\/37\/23, 25<sup>th<\/sup> January 2018, <a href=\"http:\/\/www.ohchr.org\/\">www.ohchr.org<\/a>, paragraph 21&nbsp;&nbsp;&nbsp;&nbsp; <\/p>\n\n\n\n<p><a href=\"#_ftnref3\">[3]<\/a> Leland M. Goodrich and Edward Hamro, <em>Charter of the United Nations:&nbsp;\nCommentary and Documents<\/em>, Stevens and Sons, London, 1949, page 120<\/p>\n\n\n\n<p><a href=\"#_ftnref4\">[4]<\/a> Ibid, page 120 <\/p>\n\n\n\n<p><a href=\"#_ftnref5\">[5]<\/a> \u2018Text of Presidential Address of R. Sampanthan at the 14<sup>th<\/sup>\nAnnual National Convention of ITAK in Batticaloa,\u2019 <em><a href=\"http:\/\/www.dbsjayaraj.com\/\">www.dbsjayaraj.com<\/a><\/em>, 27 May\n2012<\/p>\n\n\n\n<p><a href=\"#_ftnref6\">[6]<\/a> Ibid<\/p>\n\n\n\n<p><a href=\"#_ftnref7\">[7]<\/a> See for instance, TNA\u2019s response disingenuous, selective and\npromotes polarization,\u201d Arun Tambimuttu, <em>The\nIsland<\/em>, 23<sup>rd<\/sup> March 2012, <a href=\"http:\/\/www.island.lk\/\">www.island.lk<\/a>\n<\/p>\n\n\n\n<p><a href=\"#_ftnref8\">[8]<\/a> See for instance, TNA-Parliamentary Election Manifesto, 2015, Full\nText,\u201d 26<sup>th<\/sup> July 2015, <a href=\"http:\/\/www.colombotelegraph.com\/\">www.colombotelegraph.com<\/a>\n<\/p>\n\n\n\n<p><a href=\"#_ftnref9\">[9]<\/a> See for instance, The Quest for Redemption:&nbsp; The Story of the Northern Muslims,\u201d&nbsp; The Final Report of the Citizens\u2019 Commission\non the Expulsion of the Muslims from the Northern Province by the LTTE in\nOctober 1990, Law and Society Trust, 2011 and 2012, <a href=\"http:\/\/www.lstlanka.org\/\">www.lstlanka.org<\/a> <\/p>\n\n\n\n<p><a href=\"#_ftnref10\">[10]<\/a> Ibid, Final Report <\/p>\n\n\n\n<p><a href=\"#_ftnref11\">[11]<\/a> The Sinhalese &#8211; 23%, Muslims &#8211; 37% and the Tamils &#8211; 34% (Eastern\nProvince of Sri Lanka,\u201d <a href=\"http:\/\/www.citypopulation.de\/\">www.citypopulation.de<\/a>)&nbsp; <\/p>\n","protected":false},"excerpt":{"rendered":"<p>DHARSHAN WEERASEKERA, 19TH March 2017\u00a0 [Author\u2019s note:&nbsp; The present paper is part of a much longer paper being reviewed for publication in an international journal.&nbsp; I am posting it here because of the urgency of the hour, given that the Government is planning on co-sponsoring yet another resolution at the UNHRC, a resolution that will [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[117],"tags":[],"class_list":["post-86557","post","type-post","status-publish","format-standard","hentry","category-dharshan-weerasekera"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/86557","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=86557"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/86557\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=86557"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=86557"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=86557"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}