Role of international law in contemporary diplomacy

Text of the Romesh Jayasinghe -Memorial Oration delivered by Dr Amrith Rohan Perera PC at Sri Lanka Foundation Institute, Colombo on May 30, 2012.

I first heard of Romesh Jayasinghe from his father, the late W T Jayasinghe, the Secretary of the Ministry of Defence and Foreign Affairs, as it then existed, under whom I had the privilege of first serving in that establishment.

Dr Amrith Rohan Perera PC

This may have been the late 1970s. Romesh was on the threshold of embarking on his undergraduate studies. ‘WT’ as he was popularly known, was anxious like all fathers, that son Romesh should carefully choose the path that had the best potential for Romesh's future professional career. WT entertained the idea that the pursuit of the study of the law should seriously engage Romesh's attention.

WT often engaged me in weighing the 'pros' and 'cons' and the potential of a legal career for Romesh. I had then just reverted from the unofficial bar for a career in the Legal Department of the Ministry of Foreign Affairs. These were less troubled times when one's superiors had the time engage in a relaxed conversation with junior officers, at the end of a long working day.

It would not be out of place to mention here that though a 'non-diplomat' and a 'non-lawyer', nevertheless and experienced Civil Servant heading the Foreign Affairs establishment under the illustrious Prime Minister, the late Sirimavo Bandaranaike, WT had the remarkable gift and foresight of appreciating the inextricable linkage between International Law and diplomacy.

He appreciated that to a developing country engaged in the conduct of international relations, be it at the bilateral or multi-lateral levels, it was the legitimacy of its national position at the bar of International Law and opinion, which was the greatest asset.

Accordingly, WT closely consulted and engaged the Foreign Ministry Legal Advisors of the day, M C W Pinto, Lal Kurukulasuriya and later myself, on a range of vital issues, impinging on Sri Lanka's relations with foreign states.

These included, at the bilateral level, complex negotiations with India on the implementation of the Sirima-Shastri Pact concerning persons of Indian origin, the Kathchativu Issue and the Maritime Boundary Agreements of 1974 and 1976 and at the multi-lateral level, a range of vital issues affecting our national interests, which arose in the context of the Third United Nations Conference on the Law of the Sea, then underway under the stewardship of late Shirely Amerasinghe. The mid '70s was indeed the 'shining moment' - the Camelot as it were in the conduct of Sri Lanka's foreign relations.

This clear understanding of the nexus between International Law and the conduct of international relations, perhaps explains WT's desire that Romesh pursue the path of a study of the law, even if a career in the Foreign Service was to be his ultimate choice. It turned out that Romesh finally tread his chosen path - an Honours Degree in English, and his impressive career in the Foreign Service, stands testimony to the soundness of the decision that Romesh took.

Romesh Jayasinghe

Nevertheless, from the time he was a young Foreign Service officer, thereafter, going on to become an Ambassador or High Commissioner and finally Secretary to the Ministry of Foreign Affairs, Romesh always demonstrated a remarkable appreciation of the overlapping contours of International Law and the conduct of international relations. It was this appreciation on his part that brought Romesh and me together in several common endeavours at the bilateral, regional and international levels.

Foreign relations

South Asia and the South Asian Association for Regional Co-operation (SAARC) became the initial training ground and the natural terrain of Romesh Jayasinghe. It was on this terrain, with all the challenges it posed, that Romesh and I joined in many an initiative which called for striking that delicate balance between International Law and diplomacy.

We joined hands and worked together on a variety of issues that would ultimately have an impact on the vital interests of the state, as well as on the region as a whole. These issues required not only as in depth examination of their legal dimensions, but perhaps more importantly, a careful assessment of the foreign relations imperatives - in the latter Romesh's quiet, unobtrusive and yet effective diplomacy, including the excellent personal relations he had cultivated with his counterparts, was a considerable asset, in overcoming hurdles, which at first sight seemed insurmountable.

The careful steering of a Regional Convention on Suppression of Terrorism within the SAARC whose founders had chosen the 'safe path' of excluding contentious political issues, from its purview, for the fear of a possible break up of a fledgling organization, was one such initiative in which Romesh was a great source of strength, both during negotiations and during subsequent efforts to ensure its implementation.

At the bilateral level, Romesh's contribution to the process that led to the first ever Free Trade Agreement (FTA) to be concluded in the South Asian region, the Indo-Sri Lankan Free Trade Agreement cannot be forgotten. This was a difficult process. While the seeds of economic liberalisation were being sown, the asymmetry factor of the unequal economies of the two parties, was casting a long shadow and, hence, the apprehensions and concerns that seemed to be intractable and clouded the negotiations.

The negotiations were tough and demanding. Yet, the trade experts who were in the forefront were able to surmount many a hurdle, given the political will that prevailed, and ultimately, steer the negotiations to a successful conclusion. In this process, Romesh was at hand, in one capacity or another, to give the process that 'diplomatic push' as it were.

His was a reassuring presence undoubtedly contributed in no small measure to the emergence of a successful and a balanced outcome at the end of a demanding process, which called for a judicious mix of trade expertise, law and diplomacy.

