B Dr. Laksiri Fernando
The alleged violations during the last stages of the war against terrorism, the recent UNHRC resolution on Sri Lanka, as well as the continuing ‘abductions’ in the country, have given rise to debates on the issues of state sovereignty or ‘sovereignty and human rights.’
There are those who completely reject and ridicule the state sovereignty and there are those who defend and attempt to practise unmitigated and absolute sovereignty. The most unfortunate appears to be the absence of any clarification or interpretation especially from those who uphold sovereignty as a defence of all state action without accountability. It is in essence only a ‘fig leaf.’
Origins
Sovereignty like any other concept or term has evolved over time with its origins not going beyond the late medieval period. The Eastern equivalent, Chakravarthi, perhaps is much older and according to some scholars, rooted in something similar to ‘hydraulic societies’ or ‘Asiatic Mode of Production.’
In Europe, the main landmark of the concept was the Westphalia Agreement in 1648 where the ‘nation state’ and national sovereigns emerged respecting each other’s exclusive domains of power. This is what was called sovereignty; a more legal and illusory term for state power. However you analyse it, it talks about the state power or the ‘power to rule.’ When you use the term ‘sovereignty,’ you camouflage the ugly face of state power.
The ‘absolute’ monarchs of Europe called or considered themselves ‘sovereigns,’ under ‘divine right of kings.’ In the East, it was ‘Devarajah.’But nowhere there had been real sovereigns. There had always been limitations. Before the emergence of democracy, however, the powers that they used were brutal yet resisted by the people or various sections of society. Democracy was a slow process and thus the agony of sovereignty was prolonged and arduous. There were no international laws to mitigate the unbridled powers of the sovereigns those days.
The concept of sovereignty that we know of from our academic books (i.e. A Grammar of Politics by Harold J. Laski) was developed for two main reasons. There were some like Jean Bodin or Thomas Hobbes, who thought that absolute power is necessary to keep the people obedient and subjugated. In Sri Lanka at present, some thinking from the powers that be is similar i.e. the Secretary of Defence. There were some others like John Austin or Albert Dicey who developed the theory for legal purposes even to suit representative governments or popular sovereignty.
It is this latter concept that can be seen in the United Nations Charter or other international instruments that are exceedingly misquoted or misinterpreted today. Sovereignty in this sense is only a legal ‘premise’ or foundation to build up the ‘domestic rule of law’ or the ‘international rule of law.’ It is not the Hobbsian concept which is in the United Nations.
The international law derives from the ‘sovereign states,’ nothing more, nothing less. Sovereignty of the state, in this sense cannot be posed against the international law although the Charter gives certain discretion to the states to affiliate, not to affiliate or the way to affiliate (the degree) in respect of written treaties but not all binding customary law.
The Concept
In respect of the UN, it is mainly a legal concept. In the context of the state it is both a legal concept as well as a political concept. It is because of the legal connotation that the term cannot easily be discarded as once Laski suggested. Otherwise, any ‘reality check’ would demolish the theory.
But in the context of the UN no state can exercise the political, or the power aspect of the concept, as some are accused of doing during the Human Rights Council sessions! If you do so, you simply become a ‘thuggery state.’ No rhetoric about imperialism would justify that behaviour. The Charter allows however the permanent five members to use such political power in implementing (only) the UN Security Council decisions and this also can be considered an anachronism. But even they cannot use this power element during the sessions of the SC or the UNHRC!
For any state, and this applies equally to Sri Lanka, both the legal and the political aspects of sovereignty are important. Otherwise, the state cannot survive. But, for the proper exercise of the concept and its practice, its scope and the proportion has to be assessed and determined.
Sovereignty is something tagged to the state. Even the UN does not have that. The UN is not a state. Conventionally, there are four attributes to the state: territory, population, government and sovereignty. Montevideo Convention (1932) defines them clearly.
