Challenging powerful states when citizens’ rights are in issue

By Kishali Pinto Jayawardena

The specious logic that the domestic State and its institutions are the ultimate arbiters of how rights are protected takes us back to positively Third Reich thinking whereby ‘tinpot’ Hitlers reveled in their notion of ‘just law’. It is a weary recollection that the Nazi atrocities of the World War era were, in fact, justified on existing law. Then as now, many of the German people explained their acquiescence when innocent people were gassed on their belief that the jackbooted soldiers of the Third Reich were only engaged in carrying out the law; indeed, many professed ignorance of the death camps.

Later, they were able to exorcise that terrible responsibility if not covert complicity only in part, after generations of guilt and shame. The old lessons therefore still ring true in our ears as do the reminder that it was precisely to avert the repetition of such catastrophic events that the international human rights treaty regime came into force.

Granted that the violation of international standards by powerful state actors may attract a different degree of sanctions than those that follow actions of less powerful states. However, international treaty arbitration processes still do operate as vital levers by which misguided governments (both big and small in geo political terms) are pulled back from causing irreversible harm to people.

In Sri Lanka, there used to be a convincingly committed articulation of these standards of universal rights and justice by academics, activists and non-governmental organisations (NGO). Yet, the arrant commercialization of the NGO sector with voluntary service becoming almost unheard, the payment of ‘expatriate salaries’ to some NGO leaders who combine luxurious lifestyles with dabbling in the political scene and a demonstrated lack of commitment to the real issues affecting the people, has resulted in the severe decrease of whatever moral authority formerly enjoyed by ‘civil society.’ Consequently, advocates of state sovereignty have been able to subsume the perversion of their arguments in the dangerous trappings of fundamentalism, whether religious, ethnic or otherwise with amazing ease.

The harm caused to Sri Lanka through this dually negative process has been considerable. In many instances where the skillful working of treaty mechanisms may have resulted in quite a lot of good being done to citizens, the contrary has been the case. This is well seen in the following example relevant to the recent crucifixions and beheading of four Sri Lankans in Saudi Arabia.

Subsequent to the executions, there has been only a tepid expression of ‘concern’ by the Minister of Foreign Affairs and an outright shameful assertion to a daily newspaper by Foreign Employment Promotion and Welfare Minister Keheliya Rambukwella that compensation would be given to the families but that “a hue and cry could not be made over the actions of the Saudi authorities as they were carried out under its domestic laws.” Was Minister Rambukwella aware that one of those executed had been only given a sentence of fifteen years and therefore, his execution was not in accordance with the domestic processes of justice in Saudi Arabia, even granted the fact that these processes are highly inadequate in themselves?

In contrast, let us see how two countries, Mexico and Germany were able to use the Vienna Convention on Consular Relations and its optional protocol before the International Court of Justice (ICJ), to stay the execution of their citizens who had been tried, convicted and sentenced to death in criminal proceedings in the United States. Both these countries invoked the jurisdiction of the ICJ for this purpose.

The Vienna Convention on Consular Relations, a multilateral treaty, requires in Article 36(1)(b) that the competent authorities of each state party inform the consulate of another party if the latter party’s national is arrested and requests that the consulate be notified. Article 36(1)(b) further requires the authorities to inform the person arrested of his or her right to communicate with the consulate.

In the LaGrand and Avena cases, the ICJ held that when the violation of Article 36(1) prevented Germany and Mexico, respectively, from assisting in their nationals’ defense in a timely fashion, the procedural default rule resulted in a violation of Article 36(2) because it prevented full effect from being given to the purposes for which the rights accorded under Article 36(1) are intended. Under Articles 59 and 60 of the ICJ Statute, the ICJ’s decisions have binding force as a matter of international law as between the parties to the specific case it has decided, although they have no binding force beyond those parties. The enforceability of the ICJ’s decision is currently being argued before the US Supreme Court. Mainly as a result of these cases, in March 2005, the United States notified the ICJ that it was withdrawing from the protocol to the Vienna Convention. However this withdrawal obviously cannot affect the decisions of the ICJ delivered at a time when the US was part to its provisions and procedures.

The executions of the four Sri Lankans involve almost the same issues of denial of due process as were in issue in those cases, particularly where Mexico was involved. The executed Sri Lankans were denied the basic right to defend themselves and were sentenced in the absence of legal and consular representation.

However Sri Lanka would not have been able to emulate Mexico, even if the political will was present, as it has not signed the Convention’s optional protocol, which gives the ICJ "compulsory jurisdiction" over disputes involving rights under the treaty. There is a mistaken belief (on the part of what I would still like to think is a minority among us), that international obligations incurred as a result of treaties that are signed by countries, operate to the detriment of only the smaller countries.

In contrast, their powerful neighbours are allowed to escape, as is coined in pedestrian language, “scot free.” This is not always the case; at times, the less powerful can indeed force the more powerful to sit up and take notice.

In the case cited above, Mexico did just that against none other than the United States, deftly using the ICJ for that purpose. In contrast, we have purely shameful deference to a totalitarian Saudi law and deficient processes of justice when our migrant workers are executed. Wherein lies the lesson for Sri Lanka?