Global Peace Support Group

[By Nihal Jayawickrama]

My two recent articles: "The Myth of State Sovereignty" (Sunday Island, 28 March 2010) and "The Erosion of State Sovereignty" (Sunday Island, 4 April 2010), evoked a very mixed response from readers not only of this newspaper, but also of other weekend newspapers and from those who browse the internet. I am grateful to Kumar David (Sunday Island, 11 April 2010) and Izeth Hussain (The Island, 26 April 2010) for placing the issue in proper perspective, in the context of the massive force of the human rights movement that revolutionized international law in the second half of the twentieth century. I am also grateful to Rajan Philips (Sunday Island, 11 April 2010) for drawing attention to the positive aspect resulting from the erosion of state sovereignty, which is the strengthening of the sovereignty of the people. Kalana Senaratne (Sunday Island, 25 April 2010) raised two pertinent questions which I shall endeavour to address. It is unfortunate that some who contributed to this debate were unable to detach themselves from the conflict that engulfed this country and the international response to it.

The international human rights regime

The elaborate regime of international human rights law that now exists seeks to protect the individual against the acts or omissions of his or her own government. The philosophical concepts from the West and the religious traditions of the East have been replaced by legal rules incorporated in a series of human rights treaties. These are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting states. Their object and purpose is the protection of the basic rights of individual human beings, irrespective of their nationality, both against the country of their nationality and all other contracting states. In concluding these human rights treaties, the states submitted themselves to a legal order in which they, for the common good, assumed various obligations, not in relation to other states, but towards all individuals in their jurisdictions. Within this international human rights regime, the sovereignty of the people replaced the sovereignty of the state.

The 1972 Constitution

It was in 1972, before the two principal human rights treaties had even become operative, that our Constitution proclaimed the Republic of Sri Lanka in which "sovereignty is in the people and is inalienable". I doubt that Dr Colvin R de Silva had the emerging human rights regime in mind when he formulated that statement. But it did create the foundation for a new society in which there would be no monarch and no subjects, but citizens enjoying equal rights and the equal protection of the law. Indeed, the statement of fundamental rights in that Constitution began with precisely that guarantee. There were symbolic acts too that accompanied the republican constitution. Mr. William Gopallawa, the constitutional head of state, a man of great strength and quiet dignity, dropped the prefix "His Excellency". The ministers dropped the prefix "Honourable". The judges of the highest court of appeal shed the traditional bishops’ garb and opted for the austere black gown. The new republic would be a simple, more egalitarian, society.

The trappings of a monarchy

Where and when did we lose that sense of purpose and direction? Of course, the concept of the "respublica" was short-lived. When the constitutional head of state was replaced by an executive president, the latter began to adopt the trappings of a monarchy. A presidential guard in gaudy ill-fitting garb; a claim to be the latest in a long succession of kings; an office that was placed above the law and beyond the reach of the courts and in which considerable power was concentrated, soon surfaced. "Their Excellencies" who followed, all but claimed a divine right to rule. When they appeared before their subjects, they did so against a backdrop of flags and attended by uniformed representatives of the three armed forces. The courtiers who enjoyed their grace and favour, and that included even judges, basked in the glory of the presidency and some even claimed for themselves the privileges and immunities of that office. The ministers began to use the prefix "Honourable" even when referring to each other. One could imagine echoing through the halls of the great presidential palaces those famous words of Louis XIV – "I am the State"!

Serious violations of human rights

Meanwhile, in the three decades that followed, the international human rights regime has barely touched the lives of our people. In fact, its protection has been denied to thousands of Sri Lankans. For example, at the end of 2009, the UN working group on enforced or involuntary disappearances had before it 5,822 unresolved cases from Sri Lanka. Enforced disappearance is a crime against humanity. It occurs when a person is arrested, detained, abducted or otherwise deprived of his liberty by agents of the state or by persons acting with the support or acquiescence of the state, followed by a refusal to disclose the fate or whereabouts of the person concerned. The practice of disappearances often involves secret execution without trial, followed by concealment of the body to eliminate any material evidence of the crime and to ensure the impunity of those responsible. When the state fails to take appropriate measures to prevent the disappearance and subsequent killing of a person, or to investigate effectively the responsibility for his murder, the right to life is violated.

The UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, in his most recent report, expressed regret that the government had not responded to his request for information on numerous complaints of torture received by him. He referred in particular to the failure to conduct an investigation into numerous reported acts of torture by the TMVP and its leadership. He expressed concern that although the war had ended, the government continued to use sweeping emergency regulations that allow arbitrary arrest, prolonged and incommunicado detention, and torture.

Every Sri Lankan has the right to freedom of thought, conscience and religion. This right includes the freedom to change one’s religion or belief, and the freedom, either alone or in community with others and in public or private, to manifest one’s religion or belief in teaching, practice, worship and observance. However, in this predominantly Buddhist country where tolerance should be a fundamental guiding principle, there has been numerous attacks on places of Christian worship, and attempts to legislate against conversions. The recent executive arrest and detention of a Buddhist convert to Islam for publishing a book alleged to be offensive to Buddhists is indefensible in law and a denigration of Buddhism.

Four years ago, the United Nations recognized that corruption was a serious violation of human rights. Sectors that were identified as being particularly vulnerable to corruption included the health services, education, the electoral process and the judiciary, and evidence of corruption in these sectors in Sri Lanka was documented by the UN. Corruption per se, of course, perpetuates discrimination. When a person offers a bribe to a public official and that bribe is accepted, that person immediately acquires a privileged status in relation to other persons similarly placed who have not offered any such gratification. The principle of non-discrimination is fundamental to the concept of human rights. Apart from the fact that there is now no anti-corruption agency in existence, it is also a fact that no Sri Lankan government has demonstrated any real desire to combat or contain corruption in the public sector.

Lack of an effective remedy

It is neither possible nor appropriate to attempt to record every violation of international human rights law. It is sufficient to note that no action has been taken to incorporate in domestic law the provisions of the principal human rights treaties. Consequently, a person whose rights or freedoms are violated has no effective remedy. Where such persons have complained to the UN Human Rights Committee and obtained decisions in their favour, those decisions have not been implemented. The UN has downgraded the Sri Lanka Human Rights Commission to "B" status for not complying fully with the Paris Principles that prescribe the role, composition, status and functions of such bodies. It must surely be a matter of some concern that among the commissions in Asia that enjoy "A" status for full compliance with the Paris Principles are those in Afghanistan, India, Indonesia, Malaysia, Mongolia, Nepal, Philippines, Timor-Leste, Korea and Thailand.

An affront to state sovereignty?

Is it any wonder then that other states parties to international human rights treaties should point an accusing finger at the Sri Lankan government? The spin that has been placed – for domestic consumption - on proceedings of the Human Rights Council in Geneva, has obscured the fact that in the universal periodic review of Sri Lanka, countries that expressed concern on different aspects of Sri Lanka’s human rights record were not only those of Western Europe and North America, but also others such as Ukraine, Turkey, Algeria, Poland, Japan, Iran, Slovenia, New Zealand and Mexico. Is it improper that the UN Secretary-General, to whom all country reports under human rights treaties are required to be submitted, should seek to advise himself on a matter that both he and President Rajapakse underlined as important in their joint statement of 23 May 2009, namely, the accountability process for addressing violations of international humanitarian and human rights law?

Kalana Senaratne has raised two questions. The first is why I stated that Sri Lanka is the only country in which any criticism of an act or omission of the government in regard to the treatment of its citizens is perceived to be an affront to state sovereignty? If he is able to cite an instance of that defence being invoked in a similar context by another country that has undertaken the same human rights treaty obligations, I shall certainly stand corrected. I recall that, in 1989, when a resolution was presented to the UN Human Rights Sub-Commission expressing concern at the "events" in and around Tiananmen Square, and requesting the Secretary-General to transmit information on those events, China did not invoke state sovereignty, but instead disputed the facts and argued that what it had crushed was not a spontaneous movement but "a demonstration that turned into a riot and ended up as a rebellion". The columnist who goes by the pseudonym "Underpala" (Lakbima, 11 April 2010) appears to be unaware that state sovereignty was not an issue when China agreed to Britain’s demand that the two human rights covenants be incorporated in the constitution it provided for its special administrative region of Hong Kong.

War crimes and crimes against
humanity

The second question Kalana Senaratne asks is whether the real issue I intended to focus on was that of war crimes? Did I refrain from doing so because of its sensitive nature? My simple answer to that question is "No". I entertain no illusions about the prospect in the foreseeable future of any country, including Sri Lanka, surrendering any of its citizens to stand trial abroad for alleged war crimes, unless it is compelled to do so by the threat of economic or other sanctions. But it is a matter of common knowledge that when a person enters a country other than his own, he comes within the jurisdiction of the courts of that country. In many countries, national legislation has conferred universal jurisdiction on courts for the trial of war crimes and crimes against humanity, wherever they might have been committed. If and when that jurisdiction is invoked by an interested party, the inherent and inalienable rights of the individual will prevail over any claim of state sovereignty.

In this regard, one recalls that when he arrived in London for medical treatment, former president Augusto Pinochet of Chile was arrested and charged with torture, murder, illegal detention and forced disappearances. In September last year, a warrant for the arrest of Ehud Barak, the deputy prime minister of Israel, on charges of war crimes, was sought from a British court but not issued due to the intervention of the British Foreign Office. In November, Moshe Ya’alon, a former chief of staff of the Israeli military, declined to appear at a London fundraising event when he was warned that he might face arrest in connection with the bombing of a house in Gaza that killed 14 civilians. In December, Tzipi Livni, currently leader of the opposition in Israel, cancelled a visit to London after a British court issued a warrant for her arrest over war crimes allegedly committed in Gaza. Previously, in September 2005, retired Israeli general Doron Almog remained on board an El-Al plane at Heathrow airport when he learnt that detectives were waiting to arrest him on war crimes charges relating to house demolitions and assassinations in Gaza, allegedly committed in 2002.

 

The Concept of Responsibility to Protect – R2P

by Neville Ladduwahetty

Gareth Evans warned that the situation in Sri Lanka was "capable of deteriorating" to one that would warrant R2P intervention in order to protect the civilians. It is a fact that the LTTE was forcibly holding civilians as a human shield to ensure its own protection. External intervention under such circumstances would have required military engagement with the LTTE in order to forcibly liberate the trapped civilians.

