The renewal of GSP+ concessions

D. Laksiri Mendis

The European Union (EU) is now reviewing the General Special Preferences - GSP+ scheme for renewal subject to the implementation of 27 UN treaties on human rights, labour rights, human security and the protection of the environment. GSP+ concessions allow importation of garments (65%) and other products such as footwear, ceramics and fish products (35%) to the EU without import tariff.

Hence, the renewal of GSP+ concession is an important matter for politicians, diplomats, businesspersons, and above all, for poor garment factory workers as their livelihood can be seriously affected.

Professor Thomas Frank has described UN treaties as the “bones and sinew of the global body politic”. It provides states to move through compromise to solemn commitment. Dr. Palitha Kohona has said that it connects Sri Lanka to the world and confers extensive benefits while imposing obligations with which we need to comply.

In this article, the implementation process at national level is dealt by reference to (a) promotional measures (b) protection measures and (c) enforcement measures. These measures are the responsibility of states, but inter-governmental or non-governmental organizations or individuals can assist the state actors in this process.

However, legislative techniques relating to the transformation of UN treaties into national legislation and interpretative rules, although important, are not dealt in this article due to lack of space.

In dealing with the aforementioned measures, it is proposed to outline some of the legal, technical and practical problems encountered in Sri Lanka. It is intended to illustrate these difficulties, so that the EU can make a balanced technical evaluation in regard to the renewal of GSP+ concessions.

Implementation at National Level

At the national level, the implementation of UN treaties is undertaken by many actors. In his monumental book on Law of Treaties (1961), Lord Arnold McNair observed that implementation involves all three organs of the state, namely the Executive, Legislature and the Judiciary.

He also said that the implementation process differs considerably from one legal system to another. Hence, in dealing with the implementation process it is wrong for anyone to recommend implementation modalities followed in different legal systems without understanding the difficulties.

Promotional measures

In regard to implementation, States are under an obligation to promote the content of UN treaties to target groups. It is done through advocacy programs such as ministerial speeches, seminars, workshops, colloquia and round-table conferences.

In the absence of promotional measures, implementation becomes ineffective and inefficient, due to lack of knowledge of the content of these UN treaties by target groups. In Sri Lanka, there is a surfeit of ministerial speeches propagating treaty concepts by the relevant ministers.

Promotional measures are sometimes undertaken with the assistance of inter-governmental and non-governmental organizations. After the establishment of a Directorate for human rights and humanitarian law at the Sri Lanka Army Headquarters (1999), many dissemination programmes were conducted with the assistance of the ICRC to field commanders and security forces.

In the year 2000-2003, the ICRC intensified the dissemination programmes to Field Commanders in the north and the east and I travelled with Generals from UK, South Africa and India to teach IHL to top army, navy and air force personnel. It can be said today that the Sri Lankan Army, Navy and Air Force are more professional in the use of force and dealing with the scourge of terrorism.

Promotional measures are enhanced by the grant of developmental assistance. For example, President Carter made human rights the cornerstone of his foreign policy and development assistance was provided to such states. It is something which Sri Lanka cannot afford to forego.

State parties have also considered precautionary/preventive measure as part of promotional measures. Hence, precautionary measures in regard to nuclear non-proliferation, global warming and sea-level rise are important, as they constitute threats to international peace and security.

Unfortunately, USA has not yet ratified the 1997 Kyoto Protocol despite scientific evidence of an impending disaster. Likewise, EU proposal to the Republic of Iran to suspend uranium enrichment is considered an important precautionary measure in dealing with nuclear non-proliferation.

Protection Measures

The protection measures constitute the kernel of the implementation process. In Sri Lanka, there is a heated debate in regard to the adequacy of the protection measures in relation to human rights treaties.

It is important to analyze the protection measures undertaken in Sri Lanka by reference to legislative, executive and judicial organs of the state. It is only then that the implementation measures can be evaluated in toto.

At the Legislative level, it is essential to transform UN treaty standards and norms into national legislation. Unless these standards and norms are transformed with penal sanctions, it is difficult to enforce UN treaties at national level. It is also necessary to establish institutions by law to protect these standards and norms.

In Sri Lanka, legislation giving effect to UN treaties is not accorded the status of a higher law and is treated in the same way as ordinary legislation. Since certain human rights standards are incorporated into the 1978 Constitution of Sri Lanka as fundamental rights, these provisions prevail over any other law to the extent of any inconsistency.

In this context, constitutional compliance in regard to draft legislation and executive decision-making can be judicially reviewed by the Supreme Court with reference to fundamental rights. Numerous cases referred to the Supreme Court evince that Sri Lanka is not a “basket case”, but a “laboratory” in which human rights issues are argued and determined on a daily basis.

