Vichara

54th session of the Human Rights Council (11th September – 6th October 2023) has commenced and the annual pilgrimage to Geneva by pro and anti-Sri Lanka is on the move. The UNHCR and international agencies are coercing the government to accept unreasonable conditions of the resolutions adopted on Sri Lanka. In this background following layman’s concerns on both the legality and morality of the drama may be of some interest.

Nicky Haley who was a former United States ambassador to the United Nations once said that the Human Rights Council is a cesspool of political bias.” It is the blatant political manipulations of the UNHRC by the US and other Western powers which continue to make this body a cesspit. They were peeved when they could not muster adequate support at the UNHRC to sanction Sri Lanka immediately after the defeat of the LTTE terrorists. Since then, this cabal has been hounding Sri Lanka with the exception of the occasion of the betrayal of the country by the Yahapalana lap dogs.

Sri Lanka has categorically rejected the punitive Resolutions couched in diplomatic terms hiding the intimidation brought against it on the ground that they violate the sovereignty of the country. Resolutions 46/1 and 51/1 against Sri Lanka are in defiance of the hallowed principles dominant in the United Nations Charter and clearly spelled out in the following General Assembly Resolution A/RES/46/130 approved at the 75^th plenary meeting held on 17 December 1991.

 Further recalling the principle enshrined in Article 2, paragraph 7, of

the Charter of the United Nations, which establishes that nothing contained in

the 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 Charter.                                                                       

Recalling its resolutions 44/147 of 15 December 1989 and 45/151 of 18

December 1990,

      1.    Reiterates that, by virtue of the principle of equal rights and

self-determination of peoples enshrined in the Charter of the United Nations,

all peoples have the right, freely and without external interference, to

determine their political status and to pursue their economic, social and

cultural development, and that every State has the duty to respect that right

in accordance with the provisions of the Charter;

      2.    Reaffirms that it is the concern solely of peoples to determine

methods and to establish institutions regarding the electoral process, as well

as to determine the ways for its implementation according to their

constitution and national legislation;

      5.    Urges all States to respect the principle of non-interference in

the internal affairs of States and the sovereign right of peoples to determine

their political, economic and social system;”

Other than the sell out by the Yahapalana the Sri Lanka government has categorically rejected both Resolutions, particularly unsupported allegations of paragraph 6 of the 2021 Resolution and interventionist content of           paragraph 8 of the 2022 Resolution. These offending Articles are as follows:

46/1 of 2021

6. Expresses serious concern at the trends emerging over the past year, which represent a clear early warning sign of a deteriorating situation of human rights in Sri Lanka, including the accelerating militarization of civilian government functions; the erosion of the independence of the judiciary and key institutions responsible for the promotion and protection of human rights; ongoing impunity and political obstruction of accountability for crimes and human rights violations in emblematic cases”; policies that adversely affect the right to freedom of religion or belief; increased marginalization of persons belonging to the Tamil and Muslim communities; surveillance and intimidation of civil society; restrictions on media freedom, and shrinking democratic space; restrictions on the public memorialization of victims of war, including the destruction of a memorial; arbitrary detentions; alleged torture and other cruel, inhuman degrading treatment or punishment, and sexual and gender-based violence; and that these trends threaten to reverse the limited but important gains made in recent years, and risk the recurrence of policies and practices that gave rise to the grave violations of the past;

Comment

If there was no military involvement in the control of Corvid 19 it would have been impossible to manage it. Media has unrestrained freedom to criticize the government. No responsible agency should make accusations on unsupported allegations. One wonders whether there are any Nazi memorials remain in Germany. One country which is plagued with the type of violence described is USA.

51/1 of 2022

8. Recognizes the importance of preserving and analysing evidence relating to violations and abuses of human rights and related crimes in Sri Lanka with a view to advancing accountability, and decides to extend and reinforce the capacity of the Office of the High Commissioner to collect, consolidate, analyse and preserve information and evidence and to develop possible strategies for future accountability processes for gross violations of human rights or serious violations of international humanitarian law in Sri Lanka, to advocate for victims and survivors, and to support relevant judicial and other proceedings, including in Member States, with competent jurisdiction;

Comment

This is a fragrant intrusion into the governance of the country which also has an element of naked interference in its judicial process. This is a gross violation of Article 5 of General Assembly Resolution A/RES/46/130 (quoted earlier) on the principle of non-interference in the internal affairs of States and the sovereign right of peoples to determine their political, economic and social system;”

The SLPP government must be congratulated for standing firm against the machinations of the UNHRC and our lady Ambassador in Geneva should be thanked for calling a spade a spade and rejecting all the punitive resolutions passed against Sri Lanka. She must be commended for pointing out that the Resolutions 46/1 and 51/1 had been adopted by a divided vote in the Council where the majority of the Member States either opposed or abstained from voting.

