By Neville Ladduwahetty
During the recent committee state debates in Parliament on the financial vote of the Ministry of Foreign Relations, exception was taken by MP M. A. Sumanthiran for the decision the by the government to withdraw from co-sponsorship of Resolution 30/1 via 40/1, and went on to warn the government of inevitable consequences for withdrawing from international commitments.
Certainly, there are consequences if a sovereign State withdraws from international commitments on some whimsical pretext. In order to prevent such outcomes, the international community has developed international laws to discourage States from acting irresponsibly. If such restrictions do not exist, any accredited Officer of a State could jeopardize the interests of his State by undertaking commitments without following or even in contravention of internally formulated procedures of the State concerned. Under such circumstances, the international law provides for sovereign States to withdraw from commitments made by irresponsible members of such a State under provisions of Article 46 of the 1969 Vienna Convention on the Law of Treaties.
VIOLATION of DUE PROCESS
During the course of his address to the Human Rights Council on February 26, 2020, Sri Lanka’s Minister of Foreign Relations Dinesh Gunawardena stated: “Procedurally, in co-sponsoring Resolution 30/1, the previous government violated all democratic principles of governance – it declared support for the resolution even before the draft text was presented – it sought no Cabinet approval to bind the country to deliver on the dictates of an international body – there was no reference to Parliament on the process, undertakings and repercussions of such co-sponsorship – more importantly the Resolution itself included provisions which are undeliverable due to its inherent illegality, being in violation of the constitution, the supreme law of the country”.
The draft text referred to above is reported to have been prepared in the USA. As for the final text, former Minister Mangala Samaraweera is reported to have admitted that “the final text of the resolution was largely negotiated over the telephone with the President … the Prime Minister … and the Ambassador of the US and the High Commissioner of the UK.” (The Island, February 29, 2020). One cannot expect the latter two participants involved in the “negotiations” finalizing the draft to be aware of the impact of their deliberations on Sri Lanka’s Constitution, or whether any of its provisions were “deliverable”. On the other hand, the others who participated in finalizing the draft had done so regardless of its impact on the Constitution, without any heed to the oath they had taken to “uphold and defend the Constitution”. What fate awaits them for their treachery only time will tell” (The Island, “Fundamental Rights, Human Rights and other rights”, March 4, 2020).
If international law did not protect sovereign States from commitments made by treacherous and unscrupulous individuals the entire international order would be in chaos. It is to prevent such disaster that the international community incorporated Article 46 in the text of the Vienna Convention on the Law of Treaties 1969. Despite this provision, for some to keep repeating that international commitments should be upheld no matter the circumstances under which the commitment was made, calls into question the scruples of the individuals concerned.
Article 46 states: “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. Thus, since a Constitution is the most basic of a State’s “internal law of fundamental importance”, a State has the grounds to invalidate its commitments whether to the UNHRC or any other. Although this depends on whether a Resolution of the UN Human Rights Council reaches the status of a Treaty or not, no sovereign State should be expected to fulfill any commitment undertaken in violation of its Constitution since it forms the law of “fundamental importance” of its Peoples.
The fact that the infamous resolution that was co-sponsored by Sri Lanka violated Sri Lanka’s Constitution was conveyed in unambiguous terms to the Human Rights Council in March 2019 by the then Foreign Minister Tilak Marapana.
In the course of his statement he stated: “In referring to para 68 (C) of the OHCHR Report (A/HRC/40/23), which pertains to the Recommendations to GOSL, ‘to adopt legislation establishing a hybrid court to investigate allegation of violating and abuses of international law and violations of international humanitarian law’, I wish to make it clear that our position on this matter is as follows’:
“The Government of Sri Lanka at the highest political levels, has both publicly and in discussions with the present and former High Commissioner for Human Rights and other interlocutors, explained the constitutional and legal challenges that preclude it from including non-citizens in its judicial processes. It has been explained that if non-citizen judges are to be appointed in such a process, it will not be possible without an amendment to the Constitution by 2/3 of members of the Parliament voting in favour and also the approval of the people at a referendum”.