Recently, Sri Lanka enacted legislation giving effect to ICCPR (1966) by Act No. 56 of 2007. This Act was referred to the Supreme Court (SC) by the President of Sri Lanka to determine its adequacy. The SC confirmed its adequacy. In the SC, one of the arguments related to the right to self-determination.

It is a right which applies in a colonial context and therefore its non-incorporation into the aforementioned Act is justified. However, it would have been useful if the ICCPR (1966) was listed in a schedule to this Act for information and promotional purposes.

Sri Lanka has also enacted legislation giving effect to narcotic drug trafficking, money laundering, environmental protection and labour rights. At present, she needs to enact a climate change response legislation, bio security legislation and legislation to give effect to the UN Convention on Transnational Organized Crime (2001) and the UN Convention Against Corruption (2004) with respect to new legal concepts introduced by the above Conventions, but not dealt in the existing laws.

At the Executive level, the executive arm of the Government of Sri Lanka (GOSL) must act in conformity with international standards and norms enshrined in UN treaties. It is an extremely difficult issue if the Executive is confronted with war, terrorism and social unrest.

In the USA, the events that led to the Guantanamo Bay, Abu Graib Prison and the enactment of national legislation now culminating in the restriction of privacy laws in regard to telephone tapping clearly demonstrate the difficulties encountered in dealing with the scourge of terrorism.

Nonetheless, international norms and standards relating to human rights and humanitarian law must be protected in dealing with terrorism as enunciated by the former UN Secretary General, Kofi Annan in his five-point plan at the Madrid Summit on terrorism (2004).

Under protection measures, executive action should initiate projects and programs at national level to achieve the objectives of UN treaties in regard to human rights, humanitarian law, terrorism, trafficking in narcotic drugs, irregular migration, refugees, IDPs, protection of environment, trade facilitation and the fight against corruption and transnational organized crime.

In this respect, access must be given to the ICRC, so that protection of the civilians and the conduct of hostilities by the Sri Lankan forces and the LTTE fighters are monitored in accordance with IHL standards. It is not necessary to have UN Monitors, so long as the ICRC is provided access to areas affected by the conflict.

It is also necessary to ensure coordination of these projects and programmes relating to UN treaty implementation with CSOs and NGOs. In this respect, Sri Lanka must learn to live with NGOs and accept when criticism is justified and refuse such criticism if they are biased and made with an ulterior motive. In this regard, Sri Lanka must be as flexible as it is firm.

The Judicial role is as important as legislative and executive roles with respect to protection measures. It includes the interpretation of legislation giving effect to UN treaties and the reviewing of executive/administrative decisions vis a vis fundamental rights.

In recent times, the Sri Lanka’s Judiciary has displayed activism on human rights. In recent cases, the SC has struck a delicate balance between human rights/national security and environment/development. In regard to labour rights, the SC has stood by international standards in many landmark cases.

Unlike in some developing countries, the members of the Judiciary in Sri Lanka are not removed from office for taking a robust stand against the Executive or the Legislature on these important issues.

It is an important factor that makes Sri Lanka’s implementation process very different to many developing countries. In this sense, the renewal of the GSP+ concession can be justified solely on the role played by the Judiciary in Sri Lanka in relation to the implementation of the 27 treaties.

Enforcement Measures

Nonetheless, enforcement at national level is “the Achilles heel” (weak spot), as there are many legal and practical problems pertaining to implementation.

On the legal side, Judges are restrained, as the rules relating to the interpretation of implementing legislation are archaic in Sri Lanka, as extrinsic aids cannot be used fill any gap in the legislation or to deal with ambiguous or unreasonable provisions. Enforcement is further weakened, as the concept of locus standi limits legal action in regard to global issues.

On the practical side, enforcement at national level requires international cooperation especially in regard to criminal matters. Recently, Sri Lanka has entered into many mutual assistance agreements in criminal matters Such cooperation is extremely important to deal with persons who are engaged in terrorism, terrorism financing, money laundering, repatriation of assets and trafficking in narcotic drugs.

National institutions dealing with enforcement measures require additional funds. It is certainly a constraint for effective implementation. E.A. Landy after thirty years at the ILO listed practical difficulties which are very relevant to Sri Lanka on the implementation of ILO standards.

International compliance and control measures

International dimension is relevant regarding the implementation of 21 UN treaties listed by the EU, as international compliance and control measures can improve the implementation of UN treaties at national level. Under these measures, the implementation of UN treaties is reviewed, verified and recommendations are made for effective and efficient implementation.

