Sovereignty President Mahinda Rajapaksa cannot have it both ways!

By: Veluppillai Thangavelu

Addressing the nation on the 65th Independence anniversary celebrations held at the Eastern post city of Trincomalee on February 04, 2013 President Mahinda Rajapaksa quoted the United Nations Charter to remind the world that Sri Lanka is a sovereign state and no outside interference will be tolerated to undermine the country's sovereignty or territorial integrity. The provocation for such a statement was due to the impending US proposed resolution on Sri Lanka scheduled to be tabled at the UNHRC 22nd sessions Geneva by the end of the month.

The following is the exact quote he made during the course of his speech:

    * The Organization is based on the Principle of the sovereign equality of all its Members.

    * All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the Purposes of the United Nations.

    * Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter.

In other words, President Mahinda Rajapaksa is claiming that the UNO cannot under any circumstances could violate the sovereignty and territorial integrity of member states. Apparently, like the devil quoting the scripture, Mahinda Rajapaksa is selectively quoting the UN Charter.

The UN was founded in 1945 after World War II with 50 states to replace the League of Nations and to prevent wars between states. It is the world's largest, foremost, and most prominent international organization. The stated aims of the United Nations include promoting and facilitating cooperation in international law, international security, economic development, social progress, human rights, civil rights, civil liberties, political freedoms, democracy, and the achievement of lasting world peace. It contains multiple subsidiary organizations to carry out its missions.

The organization has six principal organs: the General Assembly, the Security Council (for deciding certain resolutions for peace and security); the Economic and Social Council (for assisting in promoting international economic and social cooperation and development); the Secretariat (for providing studies, information, and facilities needed by the UN); the International Court of Justice (the primary judicial organ); and the United Nations Trusteeship Council (which is currently inactive). Other prominent UN System agencies include the World Health Organization (WHO), the World Food Programme (WFP) and United Nations Children's Fund (UNICEF). The UN's most prominent position is that of the office of Secretary-General which has been held by Ban Ki-moon of South Korea since 2007.

Today, UNO is not solely acting on the basis of the Declaration in 1948 and Mahinda Rajapaksa's advisors have not properly briefed him on the current status of the UNO. Now UNO is about war within individual states rather than between states. This means UNO is committed to maintaining peace between states.

When seeking membership of the UNO, states agree that rights and duties go hand with responsibilities in hand and they cannot pick and choose according to their own whims and fancies.

One of the earliest intervention into the internal affairs of member countries was regard to monitoring the line of control between Israel and the Arab States and in Kashmir to maintain peace between Pakistan and Indian armies along the border.

There are times justifying humanitarian intervention by the UNO, if there is "a massive violation of human rights, clear cases of genocide or continuous unmitigated savagery". International community must take a side, not merely stand between the sides or on the sidelines.

Chapters VI and VII of the UN Charter deal with settlement of disputes that are likely to endanger the maintenance of international peace and security. Chapter VI, deals with specific settlement, and also gives the Security Council the right to investigate and arbitrate, which are usually put in practice under observer missions, diplomatic envoys, and good offices (UN Charter). Chapter VII gives the Security Council the right to impose economic sanctions under Article 41 and under Article 42 (UN Charter) the right to take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.

Before we proceed let us examine briefly what 'sovereignty' means in modern times. Sovereignty is defined as the power of a state to do everything necessary within a specified territory to govern itself, such as making, executing, and applying laws; imposing and collecting taxes; making war and peace; and forming treaties or engaging in commerce with foreign nations. And in a Republican form of government sovereignty is derived from the people either directly or indirectly.

The 1978 Constitution of the Democratic Socialist Republic of Sri Lanka states The Sovereignty of the People shall be exercised and enjoyed in the following manner :–

    (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;

    (b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;

    (c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law;

    (d) the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided ; and

    (e) the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament and at every Referendum by every citizen who has attained the age of eighteen years and who, being qualified to be an elector as hereinafter provided, has his name entered in the register of electors.

In short, the people delegate their legislative powers to the legislature, their executive powers to the executive and their judicial powers to the judiciary, and agree to abide by whatever lawful decisions are taken on their behalf by these three arms of government.