The question then was: Who would be best equipped to undertake such an operation? Was it an external force or the Government of the state concerned, i.e., the GOSL? There is no argument that the GOSL was better equipped than an external force due to the latter’s unfamiliarity with the tactics of the LTTE as well as the terrain.

The issue then becomes the motive. The stated position of R2P is protection. The IC and their local supporters were of the view that a legitimate Government such as the GOSL was incapable of protectionist motives. On the other hand, even if intervention through R2P resulted in even more violations it would have been acceptable as their stated motive was protection.

Consequently, there would have been no review of their actions. Not so with the GOSL; hence the current attempts to investigate the actions of the GOSL. Thus, at the end of the day it boils down to a credibility deficit, despite centuries of duplicity of intervening Governments. This is why R2P has no takers in the South where incidentally are located the theaters of most conflicts.

Therefore, the only pragmatic approach is for democracies to support each other in dealing with threats to their respective sovereignties for the sake of the protection of the overwhelming larger civilian population that forms the "rest", whose protection is discounted in the philosophy of R2P.

The subject of Mr. Gareth Evans’ Memorial Lecture commemorating Neelan Tiruchelvam’s 8th death anniversary encompassed "the limits of state sovereignty and the role of the international community in responding to catastrophic human rights violations…". The concept advanced by Mr. Evans, "Responsibility to Protect", or R2P was that the International Community (IC) had the right to intervene on humanitarian grounds when states fail to protect their citizens, even if it amounted to violating the sanctity of the sovereignty of the state. The "right of humanitarian intervention" was later expressed as a "responsibility" of the IC to protect people at grave risk. While the concept’s intentions are commendable, how the proposition manifests itself in practice needs careful consideration. For instance, who decides what constitutes "grave risk" and what circumstances would warrant intervention? Having set the guidelines for intervention, which representative body of the International Community would make the decision to intervene:

Is it the United Nations, NATO, a "coalition of the willing" or a single state acting unilaterally? If the procedures laid down are circumvented, would that intervention be considered illegitimate? These questions were not addressed by Mr. Evans. Since the circumstances justifying intervention and the procedures to be followed prior to intervention are unspecified, doubts and misgivings concerning the IC’s intentions are understandable. Procedures were circumvented in the case of former Yugoslavia. Realizing Russia’s opposition to intervention in former Yugoslavia, Security Council approval was circumvented, and the resources of NATO were used to militarily intervene. The danger of the R2P proposition is that it permits the powerful states to decide whether, when and where to intervene.

This is borne out by the fact that although the HR violations in Rwanda were of a much larger scale than in the Balkans, the IC decided to intervene in the Balkans but not in Rwanda.

Was the intervention in the Balkans prompted by the need to break up former Yugoslavia to gain access to its vast mineral resources and break the influence of Russia in the Balkans, or was it humanitarian? If in fact it was the latter, what is the explanation for not intervening in Rwanda where the conflict had resulted in over 800,000 dead? The conflict in the Balkans has a history, and given that history, conflict was inevitable. The " ..targeting of Yugoslavia did not begin with the bombing. Economic destabilisation of that nation began in the 1980s with IMF and World Bank structural adjustment programs (SAPs)…they devastated the economy, laying the ground work for the break-up of Yugoslavia" (Covert Action Quarterly, Issue 68, Fall 1999). Thus, the right preconditions were first created followed by other covert actions, by way of supply of arms and training to the Kosovo Liberation Army (KLA) fighting for Kosovo’s independence. The conflict between the KLA and the Serbian Army was the right of a sovereign state to defend its territorial integrity.

The inevitable outcome gave the "right" of intervention by NATO; an action that exacerbated the ethnic cleansing of Serbs as well as Kosovo Albanians. Thus, conflicts could be orchestrated giving grounds for intervention, the rewards for which invariably are access to resources and/or strategic advantages. There is little wonder therefore that there is skepticism when powerful states come up with notions to manipulate the territorial integrities of less powerful states.

Mr. Evans’s proposition, R2P would be received with the same skepticism in Sri Lanka as it would be anywhere else in view of the record of duplicity of the more powerful states. Instead of intervening after HR violations assume serious proportions, the obligation of the IC should be to prevent HR violations from occurring, more so because the genesis of many conflicts have their roots in a past created by the powerful states that constitute today’s IC. OBLIGATIONS TO PROTECT The conflicts that caused serious HR violations in Rwanda, Iraq and even in countries such as Sri Lanka have their genesis in their colonial past. For instance, a Tutsi monarchy in Rwanda, ruled over 85% of the Hutu majority from around the 1500s, despite the former being only 14% of the country’s population. With independence from colonial rule and the introduction of democracy political power was transferred to the Hutu majority.

Horrendous HR violations resulted due to the inability to cope with the altered circumstances. The obligation of the IC should have been to arrange for the transition of political power in a more measured manner rather than allowing democracy to manifest itself in the most rustic of forms. The failure of members of the IC to live up to their obligations resulted in a grave humanitarian catastrophe. The situation in Iraq is somewhat similar. For decades the Sunni minority exercised political power, albeit under a Dictatorship, over the Shia and Kurd majorities. With the US intervention in Iraq and the introduction of democracy, political power was shifted overnight to the majority leaving the Sunni minority with an uncertain future. This was compounded by the fact that the Sunni regions do not have oil. The resolution of this conflict requires a reasoned basis for sharing oil revenues and for all communities to share power, not as a fragmented country, but as a country that functions as a territorially integrated whole. The IC had an obligation to ensure that here too, as in Rwanda, the process of transition was undertaken in a measured manner.

The conflict in Sri Lanka too has its roots are in a colonial past. Under colonial rule the Sri Lankan Tamils enjoyed a position and an influence beyond 3 what their status as a minority of 12% warranted. With independence and the natural processes of democracy, this influence eroded. Recognizing these transitional difficulties as the cause of the ongoing conflict, the IC should use its influence with the Tamil community in Sri Lanka and in the Diaspora to negotiate a political arrangement where the whole community can meaningfully be an integral part of Sri Lankan society. The threat to intervene if the HR situation gets out of control in the process of the government attempting to exercise its writ is counterproductive. In this regard, the position taken by the IC, calling on the GOSL to address unspecified "grievances" or federal arrangements that would allow only the Tamils of the Northern Province who are less than half the Tamil community, to "control much of their own affairs" (Richard Boucher, TamilNet, May11, 2007) can only be described as "irresponsible".

Despite strong criticism from the IC, it was in order to prevent a HR disaster in the Eastern Province that the GOSL intervened and engaged the LTTE following denial of water to 60,000 citizens by the closure of the sluice at Marvil Aru. By clearing the entire Eastern Province of the presence of the LTTE and resettling 97,000 of the Internally Displaced, with the remainder also to be settled shortly, the GOSL has fulfilled its duty to bring normalcy to the region to the overwhelming majority of the citizens of not only of the Eastern Province but also to the country as a whole.The Human Rights of the citizens of the Northern Province warrant that the process started in the Eastern Province be extended to the North.

However, instead of territory the focus should be on addressing the capabilities of the LTTE. It is reported that INGOs and NGOs are aiding the rehabilitation and reconstruction work in the liberated Eastern Province. Local staff employed by them would be considered as Aid Workers. The opportunity presented would be exploited by the LTTE to subject these aid workers to the same fate suffered by the 17 aid workers in Muthur. This would be cited as yet another instance of the government’s inability to protect its citizens.

Therefore, prudence requires that the GOSL excludes INGOs from participating in restoring normalcy in the Eastern Province. NEED TO ADDRESS LTTE CAPABILITIES Mr. Evans has issued a warning that while the current HR situation in Sri Lanka does not warrant intervention, there is a strong possibility that intervention would be justified if the HR situation spirals out of control by the GOSL extending its military offensive to the Northern Province. In addition to Mr. Evans’ concern regarding the Human Rights of the Tamil population in the Northern Province, he should also be concerned with possible outcomes if the LTTE unleashes a terror campaign of a scale intended to trigger a backlash against the Tamils now living in large numbers in the South.

This latter scenario should be a matter of serious concern whether or not the GOSL ventures into the North. In such an eventuality, would the advice of Mr. Evans be for the GOSL to do nothing and wait for events to fester to a point that justifies intervention, or for the GOSL to neutralise the capabilities of the LTTE to inflict serious HR violations? The Obligation to Prevent (O2P) rather than to intervene after a HR catastrophe would require the IC in concert with the GOSL to take action to neutralise the capabilities of the LTTE in order to prevent potential HR violations. In keeping with the O2P concept, the IC appears to be planning a course of action in Turkey to prevent a new front from opening up in Northern Iraq.

According to a report in the Washington Post it was revealed during a secret briefing that the plan was "for a covert operation of U.S. Special Forces to help the Turks neutralise the PKK (the Kurdish rebel Group). They would behead the guerrilla organisation by helping Turkey get rid of PKK leaders that they have targeted for years" (July 30, 2007). Whether similar "preventive action" would not in the long run curtail serious HR violations from occurring thus protecting the largest number of civilians, should be considered by the International Crisis Group and other groups concerned with HR violations.

CONCLUSION

The weakness in the R2P concept is the subjectivity in interpreting what constitutes "grave risk" and who makes the assessment. This subjectivity gives license for members of the IC collectively or as "coalitions of the willing" to act unilaterally without legitimacy to pursue agendas on purported grounds of R2P with drastic repercussions on state sovereignty. Focusing on prevention may not eliminate the pursuit of agendas, but at least it would create opportunities for HR violations to be minimized, if not avoided.

Intervention in sovereign states on grounds of Responsibility to Protect (R2P) citizens against grave risk underscores action after the event and not before. Since the objective is to prevent HR violations, the IC should consider prevention of HR violations as an obligation because of their responsibility for the root causes of current conflicts.

An Obligation to Prevent (O2P) concept would enable the sovereignty of states as well as the safety of citizens to be better protected. This is best achieved by fellow Democracies banding themselves together to strengthen legitimate democratic governments in dealing with the capabilities of entities such as the LTTE, to commit HR violations

 

Human Rights and Foreign Relations

By Izeth Hussain

Now that a new Foreign Minister has been appointed, the moment is opportune to reconsider our relations with the West, which are widely recognized to be thoroughly unsatisfactory, perhaps to what might even prove to be a dangerous extent. There are two areas of concern, namely the question of a political solution to the ethnic problem and human rights. In this article I will focus only on the latter, taking as my starting point recent observations made by Nihal Jayawickrema as he is an internationally recognized authority on the subject consequent to the publication of his book, The Judicial Application of Human Rights Law.