Having co-sponsored the UNHRC Resolution in 2015, the Consultation Task Force on Reconciliation Mechanisms appointed in January 2016 by the then Prime Minister also recommended a hybrid Court as stated in paragraph 24 cited below.
“The CTF recommends a hybrid Court with a majority of national judges as well as a sufficient number of international judges. This will ensure at least one international judge per bench and pre-empt delays due to the absence of one or more judges. It also recommends international participation in the Office of the Special Counsel of prosecutors and investigators, in addition to the provision of technical assistance. There should be clear guidelines and criteria spelt out and made public in respect of all aspects of international participation. International participation should be phased out once trust and confidence in domestic mechanisms are established and when the required expertise and capacity has been built up, nationally.”
Considering the legal and academic background of the persons who were involved in the Task Force it is a matter of deep concern that they too recommended mechanisms, either unaware or despite being aware, that the mechanisms involve serious constitutional and legal challenges. The image projected internationally by such irresponsibility reflects poorly on the country.
Under the circumstances, the only option open to any responsible government is to withdraw from undertakings that had been made by irresponsible persons who unwittingly or knowingly committed the country to fulfilling obligations that violate the country’s internal laws of fundamental importance.
The material presented above is not a lesson on international law. It is a lesson nevertheless that responsible persons should be aware of whether in Parliament or outside. The lesson is that although sovereign States are obligated to meet international commitments made on behalf of the State, international law also provides for States to withdraw from such obligations whenever commitments made by irresponsible persons impact on the “internal law of fundamental importance”. Such relief is provided in the Vienna Convention on the Law of Treaties 1969. If such provisions do not exist in international law, unscrupulous persons would be able to commit sovereign States to undertakings that would work against the interests of the State concerned.
However, a new lesson was introduced by Mr. Sumanthiran during the committee stage debates in Parliament. His lesson in history was that there were three kingdoms in the island and each of them fell at different times to the Western powers. If the reason for bring up such an issue was with the expectation that the national question should be based on historical underpinnings, claimants of other kingdoms would insist on going back to long periods of history when the island was a single kingdom for millennia. The lesson to be learnt is that such claims defy pragmatic realism. Therefore, the hope for all concerned is to improve on the institutions and practices, and continue with the political and administrative arrangements for a single sovereign State that were introduced by the West. To hope for anything more would only end up in mourning our dead.
UNFORGIVING CONSEQUENCES OF DEFORESTATION
By Eng. Thushara Dissanayake
A forest is much more than a group of trees. Clearing of forests for agriculture has been an age-old practice. We accepted chena cultivation as a traditional livelihood of the rural poor. Secondly, we had ample forestlands throughout the country. Another cause of deforestation is development activities, besides logging and gem mining in some cases. Because of these acts, either legal or illegal, our forest cover has fast dwindled posing many serious environmental issues.
According to the World Food and Agriculture Organisation (FAO), by 2015, the estimated forest area in the world equaled 31 per cent of the earth’s surface area, most of which was located in tropical areas such as Africa, South America, and Indonesia. Today, according to experts, we have only 17 per cent of the forest cover left in this country.
People are the ultimate managers of forests and the higher their level of knowledge and awareness, the better their ability to conserve forests. It is unfortunate that recent incidents prove that people are not serious about the environment.
We are living in an era where climate change has become a major challenge. Ever-increasing amounts of carbon dioxide emitted to the atmosphere, mainly by the burning of fossil fuels has caused global warming, which renders myriads of bitter consequences. In the meantime, deforestation has been identified as the second major driver of climate change. It is forests which can help us reduce the excessive amount of carbon dioxide in the atmosphere playing a leading role in the fight against global warming. Forests act as a carbon sink and probably the only entity that is capable of carbon regulation. On average, the amount of oxygen produced annually by an acre of trees is about 2,500 kg while the annual oxygen consumption of a person is 750 kg.
