US resolution has set a very dangerous precedent - Geneva envoy
* Reopening issues decided upon in
the past is unwarranted
* Sri Lanka needs to move forward to
a pluralistic society
The US sponsored resolution adopted by the United Nations Human
Rights Council (UNHRC) last Thursday poses serious threats and dangerous
precedents affecting all countries, particularly to those in the
developing world, by seeking to make the Council take on the character
of a tribunal that will exceed its mandate, states Sri Lankan ambassador
in Geneva Tamara Kunanayakam.
In a note prepared for the African group, the ambassador states that
the US resolution in seeking to reopen issues decided upon in the past
is unwarranted and presents a clear risk of developing countries, in
particular, being targeted for collateral reasons.
It also undermines the cardinal principle and well entrenched rule of
international law that demands the exhaustion of domestic remedies.
Suspicion and criticism of domestic remedies undermines also the
judicial process in democratic countries, and introduces a political
dimension that attacks the independence of the judiciary, she states.
Prof Rajiva Wijesinha MP has in the ambassador’s note also dealt with
the implications of the resolution for the principles on which the
United Nations was founded and which the Council was intended to uphold.
It makes clear the legal and procedural implications of the US
resolution for all sovereign states, not just Sri Lanka, he said.
Text of the briefing note:
* This resolution will lead to the Council for the first time
addressing past issues, and thus taking on the character of a tribunal
that will exceed its mandate.
*This undermines a decision taken by the Council in 2009, and is
doubly intrusive because there has only been change for the better since
that decision.
* The Council mandate provides for resolutions to address specific
country issues through the UPR or through special sessions in cases of
emergency. The alternative is under Item 4, when circumstances have
arisen that require special attention, because there are current
instances of gross and systematic violations.
*Reopening issues decided upon in the past is unwarranted and
presents a clear risk of developing countries, in particular, being
targeted for collateral reasons.
*The resolution undermines the cardinal principle and well entrenched
rule of international law that demands the exhaustion of domestic
remedies. Suspicion and criticism of domestic remedies undermines also
the judicial process in democratic countries, and introduces a political
dimension that attacks the independence of the judiciary.
* Through this resolution, the HRC is asked to reach conclusions on a
report [that of the Lessons Learnt and Reconciliation Commission (LLRC)],
which has not been placed before this Council for deliberation. This
precedent will encourage the Council to take cognizance of any writing
in any document placed before the Council.
* The resolution judges the intentions of an elected government, and
proposes actions that arise from unwarranted hypotheses. These
hypotheses are of a piece with the condign criticism from countries
advancing this resolution when the LLRC was appointed.
*The effort to impose technical assistance and advice from the office
of the High Commissioner for Human Rights is contrary to the principle
that these should be based on consent.
*The conflation of these with special procedures and the requirement
of a sovereign government to mandatorily accept such advice is totally
contrary to the principle of sovereignty, and has no precedent.
*The lack of specificity as to the budgetary arrangements envisaged
by the draft resolution gives rise to potentially serious concerns about
the transparency and accountability of funding sources of OHCHR and
special procedures in fulfilling the requirements of the resolution.
If recourse is had to largely opaque funding sources, developing
countries must register their concern about donor driven programmes not
subject to scrutiny and monitoring by any inter-governmental body.
* The resolution subverts the principle of cooperation that has been
institutionalised through the UPR procedure. The system of discussion
and debate that the UPR has nourished will be undermined by this
innovation. In particular, given the pledges made by Sri Lanka at the
first UPR cycle, which will be reviewed in a few months, it is
gratuitously inappropriate to introduce a fresh mechanism now which
anticipates the evaluation due in a few months
*The justifications advanced for this resolution, which refer to
intervention where states have failed, opens the floodgates for
subjective assessments in a context of increasingly judgmental indices
that are celebrated in the popular media with no reference to objective
criteria or the funding sources of such information.
*Whilst it is claimed that this resolution will promote
reconciliation, it will only contribute to polarisation in a society
that has begun to come together through the various reconciliation
initiatives that have commenced.
* Sri Lanka needs to move forward to a pluralistic society, in which
all citizens can live together in harmony, equality, dignity, justice,
self-respect and inter-dependent prosperity.
In purporting to deal with reconciliation in a manner that satisfies
external perspectives rather than those of Sri Lankan citizens, this
resolution will only benefit disruptive forces and prevent us from
achieving the goals we share. |