In The Sunday Island of April 4 he wrote, "What I submitted, in my article published last Sunday, was what I believe to be a universally accepted legal proposition, namely that the emergence of international human rights law has resulted in a government’s treatment of its own nationals becoming the legitimate concern of the international community. It has resulted in the individual becoming a subject of international law." That is a sober statement of fact, and there is no cause to cavil over it.

Likewise his statement that under seven international treaties, states have agreed to report to monitoring bodies that have been established and to appear before them and defend those reports. He wrote further, "Under five of these treaties, states have recognized the right of the monitoring bodies to receive complaints from individuals of the infringement of their rights. Under two of these treaties, the monitoring bodies are empowered not only to investigate violations of the relevant rights, but also to visit the territories for that purpose."

Two facts stand out. One is that sovereignty has been seriously eroded, so that sovereignty can no longer be understood in terms of the pristine strength that it had for a long period after the 1648 Treaty of Westphalia. The other is that this erosion has been voluntarily agreed to by Sri Lanka and a great many other UN member states. Why then is it that although Sri Lanka has made itself accountable to the international community on its human rights record, any proposal to investigate it has tended to provoke hysterical reactions? An obvious part of the answer is that this country has been under a serious threat of loss of sovereignty and a break-up over a long period. The international community must acknowledge that the threat was a really serious one. I believe that if the UNP had been in power and if the LTTE had continued with a guerilla strategy appropriate to a long drawn-out war of attrition, instead of prematurely resorting to conventional positional warfare, we would have, by now, been having a de facto Eelam. In this situation, a tendency to become hysterical over anything that smacks of foreign interference becomes understandable, though not necessarily excusable.

However, although that may explain the hysteria, I believe that the underlying problem is a Sri Lankan failure – probably shared by many third world countries – to understand why the human rights movement has become so potent in the contemporary world. The widespread notion that it is really not much more than a tool for new imperialist bullying of the weak states is quite simply ludicrous. There are complexities about the HR movement that we must try to understand. I believe that a useful way to approach the problem would be by examining the implications of the phrase "the erosion of sovereignty", bearing in mind that the way in which we verbalize something shows that we are conceptualizing it in a certain way.

In the phrase "the erosion of sovereignty" the term "erosion" is of a negative order while "sovereignty" is the positive. "Erosion" implies a process of attrition that goes on involuntarily, something beyond our will and control, something that brings about consequences that we don’t want. It does seem a singularly inappropriate metaphor to describe the way in which the HR movement whittled down state sovereignty. It was a voluntary process in which the UN member states agreed without any compulsion at all to abide by norms and values set out in the UN Charter and the Declarations on HRs, in addition to which they made themselves answerable to the international community by signing and ratifying Covenants and other legally binding instruments on HRs. In a way, there was no attaint to sovereignty in any of that because sovereign states were exercising their sovereign will to make themselves answerable to the international community on what could happen internally in their states. But objectively there was, of course, a very considerable ‘erosion’ of sovereignty.

How did it come about that sovereign states could voluntarily compromise their own sovereignty in that way? In my view, only one answer is possible. It is that the HR movement represents a mighty revolutionary force, which is going to prove mightier than the nation-state and its sovereignty, a force capable of wiping off the nation-state from the face of the earth! Behind it is the principle that the State exists for the people, not the people for the State, a principle first clearly enunciated in the Enlightenment ideology of the eighteenth century. It has come to be recognized that the aspirations to human rights are universal, something that far transcends a Euro-centric vision of humanity. Those aspirations have become powerful because the scientific revolution of the seventeenth century and the industrial revolution that has been sweeping across the globe since the nineteenth century have made possible a better life for the mass of humankind. The growing awareness among the masses that a better life is possible is the revolutionary force that is going to transform the globe. The best of the British post-War demotic poets, Adrian Mitchell, put it very well in a poem which goes – if I remember rightly – "The peoples of the world want the world. / They will take it."

To understand the present HR situation in the world we must give special attention to developments during the last century. The two world wars seriously called into question the liberal humanist ideology that had held sway over the most advanced countries in the world, but that ideology continued after the Second World War with a new emphasis on HRs, which was the consequence largely of the Nazi genocide against the Jews. But the leading Western powers were not really enthusiastic about promoting HRs until after 1975, for reasons that are not clear. Perhaps the 1975 Helsinki Conference on East-West Security and Co-operation set off the new enthusiasm because of the realization that HRs could erode the Communist system and make it come unstuck. That something mysterious was afoot was shown by the fact that when President Carter came to power in 1977, he had no enthusiasm whatever for HRs, but quickly developed it thereafter. My guess is that with increasing political consciousness, including an awareness that a better life had become possible for the masses, the demand for HRs had become more urgent and Western leaders had to take cognizance of that fact and adjust their programmes accordingly. In other words, a global revolutionary process in which HRs have come to have a central place, has been becoming practically irresistible since 1975.

I want to focus here on another development to which nothing like due importance has been given, a development of particular importance to countries such as Sri Lanka. In theory, the Western governments were mightily enthusiastic about HRs, which was at the core of the liberal humanist ideology, for which the Second World War had been fought and won. In practice Eleanor Roosevelt and other Western representatives at the UN did everything possible to make provisions for HRs ineffective, while those who wanted to go further were mainly the Negro civil rights groups of that time. Today the latter have been substituted by the NGOs, and the same tension between the State and the civil society persists. This is not really surprising because the State, after all, is either the potential or actual enemy of the people, and HRs are what have to be extorted by the people from largely unwilling Governments. This is the reason why most HR enthusiasts hold that the record of the Human Rights Council in Geneva has been so dismal. Western governments put miscreant governments in the dock there, not so much to punish them as to shame them into good behaviour in the future. It is part of the order of things in Geneva that at the final vote the miscreant governments are saved, not by the diplomatic brilliance of their representatives, but by the automatic negative votes of countries – "our real friends" – whose own HR records are not of the grandest quality.

I come now to the policy prescriptions. Above all, an attitudinal change towards the HR movement is necessary, after which the other requisites should follow. That change will not be possible unless there is a more sophisticated understanding of what the HR movement is all about: a part of a global revolutionary process of enormous power, and not just a tool for new imperialist bullying. The underlying reason why HRs are regarded as so important is that they are regarded as an integral part of a new, better, and more stable world order – but that is an aspect that cannot be explored in this article. The imperative, of course, is that we should improve our HR record. In the short term – an immediate imperative – we must put a stop to the culture of impunity shown in the disappearances of journalists, their savaging or even deaths, after which no one has the slightest expectation that the culprits will ever be brought to book. In our dealings with foreigners on HRs we should put aside the megaphone and put into practice, if not the pin-stripe good manners of contemporary diplomacy, traditional Sinhalese good manners. I will not go into further details as they should be obvious. But, I must emphasize before proceeding to my conclusion that as I have suggested in the preceding paragraph the Western governments, too, are part of the elaborate charade going on at Geneva, and therefore SL accommodation with the West on HRs should not be difficult.

In conclusion, I must emphasize that HRs can, of course, be used as a tool of the new imperialism. Sometimes creative artistes show insights of which others are not usually capable. I was reminded of this when I recently saw a DVD of Abel Gance’s classic film Napoleon. He projects Napoleon as a liberal democratic hero, who in the French Revolution backed Danton and the Girondists against the extremist Robespierre and St. Just. Towards the end of the film Napoleon’s Italian conquest is seen as a liberation –which indeed was how the Italian people themselves tended to see it. But the film ends, without any sense of irony, in a blaze of French imperial glory. The truth is that in that era imperialism did go together with liberation and HRs. Hegel experienced those two contrasts at first hand. After seeing Napoleon for the first time he wrote lyrically that he had seen History go past on horseback, but his enthusiasm cooled somewhat when a few days later French troops ransacked his library. The point I am trying to make is that we have to be vigilant about the new imperialism, but we must not make that an excuse to downplay the sacrosanct and inalienable rights of the people of Sri Lanka.

 

A response to Dr. NJ:
was it really about ‘sovereignty’?

By Kalana Senaratne

Dr. Nihal Jayawickrama (NJ), a known scholar in the field of international law, has reminded all of us of some very important issues concerning the protection of human rights, the nature and development of international law, and the notion of ‘sovereignty’. First, this reminder came in the form of an article titled ‘The Myth of State Sovereignty’ (The Sunday Island, 23.03.10), and then as ‘The Erosion of State Sovereignty: a Response to Dr. Dayan Jayatilleka’ (The Sunday Island, 04.04.10). The question I want to raise, as a student of international law, is very simply this: was it really about the ‘myth of sovereignty’ that Dr. NJ wanted to talk about, or was there a more sensitive issue that he wanted to address? I believe it is a case of the latter; hence, this short (albeit belated) response in the form of a few simple and direct questions (at the end), which Dr. NJ could answer in a direct manner and thereby end all speculation about what he truly meant when he wrote about the ‘myth of sovereignty’.

Human rights protection

It needs to be mentioned here, that I very much agree with some of the arguments raised by Dr. NJ in his two articles; especially those points relating to human rights protection. I do think (and here I strongly agree with Dr. NJ) that the Government should seriously turn its searchlight inwards when it comes to the issue of the protection of human rights. Since this point has been raised in many of the articles before, I do not wish to explain why this should be, any further. Dr. NJ points out that ‘the challenge that faces the new Sri Lankan Government is to recognize, acknowledge and address the fact that in recent decades compliance with human rights obligations has remained on the backburner.’ True. I also entirely agree with his critique of former Chief Justice Sarath N. Silva’s bizarre judgment (of the Singarasa case), which caused many of the problems that Sri Lanka currently faces when it comes to this issue of legislative recognition of the rights contained in the ICCPR (an issue raised by the EU, for instance). Dr. NJ points out also, very correctly, that there is an ‘alarmingly long’ list of human rights abuses and states that if ‘we begin to address these issues now, seriously and with commitment, the international searchlight will surely cease to be focused on us.’ These points were raised in Dr. NJ’s second article.

State sovereignty

Now, these points were not raised so clearly in the first article that was published by Dr. NJ. And I have wondered that if this was the true message that he wanted to convey, why did he resort to such an erroneous argument, viz. that ‘Sri Lanka appears to be the only country in which it [sovereignty] is still, quite vocally but erroneously, being invoked’ in his first article, and thereby bring this entire argument of sovereignty so strongly and in a one-sided manner, so as to give the impression to the reader that it is only Sri Lanka and Sri Lanka alone?