Romesh's contribution to the GSP+ (Generalized System of Preferences) process with the European Union, while serving as Ambassador in Brussels, again away from the limelight sans fanfare and trumpets, yet effectively steering the discussions to an outcome which was of immense benefit to the economy of Sri Lanka, and the textile industry in particular, will also stand testimony to Romesh's invaluable contribution to vital issues affecting the national economy. Romesh was our Ambassador to the European Union (EU) at a time when the Union and the Commission were expanding their powers and exerting greater competence and jurisdiction in areas which traditionally fell within the 'sovereign domain' of member states. The changes that were taking place, posed many political and legal challenges. In the demanding task of developing Sri Lanka's relations with the European Union, amidst this evolving scenario, Romesh and I worked in close consultation.

I am privy to his exceptional diplomatic skills and personal relations he had cultivated with the European Union and the Commission hierarchy in Brussels, which greatly facilitated our dealings with Europe, however difficult the issues may have been. They ranged from a Common Air Services Agreement with the EU to an Agreement on Re-Admission of Irregular Migrants, some of them in fact were forerunners to similar Agreements that the EU would conclude with non-member states later.

Contemporary role of international law

This Memorial Oration on the Role of International Law in Contemporary Diplomacy is a tribute to the memory of my friend and colleague, diplomat par excellence and the self-effacing Public Servant cast in the traditional mould, Romesh Jayasinghe, who well understood the symbiotic relationship between International Law and diplomacy. A cynic when asked the question 'What is international law?' is reported to have responded “It is a body of law which other countries violate.”

Cynicism apart, the statement also contains within it, the seeds of political realism. Global events in the post World War scenario is replete with instances involving the use of force, wherein states having recourse to force seek legitimacy for their actions by invoking a Principle of International Law, be it the Principle of Self Defence, the traditional Customary International Law Principle recognised in the United Nations Charter or other applicable principle - even the somewhat questionable principle of 'pre-emptive self-defence' in situations where there is no imminent threat of an armed attack.

The underlying lesson to be drawn from the behaviour of states in such situations, is that no state, however powerful, wishes to be identified as an aggressor or a persistent violator of International Law and norms of international conduct - rather, states seek legitimacy for their actions by invoking a Principle of International Law. From the Anglo-French invasion of the Suez, in the 1950s, the Argentinean invasion of the Falklands in the 1980s to more recent episodes, the acts impugned were never sought to be defended by claiming a right of private judgment, based on might, but always on the basis that the impugned act was justified in law or that no Rule of International Law was violated.

Global scenario

International Law was traditionally defined as a body of law to regulate inter-state conduct. This traditional definition found in the older classical writings, cannot stand as a comprehensive description of this body of principles, in the light of developments in the last few decades. An essential condition for the continuing relevance of International Law is that it must keep pace with evolving conditions of international life, which impact upon the conduct of international relations in contemporary times.

The global scenario which emerged towards the end of the 20th century, was a universal order based on the inter-dependence and co-operation amongst states. The emergence of new actors, apart from states, in particular the increased recognition of the individual and International Organisations as entities of legitimate concern of International Law, has thrown up new challenges that international lawyers and professionals engaged in the conduct of diplomacy are called upon to deal with.

Commenting on the impact of globalization on International Law, it has been stated:

“....One can observe three elements of globalization which increasingly challenge the structure of the current international system. First, autonomous transnational actors gain in a growing way political negotiation power. Second, global problems demand answers beyond state and inter-governmental regulation. And third, social and political integration is subject to profound change.”

Amidst these profound changes, Contemporary International Law is required to focus not only on the regulation of inter-state relations, its long recognize primary function, but also on the relations between the state and the individual, traditionally regarded as a matter falling exclusively within the national domain. The adoption of the landmark Universal Declaration of Human Rights (UDHR) (1948) followed by the binding legal instruments, the International Covenant on Civil and Political Rights (ICCPR) (1966) and the International Convenant of Economic, Social and Cultural Rights (ICESCR) (1966), together with key resolutions of the United Nations General Assembly, providing for varied mechanisms and procedures to safeguard human rights, collectively resulted in the protection of human rights, the treatment of a state's own nationals within its borders becoming a matter of legitimate international concern.

The antecedents of these initiatives lay in a clear recognition that the rights of the individual must be strengthened vis-a-vis their own governments, based on the voluntary acceptance by States, of obligations under international human rights instruments and to that extent, conceding certain attributes which would have formed an integral component of the classical notion of sovereignty. Thus, the protection of human rights fell within the legitimate domain of International Law and led to consequences at the international level where a state is perceived to be falling short of meeting 'minimum international standards' prescribed by these legal instruments.

The effective conduct of contemporary diplomacy requires a sensitivity to and a realistic appraisal of these fundamental changes that have occurred and are occurring in the global scene - how classical concepts long considered well established, have come under increasing stress and are undergoing radical change. What is required in this evolving political and legal environment is a nuanced approach to such changes in defining one's national position, rather than an unrealistic assertion of classical concepts, disregarding the fundamental changes that have occurred and continue to occur.

Similarly, with international organizations, both inter-governmental and non-governmental, playing a dynamic role in international life, the relations between States and international organizations, as well as between international organizations have been identified as issues requiring greater legal clarity and regulation, in the contemporary global order. Concerns with regard to the conduct of international organizations and their international responsibility for wrongful conduct, have been heightened in recent times.

To be continued