Working with an initial draft provided by the Advisor to Minister Mahinda Samarasinghe, she was able to get this done late March 19 night, so it was also available for distribution the next morning to a meeting of the South American group, which was addressed by Prof. Rajiva Wijesinha along with Jeevan Thiagarajan and Javid Yusuf, who had been part of the group preparing the draft National Reconciliation Committee.
Prof. Wijesinha noted that in describing the ongoing work on reconciliation, the problems posed for the reconciliation process by the resolution were also described. Ambassador
Kunanayakam’s paper 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.
He told The Island that the Asian group also received the document, which was further clarified at a briefing, to which the press dropped in at the end. One ambassador noted that the paper was extremely helpful, but should perhaps have been sent earlier, so that it could have been circulated in the capitals.” As we know now, that was where much of the lobbying was being done, and the paper makes clear the legal and procedural implications of the US resolution for all sovereign States, not just Sri Lanka,” the parliamentarian said.The Professor also noted that the Indian amendment, which the US accepted, addressed to a very limited extent the concern raised in Point 8 and arguably in Point 9. “Though these were the most intrusive elements, other concerns still remain. It would be useful if the Ministry of External Affairs set up a policy group, to include diplomats such as Ambassadors Dayan Jayatilleka and Kunanayakam and Sarath Kongahage, and Secretary Karunasena Amunugama, who appreciate the wider implications of sustained engagement with the third world, to develop these ideas and make clear the way forward for countries of the Non-Aligned Movement, in the face of increasing use by the West of what Joseph Nye has described as Smart Power”.
“Ensuring that India is not only aware of the implications, which there is no doubt it is, but also understands the leadership it can give to developing countries in this regard, would be a vital factor to ensure that the architecture of the UN system is not irreversibly changed. President Rajapaksa could write to the countries of the Non-Aligned Movement to explain the situation, and invite discussion of how best to proceed to deal with the different ways now in which dominant power is utilized”, he said.
Briefing Note on Resolution:
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.