I do not think that anyone wholly disagrees with the argument that the notion of sovereignty has eroded over the years, due to the numerous developments that have taken place, especially in the realm of public international law. The concept of binding international agreements, the development of modern human rights and humanitarian law (along with the establishment of various tribunals and courts, such as the ICTY/ICTR and the ICC) and the international regulation of many other subjects, the regulation of which would have traditionally been the concern of the particular ‘sovereign state’ alone - are far too obvious in this modern world, for any one to claim that there is anything called ‘absolute state sovereignty.’ In fact, the point that I am raising here is in support of Dr. NJ’s overarching submission (which he seems to have clarified in his second article), which is that: ‘the emergence of international human rights law has resulted in a government’s treatment of its own nationals becoming the legitimate concern of the international community. It has also resulted in the individual becoming a subject of international law.’

As a student, I consider this to be one of the most obvious lessons that any undergraduate would learn in international law. Open any major monograph on the topic of public international law and you would generally find this - ranging from the work of Michael Akehurst to that of Ian Brownlie, from Antonio Cassesse to Malcolm Evans, from J.G. Starke to Malcolm Shaw, from Robert Jennings/Arthur Watts to Vaughan Lowe, and the list could go on. Without relying on H. Lauterpacht for knowledge on international law and even a lesson on sovereignty (as Dr. NJ claims that he relies more on H. Lauterpacht), I would even make things easier for the layman who may be baffled as to who this Lauterpacht is and refer to our very own version of ‘Lauterpacht’ – who is none other than the eminent international jurist Judge CG Weeramantry (with whom Dr. NJ may have worked on a number of pioneering projects, including one relating to judicial ethics).

Judge Weeramantry gives one of the most striking images of what this ‘sovereignty’ truly means to a newly independent State in Universalising International Law (see Chapter 4, titled ‘Emerging Dimensions of Sovereignty in International Law). Judge Weeramantry refers to a people in what is called ‘Afrasia’ and points out as follows: ‘Text books on international law would tell them [the people of Afrasia] that they have received their sovereignty as complete and entire as that enjoyed by Imperial Germany at the height of Bismarck’s stewardship. The reality, which becomes apparent to Afrasia’s rulers the next morning, is that their sovereignty is not the shining orb of power they thought they had received but a corroded and attenuated version which the textbooks had not described’ (p. 103). This is, in short, what every state is made to understand today, especially a state such as Sri Lanka – and I do not think, for a moment, that those who countered Dr. NJ’s arguments (such as Dr. Jayatilleka, Rajpal Abeynayaka, or even the columnist ‘Underpala’ in the LakbimaNews of 11.04.10) believe that this is not the case.

But, in pointing out that the notion of sovereignty has eroded, Dr. NJ does not explain fully well as to why, for example, the Asian region (and its major powers) rejects notions such as the Responsibility to Protect (R2P). This rejection of notions that are perceived as threats to their sovereignty is very much obvious, if one goes through the analysis provided by persons such as Dr. Ramesh Thakur, in The United Nations, Peace and Security – who was one of the drafters of the R2P concept. It is not only small States, such as Sri Lanka, which guard ‘sovereignty’, but the major powers do it as well, in much stronger terms when necessary. Where is the evidence to claim that it is only Sri Lanka that jealously guards its sovereignty, however much the concept may have eroded over the years?

So, my question would be, if the evidence was such, why did Dr. NJ go so far as to claim that it was only Sri Lanka that appears to be resorting to the ‘sovereignty’ argument? Surely, Dr. NJ could not have missed such an obvious fact? Was it an exaggeration, on the part of Dr. NJ, to simply stress a point? Did it not appear to him that almost every State resorts to this concept of ‘sovereignty’, and hides behind it, whenever that particular state’s interests are at stake, or when its interests are threatened from an external element?

War crimes

This is why I get the feeling (and Dr. NJ could correct me if I am wrong), that Dr. NJ wanted to initially touch on an extremely sensitive issue and avoid giving a definitive answer concerning the issue – i.e. the issue of the possible ‘war crimes’ investigation. Having taken the government to task for raising its concerns about Ban Ki Moon’s decision – at a time when the UNSG does not seem to know very much about what he should do with regard to the numerous allegations leveled against other states, such as the USA, on similar issues – Dr. NJ did not proceed to point out how else the Government could have addressed the UNSG’s decision, or what he thought about the initial NAM endorsement of Sri Lanka’s position, etc. It seems that to stress this point, Dr. NJ resorted to an extreme claim that it was only Sri Lanka, and no other State, which would act the way it did; hence his argument that ‘when the UN Secretary-General announces his intention of appointing an expert committee to advise him on matters relating to compliance with international humanitarian law in Sri Lanka, it is condemned as an infringement of our sovereignty.’ And having stated so, Dr. NJ proceeded, unfortunately in my view, to end the article (of course, on an important note) by stating, in somewhat vague and general terms, that the Government should address human rights violations immediately.

The problem Dr. NJ has raised – i.e. the issue of a panel of experts – is a serious issue, and it is not one for which a learned and respected scholar like Dr. NJ should provide a generalized and vague answer. It is of utmost importance that those who trust the scholarship and judgment of Dr. NJ receive an answer as to what exactly he thinks about UNSG Ban Ki Moon’s move – now that he has accused the Government of condemning it. If the Government should not have condemned, one needs to know from Dr. NJ, what the Government should have done.

We can go on and on about debating and discussing the necessity of protecting human rights in Sri Lanka, but when it comes to another critical issue as this – ‘war crimes’ – it is important that we come out more clearly on what we actually want the Government to do. Would Dr. NJ suggest that there ought to be a fully fledged investigation into alleged ‘war crimes’? If so, it needs to be stated so, clearly. Or that the Government should focus more on the general protection of human rights (through the strengthening of independent institutions etc.), and simply forget about investigating alleged war crimes? Or would Dr. NJ believe that some mechanism, akin to the Iraqi Panel established in the UK, would do?

Or else, would it be admitted (as many would do, including this writer), that while an investigation would have been necessary, that such an ‘investigation’ will never take place in Sri Lanka under any circumstances whatsoever – given not only the fact that Defence Secretary Gotabhaya Rajapaksa has clearly stated that there will not be any investigation, but also due to the fact that any attempt to initiate such an inquiry, now that the electorate has overwhelmingly endorsed those who are against such a move (such as Wimal Weerawansa and Champika Ranawaka et al.) would be struck down immediately?

This, to my mind, is the real question that Dr. NJ needs to answer; and not really those questions about the developments that have taken place in the realm of international law, or the names and number of international agreements that currently exist on the topic of human rights. I raise this question, not because I disagree with Dr. NJ entirely – but on the contrary, very simply because I tend to agree with many of the issues raised by Dr. NJ, especially on human rights protection and his critique of former Chief Justice Sarath N. Silva, who still has not answered my humble query (posed a few weeks ago in the Sunday Leader) as to what he thinks of the Optional Protocol which he so unashamedly dumped in the dustbin in 2006! Unlike Sarath N. Silva, I trust Dr. NJ would provide a clear answer (whatever that answer may be) to a question of such vital importance – ‘war crimes’.

(The Writer is a Postgraduate Research Student at the Faculty of Law, University of Hong Kong)

 

In defence of sovereignty

By Dr. Dayan Jayatilleka

A decent enough interval has not lapsed between Dr Nihal Jayawickrama’s first expression of views on sovereignty in the Sunday Island a fortnight ago, and his more reasoned and most recent expression, for the reader to have forgotten his original stand. In his April 4th reply to me Dr Jayawickrama states I have "rushed to challenge" his assertion that : " the doctrine of state sovereignty, in so far as it relates to the treatment by a state of its own nationals, had been significantly eroded in the past fifty years". He goes on to write that "what I submitted, in my article published last Sunday, was what I believe to be a universally accepted legal proposition, namely, that the emergence of international human rights law has resulted in a government’s treatment of its own nationals becoming the legitimate concern of the international community. It has also resulted in the individual becoming a subject of international law."

Now, is this what I have "rushed to challenge"? More to the point, is this what Dr. Jayawickrama originally asserted a mere two Sundays back? I’m afraid not. The record shows that his article entitled "The Myth of Sovereignty" featured as its opening sentence the strongly categorical assertion: "A constitutional myth that has been developed in Sri Lanka in recent years is that of Sovereignty". (Sunday Island March 28th).

Dr Jayawickrama is not talking merely of the erosion of the Westphalian concept or its misuse in its un-evolved form by the Sri Lankan state. His position is that "sovereignty" – with no qualifiers - is but "a constitutional myth" and that too, one "that has been developed in Sri Lanka in recent years". The penultimate paragraph of his original piece contains a line which re-states his position: "To invoke an obsolete doctrine of state sovereignty to defend oneself is to deride the contemporary world order." Thus for Dr. Jayawickrama the problem is not the invocation of an obsolete version or interpretation of the doctrine of state sovereignty; it is the doctrine of State sovereignty itself – not its abuse or over extension. For him, this doctrine is at drastic variance with the contemporary world order. It is this throwing of the baby with the bathwater that Dr. Jayawickrama urged us to accede to and now attempts to finesse, if not obfuscate.

While Dr. Jayawickrama alleges that my response "has demonstrated the futility of seeking to demolish a legal proposition by the application of political theory", I would argue to the contrary that his shifting positions demonstrate the futility of seeking to deny or override political reality, including international political reality, by the application of a legal proposition or more correctly, by a legalistic interpretation.

The great Stanley Hoffmann, student of Hannah Arendt and Raymond Aron, and renowned theorist of international relations, in his Foreword to the Macarthur Foundation and Social Sciences Research Council volume ‘State Sovereignty: Change and Persistence in International Relations’(1997) notes, not without a tincture of ruefulness, that "State sovereignty remains the organizing principle of world order. In the public sphere, the institutions that have acquired some fragments of legitimate supreme authority at the expense of the states are interstate institutions, manifestations of pooled sovereignty ... Power still resides primarily in the states, however great may be the losses that they have experienced". Similarly, Stephen Krasner, a critic of state sovereignty admits that "in international relations, the most important diffuse principle is sovereignty..." and goes onto refer to "the constitutive principle of sovereignty..." (‘International Regimes’)

So much for "sovereignty...deriding the contemporary world order" and "myths" recently minted in and circulated only by Sri Lanka.

