Note on legal and procedural implications : US Draft Resolution: Promoting Reconciliation and Accountability in Sri Lanka
A note, concerning the legal and procedural implications of the U.S resolution, relating not just to Sri Lanka, but all sovereign States, prepared by Ambassador Tamara Kunanayakam, which was provided to régional Groups of the Council.
1) 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.
2) 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.
3) 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.
4) Reopening issues decided upon in the past is unwarranted and presents a clear risk of developing countries, in particular, being targeted for collateral reasons.
5) 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.
6) 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.
7) 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.
8) 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.
9) 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
10) 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.
11) The resolution subverts the principle of cooperation that has been institutionalized 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
12) 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.
13) Whilst it is claimed that this resolution will promote reconciliation, it will only contribute to polarization in a society that has begun to come together through the various reconciliation initiatives that have commenced.
14) 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.
Vote on US Draft Resolution:
In case, Agenda 1 decisions and conclusions, ends early today, then there is a slight possiblity of the votes on US Resolution against Sri Lanka to take place today evening at the 19th session of the UN Human Rights Conference. It would be known only today evening. However it is more likely that it would take place earl y on Thursday.
- Asian Tribune -