When it is said parliament is sovereign all it means is the people are sovereign, it is the people who elect on their behalf members to parliament for a specified period and members act in the name of the people. Thus "republic" simply means that matters of state are a matter of the people, not private property of a king or emperor. The "republic" does not promise how that power will be put into action. A republic can be a dictatorship or an oligarchy, where a few make all the decisions "on behalf" or "for the benefit" of the people.

The notion behind sovereignty is that a State should be able to govern itself; the notion behind international law is that external rules govern state behaviour. In modern times there is nothing called absolute sovereignty. No country enjoys absolute sovereignty and that includes Sri Lanka. When a country joins UNO, that country is bound by the Conventions, Protocols and Covenants of the UNO.

The concept of the Responsibility to Protect (R2P), conceived in 2001 and formally accepted into UN vernacular at the 2005 World Summit asserts that if a state is manifestly failing to protect its citizens, from mass atrocities and peaceful measures are not working, the international community has the responsibility to intervene: First diplomatically, then more coercively, and as a last resort, with military force. States are bound by the UN Declarations on Human Rights and are required to abide by them and cannot plead State Sovereignty to shut out the UNO.

The first time the Security Council made official reference to the responsibility to protect was in April 2006, in resolution 1674 on the protection of civilians in armed conflict. The Security Council referred to that resolution in August 2006, when passing resolution 1706 authorizing the deployment of UN peacekeeping troops to Darfur, Sudan. Recently, the responsibility to protect featured prominently in a number of resolutions adopted by the Security Council.

One example is Libya in 2011. Following widespread and systematic attacks against the civilian population by the regime in the Libyan Arab Jamahiriya (short: Libya), the UN Security Council, on 26 February 2011, unanimously adopted resolution 1970, making explicit reference to the responsibility to protect. Deploring what it called "the gross and systematic violation of human rights" in strife-torn Libya, the Security Council demanded an end to the violence, "recalling the Libyan authorities’ responsibility to protect its population," and imposed a series of international sanctions. The Council also decided to refer the situation to the International Criminal Court.

In resolution 1973, adopted on 17 March 2011, the Security Council demanded an immediate ceasefire in Libya, including an end to ongoing attacks against civilians, which it said might constitute "crimes against humanity." The Council authorized Member States to take "all necessary measures" to protect civilians under threat of attack in the country, while excluding a foreign occupation force of any form on any part of Libyan territory. A few days later, acting on the resolution, NATO planes started striking at Qadhafi’s forces. Rebel forces took over the capital city of Tripoli in August, and the death of Qadhafi in October 2011 sealed the fate of the old regime.

There are times justifying humanitarian intervention by the UNO— particularly if there is "a massive violation of human rights, clear cases of genocide or continuous unmitigated savagery.”

The arguments adduced by most Western states, including the US and Britain, is that the international community has the right to take "humanitarian action" to save lives and relieve suffering.

Addressing the Millennium Summit in early September, 2000 US President Bill Clinton said that even though there are fewer wars between nations, there are more wars within them.

"Such internal conflicts, often driven by ethnic and religious differences, took five million lives in the last decade, most of them completely innocent victims," he added.

"These conflicts", he said, "present us with a stark challenge: are they part of the scourge the UN was established to prevent? If so, we must respect sovereignty and territorial integrity, but still find a way to protect people as well as borders."

"The last century has taught us that there are times when the international community must take a side, not merely stand between the sides or on the sidelines," he added. Incidentally it is during his same speech Mahinda Rajapaksa claimed “It is not practical for this country to have different administrations based on ethnicity,” which by any standards is at odds with his with his past declarations on power-devolution, based on the Thirteenth Amendment.

He went on to brag that "It is necessary to state on this occasion that as much as racism, religious differences too can be a cause for the destruction of a country. If anyone is trying to build religious rivalry in Sri Lanka again, they do not serve their religion, but serve the interests of separatism in the country. We cannot leave room for what could not be achieved through terrorism to be gained by this." Unfortunately, his speech is an admission that racism and religious strive are a fact of life in Sri Lanka tearing apart the social and political fabric of the country.