The second and third sentences of Dr. Jayawickrema’s original submission incontrovertibly reveal what his criticism is; what his preferences and recommendations are. He strenuously objects that "Whenever the United Nations or a foreign government focuses on an act or omission of the Sri Lanka Government, the immediate response is that our sovereignty is under threat or attack. When the UN Secretary-General announces his intention of appointing an expert committee to advise him on matters relating to compliance with international humanitarian law in Sri Lanka, it is condemned as an infringement of our sovereignty." (Sunday Island March 28). The UN Sec-Gen is an international civil servant, heading and serving what remains an intergovernmental body, the United Nations. When the United Nations is more democratic, when the Security Council is more representative of the world, when the General Assembly is empowered, when the dice is not laden in the international courts and tribunals, when the rich and the powerful submit their wars and their armed forces to international courts and probes, so too should Sri Lanka be advised to – but not a day sooner. Any effective pressure must stem from a source with legitimacy in the eyes of the Sri Lankan people.

In his reply to me, Dr. Jayawickrama produces the reference in the UN HRC resolution on Sri Lanka to international law, and Lakshman Kadirgamar’s stout defence of human rights in his HL de Silva lecture. What’s the relevance? And where’s the contradiction? The UN HRC Sri Lanka resolution and the Kadirgamar foreign policy reflect a careful balance between sovereignty/non-intervention in domestic affairs on the one hand, and human rights and international law on the other, with state sovereignty accorded primacy and priority. For my part I have not derided international law, be it human rights law or humanitarian law, as a ‘myth’ as Dr. Jayawickrama did ‘sovereignty’.

As for those ‘foreign governments’ which ‘focus on acts of omission and commission by the government of Sri Lanka’, Dr. Jayawickrama spurns Sri Lanka’s objection to the hypocrisy of these critics and condemnation of their violation of our sovereignty. His position is that of liberal cosmopolitan interventionism, known earlier as liberal humanitarian interventionism, in which a particular interpretation of international law is upheld ‘uber alles’ while national/state sovereignty is regarded almost as nothing; a residue, afterthought or ‘myth’. People’s sovereignty is invoked in opposition to national/state sovereignty and is sought to be defended (selectively, to be sure) by international law, the international courts, the UN and ‘foreign countries’. The outstanding historian EJ Hobsbawm refers to this perspective as ‘human rights imperialism’ while the world’s leading public intellectual Noam Chomsky has critically detailed its function in the Kosovo war and the dismemberment of the former Yugoslavia by NATO.

If I am to understand Dr. Jayawickrama’s point, since the state is usurping people’s sovereignty with the specious doctrine of state sovereignty, the said sovereignty of the people is to be served by the surrender of national sovereignty to certain international entities! I would argue to the contrary, that popular sovereignty is not served but harmed by any trade-off with national sovereignty and that popular sovereignty is in fact a propellant of the Sri Lankan Government’s stand on national/state sovereignty. While the GOSL stand is self-serving and self-protective to a great degree, it is propelled to an even greater degree by the awareness that any administration that succumbs to such wide ranging external intrusion and opens the Armed Forces to invasive foreign scrutiny with regard to a victorious and popular war, runs the risk of rebellion by the sovereign people.

People’s sovereignty is far better served by struggling (with support and solidarity from global civil society or what is now called the ‘global justice movement’) for strong, independent national institutions and processes of accountability.

What is sovereignty? Who is sovereign? Whatever the degree of erosion of the Westphalian notion of sovereignty, the core remains. The Schmittian definition that ‘sovereign is he [she] who decides on the exception’, with ‘the exception’ being whether or not to make war or peace, remains valid. That decision does not reside with international law, precisely because it has no identifiable agency capable of the decision. The decision ‘war or peace’ is quintessentially political, not legal, and therefore always made by one or more states. If he thinks that any state has signed away that power, i.e. its sovereignty, or to use a phrase anathematic to him, ‘state sovereignty’, Dr. Jayawickrama has confused the neoliberal cosmopolitan project with the ‘contemporary world order’.

 

The tangled history of human rights, internationalism and the home turf
The bumpy road from Asoka to Amnesty

by Kumar David

When Saladin took Jerusalem in 1187 the Christian population holed up in the city feared it would be put to the sword and its women violated. In 1099 when the First Crusade captured the Holy City the massacre of the Muslim population was horrific; every living thing, man, woman and child, dog and cat was slaughtered, quite literally in the name of god. Christendom feared that Saladin would seek vengeance 88 years later; instead he resolved to display the superiority of his faith and civilization to barbarian Europe. His treatment of the Christian population, as much as his military valour, made him a legend in Europe much romanticised by the likes of Sir Walter Scott (The Talisman). El Malik en-Naser Salaha ed-Din Yousouf ibn-Ayoub, though chronicled as the greatest Arab warrior, was not an Arab at all; a Kurd he came to the helm as a young man when his uncle, the ruler of Egypt, died of overeating. Richard Lion Heart, leading the Third Crusade, repaid the debt when he captured the fortress at Acre, four years later and then put to the sword 3,000 of Saladin’s men who he had taken prisoner! Such is the tangled story of man’s inhumanity to man, the backdrop to what we call human rights violations and war crimes these days.

National sovereignty the curse of human-rights

Human-rights as enforceable against sovereign states and internationally justiciable is new, but respect for ones fellow beings has been around for millennia. The shining beacon is the Maurya emperor Asoka when he determined to follow in the steps of the Buddha. Nearly two millennia later another Indian emperor, the enlightened Mogul Akbar was so enamoured of the knowledge of all civilisations that his reign is remembered for its tolerance. With Asoka it was compassion, with Saladin the greatness of Islam, and with Akbar the love of learning; it came from the inside, from the person, from the soul if you will. It went away when the helmsman was no more; Akbar’s grandson Aurangzeb was a fanatic, cruel, intolerant and bigoted. The great religions taught love of one’s neighbour, the brotherhood of man, compassion for all beings, or respect for the universal omega, but the institutional manifestations of these religions have not hesitated to slaughter the infidel in the name of god, the good book, the nation state, or the cleansing of the motherland.

The state, in essence, is an institution for subjugating citizens and holding them in thrall to the purveyors of power. States do various things like collect taxes, build schools and coddle political thieves, but their quintessential function is control and domination; stop for a moment and think of the institutions of state and political power all around you. Therefore, anything that forces accountability on a ‘sovereign state’ in the court of world opinion is a forward step. Global technology, cultural intercourse and commerce tear down barriers and make shared humanity ascendant over farcical sovereignty. As the number of states proliferate and the lesser ones flex their pigmy muscles, their sovereign function is increasingly limited to crushing their own people. They survive by borrowing, maybe from the IMF, from China or elsewhere, militarily they live by the writ of a giant neighbour, culturally they are piffle unless they commune with the world, but they are giants of repression.

Nihal Jayawickrama (NJ) noted that ascendancy of human-rights over national sovereignty had its genesis in breaking the slave trade when ships of any nation could accost others suspected of plying the trade (Sunday Island 28 March). Today’s state-enamoured nationalists will see here a violation of sovereignty on the high seas and neoconservatives would bemoan interference with free trade. But a more powerful moral imperative overrode these objections, then and now. NJ traces this history in a narrative through treaties, conventions (Geneva), and UN covenants. He might have added the American Declaration of Independence and the French Revolution’s ‘Rights of Man’ to the storyline. The Enlightenment brought about a gestalt shift in attitudes, changed philosophical paradigms, and underwrote the rise of capitalism.

It is a paradox that the rise of capitalism tears down barriers between nations, more so in the age of globalisation, and at the same time multiplies the nation state count – how many members does the UN now have, 160 something? The answer to the paradox is two fold; first the sovereign state is a sub-unit for the management and subjugation of peoples within ethnic or historically meaningful boundaries, hence it serves the needs of pluralism within a globally integrated world. The other half of the story is that pigmy states exist in fealty to great ones or in the interstices between them. What is the sovereignty of Haiti today? Nil, it is broken and destitute; the world has to fix it; ditto Ethiopia, Eritrea, much of West Africa, Costa Rica, North Korea and dozens more. And what pray is Lanka’s sovereign independence? We live by our wits playing hide-and-seek between India, China, Japan, the West and the IMF.

In reply to NJ, Dayan Jayatilleke (DJ), writing in the Island of 1 April, indulged in formalisms and a head count of the number of mostly pigmy states, taking no account of how sovereign they really are. Even territorially giant oil rich ones in Central Asia are dependent hide-and-seek cases. In the present international context the implication of DJ’s rejection of NJ’s thesis is the rebuttal of the right of the international community to scrutinise and act against war crimes by satraps running sovereign outposts. The Sri Lankan backdrop to the NJ-DJ debate is all too obvious, it is far more important than the legal and theoretical abstractions of the debate itself.

An irreversible process

The real issue behind NJ-DJ shadow boxing is the accountability of GoSL on human rights; if your theory of state holds that GoSL is not internationally answerable for violations within its borders, then you take a DJ stance. But such thinking is now passé; the world has moved on along a unidirectional thread. I have been saying this for years and NJ puts it succinctly in his refutation of DJ on 4 April (Sunday Island): "(T)he emergence of international human rights law has resulted in a government’s treatment of its own nationals becoming the legitimate concern of the international community". This is irreversible, the pressure for ever more accountability will mount, not just on Zimbabwe, Sudan, Serbia, Sri Lanka, and the like; great powers like China and the United States are also on the spot.

Take the US example. Why is it that a vile and corrupt dictatorship is not taking charge in Iraq as American forces withdraw? Occupation usually leaves behind a client dictatorship as in Latin American banana republics, or South Korean and South Vietnamese dictatorships. The reason is that the world has changed; even mighty America now suffers in the glare of global headlights. It is answerable for the outcome in Iraq and Afghanistan and a blot on its escutcheon will be intolerable.

One does see vile regimes take root is in so-called sovereign states, sheltered from global publicity, contriving to play off some great powers against others. There is a lot of traction in that business; Sudan, Somalia, Ethiopia, Burma, North Korea, the list is long and includes our home. Hence we have the paradox of countries which suffer the purgatory of foreign invasion coming out as relatively more democratic societies while regimes such as ours use sovereignty to cloak an opposite outcome. For this reason war crimes need to be probed by an international process since the sovereign state is the entity in the dock.

