Counselling Human Rights Council: A perspective by Pathfinder Foundation

As the 46th session of the UN Human Rights Council (HRC) looms large in about a month’s time, the debate on its controversial Resolution 30/1 of 2015, which the ‘Yahapalana’ government co-owned in an unprecedented and unwise move, has resumed with renewed vigour.  

This is because Res. 30/1 adopted in 2015 ‘runs out’ this year and the HRC egged on by the so-called ‘core-group’ of Western countries – the pilots of 30/1 – will feel obliged to take stock of the situation and see where they want to go from here.

That Res. 30/1 is in a class by itself in both form and content would be obvious to any reasonably literate person, including to its most ardent supporters. Even the harshest critic of Res. 30/1 and its spin-offs must concede that it was a bold move about a seemingly intractable situation. 

However, it is also probably the first instance in the history of the HRC, a supposedly sovereign and independent country co-authored a UN Resolution containing an array of highly intrusive, unconstitutional and unimplementable demands directed at itself. 

It probably scores another first in that the self-authored resolution touches upon a range of governance matters, which are generally considered the exclusive preserve of the domestic jurisdiction of the authoring member state itself viz, Sri Lanka.  There does not appear to be any precedent of such self-inflicted state action in UN records. In advance of the 34th session, way back in 2017, the Pathfinder Foundation urged the then government to undertake renegotiation of the HRC resolution, based on the ground realities in Sri Lanka, rather than seeking a postponement of consideration of the situation in the country.

It may be unique as well, for the reason that in no other democratic country an HRC resolution had been so instrumental in delivering so massive an electoral defeat to the incumbent government that co-sponsored the resolution. 

The HRC and the fellow internationals that generally get busy exploring how to ‘helpfully intervene’ in Sri Lanka about this time every year, must understand the reality that it is  a function of the free franchise in one of the two oldest democracies in South Asia. 

There was a groundswell of opinion in this country against the resolution, which was initiated by a group of countries, who had only a limited understanding of Sri Lanka. It was seen as a blatant interference in a small sovereign nation, by virtually forcing it to ‘out-source’ the oversight of and judgment on  many governance matters to a secretariat in distant Geneva. 

Even those in Sri Lanka and abroad, who believed that  successive regimes in Sri Lanka have accumulated quite an inventory of post-conflict challenges to address, felt that Res. 30/1 was a ‘bad template’ for the HRC to promote international cooperation on human rights. This was because some provisions of that resolution had failed elsewhere (the so-called Hybrid Courts in Cambodia); some were unconstitutional/unimplementable (foreign judges): a watching brief on governance matters was conferred on a secretariat based in Geneva and a dedicated UN office in Colombo was proposed for the oversight of these activities. That all these were at variance with the UN Charter, was of no concern to the ill-advised core-group on Sri Lanka. 
This kind of ham-handed innovations to the existing international law and institutions that can even contribute to regime change is not a good model to propound, if the HRC is serious about encouraging and persuading countries, particularly those of the developing world, to work in cooperation with the council. 

Instead, the council would have been well-advised to develop and propose robust and independent domestic accountability processes, supported where necessary, by international cooperation in technical assistance, advisory services, best practices, etc.

Pathfinder believes such an approach, which is advisory, rather than retributive in nature will: 

• Work within normal national and international legal norms;
• Serve as a model for other countries needing such services, to  cooperate with the UN and
• Not function as a disincentive for countries that are willing to voluntarily cooperate.

So, it was no surprise that the Sri Lankan foreign minister was obliged, consequent to the electoral mandate the newly-elected government had received, to announce the government’s withdrawal of co-sponsorship of Res. 30/1 at the 45th session of the  HRC.

So, what next?

• Has Sri Lanka’s inventory of accountability and reconciliation issues become non-existent? Obviously not.
• Has the HRC enhanced its credibility for promoting templates to encourage countries with difficult and complex issues in this field to cooperate with the council? Obviously not.
• Will countries with a good track record of voluntary cooperation, continue to do so in the face of such new, intrusive and unconstitutional modalities? Obviously not.

Current context and a way forward
On the High Commissioner for Human Rights (HCHR) side, the secretariat has felt obliged to issue yet another heavily front-loaded report this year, with even more intrusive recommendations. Some of them sound bizarre to say the least, as they refer to now familiar western parlance of ‘targeted measures, assets freeze’ and so on. 

