http://www.dailynews.lk/2012/03/26/news02.asp


US resolution has set a very dangerous precedent - Geneva envoy
* Reopening issues decided upon in the past
is unwarranted
* Sri Lanka needs to move forward to a
pluralistic society
The US sponsored resolution adopted by the United Nations Human Rights
Council (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 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 in 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 Lanka, he said.
Text of the briefing note:
* 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.
*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.
* 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.
*Reopening issues decided upon in the past is unwarranted and presents a
clear risk of developing countries, in particular, being targeted for collateral
reasons.
*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.
* 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.
* 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.
*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.
*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.
*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.
* The resolution subverts the principle of cooperation that has been
institutionalised 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
*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.
*Whilst it is claimed that this resolution will promote reconciliation, it
will only contribute to polarisation in a society that has begun to come
together through the various reconciliation initiatives that have commenced.
* 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.