The internal dynamics

True as these international dimensions are, it is the internal dynamics that is primary in driving the processes in a country. Personalities, JR, Rajapaksa, the Bandaranaikes, governmental excess, the slide to despotism, these are all manifestations of something deeper. True the role of the individual, like condiments and seasoning, much influences the taste of a dish, but what goes on in the body of society is the meat in the pot. There have been social and ideological changes fermenting in the bowels of our nation for five decades and these constitute the primary process. The gut socio-economic transformation is the rise of the petty bourgeois to a political location from which it held sway over the state. Equally important, a chauvinist Sinhala nationalist ideology underpinned and accompanied this process, which in turn located ethnicity at centre stage. War, the suspension of rationality, the rise of a new populism hand in hand with militarism, the degeneration of public life, this is all connected.

Botched democracy and rubbing out dissent is the current state of play in this regression. The capitulation of the Kumar Rupesinghes, Victor Ivans, Sumanasiri Liyanages, Vasudevas and to a degree even the DJs (I hate to be personal, but without names no one will get what I am driving at) follows from their recognition of what, I presume, they would see as the inevitability of this erosion. They will not couch it in my vocabulary but they have suspended judgement - with eyes wide open – and decided to throw in their lot with the regime and with this process. One may say their choice is politically degenerate, but there is a raw historical truth to the recognition that this profoundly reactionary regression which has been maturing over time, is hard to reverse. Others who cannot bring themselves to capitulate need to baton down the hatches for the long haul and learn to work with sustained resolve, but in a treacherous and dangerous political milieu. They must ponder old Socrates who defined courage as presence of mind.

http://www.island.lk/2010/04/11/features1.html

The Erosion of State Sovereignty
- a response to Dr Dayan Jayatilleke

by Nihal Jayawickrama

My friend, Dr. Dayan Jayatilleke, whom I have known for over a quarter of a century, has rushed to challenge my assertion that the doctrine of state sovereignty, in so far as it relates to the treatment by a state of its own nationals, had been significantly eroded in the past fifty years (The Island, April 1, 2010). In so doing, he has demonstrated the futility of seeking to demolish a legal proposition by the application of political theory. I did not argue that "the state is a myth". Nor did I claim that sovereignty is no longer an inalienable attribute of a state. What I submitted, in my article published last Sunday, was what I believe to be a universally accepted legal proposition, namely, that the emergence of international human rights law has resulted in a government’s treatment of its own nationals becoming the legitimate concern of the international community. It has also resulted in the individual becoming a subject of international law.

Sovereignty not immutable

Since the 1648 Treaty of Westphalia that ended the Thirty Years War in Europe, sovereignty has been regarded as being inherent in the state from the moment of its creation. In the exercise of that sovereignty, a state makes and enforces its laws, enters into political and economic relations with other states, and maintains an army to defend its territorial integrity. But sovereignty is not immutable; it does not remain constant. It varies in response to the state’s involvement in international relations and the degree to which it has contracted international obligations. The Charter of the United Nations was the first multilateral treaty in the history of international relations to establish a body of principles and norms of international law that are regarded as being "erga omnes" in character. It means that the UN Charter contains obligations that are owed by a state towards the community of states as a whole. It also means that any state has the right to complain of a breach of any such obligation by another state.

An international obligation

This was made clear by the International Court of Justice in 1970 in a case between Belgium and Spain, the Barcelona Traction Case. The ICJ stated that an essential distinction should be drawn between the obligations of a state towards the international community as a whole, and those arising vis-à-vis another state. It added that: "By their very nature, the former are the concern of all states. In view of the importance of the rights involved, all states can be held to have a legal interest in their protection; they are obligations erga omnes". The Court explained that: "Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person". In regard to the latter, the ICJ confirmed in another case that: "Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights".

Impact of human rights treaties

In respect of the protection of human rights, the world has progressed beyond the UN Charter. With each step forward, the doctrine of state sovereignty has been eroded. But that erosion was the result of sovereign states, in the exercise of their sovereignty, agreeing not only to respect and safeguard human rights within their own territories, but also to be accountable to, and to submit to scrutiny by, each other and the international community in respect of the performance of that obligation. For example, under seven international treaties, states have agreed to report to monitoring bodies that have been established and to appear before them and defend those reports. They are the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. In fact, the monitoring body under the last of these treaties was chaired for several years by our own Ambassador Prasad Kariyawasam with dignity, competence and acceptance.

Under five of these treaties, states have recognized the right of the monitoring bodies to receive complaints from individuals of the infringement of their rights. Under two of these treaties, the monitoring bodies are empowered not only to investigate violations of the relevant rights, but also to visit the territories for that purpose. Indeed, the Sub-Committee on Prevention established under the Optional Protocol to the Torture Convention has the right to visit any place under the jurisdiction and control of a state where persons are or may be deprived of their liberty. The international tribunals that have been established since 1993 for the prosecution of persons responsible for the crime of genocide, crimes against humanity, war crimes and serious violations of international humanitarian law, demonstrate that states have voluntarily limited their sovereignty over a whole series of criminal jurisdiction issues which formerly lay within their domestic competence. There has also been a growing recognition of the lawfulness of bringing criminal proceedings in national courts against senior officials of foreign states on charges of massive and gross violations of human rights. This was evidenced in Europe in the case of the former Chilean dictator General Augusto Pinochet. Therefore, as Professor J. G. Starke has observed, state sovereignty now means the residuum of power which a state possesses within the confines laid down by international law.

The Sri Lanka resolution

Dr. Jayatilleke has referred to the resolution on Sri Lanka that he so adroitly and with tremendous diplomatic skill steered through the UN Human Rights Council in May last year. At first, with due respect to him, I thought it constituted an aberration. However, on closer scrutiny of the text, and when stripped of the spin that was attached to it for domestic consumption, there is nothing in that resolution that contradicts what I have stated above. Indeed, the resolution itself is titled: "Assistance to Sri Lanka in the promotion and protection of human rights". It reaffirms "the obligation of states to respect human rights law and international humanitarian law while countering terrorism", and welcomes the commitment of Sri Lanka "to uphold its human rights obligations and the norms of international human rights law".

Dr. Jayatilleke has also referred to certain events that allegedly occurred during the 1970-1977 administration of Mrs. Bandaranaike. Since they do not appear to be relevant to the subject under discussion, I will reserve my comments on them for a future, more appropriate, occasion. Suffice it to state that the defence of state sovereignty was never raised in that period in respect of any human rights issue. Nor, I believe, did either President Jayewardene or President Kumaratunge. In fact, it was the former who ratified the international human rights Covenants, and the latter who acceded to the Optional Protocol. In 1989, I attended the sessions of the UN Sub-Commission on Human Rights in Geneva, together with colleagues from Hong Kong and a Chinese student leader, and successfully secured the first UN resolution on human rights in China, requiring the secretary-general to report on the events that had occurred in Tiananmen Square. Also in Geneva at the time were the then Mr. Mahinda Rajapakse and Mr Vasudeva Nanayakkara. Their advocacy on behalf of the Mothers of the South succeeded in securing country visits from UN special rapporteurs to investigate and report on the horrendous executions and disappearances of that era. The future President clearly had an abiding belief in the system of international oversight.

The Supreme Court judgment

Who then was responsible for introducing the doctrine of state sovereignty into Sri Lankan political discourse? I suspect it was the former chief justice. Confronted by several decisions of the UN Human Rights Committee that found his judgments to have violated the provisions of the Civil and Political Rights Covenant, especially in respect of the prohibition of arbitrary detention, Chief Justice Sarath Silva (with Justices Jayasinghe, Udalagama, Dissanayake and Amaratunge agreeing) delivered a bizarre judgment in which he held that accession to the Optional Protocol which recognized the right of individuals to complain to that Committee was unconstitutional because it infringed the sovereignty of the people of Sri Lanka. It was difficult to comprehend how the grant to the people of the right of access to an international tribunal when their human rights were allegedly violated by their own government could possibly have infringed the people’s "sovereignty". The confusion that this judgment created at the time was evident from the reported query by the JVP whether Sri Lanka had "benefited by being a party to human rights treaties". It was only a matter of time before "sovereignty" entered the political jargon and, in the context of a brutal civil war, became the defensive weapon of the establishment against international censure.

Dr. Jayatilleke has referred to his book on "Fidel’s Ethics", and to the writings and speeches of Lakshman Kadirgamar. In fact, one piece of writing by the latter that I particularly enjoyed reading was that which he wrote on the occasion of the fiftieth anniversary of Mr. H. L. de Silva’s admission to the Bar. It was an eloquent and nostalgic journey into the halcyon days of the judiciary and the legal profession. On a more serious and relevant note, I prefer to rely on authors such as H. Lauterpacht and on the jurisprudence of international courts for my knowledge of international law. May I perhaps recommend to Dr. Jayatilleke my own book on "The Judicial Application of Human Rights Law: International, Regional and National Juirsprudence". The publisher, Cambridge University Press, has described it as "the definitive compendium on international human rights law". In it I discuss, quite extensively, the issues of state sovereignty and human rights. Lest I be misunderstood, let me hasten to add that I am not promoting my book; I understand from the publisher that the first edition is out of stock!

Focus on our shortcomings

At the end of the day, it does no credit to this country or to its citizens to continue to use abusive language against international institutions and foreign governments and their personnel who exercise their right to highlight our failure to fulfil our treaty obligations. They will be silenced only if we remedy our own shortcomings. The list is alarmingly long. It ranges from summary executions, abductions, disappearances, and arbitrary detentions to corruption, impunity and lack of accountability. It includes the non-recognition of the rights of minorities and the repression of political opposition and dissent; the lack of independence and integrity in the judiciary and the lack of impartiality in the public service; the persecution of civil society and the growing intolerance of religious beliefs other than one’s own. All these have a profound deleterious effect on the enjoyment of human rights and fundamental freedoms. If we begin to address these issues now, seriously and with commitment, the international searchlight will surely cease to be focused on us.

 

Response to "The Myth of State Sovereignty"

Neville Ladduwahetty

In an article with the above title to the Sunday Island of March 28, 2010, Mr. Nihal Jayawickrama states: "The erosion of the doctrine of state sovereignty, in so far as it related to the treatment by a state of its own nationals, began as far back as in the early nineteenth century with the incorporation of certain humanitarian norms in international law".

He states that the first instance of such erosion relates to slavery, and the second is that "the series of Geneva Conventions that now regulate the treatment of combatants and victims of war, including the victims of internal armed conflict, such as between armed forces of a government and dissidents or other organized groups which control part of its territory".