Trees relieve people from stress and make them more comfortable while enhancing their well-being. Without trees, the world would not be beautiful and appealing. The earth has millions of different varieties of trees. Many trees do not remain the same throughout the year. When we plant a tree, we are emotionally attached to it and keen to observe its growth day by day. Sometimes we plant a tree to mark a special event and it may be our birthday, the day of marriage, or the demise of a close relative. Bhutan introduced the Gross National Happiness (GNH) index, which is used to measure happiness and well-being of its people. One of the four pillars of GNH is environmental conservation.
Even our tourism industry, which is one of the main sectors that bring us foreign exchange, vastly depends on the natural beauty of this country. If we fail to maintain its unique natural beauty, the country will cease to be a tourist attraction, jeopardising the industry.
The contribution of trees to the ecosystem is massive. Trees improve air quality by trapping solid particles, retard rainfall-runoff and thereby mitigate floods, increase groundwater recharge, and preserve soil by preventing erosion. The sustenance of our river system largely depends on the central forest area being the source of water. Not only forests but even green areas such as shrubs and turfs inside forests also contribute to the ecosystem immensely. Although they receive less attention, they can filter air by removing dust and absorb many pollutants like carbon monoxide, sulphur dioxide, and nitrogen dioxide.
Forests are home to wildlife. The same is true of humans and the survival of humans is also dependent on forest conservation.
The way forward
If the concept of vertical development is followed, not only in major cities but also in other areas, the acquisition of forest areas for human settlements can be significantly minimised as high rise buildings will obviate the need for many acres of land. Modern technology has to be used in agriculture together with methods that could contribute to high water use efficiencies to increase productivity rather than expanding agricultural land areas. Human settlements in less developed rural areas should be discouraged. There are large amounts of barren lands, including abandoned paddy lands, that could be used for afforestation if a proper mechanism is put in place to compensate landowners. These are several effective strategies which should be implemented sooner than later as policy interventions on all fronts are required to protect our existing forests. If the country’s forest cover shrinks further, we will all have to face bitter consequences sooner than expected.
(Eng. Thushara Dissanayake is a Chartered Engineer specialising in water resources engineering with over 20 years of experience)
HYPOCRICY OF OUR COLONIAL MASTER!
By Dr Upul Wijayawardhana
Irrespective of what happens at the UNHRC, there is one thing we should never forget; the arrogance and hypocrisy of our colonial master! The behaviour of the British Government is despicable. The UK has taken from the ‘nouveau-evil empire’––the US––the task of pressuring member nations of the UNHRC to vote against Sri Lanka! All this for the crime of defeating terrorism! Is this what is expected of the so-called leader of the Commonwealth?
It is a shame that the British representatives have not read Mathias Keittle’s excellent, well-reasoned piece “A German Analyst’s View on the Eelam War in Sri Lanka” which appeared in The Island on 28 February.
Considering there are allegations that some friends of high-ranking politicians of the British government made a mint from Covid-19 epidemic, one begins to wonder whether the Tiger-rump has helped some of them line their pockets. After all, it cannot simply be for a few votes. It will be interesting to see if the British government can counter what Matias Keittle so emphatically stated:
“Sri Lanka eliminated a dreaded terrorist group, with intricate global links, but receives little credit for it. Unlike elsewhere in the world, Sri Lanka has succeeded in resettling 300,000 IDPs (Internally Displaced Persons). There are no starving children for the NGOs to feed but this gets ignored. Sri Lanka has avoided mass misery, epidemics and starvation but the West takes no notice of this. Sri Lanka has attained enviable socio-economic standards for a developing country while eliminating terrorism but gets no acknowledgement. The government of Sri Lanka and its President continue to enjoy unprecedented popular approval through democratic elections but this is dismissed. The economy is functional, but remains not encouraged by the West.”
