"Current International law trumps archaic doctrine of state sovereignty"

[TamilNet, Sunday, 28 March 2010, 13:19 GMT]
Warning that "[t]o denigrate those who criticize us [Sri Lanka] or to demonize those who seek to hold us to account, is only to lay bare our own culpability," a former Sri Lankan Secretary of Justice, in an article in the weekend Island, points out that Sri Lanka's politicians and political commentators are invoking erroneously the doctrine of State Sovereignty which has long been eroded under the weight of customary international law, wherein firstly, "the international community could presume to judge, or even legitimately express its concern at, a government’s treatment of its own citizens," and later the Charter of the United Nations made "a government’s treatment of its own nationals" into a matter of "legitimate concern of the international community."

Full text of the article appearing in the "Island" follows:

Dr Nihal Jayawickrama
Dr Nihal Jayawickrama, former Sri Lanka's Secretary of Justice
A constitutional myth that has been developed in Sri Lanka in recent years is that of Sovereignty. Whenever the United Nations or a foreign government focuses on an act or omission of the Sri Lanka Government, the immediate response is that our sovereignty is under threat or attack. When the UN Secretary-General announces his intention of appointing an expert committee to advise him on matters relating to compliance with international humanitarian law in Sri Lanka, it is condemned as an infringement of our sovereignty. When the European Union announces that it proposes to investigate whether Sri Lanka is eligible under its regulations for the renewal of the privilege of GSP+, that investigation is condemned as a threat to our sovereignty. Indeed, any criticism of the actions of the Sri Lanka Government in any forum beyond our shores is perceived as an affront to the sovereignty of Sri Lanka.

The concept of sovereignty first entered our constitutional lexicon when the 1972 Constitution declared Sri Lanka to be a "Free, Sovereign and Independent Republic". It proceeded to add that "Sovereignty is in the People and is inalienable". What Dr Colvin R de Silva sought to do by the use of the expression "sovereignty" in that context was to establish the attributes of a republic, as distinct from that of a monarchy. Despite the grant of "independence" in 1948, Ceylon had continued to be subject to the British Crown. As such, sovereignty had continued to be vested in Elizabeth 11, albeit as Queen of Ceylon. The Marxist parties, and the LSSP in particular, had consistently argued that independence was a sham for as long as we owed allegiance to a foreign monarch. Real independence would be achieved only when sovereignty vested in the people of our country. In fact, Sri Lanka did enjoy real independence in political terms since 1948, but under a Constitution provided by the Sovereign in the form of an Order-in-Council issued from Buckingham Palace.

The doctrine of sovereignty which is now being invoked so frequently and freely by politicians, political commentators and the media alike is not the concept of sovereignty referred to in our Constitution. What is being invoked is the rule of customary international law that once recognized the doctrine of state sovereignty. According to that rule, a sovereign had full, complete and exclusive authority to deal with its own territory and with its own nationals. It followed that international law did not permit any interference or intervention by any other state, or by the community of states, in respect of either of these matters. Accordingly, a state was free to deal with its own nationals in whatever way it chose to. In particular, it alone had the right to determine the subject-matter and content of its domestic laws. In the context of the doctrine of state sovereignty, it was inconceivable that international law could vest an individual with any rights exercisable against his own state. But that doctrine has long been eroded, and Sri Lanka appears to be the only country in which it is still, quite vocally but erroneously, being invoked.

The erosion of the doctrine of state sovereignty, in so far as it related to the treatment by a state of its own nationals, began as far back as in the early nineteenth century with the incorporation of certain humanitarian norms in international law. The first was a series of international treaties which declared that "trading in slaves is forbidden in conformity with the principles of international law". Their object was "the complete suppression of slavery in all its forms and of the slave trade by land and sea". Thereafter, every state enjoyed the right to board, search and confiscate any ship, to whomsoever it belonged, if it was engaged in the slave trade. The second were the series of Geneva Conventions that now regulate the treatment of combatants and victims of war, including the victims of internal armed conflicts, such as those between the armed forces of a government and dissidents or other organized groups which control part of its territory. The third were the series of multilateral labour conventions that now regulate working conditions. The fourth were the series of treaties that formed an integral part of the peace settlement following the end of the First World War in which provision was made for the protection of the rights of minorities living within the newly carved boundaries of several European states.