He has however failed to distinguish between the Geneva Conventions of 1949 and the Additional Protocols of 1977. For instance, Additional Protocol II of 8 June, 1977 deals with internal conflicts such as between government forces (e.g. GOSL) and dissidents or organized groups (e.g. LTTE). Protocol II relate to "Protection of Victims of Non-International Armed Conflicts" which is additional to the Geneva Convention of 12 August 1949.

Article 3 of this Protocol titled "Non-intervention" states:

1. "Nothing in this Protocol shall be invoked for the purpose of affecting the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State".

2. "Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs".

It is clear from the foregoing that the concept of State sovereignty has not eroded, and that it is an accepted concept when it comes to conflicts of a Non-International character. The question as to why the Sri Lankan Government has not invoked this provision has been raised; but no satisfactory answer has been offered by officials of successive Governments. Had the provisions of Protocol II been invoked, would not the conduct of the Sri Lankan Government been judged by Humanitarian Law and not Human Rights Laws?

http://www.island.lk/2010/04/04/features7.html

A response to Dr. Nihal Jayawickrama
The state of State sovereignty

By Dr. Dayan Jyatilleka

Dr Nihal Jayawickrama, for whom I have considerable respect and affection, makes some very valid and necessary criticisms in his article ‘The Myth of State Sovereignty’ in the Sunday Island (March 28, 2010) and on DBS Jeyaraj’s Transcurrents. He is however gravely in error when he considers state sovereignty a myth or at best, an obsolete doctrine.

Though one cannot credibly uphold an absolutist conception of the state, it would be plainly absurd to claim therefore that the state is a myth, an obsolete or outdated concept. Similarly, while the Westphalian notion of state sovereignty has been eroded and one can no longer absolutize the concept, it is wrong to assert as does Dr Jayawickrama, that state sovereignty is ‘outmoded’, ‘obsolete’ and a ‘myth’ invoked solely in and by Sri Lanka.

The cornerstone of the ‘contemporary world order’ is not international law, it is the state. What is the organising unit and operational agency of international law and is it as material and ubiquitous as the state? What is the actor that supersedes the state in the contemporary world order? There is none. The United Nations is an intergovernmental body and the UN Security Council without which no case can be referred to the newly established ICC, is comprised precisely of powerful states. The contemporary world order rests on the state, state power and sovereignty, exercised in accordance with the perceived interests of that or those states.

Indeed international law supersedes state sovereignty only when a powerful sovereign state or a collection of such, so decide, or permit, the use of international law for purposes that serve or coincide with ‘national’ i.e. state interests. I might add that the Sri Lanka will learn this the hard way if there is even a whiff of a July ’83, somewhere down the road.

If state sovereignty were an obsolete doctrine, it should have been noticeable at least in the UN Human Rights Council, where our resolution on Sri Lanka (which secured a larger vote in favour than even the Goldstone report on Gaza), commenced with an invocation of non-intervention on the basis of state sovereignty.

Dr Jayawickrama’s notion of the contemporary world order is hardly contemporaneous. It describes a trend that was dominant during the heyday of what is now known as ‘liberal humanitarian interventionism’; a sub period of the ‘uni-polar moment’ in contemporary world history, itself a phase of post Cold War history. That moment is over and the echoes of its doctrines remain only in Dr Jayawickrama’s zone of domicile, the UK-EU, and occasionally in the larger Anglo-American domain.

Far from abandoning the notion of sovereignty, there has been a reaction to its erosion in the form of the breakup of Yugoslavia and the unilateral concessions made by Yeltsin. That reaction has come from the rising Asia — most notably China- a resurgent Russia and most of the global South as represented by the Non Aligned Movement. The last named includes some of the most enlightened and progressive administrations on the planet such as Lula’s Brazil, which has in its cabinet, renowned Critical Legal Theorist Roberto Mangabeira Unger formerly of Harvard. One of my most cherished souvenirs is a photograph of Lula perusing my book on Fidel’s Ethics, taken on the occasion that he delivered what would be his farewell speeches to the UN Human Rights Council and ILO, in which he made a stirring reiteration of the relevance of ‘national sovereignty’ and the role of the state.

The laudable commitment to the doctrine of state sovereignty on the part of the world’s most populous democracy, secular India, a rising economic power which the US considers its counterpart in Asia, is manifest whenever the issue of Kashmir and any suggestion of a UN or international role of any magnitude, including that of international human rights probes, comes up. So much for obsolescent doctrines which only that funny little place Sri Lanka, continues to believe in.

If Dr Jayawickrama were to content himself with charging that GOSL is abusing the concept of state sovereignty one could scarcely disagree. State sovereignty has certainly been over-invoked and abused by the GOSL in the post-war period; in peacetime. The problem today is that the closer affinity between ‘national sovereignty’ and (republican) ‘popular sovereignty’ has been glossed over in favour of the equation of ‘national sovereignty’ with ‘state sovereignty’ and ‘state sovereignty’ with ‘state security’, which has itself been equated not with the more holistic recent doctrine of ‘human security’ but with the government of the day, so that the monstrous equation concludes with any activity outside the parameters prescribed by the dominant ideology being anti-government activity; anti-government activity being anti-state activity, tantamount to activity against the security of the state and therefore against national/state sovereignty itself — while the role of the state is increasingly defined in ethno-religious terms. An illustration of this phenomenon is the hitherto unprecedented detention of a young Sinhala woman author and convert to Islam.

That unconscionable narrowing of state sovereignty to state security and that too defined in the narrowest partisan sense, was perhaps pioneered by the 1970-77 administration of Madam Sirima Bandaranaike and chiefly by Hon Felix Dias Bandaranaike, on whose watch Lord Avebury of Amnesty International was deported, the Civil Rights Movement and its head, Law College principal Raja Gunasekara were hounded, and fledgling civil society experiments such as the Marga Institute, derided. Dr Jayawickrema would be better placed than I to confirm this.

While I am no lawyer, the writings and speeches of Lakshman Kadirgamar, who was hardly unfamiliar with international law, is a textbook example of basing one’s external policy precisely and explicitly on the doctrine of state sovereignty while committed to the ratification of international human rights conventions. Mr Kadirgamar’s foreign policy, and even his critique of the Ceasefire Agreement (CFA), had as its foundation stone the doctrine of state sovereignty. I daresay nothing drastic has happened in the world order since his assassination by the Tigers in 2005, to render obsolete the Kadirgamar approach. If anything, the increasing shift of power within the ‘contemporary world order’ to Asia (and China in particular) has lent his approach greater relevance.

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The writer is a Visiting Senior Research Fellow at the Institute of South Asian Studies in the National University of Singapore. He was Sri Lanka’s former ambassador/Permanent Representative to the United Nations in Geneva. These are his personal views.

http://www.island.lk/2010/04/01/features1.html

THE MYTH OF STATE SOVEREIGNTY

Nihal Jayawickrama

A constitutional myth that has been developed in Sri Lanka in recent years is that of Sovereignty. Whenever the United Nations or a foreign government focuses on an act or omission of the Sri Lanka Government, the immediate response is that our sovereignty is under threat or attack. When the UN Secretary-General announces his intention of appointing an expert committee to advise him on matters relating to compliance with international humanitarian law in Sri Lanka, it is condemned as an infringement of our sovereignty. When the European Union announces that it proposes to investigate whether Sri Lanka is eligible under its regulations for the renewal of the privilege of GSP+, that investigation is condemned as a threat to our sovereignty. Indeed, any criticism of the actions of the Sri Lanka Government in any forum beyond our shores is perceived as an affront to the sovereignty of Sri Lanka.

The concept of sovereignty first entered our constitutional lexicon when the 1972 Constitution declared Sri Lanka to be a "Free, Sovereign and Independent Republic". It proceeded to add that "Sovereignty is in the People and is inalienable". What Dr Colvin R de Silva sought to do by the use of the expression "sovereignty" in that context was to establish the attributes of a republic, as distinct from that of a monarchy. Despite the grant of "independence" in 1948, Ceylon had continued to be subject to the British Crown. As such, sovereignty had continued to be vested in Elizabeth 11, albeit as Queen of Ceylon. The Marxist parties, and the LSSP in particular, had consistently argued that independence was a sham for as long as we owed allegiance to a foreign monarch. Real independence would be achieved only when sovereignty vested in the people of our country. In fact, Sri Lanka did enjoy real independence in political terms since 1948, but under a Constitution provided by the Sovereign in the form of an Order-in-Council issued from Buckingham Palace.

The doctrine of sovereignty which is now being invoked so frequently and freely by politicians, political commentators and the media alike is not the concept of sovereignty referred to in our Constitution. What is being invoked is the rule of customary international law that once recognized the doctrine of state sovereignty. According to that rule, a sovereign had full, complete and exclusive authority to deal with its own territory and with its own nationals. It followed that international law did not permit any interference or intervention by any other state, or by the community of states, in respect of either of these matters. Accordingly, a state was free to deal with its own nationals in whatever way it chose to. In particular, it alone had the right to determine the subject-matter and content of its domestic laws. In the context of the doctrine of state sovereignty, it was inconceivable that international law could vest an individual with any rights exercisable against his own state. But that doctrine has long been eroded, and Sri Lanka appears to be the only country in which it is still, quite vocally but erroneously, being invoked.

The erosion of the doctrine of state sovereignty, in so far as it related to the treatment by a state of its own nationals, began as far back as in the early nineteenth century with the incorporation of certain humanitarian norms in international law. The first was a series of international treaties which declared that "trading in slaves is forbidden in conformity with the principles of international law". Their object was "the complete suppression of slavery in all its forms and of the slave trade by land and sea". Thereafter, every state enjoyed the right to board, search and confiscate any ship, to whomsoever it belonged, if it was engaged in the slave trade. The second were the series of Geneva Conventions that now regulate the treatment of combatants and victims of war, including the victims of internal armed conflicts, such as those between the armed forces of a government and dissidents or other organized groups which control part of its territory. The third were the series of multilateral labour conventions that now regulate working conditions. The fourth were the series of treaties that formed an integral part of the peace settlement following the end of the First World War in which provision was made for the protection of the rights of minorities living within the newly carved boundaries of several European states.

