Mar 04

The barrage of angry rhetoric from officialdom and other quarters proclaiming the absolute right of Sri Lanka to do whatever it wishes to do without interference from any person or institution outside the Country is echoed by a substantial section of our population.  The highly vocal personalities who trumpet the inviolability of Sri Lanka’s sovereignty are lauded by their supporters as true patriots.  All others who do not go along with this point of view are often branded as traitors.

In view of the sharp emotions that are aroused with regard to this matter, the Citizens’ Movement for Good Governance (CIMOGG) deems it important to examine what are the grounds on which several international actors have got involved in matters which many in Sri Lanka think are its private business and of no concern to anyone else.

Some opinion-makers here advocate the theory that there is an international conspiracy to attack Sri Lanka for reasons best known to the plotters.  Some believe that there is a hidden agenda by some powers to see that China’s economic tie-up with Sri Lanka does not get so strong as to convert Sri Lanka into a Chinese satellite state.  With a land area of only 60,000 sq.km, Sri Lanka has already gained an Extended Economic Zone of about 450,000 sq.km of the mineral-rich ocean surrounding it, and has a strong claim to another 450,000 sq.km of attached Continental Shelf.  These may be attractive to many countries which are technologically or economically more powerful than Sri Lanka.  But then, are there not many other technologically and economically weak countries also in possession of rich resources?  Why do the EU, India, the US and similarly interested countries not act against those countries as they do against Sri Lanka?

Minister Wimal Weerawansa has claimed that the offensive against Sri Lanka “… is vengeance against Sri Lanka for ending terrorism”!  Whilst this explanation may appeal to the more vainglorious of our citizens, it is at odds with the fact that the EU, India and the US banned the LTTE long before Sri Lanka took any steps in that direction and also gave military supplies and intelligence to help Sri Lanka to fight the separatist war.  For example, it is well known that it was on information supplied by the US secretly to Sri Lanka that the Sri Lanka Navy was able to go a couple of thousand miles away from our shores and effortlessly sink four deadly armaments supply ships which belonged to the LTTE.  Clearly, therefore, we need to look elsewhere for better answers.

Every citizen is aware that, when the People of a country undertake to live together in a peaceful manner, they need a set of laws that all of them agree to honour.  The rules of conduct that they accept are enshrined in a Constitution, which becomes the supreme law of the land.  Usually, the People delegate their legislative powers to the legislature, their executive powers to the executive and their judicial powers to the judiciary, and agree to abide by whatever lawful decisions are taken on their behalf by these three arms of government.  On the other hand, the People do not delegate two important rights, viz. their fundamental rights and the franchise.

All citizens are obliged to act in conformity with the Constitution whether they like it or not.  What this amounts to is that every citizen surrenders a large proportion of his sovereignty to the Constitution.

When we consider the legal obligations which apply to countries, the position is rather different.  For example, every country is required to conform to certain laws which have universal application, eg. international humanitarian law.  Apart from this, countries find that they have much to gain by becoming members of various groupings of countries.  Two of the more useful advantages are in fields of trade and the delineation of national boundaries.  A classic example would be the rights that a small country like Sri Lanka has gained over large areas of the surrounding ocean as mentioned in the third para of this article.  No other country, however powerful, is going to bulldoze its way into seizing any part of this area.  And who secures us this protection?  Basically it is the UN.  But then, how did the UN become our protector in this regard?

The UN was formed in 1945 whilst World War 2 was coming to an end, principally under the leadership of China, France, the UK, the Soviet Union and the US.  While these five countries reserved to themselves the privilege of permanent membership of the Security Council and the power of the veto, they succeeded in securing the agreement of around 50 other independent, but less powerful countries, to form the UN.  All of them, including the Big Five, undertook to observe the provisions of the UN Charter and of whatever treaties, protocols and other commitments that the member countries would produce subsequently by long and arduous negotiation.  In short, all these countries surrendered a part of their sovereignty to the UN Charter.

Countries that were unable to join the UN initially had to apply later and agree to abide by the rules of membership which had been formulated by the founder members.

Although the UN was formed in 1945, Sri Lanka applied for membership only in or about 1948.  It was in a group of aspiring members who were sponsored by the US.  There was another group which was sponsored by the Soviet Union.  The Soviet Union vetoed the US nominees and the US vetoed the Soviet nominees for various reasons.  However, they compromised later and most of the sponsored countries became members of the UN.  Sri Lanka had then to sign on the dotted line and undertake to honour the UN Charter.  Later, Sri Lanka  also agreed in the respective committees of the UN to a multiplicity of other treaties and protocols, which were subsequently ratified by our Parliament.  In doing so, Sri Lanka willingly and wisely surrendered a part of its sovereignty in return for the protection and other advantages provided by the UN.

