By Thamil Venthan Ananthavinayagan –

Thamil Venthan Ananthavinayagan

All the world’s a stage, and all the states are merely players? Sri Lanka in the family of states

Sri Lanka is member of the United Nations since 1955 and has signed the major human rights treaties. Being a member of the family of states is not solely a privilege and distinctive trait of belonging; it also affords constant commitment towards this family. Like in every family, ties must be fostered, nurtured and strengthened. Affirming a voluntary pledge and commitment in order to enter the United Nations Human Rights Council, the Permanent Representative of Sri Lanka to the United Nations addressed to the President of the General Assembly in the Annex to his letter dated from the 31st of March 2008 with following words:

“(…) Sri Lanka has opened itself to scrutiny of multiple international mechanisms on the belief that openness and accountability, through international means, can strengthen national efforts at promoting and protecting all human rights. (…)”

However: in recent years, in particular under the previous government of the former President Mahinda Rajapaksa, vituperative attacks against the United Nations were common practice. The relationship was badly affected by repetitive allegations that the United Nations were pursuing a hidden agenda and interfere into the island’s sovereignty. G.H. Peiris writes in his book Twilight of the Tigers: “(…) To the Sri Lankan government, being placed at par with the Tigers in accusations of human rights violations is, of course, a damning indictment and humiliating diminution of status in the community of nations. (…) It is the weaker countries that have the highest propensity of falling prey to the human rights vigilantes. (…) In short, it is the economically weak, dependent, conflict-ridden countries with a tradition of subservience to the West that bear the brunt of the challenge to sovereignty from supposedly ‘humanitarian’ external intervention. (…)”

Is this claim true? Should the United Nations rather remain silent, reduced to a numb witness of atrocities and not interfere in domestic situations? Aren’t we living in an era of open states, a distinctive character of contemporary international law, as Prof. Stephan Hobe once famously claimed?

From Sri Lankan human rights advocacy to Sri Lankan human rights insularity

In light of this comment, it would be wrong to assume that Sri Lankan policy makers were always hostile towards the UN human rights system. It is important to recall the valuable and fruitful contributions of Sri Lankan diplomats, spearheaded by the then-Prime Minister Sir John Kotelawala at the Bandung Conference in defending and disseminating the ideals perpetuated in the Universal Declaration of Human Rights before the Asian and African states at this conference of historical dimension. The Bandung delegates saw human rights not an expression of imperialism, but as a weapon for expediting the end of colonialism. Roland Burke writes in his book Decolonization and the Evolution of International Human Rights: “(…) Third World diplomats of all ideological persuasions were united in their advocacy of universal human rights between 1950 and 1960. For some, the value of rights was essentially instrumental; they were a useful and potent weapon for advancing anticolonialism, or as John Humphrey (author’s note: the then-director of the United Nations Human Rights Division) complained in 1951, ‘a stick for beating the western democracies’ (…)”. The renowned international legal scholar Prof. Anthony Anghie writes: ”(…) the transformation of former colonies into sovereign, independent states enabled these territories, which previously had been excluded from the realm of international law, to enter the international system with all the powers and attributes of sovereignty and as equal members of the family of nations. (…)”. Human rights, in this discourse, enabled former colonies to underpin that sovereignty and usher in the arena of international cooperation.

Nevertheless, Sri Lanka lacked the insertion of a comprehensive protection of human rights in its Soulbury Constitution from 1947. What would have been the impact of the early inclusion of a fundamental rights chapter in the Soulbury Constitution? Would Sri Lanka have avoided years of ethnic hostilities, human rights violations embedded in the state of exception and a vicious and brutal civil war that paralyzed and impaired generations? Why and for what reasons were the human rights protection in the following Republican Constitutions from 1972 and 1978 so weak? We will never able to answer all those questions that with academic precision and this article won’t aim to answer these questions in detail. But we might, however, assert that the likelihood for such a human suffering at such a grave scale would have been less if there had been a proper and adequate human rights protection regime.

The lack of the implementation of a human rights regime was also considered as a serious flaw in the Constitution by the Chairman of the Drafting Commission, Lord Soulbury. He wrote in a foreword for B.H. Farmer’s study titled Ceylon – a Divided Nation in 1963: “(…) Nevertheless, in the light of later happenings, I now think it is a pity that the Commission did not also recommend the entrenchment in the constitution of guarantees of fundamental rights, on the lines enacted in the constitutions of India, Pakistan, Malaya, Nigeria and elsewhere. (…)” The protection of human rights should be conducted in one’s country, where an individual lives and comes face to face with the authority or power. And every country must have an adequate and effective national protection system in place. The concept of a national protection regime is key for the universal realization of human rights. As international law does not compel states to set up national institutions (i.e. human rights commissions, ombudsmen etc.), but encourages states to assess arrangements to protect human rights. In any event, a national human rights regime must be grounded in international human rights law; the United Nations Human Rights Committee stated in its General Comment 6/16 from the 27th of July 1982, a year before the harrowing Black July 1983, that states have the duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life. A national system should provide for a framework of regular visits by national, regional and international bodies to all places of detention.

