Supreme Court removes country from obligations
Supreme Court removes country from obligations under international law, raises unprecedented questions for UN
A judgment made by the Supreme Court of Sri Lanka on Friday, September 15 has all but removed the country from the international human rights community. The court declared that neither United Nations conventions signed by Sri Lanka nor the directives of monitoring bodies are binding on the country. The decision has tremendous ramifications both for the country and for the international human rights community.
The decision was made in relation to the case of Nallaratnam Singarasa. In that case, the UN Human Rights Committee held that the state party (Sri Lanka) had violated the International Covenant on Civil and Political Rights, to which it is a party. The committee then instructed Sri Lanka to "provide the author with an effective and appropriate remedy, including release [from detention] or retrial and compensation" (Communication No. 1033/2001: Sri Lanka, 23 August 2004, CPR/C/81/D/1033/2001; violations of article 14, paragraphs 1, 2, & 3 [C3] and paragraph 8 read together with article 2, paragraphs 3 & 7).
The Human Rights Committee made this decision on the basis of the Optional Protocol to the ICCPR, to which Sri Lanka became a party in 1997. However, the Supreme Court held that being a party to the Optional Protocol violated the Constitution of Sri Lanka, on the basis that it allows the Human Rights Committee to use judicial power within Sri Lanka, which is unconstitutional. The court held that for the country to join the protocol or any convention it must take the matter to parliament and then have it approved by referendum.
The judgment effectively nullifies Sri Lanka's obligations under international law, except those that have been incorporated into domestic statutes. It puts in place a tremendous obstacle to Sri Lanka's participating in any treaty bodies or other UN agencies for human rights. It is binding with immediate effect on all courts in the country and the state itself.
As long as this judgment stands, Sri Lanka will be unable to protect and promote human rights under the laws and institutions of the United Nations. For instance, consider how Sri Lanka pledged to the United Nations on April 10--during its successful bid to be elected to the new Human Rights Council--that it would:
"Take appropriate implementational measures in respect of relevant recommendations made by the Human Rights Treaty Bodies after considering the Periodic Reports submitted by Sri Lanka in the past, through the Permanent Standing Committee on Human Rights Issues, Co-Chaired by the Ministers of Foreign Affairs and Human Rights.
"Build capacity in the Ministry of Human Rights, Human Rights Commission of Sri Lanka and other independent statutory bodies established as a part of the national human rights protection systems.
"Introduce a Human Rights Charter in line with the policy statement made by the President of Sri Lanka soon after assuming office.
"Invite the Special Rapporteur on the freedom of expression and opinion and also the Special Rapporteur on the question of torture to undertake missions in Sri Lanka.
"Co-operate with Human Rights Treaty Monitoring Bodies by submitting future Periodic Reports on time.
"Become a party to the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography."
As a result of the court's ruling, Sri Lanka is now without a position from which to fulfil any of these pledges.
The Asian Human Rights Commission calls for the UN Human Rights Council to take the following steps in response to this decision:
1. Demand that Sri Lanka explain, as a member, how it will deal with this court judgment. If the government is unable to explain how it will overcome the impasse that has been created by the ruling, then upon what grounds can it claim to participate in treaty bodies and other human rights mechanisms, including the council?
2. Urgently consider the implications of a state party refusing to implement, as a matter of law, the views of a treaty monitoring body on individual cases.
The UN High Commissioner for Human Rights must also enter into discussions with all concerned parties on how to address the implications of this ruling, which are to the knowledge of the AHRC unprecedented in the history of the United Nations. If not decisively tackled, such a ruling by a domestic court may do enormous damage to many decades of work for the promotion of international human rights norms and standards. If left unattended, it may serve as encouragement for similar-minded courts in other countries, which may likewise decide to withdraw their states' commitments under international laws.
The judgment comes at a time that Sri Lanka is already the cause of growing international attention and alarm. The worsening situation in the country is due to top the agenda at the September sitting of the Human Rights Council. Many European states and international rights groups are talking of the desperate need for a credible monitoring body to stem a surge in killings and disappearances. The European Commission has itself issued a resolution calling on the UN rights council and commission to take appropriate steps. Donor countries have threatened to withdraw or limit assistance if a credible solution is not found to the worsening conflict. This court ruling will only further aggravate all of these concerns.
With this Supreme Court decision, all concerned agencies and persons should be asking, what next for Sri Lanka? Whether or not the country should be suspended from involvement in international bodies, or face sanctions, remains to be seen. However, the Asian Human Rights Commission has clearly iterated for a number of years that the rule of law has ceased to exist in Sri Lanka. It is a land which has seen utter carnage, and where massive violence could re-emerge at any time. For these reasons, it cannot be ignored. If in the coming weeks the Human Rights Council obtains no tangible solution to the problem created by the Supreme Court, all reference to international human rights instruments, bodies and discourse will become irrelevant to the citizens of Sri Lanka, which can only be for the worse. The international community cannot allow this to happen without jeopardising everything for which it stands.