When contentious issues, such as the complaint against Sri Lanka, are raised, the UN expects the Secretary-General and the UN machinery to carry out the necessary investigations and report their findings to the Security Council, which will then issue the requisite instructions to the Secretary-General.  If there is prima facie proof of the violation of the provisions of the UN Charter by a member country, the Security Council is empowered to apply increasing degrees of pressure to force the errant country to get back into line.  As in all similar situations, the law of the jungle does apply here.  Thus, large countries violate the spirit and even the provisions of the UN Charter when it suits them but they employ every possible diplomatic weapon to appease at least the Permanent Members of the Security Council, if not the General Assembly of nearly 200 countries.  Small countries, such as Sri Lanka, if accused of some infraction, can employ diplomatic delaying tactics up to a point but resorting to personal abuse directed at Bank Ki-Moon, Navi Pillay, Robert Blake or a couple of dozen other “bogeymen” and engaging in violent street protests to keep the local population aroused against the alleged enemies of Sri Lanka will not have any effect other than to convince the UN of the credibility of those who have complained and continue to complain against Sri Lanka and its secretiveness, arrogance, offensiveness, lack of democratic processes, compromised security and judicial systems.  Furthermore, the disregard and blatantly wrongful manipulation of our own laws against opponents of the government have discouraged other nations from helping us as much they would otherwise have done.

We, too, have the law of the jungle operating openly every day in Sri Lanka and are hardly in a position to complain about it when we are at the receiving end.  How many persons  who are credibly known to have taken commissions, raped helpless women or committed serious assault, arson or murder are walking around freely because they have powerful connections whereas hundreds of ordinary Sri Lankans are languishing in jail because their crime is that they could not pay a small fine?

Whilst Sri Lanka can prolong the process at Geneva and in New York by relying on dilatory tactics, the better path would be to bring this whole business to a quick end, with minimum damage and loss, by engaging constructively and openly with the UN as soon as possible.  Negotiating an agreement to appoint a Truth Commission with international participation and granting a wide-ranging amnesty would be the first steps in arriving at a pragmatic solution that will turn down the heat.



8 Responses to “GENEVA AND SRI LANKAN SOVEREIGNTY”

  1. Vichara Says:

    GENEVA AND SRI LANKAN SOVEREIGNTY

    Has the Citizens’ Movement for Good Governance (CIMOGG) joined the insidious campaign of the NGOs to call for an international investigation of war crimes?
    In an article published on the 10 th of March in the Sunday Island under the above title, Dr. A.C. Visvaligam, the President of CIMOGG has recommended the appointment of a Truth Commission as a solution to end the problems faced by Sri Lanka at the Human Rights Council, which he identifies as the UN.

    Dr.Visvalingam (DR.V.) is indeed entitled “to complain against Sri Lanka and its secretiveness, arrogance, offensiveness, lack of democratic processes, compromised security and judicial systems.” But to back up a palpably anti Sri Lanka Navi Pillay is shocking and to parrot her demand for an independent and credible international investigation into alleged violations of international human rights and humanitarian law is atrocious. There is no doubt the call by Dr.V. for a Truth Commission with international participation is the same demand in subtle and less offensive terms. It is useful to look at the experience of Truth Commissions in other countries. But before that let us look at the misleading arguments advanced by Dr.V to support his recommendation.