In the same speech Mahinda Rajapaksa went on to claim that "For thousands of years Sri Lanka was important to the world because of the Trincomalee Harbour located here. In the past this port was called the Port of Gokanna-titta. As stated in our Chronicles it was in this area that the two merchant brothers – Thapassu and Bhalluka – set ashore with the hair relics of the Buddha. During the Kandyan period, when we had been deprived of higher ordination of the Sangha, the monks who brought higher ordination from the ancient land of Siam, also arrived at Trincomalee."

Mahinda Rajapaksa was keen to refer Trincomalee by its Sinhala name only. He referred to the hair relics of the Buddha brought by two merchant brothers. But he failed to acknowledge Trincomalee is the seat of the well known Hindu temple of Thirukkoneswaram from historical times. Saint Thirugnanasampanthar (7th century AD) has sanctified and sung hymns in praise of this temple.

Such open bias in favour of a particular religion and people, does not square with Mahinda Rajapaksa's tall claim of ‘equality for all communities nearer home.’ There is prove that his government has nexus with ethno-religio centric saffron brigades like the Bodhu Bala Sena ("Buddhist Power Force" ). On March 9, 2013 his sibling Gotabhaya Rajapaksa declared open the Buddhist Leadership Academy built by BBS at Galle. He was the chief guest. Recently, the BBS has declared war on Muslims over the issue of Halal certificates to vendors. It is at the behest of BBS President Rajapaksa has ordered the discontinuance of birth control methods at Government and Private hospitals. The BBS openly declares that it has now become the police of this nation, a claim not contradicted by the government. It also says Sri Lanka is not a multi-racial or multi-religious country but a Sinhala Buddhist country. It is exhorting Sinhalese families to have at least 5-6 children so that the Sinhalese Buddhist population grows in order to protect the Sinhala race and Buddhism in Sri Lanka. (http://www.srilankabrief.org/2013/03/bodu-bala-sena-insists-lanka-not.html)

Elsewhere, President Rajapaksa and his cohorts claim that there is an 'international conspiracy' against President Rajapaksa's administration and its ‘war heroes’ which includes the expectation of regime change.

But it is due to "international conspiracy" that Sri Lanka with a land area of only 60,000 sq.kms has already gained an Extended Economic Zone of about 450,000 sq.kms of the mineral-rich ocean surrounding it, and has a strong claim to another 450,000 sq.kms of attached Continental Shelf. This windfall gain accrued because of the United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea treaty.

Mahinda Rajapaksa cannot have it both ways. When the same UNHRC adopted a resolution on May 26, 2009 praising the Sri Lankan government on its defeat of the Tamil Tigers and condemning the rebels for using civilians as human shields Mahinda Rajapaksa and his government went wild with euphoric. Sri Lanka claimed a propaganda victory after the UNHRC Council set aside a European-backed resolution that pushed for unfettered access to detained civilians and an internal investigation of alleged war crimes by both sides. China, India, Egypt and Cuba were among the 29 developing countries that backed a Sri Lankan-proposed resolution describing the conflict as a domestic matter that doesn't warrant outside interference. The resolution also supported Colombo's insistence on allowing aid group access to 270,000 civilians detained in camps only as may be appropriate. This turn of events was a severe set back for Western diplomacy till the tables were turned in March 2012 in the form of Resolution No. 19/2.

Resolution No. 22/L.1 passed on March 22nd goes much further than Resolution No. 19/2. This resolution builds on the 2012 resolution, reaffirming that Sri Lanka must take meaningful action on reconciliation and accountability in order to move forward. Measures taken to combat terrorism must comply with their obligations under international law, in particular international human rights law, international refugee law and international humanitarian law, as applicable. The United States, together with international partners, has called upon the Government of Sri Lanka to fulfil its public commitments to its own people on these longstanding issues. The emphasis now is more on accountability than reconciliation. If Mahinda Rajapaksa and his government continue to drag its feet, remain steadfast on the denial mode, cast serious aspersions on the integrity of UN High Human Rights Commissioner Navi Pillay it will only help to harden the stance of US and its allies and invite punitive action.

Saying that Sri Lanka is a sovereign state and no outside interference will be tolerated to undermine the country's sovereignty or territorial integrity country Mahinda Rajapaksa may fool the Sinhalese electorate and keep them in good humour, but it will not wash with the international community.

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