The voting procedure adopted by the UNHRC is contrary to the practice in the UN General Assembly and in other major UN bodies like the ILO and the WHO. Moreover, these resolutions are in conflict with the primary principal of the UN on ‘non-interference in the internal affairs of States”as indicated below.

 Charter of the United Nations, Chapter IV. The General Assembly Article 18:

2. Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting.

3. Decisions on other questions, Composition including the determination of additional categories of Questions to be decided by a two-thirds majority, shall be made by a majority of the members present and voting.

http://hrlibrary.umn.edu/instree/chapter4.html .

ILO -article 19 of the Constitution provides:

2. a majority of two-thirds of the votes cast by the delegates present shall be

necessary on the final vote for the adoption of the Convention or Recommendation, as the case may be, by the Conference.

A two-thirds majority of votes is required for an International standard to be adopted.

WHO Rule 70 of the Rules of Procedure

Decisions by the Health Assembly on important questions shall be made

by a two thirds majority of the Members present and voting.

The rules on voting in the UNHRC are equivocal. It is stated that:

Unless otherwise specified, no motions are debatable, and all require a simple majority vote to pass.

6.1. Simple Majority.

A procedural or substantive matter requiring a simple majority to pass implies that fifty percent plus one vote (50% + 1) of the committee must vote in favour of the matter to pass. If the vote is a tie, the matter will be considered to have failed.

6.2. Two-thirds (2/3) Majority.

A procedural or substantive matter requiring a two-thirds (2/3) majority to pass implies that two-thirds (2/3) of the committee must vote in favour for a matter to pass. If there is at least one vote in favour or against and the remaining votes are abstentions subject is considered to have either passed or failed.

There are two issues to be clarified here. One is why a strong resolution on the accountability of a country should not be considered an ‘important’ to be adopted by a two third majority. The other is the definition of the term ‘Committee”.

(This write’s view is that in the context of the UNHRC the ‘committee’ means all 47 members)

Resolution 46/1-was adopted at 47th meeting on 23 March 2021

by a recorded vote of 22 to 11, with 14 abstentions.

Vote on Resolution A/HRC/50/L.1/Rev.1 –  – adopted (yes 20 ¦ no 7 ¦ 20 abstentions)

In both cases there was not even a simple majority of at least 24 in favour.

It is for the members of the UNHRC to resolve this issue. It is suggested that Sri Lanka takes an initiative.

According to the General Assembly resolution 60 251

The Council’s mandate is to promote universal respect for the protection of all human rights and fundamental freedoms for all” and address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon.-www.thessismun.org.

The operative phrase is ‘make recommendations ‘and not enforcement directly or indirectly. The Resolution also directs that it should be done, without distinction of any kind and in a fair and equal manner. There is a palpable distinction in how the UNHCR acts on alleged human rights violations in Sri Lanka obvious human violations by Israel in Palestine and Western powers in Africa where the tenet of fair and equal is insolently flouted.

  General Assembly Resolution 60/251 recognized the importance of ensuring universality, objectivity and non-selectivity in the consideration of human rights issues, and the elimination of double standards and politicization, and also

that the promotion and protection of human rights should be based on the principles of cooperation and genuine dialogue and aimed at strengthening the capacity of Member States to comply with their human rights obligations for the benefit of all human beings.

UNCHR resolutions 46/1 and 50/1 on Sri Lanka are totally at variance with the conditions ensured in the above quoted section of 60/251.

 General Assembly Resolution 60/251 also decided at para 4 that

the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights,

including the right to development.

The approach of the UNCHR in relation to Sri Lanka is far from a constructive dialogue. It has been partial, selective and acting contrary to principles of universality.

PS

It is unfortunate that our big brother continues to flog their Trojan Horse the 13^th Amendment. The comment of the Indian representative on the Resolution at the 54th Session of the Human Rights Council was that:

We hope that the Government of Sri Lanka will fulfil the aspirations of Tamils for equality, justice and peace and its commitment to implement the 13th Amendment and conduct Provincial Council Elections to ensure a life of respect and dignity for Tamils in Sri Lanka.” 

India cannot be unaware of the General Assembly Resolution which” Reaffirms that it is the concern solely of peoples to determine methods and to establish institutions regarding the electoral process, as well as to determine the ways for its implementation according to their constitution and national legislation”.