    Many of his arguments are misrepresentations of the provisions of the Constitution of Sri Lanka and the UN Charter. He ridicules people who consider that Sri Lanka is a sovereign country by stating that Sri Lanka has ‘lost its sovereignty by signing on the dotted line and undertaking to honor the UN Charter.” Let us examine the provisions of the UN Charter dealing with the sovereignty of member countries.
    In dealing with the principles of the UN at Article 2 it is stated that
    The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
    1. The Organization is based on the principle of the sovereign equality of all its Members and in Article 7 it is stated that,
    7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.
    It should be noted that the UN is not only not authorized to intervene in domestic issues of Member countries but Member countries also are prevented from submitting such issues to the UN. The only exception is covered under Article 39 where the Security Council can intervene to restore international peace and security.
    In Chapter VII which deals with the powers of the Security Council at Article 39 states that–
    The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security
    Dr.V ‘s argument that the grounds on which several international actors have got involved in matters which many in Sri Lanka think are its private business and of no concern to anyone else; are ill founded. Dr.V. cannot be unaware that even The Commission on Intervention and State Sovereignty (R2P) has identified only two circumstances that justify intervention: (1) “large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act . . .; or (2) large scale ‘ethnic cleansing,’ actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.” Whether or not that formulation is definitive, it signals the gravity that must attend such intervention. (Page 142).
    He is of the opinion that the attraction of Sri Lanka is its rich resources particularly the marine resources in the Extended Economic Zone… He conveniently ignores the strategic location of the country in the Indian Ocean straddling one of the busiest sea routes.
    Dr.V. points out that the EU, India and the US banned the LTTE long before Sri Lanka took any steps in that direction and also gave military supplies and intelligence to help Sri Lanka to fight the separatist war. Is he not aware that the LTTE was not proscribed by SL on the simple reason that a government does not negotiate with a proscribed organization. It is true that US supported SL government to defeat the LTTE, but it was only after 9/11 that the US extended any positive support. Banning of the LTTE by the EU was only after the assassination of Minister Kadirgamar by the terrorists.
    His reading of the Constitutional provisions on the sovereign rights of the people lacks accuracy expected of CIMOG which should know more on governance. In our Constitution people do not delegate their judicial power directly to the Judiciary. “The judicial power of the People is exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law”. Regarding fundamental rights, people through the Constitution have delegated the determination of the limits of fundamental rights to the legislature.
    The statement that “citizen surrenders a large proportion of his sovereignty to the Constitution” too is inaccurate. Citizens have only delegated on trust their sovereignty to different arms of the state. Through their inviolable right of franchise citizens can change the trustees.
    Dr.V. argues that every country is required to conform to certain laws which have universal application, e.g. international humanitarian law but later admits that large countries violate the spirit and even the provisions of the UN Charter when it suits them but refrains from highlighting the double standards of this situation,
    In another sweeping and misleading statement DR.V. says that “When contentious issues, such as the complaint against Sri Lanka, are raised, the UN expects the Secretary-General and the UN machinery to carry out the necessary investigations and report their findings to the Security Council.”

    The true position is that matters that the SG may bring to the notice of the Security Council are matters which may threaten international peace and security and not those matters that fall under domestic jurisdiction. This is clear in Article 99 of the UN Charter i.e. “The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.”

    Looking at the list of witnesses who went before the LLRC one could not find CIMOGG sharing their uncommon wisdom with the Commission. It appears that CIMOGG has joined other LTTE sympathizers in calling for a Truth Commission with international participation. While the US Draft Resolution covers issues of Promoting both Reconciliation and Accountability in Sri Lanka Dr.V is urging a Truth Commission merely “to bring this whole business to a quick end and turn down the heat.” If the purpose is to establish accountability the period covered should be the whole period of the conflict and not only during the last few weeks. One does not need a Truth Commission to establish accountability for the numerous acts of terrorism of the LTTE during the last 30 years. If reconciliation is the objective one needs to learn from the many post conflict Truth Commissions held in other countries. There is no agreement that even in the much celebrated TRC of South Africa the findings have not resulted in national reconciliation. In a comprehensive study by James L. Gibson of Washington University in St. Lo to test the ‘Causal Assumptions of the South African Truth and Reconciliation Process’ it was found that ‘Among black South Africans, truth seems to contribute little to reconciliation”. In other studies it was found that lots of time and millions of dollars have been invested in TRCs in Liberia and other African countries without expected results, the least satisfactory examples being Democratic Republic of the Congo and Nigeria. “Lots of time and millions of dollars have been invested in TRCs in Liberia and other African countries. The least satisfactory examples were Democratic Republic of the Congo and Nigeria, but similar exercises in Uganda, Chad, Sierra Leone, Ghana and Kenya were also unconvincing.
    Rather than a confused effort to justify a Truth Commission it would have been more constructive if CIMOGG examined the well considered recommendations of the LLRC in the last three Chapters of the Report on resettlement, restitution and reconciliation and suggested follow up action on them.

  2. Willie Vance Says:

    This is the talk. He has a lot to do to walk the talk and the delegates of the 15 countries are not fools to believe the Prez. They will be watching.

  3. Ross Reyes Says:

    Sri Lanka’s government faced mounting pressure from key international actors after it failed to take meaningful action on accountability issues. At the March HRC session, the government tried to block the council from adopting a resolution focusing on accountability. The resolution, which passed with 24 votes in favor, 15 against, and 8 abstentions, effectively overturned a May 2009 council resolution that ignored serious human rights concerns during the Sri Lankan war. Member countries voting for the resolution included Nigeria, Uruguay, and India, which faces pressure from Tamil Nadu state and civil society activists demanding accountability. The resolution calls on the UN Office of the High Commissioner for Human Rights (OHCHR) to report back in March 2013.

  4. bren sosa Says:

    The views expressed were primarily those of a personal nature.
    Not necessarily that of the CIMOGG membership

  5. cimoggsrilanka Says:

    I do not agree with Bren. It is unfortunate that Bren had not attended meetings when the Executive Committee(EC) discussed this subject. The material published has been approved by the EC prior to publication. K Fernando

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