Even if one sets aside the rather offensive and unrealistic nature of such utterances against a sovereign country, which had consistently and continuously cooperated with the HRC, it must be clear to anyone that these ‘innovations’ are counterproductive as far as addressing the real issues of cooperation were concerned, for no country will accept such invasive measures. 
Such actions will face hugely divided votes in the UN General Assembly and definite vetoes in the Security Council. Apart from the feel-good factor for the enthusiastic sponsors, they have little or no practical value for addressing the real issue at ground level.

On the GOSL side, even as it pulled out of the co-sponsorship of 30/1, owing to electoral compulsions, Colombo has made it clear (at the HRC itself) that the withdrawal of co-sponsorship does not mean a withdrawal of Sri Lanka’s responsibilities concerning reconciliation and accountability.

President Rajapaksa himself, while emphasising that the country will not rule out the possibility of walking out of any entity that will not respect the accepted principles of sovereignty and independence of countries, did affirm that his government is fully committed to international cooperation, including with the UN on SDGs, which of course include human rights, peace and justice-related matters. 

It is also a fact that Sri Lanka has continued to work effectively with various Special Procedure Mandates or Rapporteurs of the HRC. If these Rapporteurs were unable to visit the country in the recent past, that was not due to change of policy by the government. As we all know, 2020 was an extraordinary year with COVID-19 taking its toll worldwide.
There are openings one can make use of and elements one can build upon, if we are serious about encouraging international cooperation among sovereign countries rather than unacceptable unilateral coercion.

If this is not done and common ground is not created, Pathfinder is of the view that there are two options available to the sponsors of the initiative and to Sri Lanka at the forthcoming HRC session:
(a) Acknowledge the need to continue to address and resolve issues of accountability and reconciliation in Sri Lanka by preserving and building upon progress made so far (e.g. Office of Missing Persons, Compensation, Rehabilitation, Socio-economic upliftment etc.) and in that regard, offer and receive international cooperation where necessary, including with the UN, for technical assistance and advisory services. 

OR
(b) If, however, the sponsors continue to insist on undeliverable and unconstitutional solutions (e.g. as in Res. 30/1 and 40/1), Sri Lanka to completely withdraw from the HRC process and work towards a domestic consensus on the matter.

During the nearly 30 years of an injurious conflict, Sri Lanka remained a good example of cooperation with external entities, including the UN on human rights and humanitarian matters, despite many complex countervailing factors (security, political, diplomatic and economic). 

The UN Secretary General’s Special Representative Olara Otunnu, who visited Sri Lanka in 1998, said so in reference to government’s continued supply of food, medicine, health, education and other essential services to the ‘LTTE-controlled’ areas. 

It would therefore be a pity, if such willing member states are dissuaded from continuing such policy by the HRC, pitching their prescription bars at an undeliverable and unconstitutional height.

In such an eventuality, Sri Lanka and like-minded member states will be obliged to press such resolutions to a highly divisive vote in the council. Even if the resolution is adopted by a slim majority, Sri Lanka is most likely to ignore it and pitch her bilateral ‘economic tents’ with countries that vote in its favour. Such a resolution will not therefore help the cause of accountability and reconciliation one bit and will simply add to the considerable number other resolutions already ignored by countries like China, Cuba, India, Israel, the US and so on. Even if it is elevated to the UNGA, it will suffer a highly divided vote and a definite veto in the UN Security Council.

Pathfinder believes that only a negotiated consensual way forward, rather than unilateral actions either by Sri Lanka or the initiators of any resolution, will advance the cause of human rights in Sri Lanka at this difficult juncture. 

Adding to the paperwork at the HRC with no prospect of implementation at ground level will not enhance the utility or credibility of the HRC’s tool kit for international cooperation in human rights. Of course, such a resolution will help increase the ‘feel good factor’ on the part of the core-group on Sri Lanka.

In conclusion, the Pathfinder Foundation would like to ask as to whether the core-group on Sri Lanka expects to get its job done by resorting to confrontation and browbeating a member state, instead of cooperating and engage in consultation? If the answer is yes, then those countries representing the South in the HRC will think deeply before they cast their vote in support of another meaningless and intrusive resolution.

(This is the Pathfinder View Point of Counselling the Human Rights Council issued by the Pathfinder Foundation. Readers’ comments via email to [email protected] are welcome)