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To implement or not to implement

Editorial, DM
The UNHRC resolution on Sri Lanka means different things to different people. Its opponents and proponents keep contradicting themselves. The government which made it out to be a frontal assault on Sri Lanka’s sovereignty in the run-up to last month’s Geneva vote is now claiming that it is non-binding.
If so, why on earth did it make such a song and dance? The UNP sought to pooh-pooh the government’s frantic efforts to defeat the resolution by claiming that the Rajapaksas were making a mountain out of a molehill to gain political mileage. But, today, the UNP spokespersons are warning that unless that resolution is implemented, the country will have to face international sanctions.

Dr. Laksiri Fernando is one of the critics who challenge the government’s argument that the implementation of the UNHRC resolution is not obligatory. In an article on the Asian Tribune website, he argues that ‘there is no way that the government of Sri Lanka could ignore the UNHRC resolution by claiming it is ‘non-binding.’ He says, “When the term ‘non-binding’ is used in international law, to the best of my knowledge, it means only the interpretative flexibility that a country has when there is no ‘implementing agency’ like the Security Council or its member States and particularly the permanent members.” He points out that the Office of the Human Rights Commission (OHRC) is behind the resolution. Although the OHRC is required to proceed with the concurrence of Sri Lanka, the obligation remains as stated in the operative paragraphs of the resolution, he argues.

Dr. Fernando considers Sri Lanka a test case to ensure that combating terrorism complies with other obligations of human rights and humanitarian law. This is an interesting argument which is sure to enjoy wide currency among the proponents of the resolution, who are demanding its implementation. His views run counter to Minister of External Affairs, Prof. G. L. Peiris’ contention that the resolution is non-binding.

In a discussion on the letter and spirit of UNHRC resolutions, one will make the mistake of missing the wood for the trees if one focuses only on Sri Lanka. Several other resolutions were ratified by the UNHRC at its 19th session on March 22 including the condemnatory ones on Israel. What is of special interest is the resolution on Follow-up to the report of the United Nations Fact-Finding Mission on the Gaza Conflict adopted by a vote of 29 in favour and one against (US) and 17 abstentions. It, inter alia, reiterates the UNHRC’s call upon ‘all concerned parties, including United Nations bodies, to ensure their full and immediate implementation of the recommendations contained in the report of the United Nations Fact-Finding Mission on the Gaza conflict, in accordance with their respective mandates’. The UNSG and the United Nations Human Rights High Commissioner are required to submit progress reports on the implementation of the recommendations of the fact-finding mission, at the 21st session of the UNHRC.

Interestingly, the US, which moved the anti-Sri Lankan resolution seeking to have accountability issues addressed among other things, was the only UNHRC member to oppose the damning resolutions on Israel, especially the one aimed at ensuring justice for victims and accountability for perpetrators in the Gaza conflict. (Emphasis added) Israel has, in return, launched a scathing attack on the UNHRC and refused to cooperate with it.

The UNHRC should not be able to single out Sri Lanka in enforcing compliance, as it were. It will be interesting to know what the proponents of the UNHRC resolution on Sri Lanka think of the ones that the US has opposed tooth and nail. Isn’t the implementation of the resolutions on Israel obligatory? How would/should the UNHRC react in case of noncompliance on the part of that country?

However, on no grounds could the government claim to be justified in refusing to implement the LLRC report. It must be wary of throwing out its own baby with the bath-water. Let that be the bottom line!

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