The first three attributes are quantifiable. For example, Sri Lanka has 65,610 sq. km. plus territorial waters as its territory; around 21 million people as population; and at present the elected Mahinda Rajapaksa and his cabinet as the government—Mervyn Silva included! There is another quantifiable element that I would like to add to the definition. That can be called the ‘bureaucracy’ including the armed forces and the Defence Establishment. This aspect is also quantifiable. This is the ‘state apparatus’ that any government uses or misuses.
Sovereignty is not easily quantifiable and it can be called a quality. Nevertheless, there can be criteria to measure it. On the one hand sovereignty is a legal concept written in the constitution and in several other laws. That is largely benign.
The other aspect is political power within the ‘cover of sovereignty.’ That is by nature vociferous. There are internal laws and the constitution, defining and limiting the exercise of this political power; but in all countries it is a never ending saga and problematic. It is like an uncontrollable ‘beast.’ Political power in essence is a beast.
There are three sectors in the state that can actively exercise power or sovereignty: government, bureaucracy/armed forces and the people. The territory in itself cannot do that. The whole concept of democracy is about the proper exercise of this power or sovereignty; its demarcations and mechanisms. It is easy for a small group to exercise power or sovereignty i.e. ‘military junta,’ ‘bureaucracy’ or ‘family,’ but it is dangerous and tenuous. It is tenuous because the people will sooner or later will resist like in the Arab Spring. Laski once said: "Whatever the requirements of the legal theory, in actual fact, no man surrenders his whole being [one may call self-sovereignty] to the state. He has a sense of right and wrong. If the state or its instruments [including Mervyn Silva in the case of Sri Lanka] go too consistently against that sense, he is pricked into antagonism [like the writer of this article]."
The present predicament in Sri Lanka, in my opinion, is that the government (overwhelmingly elected though, or primarily because of that) uses the state apparatus against the people, sections of the people and the people’s sovereignty.
Since three ‘democratic revolutions’ in the West, in England (1688), America (1776) and France (1779), systems and mechanisms have developed, with variations, to mitigate the power aspect of sovereignty - while more or less keeping the legal concept intact. All these were internal developments. The cornerstone of these developments was the concept of ‘people’s sovereignty’ advocated initially by Jean Jack Rousseau, the French philosopher.
People’s sovereignty as the base not only the universal franchise, periodic, free and fair elections but also the mechanisms of separation of powers, independence of the judiciary, constitutionalism and rule of law are considered important for democracy. These constitute checks and balances. All these are controls on the ‘state sovereignty,’ meaning ‘sovereignty’ exercised by the mere government and/or the bureaucracy or the armed forces. Most important in this respect is the full exercise of human rights of the people and institutional safeguards for that exercise. Any erosion will be a breach of people’s sovereignty.
There have been several erosions of people’s sovereignty since 1978 and even before. A recent most erosion is the 18th Amendment to the constitution. This is only one example. A direct breach, on the other hand, is the withholding of elections to the Northern Provincial Council. The people in that province have been denied what other people in other provinces are exercising by way of a second tier of governance. For any of those erosions or breaches, the LTTE or terrorism cannot be quoted as an excuse—not any longer!
Human Rights
My main point is as follows. There are limitations to the sovereignty as regards human rights. These are both national and international. This is where terrible misunderstandings or deliberate misinterpretations exist. The country’s constitution, though autocratic in its governing structure, nevertheless accords certain fundamental rights as non-derogable. The limitation on other fundamental rights is permitted only on specific reasons, nevertheless through due process, of national security, public health or the enjoyment of the rights of others. On paper these are largely admirable.
One may argue, based on the legal concept of sovereignty that national human rights fall within the purview of sovereignty. This is well and good. But at present, the government or some agencies are using ‘emergency powers’ without the declaration of emergency. This is a gross abuse of ‘sovereignty.’
Can there be something call ‘abuse of sovereignty’? Yes, there can be! This exactly is the case in Sri Lanka. Even the legal concept is abused. This is what we saw in Geneva in numerous statements.