As Sri Lanka is in preparation of its third republican constitution, it is the hope and the firm academic audacity of the author that international human rights will finally find their way into the constitution.

Piercing the national veil: human rights a matter of the community of states

In the aftermath of the 2nd World War and the images of the Holocaust on their minds, the delegates of the United Nations Conference in San Francisco 1945 elucidated that the manner in which a government treated its own people on its own soil cannot be any longer its own business. The recent years have demonstrated the norm of ‘contingent sovereignty’, linking the sovereign authority directly to the treatment of citizens. One of the United Nations most decisive contributions and legacies is its character as a purveyor of ideas and as a norm- and standard-setter, both of which draw on the strength of its universal membership. One of the most recent evolutions in the United Nations is the shifting focus from national raison d’être to the inclusion of human security within a state. Prof. Deepika Udugama wrote recently in the Asia Pacific Journal on Human Rights and the Law that the “(…) concept of state sovereignty has dramatically weakened, particularly with the advancement of international law in the United Nations era. The rapid development of international human rights law under the aegis of the United Nations has contributed to the acceleration of that process. (…)”

The issue of accountability

The unresolved issue of accountability for alleged war crimes is one example that allows no deflection, no obstruction. The author had already highlighted in a previous article on this platform the success of the United Nations efforts in reestablishing and reinforcing the rule of law in Guatamala. The United Nations tool, the International Commission against Impunity in Guatemala (known by its Spanish acronym, CICIG) had its, as the Open Society Foundations put it, “ (…) controversial, convoluted founding through its struggles, (…) its success, alongside local prosecutors, in exposing La Línea and igniting the nationwide protests that upended Guatemala’s political order. (…)” In their report on the CICIG, the Open Society diligently map out the credible international involvement in achieving domestic order. And although the work is not finished, many Guatemalans now look to CICIG as a symbol of hope that corruption can be overcome. For other states struggling with endemic corruption, organized crime, and compromised institutions, CICIG offers a potentially powerful example of how to reinforce the rule of law.

Looking at Sri Lanka, resistance against international involvement comes not only from policy-makers, but also the population itself. A recent survey conducted by the Centre for Policy Alternatives spells out that “(…) 42.2% of Sri Lankans are of the opinion that there should be a mechanism to look into what happened during the final stages of the war, while 44.2% are of the opinion that there shouldn’t be such a mechanism. Among those who indicate that there should be a credible mechanism, 47.3% are of the opinion that it should be an exclusively domestic one, whilst only 9.2% of Sri Lankans are of the opinion that it should be an exclusively international one. (…)” It has to be asserted that issue of accountability is still at stake.

However, international jurisprudence is a stark reminder that there are standards of conduct in international law that cannot be reduced to the interstate realm. They are not just obligations owed by states to each other. The International Court of Justice made this point in the Barcelona Traction case in 1970, when it referred to “ (…) an essential distinction between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection (…)”. The Court instanced “(…) the outlawing of acts of aggression, and of genocide (…)” as well as “(…) the basic rights of the human person, including protection from slavery and racial discrimination (…)” as examples of obligations erga omnes.

As Sri Lanka needs to present a report on the status on the pressing issue of accountability for the past at the next session of the United Nations Human Rights Council, close monitoring and vigilance by academics and activists is of utmost importance. If it had not been the constant pressure exerted by domestic stakeholders and the human rights community in general, the echo of pain would have confined to a silent scream. By its involvement in the international family, human rights violations in Sri Lanka became visible and underscore that human rights violations are matter of global concern. Wherever and whenever they occur.

Conclusion

International human rights law must take supremacy over national law and core norms of international human rights law must be reflected in the constitution of every member state of the United Nations. Prof. Johnston considered that the international law of human rights is ethical core of world constitutionalism. Such a world constitution is the basis for mutual understanding of a family, the basis for blossoming international relations, a flourishing democracy and the rule of law. The Thomas Franck’s depiction of ‘compliance pull’ is evident in the case of Sri Lanka when assessing the voluntary pledge by Sri Lanka earlier in this article. However, this compliance must be followed by adherence and implementation of action.

As the world is in celebration of the legacy of Shakespeare on his 400th death anniversary, the author recalled the melancholic words of Jaques in Act II Scene VII from Shakespeare’s As You Like it in the title of this article.

Sri Lanka, for its part, shall never play a sad role on the stage of the international community. There is no room for melancholy anymore. Instead, this island has the potential to rise above limits. The history of this beautiful island shall be a constant monitory example, but also inspiration of what can be achieved if the commitment and trust in human rights is strong. Again, Shakespeare may lead the way through his character Malvolio in Act II Scene V from Twelfth Night: “Some are born great, some achieve greatness, and some have greatness thrust upon them.”

Sri Lanka, the family of states is looking at you. It is the moment that defines greatness.