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Are
we shrugging off obligations in international law?
It is not my intention to engage in discussion of the specific communications of views delivered by the Committee against Sri Lanka in this column. However, some general clarifications in relation to the consideration of individual communications by the Committee may not be out of order given the above misconceptions. Assuredly, the viewpoint advanced by some probably well meaning but misguided souls that the UNHRC reprimands only the lesser developed countries such as Sri Lanka is far from the actual truth as any international human rights student even in this most rapidly deteriorating educational system, should be well aware. Suffice to say that certain of the Committee's most jurisprudentially advanced decisions have been made in relation to countries such as the Netherlands, Canada and France. One case in point was a communication brought against Canada concerning the applicant's loss of rights and status as an Indian when she married a non-Indian as opposed to an Indian man who married a non-Indian woman (see Lovelace vs Canada, Decisions of the UNHRC, Doc A/36/40, p166). The Committee found a violation of ICCPR, Article 27 which protects the rights of linguistic, religious or ethnic minorities. More recently, the Committee has conceded (in the Finnish reindeer cases) that protection of "culture" within the meaning of ICCPR article 27 includes protection of the traditional means of livelihood for national minorities, in so far as they are essential to the culture and necessary for its survival. In EHP vs Canada, (Communication No. 67/1980, EHP v. Canada, 2 Selected Decisions of the Human Rights Committee (1990), 20), the right to life in ICCPR Article 6 was held to include the right to live without life threatening impacts from the environment. Similarly, in cases brought against the Netherlands, Dutch social security laws were found to be unreasonable and discriminatory on the basis of sex thereby violating ICCPR, Article 26(see Broeks vs Netherlands and Zwaan- de Vries vs Netherlands Decisions of the UNHRC, Doc A/42/40, at p139 and p160 respectively). In one decision in respect of Mauritius (the Mauritian Women Case) the country took action thereafter to change its laws in order to bring them into conformity with the Covenant. In other cases against France, the Committee found a violation of ICCPR, article 26 resulting from a denial of pension benefits due to subsequent change in nationality. Administrative convenience was held not to justify the actions of the state party (see Guye and others vs France, Decisions of the UNHRC Doc A/44/40, p189). While these are some of the earlier decisions of the Committee, its more recent jurisprudence has included several interventions into protection of life and liberty rights. This is well illustrated by the five Communications of Views against Sri Lanka delivered in response to pleas filed by individuals as diverse as a politician, a father whose son 'disappeared' in army custody, a newspaper editor, a detainee under the Prevention for terrorism Act and a lay litigant committed for contempt of court. Some of these decisions and their impact on Sri Lanka's legal and judicial system have been commented upon in past issues of this column as well as elsewhere. It is important to note that the Committee is not a 'trigger happy' body of foreign legal personalities operating from beyond the shores of the country. It constitutes jurists who have earned a well-deserved reputation of erudition and integrity in their home countries. The Committee responds to clear and egregious violations of Covenant rights as opposed to jurisprudentially unsound applications. In one instance, for example, it dismissed a communication lodged against Sri Lanka in respect of judicial action on the basis that it did not disclose an adequately substantiated grievance. (see Wanakuwatte vs Sri Lanka, CCPR/C/78/D/1091/2002. (Jurisprudence. Insofar as the five adverse communication of views are concerned, the Sri Lankan State has been necessarily guarded in its response, despite comments by quite naturally 'unnamed' sources of information (who appear not to be familiar with the most rudimentary norms of international legal obligations), that the government would not comply with the views of the Committee. Such a response has not been advanced from an official department, ministry or official. The reasons for this are not hard to find. At the very least, such defiance would make Sri Lanka look notably ridiculous. At its most dangerous level, it would reduce the country to the level of an outlawed state in the international legal arena as a consequence of shrugging off obligations that itself willingly incurred upon accession to, not only the ICCPR but also its Optional Protocol. This is distinguished from India, for example which has intentionally refrained from acceding to the Optional Protocol thus denying to individuals within its jurisdiction, the right to go before the Committee. This country however, out of an excess of good will and buoyant self-confidence, acceded to the Protocol in October 1997, which thereafter entered into force on 3 January 1998. Sri Lanka also made a declaration according to which it specifically recognised the competence of the Human Rights Committee to determine individual communications. In the light of these specific actions on the part of the State in international law, it would be an act of veritably fiendish Houdinistic ingenuity for government authorities to extricate themselves from implementing decisions of the Committee purely because they call the government or its judicial branch to account. Whether it would, in fact, court the consequences of such disobedience needs obviously, to be closely monitored. |
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