In this context, any statements, criticisms or recommendations made by states, UN or INGOs should not be construed as an intervention into the internal affairs of the state, since the ratification of UN treaties per definitionem limits state sovereignty. Unfortunately, there is a reluctance by many to accept the changing nature of state sovereignty.

UN treaties have also established treaty regimes. Krasner (1983) has defined the term “treaty regime” as a set of principles, norms, rules and decision-making procedures around which stakeholders converge in a given issue area of international relations.

It has also led to the formulation of a regime theory by Professor Volker Rittberger and others in preference to Hans Morganthau’s Realism and David Mithrani’s Functionalism in dealing with the theoretical underpinnings in the conduct of international relations. The efficacy of the regime theory is limited as illustrated in the subsequent paragraphs.

Against this backdrop, it is appropriate to deal with international compliance and control measures undertaken through UN treaty regimes.

Reporting Process

Almost all UN treaties require states to provide initial and bi-annual reports with respect to implementation of UN treaties. These reports are scrutinized by treaty bodies or committees established for such purposes. The review process differs from one treaty body to another.

In many instances, the NGOs and CSOs also participate and contribute to the review process. These treaty review conferences require states to comply with the standards set out in the UN treaties by way of recommendations. Sri Lanka lags behind in the submission of reports and in follow-up action.

In regard to international compliance control measures, it is necessary to undertake verification, as reports submitted by state-parties are inadequate in certain circumstances. In this regard, treaty bodies despatch fact-finding missions and rapporteurs to investigate violations with respect to UN treaties.

Recently, Sri Lanka has been visited by many high ranking officials of the UN system. These include Allen Rock, Sir John Holmes, Phillip Alston, Manfred Novak and Louis Arbor. Some parties in Sri Lanka took a confrontational approach with these international personalities instead of dealing with them in a friendly manner.

Enforcement

At the international level, enforcement measures are undertaken by way of recommendations, sanctions and the use of force by the Security Council. The Security Council has never imposed sanctions or used force on Sri Lanka.

Treaty bodies such as Committee on Torture, Committee on Child Protection, Human Rights Council and Committee on Discrimination against Women have made recommendations to Sri Lanka.

Under the 1976 Optional Protocol, the Human Rights Committee has expressed certain views to the government of Sri Lanka on individual applications. Unfortunately, these views have not been implemented fully due to legal and practical problems.

In my view, the former Minister of Foreign Affairs, late Lakshman Kadirgamar should not have initiated the ratification process to the Optional Protocol without taking into account the implementation difficulties. In many Commonwealth countries, there is an emerging constitutional practice to enact legislation on such complex treaties before they are ratified by the Executive.

Sri Lanka lost her seat in the Human Rights Council. It happened not because Pakistan has a better human rights record. It happened due to other reasons which are too numerous to mention in this short article.

Some allege that the GOSL is involved with abductions, disappearances and extra judicial killings in violation of human rights standards. This is a phenomenon associated with the escalation of war and suicide bombing. Hence, the EU needs to verify any such GOSL involvement through diplomatic efforts, as any determination without solid evidence or intelligence can cause embarrassment to Sri Lanka and to the EU.

In this context, the EU should make a fair evaluation on the implementation of 21 UN treaties independently. In my view, UN treaty regimes display unfairness and duplicity with respect to small and weak states. Once, I accompanied a foreign Minister of a small island state to a UN conference and he said that there is no need to change the legislation, as it is in conformity international standards and norms.

He said that he has the support of a large number of small island states with respect to legislation. In this instance, he said laughingly, “Microbes can kill a mighty whale”. The UN meeting ended and the microbes did not kill the whale and the legislation had to be amended accordingly.

This anecdote illustrates that “Strong states do what they can and weak and small states must suffer what they must”. Almost 2,500 years ago, Thucidydice writing on the history of the Peloponnesian wars said “Rights, as the world goes, is only in question between equals”.

It is a stark reality despite the equality provisions of the UN Charter. Hence, our envoys need to understand this reality and refrain from criticizing powerful states, unless it is very necessary in our national interest.

Against this background, the EU has an important responsibility to evaluate the implementation process pertaining to 27 UN treaties in a balanced manner.

On the one hand, it must take into account the millennium development goals and on the other hand the scourge of terrorism. I am sure the EU will take into account the plight of the poor garment factory workers in the same way as they recognized the plight of the banana workers in the Caribbean region.

The writer has served as UN Legal Expert/Draftsman in several countries. He was also Sri Lanka’s Ambassador to Austria and Permanent Representative to the United Nations in Vienna.