My concerns perhaps are confirmed by what Lord Naseby, a government peer sitting in the British House of Lords, has stated. The following from the statement by Lord Naseby published in The Island of 5 March under the title, ‘Lord Naseby asks why Adele not prosecuted in the UK for child recruitment’, surely, is an indictment on the British government:
“I am astounded how the UK or any other Member of the Core Group can possibly welcome the High Commissioner’s so called ‘detailed and most comprehensive report on Sri Lanka’ when it is riddled with totally unsubstantiated allegations and statements completely ignoring the huge effort to restore infrastructure and rehouse displaced Tamils and Muslims, who lost their homes due to the Tamil Tigers.
“Furthermore, I question how the UK government knowingly and apparently consciously withheld vital evidence from the despatches of the UK military attaché Col. Gash. Evidence I obtained from a Freedom of Information request, resisted by the Foreign Office at every stage for over two years. These dispatches from an experienced and dedicated senior British officer in the field makes it clear that the Sri Lankan armed forces at every level acted and behaved appropriately, trying hard not to harm any Tamil civilians who were held by the Tamil Tigers as hostages in a human shield.
“This conscious decision totally undermines the UK‘s standing as an objective Leader of the Core Group; made even worse by the impunity for not prosecuting the LTTE leader living in the UK, largely responsible for recruiting, training and deploying over 5,000 Child Soldiers – a real War Crime. It is time that the UK Government acknowledges and respects the recommendations of the Paranagama Commission, which involved several international expert advisers, including from the UK – Sir Desmond de Silva QC, Sir Geoffrey Nice QC, Rodney Dixon QC and Major General John Holmes.”
Her Majesty, Queen Elizabeth II, has strived so hard to strengthen the Commonwealth of Nations so that the UK could successfully transform itself from a colonial master to a friend of the past colonies but Her Majesty’s Government seems to be behaving in a manner to undermine Her efforts. Her Majesty’s vision of friendship and cooperation seems to be countered by the bully-boy tactics of politicians.
The excellent editorial “Should SL follow UK?” in The Island on 24 February concluded with the following:
“Anything Westminster goes here. It is the considered opinion of the defenders of democracy that Sri Lanka should emulate the UK in protecting human rights. What if Sri Lanka takes a leaf out of the UK’s book in handling alleged war crimes? In November 2020, the British Parliament passed a bill to prevent ‘vexatious’ prosecutions of military personnel and veterans over war crimes allegations. This law seeks to grant the British military personnel, who have committed war crimes, an amnesty to all intents and purposes. The International Criminal Court (ICC) has ascertained evidence of a pattern of war crimes perpetrated by British soldiers against Iraqi detainees, some of whom were even raped and beaten to death. Curiously, the ICC said in December 2020, it would not take action against the perpetrators! Too big to be caught?”
the UK may argue that it has to protect military personnel against vexatious prosecutions. If so, they should understand the position of Sri Lanka. We know that the US administrations, be it under Obama, Trump or Biden, run more on brawn than brain but we expect better from the UK. Why or why do they have to behave like a poodle of the US.
Is this not hypocrisy of the highest order? Shame on you, the British government!
ASIAN DEMONSTRATORS AND THE AMERICAN DREAM
The US was always a selective supporter of democracy, and now it is a diminished one.
By Ian Buruma
One month ago, in Myanmar, protesters against the military coup gathered around the United States Embassy in Yangon. They called on President Joe Biden to make the generals go back to their barracks and free Aung San Suu Kyi from detention. Her party, the National League for Democracy, won a big victory in the 2020 general election, which is why the generals, afraid of losing their privileges, seized power.
But is the US Embassy the best place to protest? Can the US President do anything substantial apart from expressing disapproval of the coup? The protesters’ hope for a US intervention shows that America’s image as the champion of global freedom is not yet dead, even after four years of Donald Trump’s ‘America First’ isolationism.
Demonstrators in Hong Kong last year, protesting against China’s harsh crackdown on the territory’s autonomy, even regarded Trump as an ally. He was erratically hostile to China, so the protesters waved the stars and stripes, hoping that America would help to keep them free from Chinese communist authoritarianism.