These were the only areas in which the doctrine of state sovereignty had begun to erode and where the international community could presume to judge, or even legitimately express its concern at, a government’s treatment of its own citizens. But the Second World War and the events that preceded it in Germany (and in the territories under German occupation), where unprecedented atrocities were perpetrated on millions of its own citizens by the regime then lawfully in power, demonstrated how hopelessly inadequate international law still was. According to the strict doctrine of state sovereignty, any foreign criticism of the domestic laws that authorized those atrocities was illegitimate. It was also meaningless. Unless there was established a set of superior standards to which all national law must conform – an overriding code of international human rights law – history could well repeat itself. That was precisely what the Charter of the United Nations, to which Sri Lanka has been a party since 1955, set out to do.

The United Nations Charter was the standard-bearer, the first of several international treaties that helped to create an international human rights regime. Article 55 imposed a mandatory obligation on the United Nations "to promote universal respect for, and observance of, human rights and fundamental freedoms for all". Article 56 imposed a similar obligation on member states to take joint and separate action to achieve that objective. Therefore, while Article 56 bound each member state (according to the International Court of Justice) to observe and respect human rights within its territorial jurisdictions, it also imposed an obligation on other states and on the international community generally, to ensure that this obligation was fulfilled. From being solely a matter of domestic concern under the archaic doctrine of state sovereignty, a government’s treatment of its own nationals has now become the legitimate concern of the international community.

When the Government of Sri Lanka signed and ratified the International Covenant on Civil and Political Rights (ICCPR) and the First Optional Protocol, it gave certain solemn undertakings to its own nationals and to the international community. First, that it would respect and ensure to all individuals within its territory the rights recognized in that covenant. Second, that it would adopt the necessary legislative measures to give effect to those rights. Third, that it would provide an effective remedy in respect of those rights. Fourth, that it would report periodically to the Human Rights Committee on the measures it has adopted and the progress made. Fifth, that it would give effect to the decisions of the Human Rights Committee in respect of individual complaints lodged by its nationals. It is a matter of common knowledge that the Government of Sri Lanka has failed or neglected to perform these obligations even to a reasonable degree. When a government fails to abide by the terms of a multilateral treaty, other states parties to that treaty have the right, under international law, to draw attention to that failure in any form or manner permitted by law, and in any forum they choose to.

Whether for purely cosmetic reasons or because of a genuine desire to improve conditions within their territories, an overwhelming majority of states have ratified or acceded to international human rights treaties. Therefore, there is now an international climate that is increasingly sensitive to the illegality of human rights violations, less willing to tolerate them, and more responsive to public and private efforts to prevent them. If some states choose to respond, while others do not, it is because realpolitik often determines the conduct of foreign relations. To invoke an obsolete doctrine of state sovereignty to defend oneself is to deride the contemporary world order. It may also suggest, particularly to the international community, that the facade of apparent defiance only seeks to obscure from view a host of rattling skeletons.

The challenge that faces the new Sri Lankan Government is to recognize, acknowledge and address the fact that in recent decades compliance with human rights obligations has remained on the backburner. The space that ethnic, religious and linguistic minorities are entitled to as of right has been denied them. Political dissent and opposition has been wedged in by suffocating authoritarianism. The startling revelations that the former chief justice continues to make of the cosy relationship and the frequent contact he had had with the head of the executive reveals the extent to which judicial independence and integrity had evaporated. The so-called thirty year war is no excuse for this state of affairs. As a great judge once remarked, "amidst the clash of arms, the laws are not silent; they speak the same language in war as in peace". To denigrate those who criticize us or to demonize those who seek to hold us to account, is only to lay bare our own culpability.

Dr. Nihal Jayawickrama was Professor of Law at the Universities of Hong Kong and Saskatchewan, where he taught comparative constitutional law. He was permanent secretary to the Ministry of Justice when the constituent assembly was convened in 1970, and was involved in the processes that led to the drafting and adoption of the 1972 constitution. In 1978 he participated in the proceedings of the select committee on the revision of the constitution as legal adviser to its two SLFP members, Sirima Bandaranaike and Maithripala Senanayake.

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Island: The myth of state sovereignty


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