http://www.priu.gov.lk/news_update/Current_Affairs/ca201203/20120324us_resolution_has_set_a_very_dangerous.htm


US resolution has set a very
dangerous precedent – Geneva Envoy

The US sponsored resolution adopted the UNHRC last Thursday poses serious
threats and dangerous precedents affecting all countries, particularly to those
in the developing world, by seeking to make the Council take on the character of
a tribunal that will exceed its mandate, states Sri Lankan Ambassador in Geneva
Tamara Kunanayakam.
In a note prepared by for the African group, the Ambassador states that the
US Resolution in seeking to reopen issues decided upon in the past is
unwarranted and presents a clear risk of developing countries, in particular,
being targeted for collateral reasons.
It also 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, she states.
Prof. Rajiva Wijesinha MP has the Ambassador’s note also dealt with the
implications of the resolution for the principles on which the United Nations
was founded and which the Council was intended to uphold. It makes clear the
legal and procedural implications of the US resolution for all sovereign States,
not just Sri Lank, he said.
Here is the text of the Briefing Note:
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.