The main question here is whether the UNHRC or the UN in general can ‘interfere’ in Sri Lanka’s affairs on the issues of human rights. Yes they can in theory. But that does not amount to an interference with sovereignty. It is ‘interference’ to prevent the abuse of sovereignty and to reinstate human rights. ‘Influence’ and ‘persuasion’ should come first and ‘interference’, if at all, should be the last resort.
Can there be adverse effects on Sri Lanka’s interests - political, economic or social - as a result of these influences or interferences? Yes, there can be and the UN is not sacrosanct. That is why there should be some reciprocity or concurrence and Sri Lanka should cooperate. That is the way to safeguard sovereignty diplomatically without breaching human rights or abusing sovereignty. After all, it is incumbent upon the government to safeguard the country’s sovereignty without performing ‘chandi-part’ at international fora.
Sovereignty, in its external dimension, is the ‘sphere’ or the ‘space’ permitted by the international law. There are ICJ interpretations on that. ICJ is the International Court of Justice. There are limitations on sovereignty on the issues of human rights.
The UN accepts the ‘principle of non-interference’ in paragraph 7 of Article 2 of the Charter. But, it is in affairs "essentially within the domestic jurisdiction of any State." Combating terrorism is within the domestic jurisdiction of a state. There is no other way or mechanisms so far devised. But human rights are not ‘essentially’ within the ‘domestic jurisdiction’ as they are universal rights. In addition, there are international mechanisms devised. That is the essence of the Universal Declaration of Human Rights (1948) that Sri Lanka has unequivocally accepted and incorporated.
There are domestic responsibilities on human rights and there are international responsibilities on human rights that any government should adhere to. There is no escape or short cuts. Human rights are higher laws like Dhamma Thath of yore. Human rights are no longer mere ‘internal affairs.’ Neither ‘sovereignty’ nor the ‘principle of non-interference’ constitutes a defence for human rights violations.
State ...
The Universal Declaration says that "all human beings are born free and equal without regard to race, sex, language, religion, political affiliation, or the status of the territory on which they were born." Human rights are thus beyond borders. In order to achieve that ‘equality and freedom,’ it also says that "everyone entitled to social and international order in which the rights and freedoms set forth in this Declaration can be fully realised."
Those are the principles of universal human rights that the government of Sri Lanka should abide by.
People should come first and sovereignty second. Sovereignty should be essentially the people’s sovereignty. People’s sovereignty is also implicit in the Preamble of the UN Charter as it begins by saying, "We the peoples of the United Nations." The Millennium Declaration also refers to the UN as the "indispensable common house of the entire human family."
Conclusion
There is no much point in Sri Lanka clinging on to the old concepts of absolute sovereignty. There still may be a requirement of a ‘legal theory’ both at the national and the international level but in actual life, the sovereignty of the state is subject to various limitations internally and externally. The necessary limitations from the civil society were not discussed at all in this article for reasons of brevity and space.
The Westphalia Agreement in 1648 brought the concept into being, but after three centuries, the Universal Declaration in 1948 has fundamentally changed the concept of sovereignty.
The civil society is a formidable reference point for the people in which the state should not unduly interfere. Sri Lankans undoubtedly deserve more freedom at the civil society level. As the war is over and terrorism defeated, the people naturally expect more space and freedom along with economic upliftment. The government should not demand ‘blind patriotism’ and ‘unconditional obedience.’
As perhaps a ‘vulnerable state’ in the international arena, due to both the size of the country and the level of economic development, there may be sensitivities attached to the external factors but those are not reasons for Sri Lanka to be defiant on international organisations particularly on human rights issues. Human rights are almost ‘sacred.’ The international human rights laws are higher laws. Whatever the differences of opinion on human rights due to cultural or practical considerations (i.e. double standards) should be rectified through constructive dialogue. If sovereignty cannot guarantee human rights what is the point of having sovereignty?