America’s self-appointed mission to spread freedom around the world has a long history. Many foolish wars were fought as a result. But US democratic idealism has been an inspiration to many as well. America long saw itself, in John F Kennedy’s words, as a country ‘engaged in a world-wide struggle in which we bear a heavy burden to preserve and promote the ideals that we share with all mankind.’
As Hungarians found out when they rose up against the Soviet Union in 1956, words often prove to be empty. The Hungarian Revolution, encouraged by the US, was crushed after 17 days; the US did nothing to help those it had egged on.
Sometimes, however, freedom has been gained with American help, and not just against Hitler’s tyranny in Western Europe. During the 1980s, people in the Philippines and South Korea rebelled against dictatorships in huge demonstrations, not unlike those in Hong Kong, Thailand, and Myanmar in the last two years. So, of course, did people in the People’s Republic of China, where a 10-meter tall ‘Goddess of Democracy,’ modelled on the Statue of Liberty, was erected on Tiananmen Square in 1989.
The Chinese demonstrations ended in a bloody disaster, but pro-democracy forces toppled Ferdinand Marcos’s dictatorship in the Philippines and South Korea’s military regime. Support from the US was an important factor. In Taiwan, too, authoritarianism was replaced by democracy, again with some US assistance.
But what worked in the Philippines, South Korea, and Taiwan is unlikely to work in Thailand, Hong Kong, or Myanmar. The main reason is that the former three countries were what leftists called ‘client states’ during the Cold War. Their dictators were ‘our dictators,’ protected by the US as anti-communist allies.
Propped up by American money and military largesse, they could continue to oppress their people, so long as the US saw communism as a global threat. Once China opened for business and Soviet power waned, they suddenly became vulnerable. Marcos was pressed on American TV to promise to hold a free and fair election. When he tried to steal the result, a US senator told him to ‘cut and cut cleanly.’ Marcos duly ran for his helicopter and ended up in exile in Hawaii.
Similarly, when South Korean students, supported by much of the middle-class, poured into the streets, angry not only with their military government, but with its US backer, America finally came down on the side of democracy. Dependent on American military protection, the generals had to listen when the US urged them to step aside.
The generals in Thailand and Myanmar have no reason to do likewise. Biden can threaten sanctions and voice his outrage. But with China willing to step in as Myanmar’s patron, the junta has no reason to worry very much (though the military has been wary of China up to now).
Thailand’s rulers, too, benefit from Chinese influence, and the country has a long history of playing one great power against another. And because Hong Kong is officially part of China, there is little any outside power can do to protect its freedoms, no matter how many American flags people wave in the streets.
Dependence on the US in Europe and Asia, and the clout that Americans held as a result, was sustained by the Cold War. Now, a new cold war is looming, this time with China. But US power has been greatly diminished since its zenith in the 20th century. Trust in American democracy has been eroded by the election of an ignorant narcissist who bullied traditional allies, and China is a more formidable power than the Soviet Union ever was. It is also vastly richer.
Countries in East and Southeast Asia still need US support for their security. As long as Japan is hindered from playing a leading military role, because of a tainted past and a pacifist constitution, the US will continue to be the main counterweight to China’s increasing dominance. But as Thailand’s deft balancing of powers demonstrates, US allies are unlikely to become ‘client states’ in the way some were before. Even the South Koreans are careful not to upset their relations with China. The US is far; China is near.
This pattern is to be expected. US dominance can’t last forever, and Asian countries, as well as Europeans, should wean themselves from total dependence on a not-always-dependable power to protect them. Being a ‘client state’ can be humiliating. Yet, the day may come when some people, somewhere, might miss Pax Americana, when the US was powerful enough to push out the unwanted rascals.
(Buruma is the author, most recently, of The Churchill Complex: The Curse of Being Special, from Winston and FDR to Trump and Brexit.)
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