It was reported in the Sri Lankan press (Daily Mirror September 27, 2006 – Sri Lanka signs convention on transnational crime and child abuse) that Sri Lanka has recently ratified the Transnational Organized Crime and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.
While this move needs to be welcomed the question arises in the light of the recent Supreme Court judgement in the Nallaratnam Singarasa case as to whether the signing of this convention and signing the Optional Protocol on the Rights of the Child will have any internal effect on Sri Lanka and also as to whether the signing of the Optional Protocol by the Foreign Minister is ultra vires to the Constitution.
In the Singarasa case the Supreme Court held that being a signatory to the ICCPR by Sri Lanka in 1980 had no internal effect. The court further held that the signing of the Optional Protocol to the ICCPR by the then president in 1997 is ultra vires. In that light the new signatures to the convention and Optional Protocol mentioned above would not only be of no value but also the government may be held to have acted ultra vires.
Similar positions may follow regarding the other conventions to which Sri Lanka has become a signatory in the past. The question posed by the Supreme Court judgement is as to whether being a signatory to such conventions means anything and whether any benefits are accrued by the citizens of the country by such measures.
Sri Lanka’s boast in the past before the UN agencies, international gatherings and also in public statements in Sri Lanka itself was that it has a proud history of being a signatory to many UN conventions. The Solicitor General C.R. De Silva on the occasion of the Human Rights Day in 2005 at a public seminar was reported to have spoken of the signing of so many conventions by Sri Lanka. Similarly a UN Press Release on 10 November 2005 reported the following on Sri Lanka’s intervention before the CAT Committee.
“Sarala Fernando, Permanent Representative of Sri Lanka to the United Nations Office at Geneva, introduced the report, saying that Sri Lanka assiduously followed a tradition of close and constructive cooperation with all the human rights treaty bodies, as well as special procedure mechanisms of the Commission on Human Rights in a spirit of openness and constructive engagement. This tradition was maintained during the time of conflict and the extraordinary threat posed by terrorism in Sri Lanka. The national human rights protection system continued to strengthen, in line with Sri Lankas constitutional and international obligations as a party to 17 international human rights instruments. The Government of Sri Lanka was committed to ensuring that all allegations of torture were promptly, independently and effectively investigated and prosecuted.”
When Sri Lanka sought membership of the Human Rights Council it also deposited a written pledge with the UN affirming that it will not only abide by such conventions but will also promote them. Now it will take a strenuous effort on the part of the Sri Lankan government in order to show that the government position is different to that expressed by the Supreme Court. This, the government can only do by honouring the six decisions made by the Human Rights Committee and taking the steps necessary to implement the recommendations made by the Committee.
Direct discussions and even confrontations between the relevant UN agencies including the Human Rights Council and Human Rights Committee and the Sri Lankan government are now unavoidable.
The present situation regarding Sri Lanka’s position on UN conventions will also create complex problems for the Co-Chairs for Aid in Sri Lanka. They have already mentioned that further aid to Sri Lanka will be conditioned by the assessment of tangible measures for the improvement of the human rights situation which they perceive as having seriously deteriorated in the recent months when open conflict took the place of the ceasefire. The Co-Chairs will now have to consider the complex problem of Sri Lanka’s abandoning of international obligations on human rights altogether by considering that all such human rights conventions have no internal effect.
Whether Sri Lanka will remain a part of the international scheme for the protection of human rights is now a question that calls for an immediate decision. This may perhaps be one of the most difficult moments of international diplomacy on human rights issues for Sri Lanka.