These were the only areas in which the doctrine of state sovereignty had begun to erode and where the international community could presume to judge, or even legitimately express its concern at, a government’s treatment of its own citizens. But the Second World War and the events that preceded it in Germany (and in the territories under German occupation), where unprecedented atrocities were perpetrated on millions of its own citizens by the regime then lawfully in power, demonstrated how hopelessly inadequate international law still was. According to the strict doctrine of state sovereignty, any foreign criticism of the domestic laws that authorized those atrocities was illegitimate. It was also meaningless. Unless there was established a set of superior standards to which all national law must conform – an overriding code of international human rights law – history could well repeat itself. That was precisely what the Charter of the United Nations, to which Sri Lanka has been a party since 1955, set out to do.

The United Nations Charter was the standard-bearer, the first of several international treaties that helped to create an international human rights regime. Article 55 imposed a mandatory obligation on the United Nations "to promote universal respect for, and observance of, human rights and fundamental freedoms for all". Article 56 imposed a similar obligation on member states to take joint and separate action to achieve that objective. Therefore, while Article 56 bound each member state (according to the International Court of Justice) to observe and respect human rights within its territorial jurisdictions, it also imposed an obligation on other states and on the international community generally, to ensure that this obligation was fulfilled. From being solely a matter of domestic concern under the archaic doctrine of state sovereignty, a government’s treatment of its own nationals has now become the legitimate concern of the international community.

When the Government of Sri Lanka signed and ratified the International Covenant on Civil and Political Rights (ICCPR) and the First Optional Protocol, it gave certain solemn undertakings to its own nationals and to the international community. First, that it would respect and ensure to all individuals within its territory the rights recognized in that covenant. Second, that it would adopt the necessary legislative measures to give effect to those rights. Third, that it would provide an effective remedy in respect of those rights. Fourth, that it would report periodically to the Human Rights Committee on the measures it has adopted and the progress made. Fifth, that it would give effect to the decisions of the Human Rights Committee in respect of individual complaints lodged by its nationals. It is a matter of common knowledge that the Government of Sri Lanka has failed or neglected to perform these obligations even to a reasonable degree. When a government fails to abide by the terms of a multilateral treaty, other states parties to that treaty have the right, under international law, to draw attention to that failure in any form or manner permitted by law, and in any forum they choose to.

Whether for purely cosmetic reasons or because of a genuine desire to improve conditions within their territories, an overwhelming majority of states have ratified or acceded to international human rights treaties. Therefore, there is now an international climate that is increasingly sensitive to the illegality of human rights violations, less willing to tolerate them, and more responsive to public and private efforts to prevent them. If some states choose to respond, while others do not, it is because realpolitik often determines the conduct of foreign relations. To invoke an obsolete doctrine of state sovereignty to defend oneself is to deride the contemporary world order. It may also suggest, particularly to the international community, that the facade of apparent defiance only seeks to obscure from view a host of rattling skeletons.

The challenge that faces the new Sri Lankan Government is to recognize, acknowledge and address the fact that in recent decades compliance with human rights obligations has remained on the backburner. The space that ethnic, religious and linguistic minorities are entitled to as of right has been denied them. Political dissent and opposition has been wedged in by suffocating authoritarianism. The startling revelations that the former chief justice continues to make of the cosy relationship and the frequent contact he had had with the head of the executive reveals the extent to which judicial independence and integrity had evaporated. The so-called thirty year war is no excuse for this state of affairs. As a great judge once remarked, "amidst the clash of arms, the laws are not silent; they speak the same language in war as in peace". To denigrate those who criticize us or to demonize those who seek to hold us to account, is only to lay bare our own culpability.

http://www.island.lk/2010/03/28/features6.html

The Democracy debate in Sri Lanka today

Dayan Jayatilleka

The current Sri Lankan political discourse, thin gruel though it is, contains three morsels of content: democracy, the electoral system and national sovereignty. Some question whether the ‘mere fact of elections’ qualifies Sri Lanka, or any country for that matter, as a democracy. The second discussion is on the electoral system. The third debate revolves around human rights and international factors, with some emphasising national sovereignty and the others, democratic rights and freedoms.

Let’s take it head-on. How did the Tamil nationalist cause, its military manifestation crushed and its propaganda arm in self exile, make such a comeback in the form of the TNA resurgence? How can it be in question as to whether the ruling coalition will or will not obtain a two thirds majority, with its game-changing consequences? How was the outcome of the Eastern province election in doubt?

The answer to all these questions is that elections in Sri Lanka can and do make real changes. The people’s vote or if you prefer, the peoples’ (Sinhala, Tamil, Muslim) vote, counts for something more than mere camouflage. If for instance, the UPFA is forced to form an administration with the help of the UNP or the TNA, it will significantly alter the complexion of that administration and its policies. Had Prabhakaran not enforced a boycott of the presidential election of 2005, Sri Lanka’s and his own fate would have been drastically different. What more evidence is needed that what Sri Lanka still has, a multiparty electoral system, is real and worth protecting?

The UPFA promises to change the electoral system and abolish the pernicious procedure of the preference vote. To what intent and purpose, and to be replaced with what? To strengthen the sole decision making power of the party leader in the nomination of the party representatives? The preference vote at least gives the voter the right to indicate his or her preference among the individuals on the party list, and as the Southern PC election showed, that is no small deal, because the electorate does indeed decide against the favourites of the palace or party centre.

We are reassured that the German model will be the replacement, but we do not know what percentage of the seats will be directly elected and what percentage on the basis of PR.

The UPFA’s election propaganda seems a straightforward pitch for a return to the good old days of the pre-JRJ Westminster model. I find that prospect a wee bit chilling when I remember that all the discriminatory legislation that this country witnessed was passed under the old system and virtually none under the combination of PR and the directly and nationally elected Presidency.

The debate on human rights, or, more correctly the levelling of charge and counter-charge, continues, spiced up with the unconfirmed yet persistent report of Indian absenteeism in the NAM statement criticising Ban Ki Moon for his idea of an expert panel to investigate Sri Lankan wrongdoing. If the report of India sitting it out is true, it is truly portentous, but I shall not comment upon it unless and until it is confirmed.

The polarisation on human rights is not very helpful. It seems that some prefer to defend democracy even at the cost of national sovereignty while others prefer to defend national sovereignty even if it means putting violations and erosion of democracy on a back burner. First things first: there are those who believe that in an era of globalisation, national sovereignty, especially that of small states like Sri Lanka, is a fiction. Such people are in denial. It is precisely the inequities of globalisation that has caused a resurgence in the defence of national sovereignty, and if the cosmopolitan critics want to see what national sovereignty is like, let them meditate on Prabhakaran at Nandikadal, where the Sri Lankan state reasserted its sovereignty over its national territory and was stopped by none as it reunified the country, exterminating its armed enemy—despite a multidimensional external campaign involving states, movements, the media, and global civil society. The cosmopolitans underestimate the relative autonomy of the nation, the state and politics.

A mirror-image of these critics is those who over-estimate national sovereignty to the point of ‘absolutising’ it. For them, national sovereignty can be maintained against all comers and at any cost, while any criticism from overseas and any act of international solidarity are seen as neo-colonial violations of sovereignty. The paranoid mentality of such elements, and more dangerously, the spread of such paranoia, is evidenced in the twisted use of the Sinhala language itself, with the introduction of the new term, used in a wholly pejorative sense, to wit, "jaathyantharaya". In its literal translation it means ‘The International’ as in the marching song of the international workers’ movement, The Internationale, or the Third International or Comintern. However, in current Sri Lankan political usage it means ‘the international factor’ or ‘the international actors/community’, with its abbreviation to ‘the international’ deployed with a totally negative, ominous inflection (‘jathyantharaya’ instead of ‘jathyanthara prajawa or ‘jathyanthara sadhakaya’ or ‘jathyantara kramaya’). These ideologues and apparatchiks do not care if democracy decomposes and rights are robbed, so long as national sovereignty is defended.

So in this sad polarisation, some use democracy to prise open the shield of national sovereignty, while others, their opponents, use national sovereignty as a shield to shroud the ghastliest violations of human rights and democracy. What has the disappearance of Prageeth Eknaligoda have to do with national sovereignty? Why are lamentable wartime practices, explicable as the brutalisation of a thirty years war against a fanatical foe, going unchecked in peacetime, and since its alleged prime wartime practitioner is out of action who is continuing to do this, why—and what does it say about the earlier episodes?

None of this is necessary. National sovereignty and democracy plus human rights can both be protected by the establishment of a strong, internationally credible national commission of human rights. Why not a powerful national human rights commission such as those in the rest of South Asia? Neither the critics nor the defenders of the government take up this slogan: the critics prefer to push against

national sovereignty hoping to puncture it and make for external intervention which can catalyse regime change – itself a silly thought because external pressure especially in the case of a small island, only cements the ideology of populist patriotism. The defenders of the government come up with plans on paper, which totally lack any credibility, local or international. They would prefer not to appoint a powerful national commission invested with resources and comprising independent persons of distinction, even though such a move would take the wind out of the sails of Sri Lanka’s critics in the West and the UN and strengthen our defenders in the global arena, because patriotism is only a device to shield the state and the administration from genuine scrutiny and accountability, even if purely domestic.

While the war was on, it was necessary to err in the direction of the defence of national and state sovereignty in the face of doctrines such as R2P which could have been used to forestall our decisive victory over the Tigers. Today, with the war over almost a year ago, there is no such need to compromise on democracy and human rights, especially when there are solutions that can protect both while not harming national sovereignty. Today, there are no more enemies within Sri Lanka’s borders; the people of Sri Lanka have no enemies among our fellow citizens.

To conclude, the stakes and prospects at Sri Lanka’s elections show that we have a real and resilient democracy, while the debate on human rights, culture, etc reveal that this democracy is still a far cry from the norms of a healthy modern liberal democracy. To me, it really doesn’t matter whether, in a time of peace, the private media get its funding from overseas and to what purpose. After all, the tax payer funds the state media, which according to alarming recent accounts, sponsors extravaganzas at which songs are sung extolling an imaginary monarchy.

Yesterday, at war with the ‘textbook fascist’ Tigers we had to defend the democratic state even when it abused its power. Today we are no longer burdened by that imperative. Today, the right of the state to defend itself can and must be distinguished from the abuse of power by the state even in the exercise of that right. Yesterday we, the country, the people, the state, faced an existential threat; today we do not. Yesterday, when we were at war, certain things mattered; certain polarisations and demarcations, certain walls and drawbridges, were necessary. Today they do not, and what is to be commended is the slogan (sadly observed for too short a while) of no less a fighter against imperialism and for national liberation and the people, than Mao Ze Dong: a Hundred Flowers Bloom! Let A Hundred Schools of Thought Contend!"