Sri Lanka, an island nation situated in the Indian Ocean, is unfortunately not solely known for its beautiful landscapes, beaches, and the hospitality of its people. The country is sadly more known for the vicious civil war that cost more than 150,000 lives; less is known to the wider public of the violent clampdown of two inter-ethnic riots, two brutal abatements of Marxist uprisings, ethnically motivated pogroms, countless incidents of torture, extra-judicial killings, and enforced disappearances — Sri Lanka has the second highest number of disappearances in the world, after Iraq.
This questionable human rights record comes along with certain paradoxes, namely the Sri Lankan signatures on most of the major international human rights treaties and engagement with charter and treaty-bodies of the United Nations (UN) alike. And yet, the Sri Lankan human rights application seems to be more than sparse, if not expedient. Also, Sri Lanka’s present and visible engagement with one of the UN’s bodies, the Human Rights Council, is overshadowed by mutual distrust and vicious hostility. So why is it that Sri Lanka’s engagement with the United Nations is so unfruitful and, allegedly, makes no significant progress on the ground?
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Since independence in 1948, ethnic tensions have undermined the peaceful, multireligious, multiethnic picture that most Sri Lankans aspire to be part of. Sri Lanka’s post-colonial leaders at all levels have exploited the Sinhala voter base on coming to power. No Sri Lankan leader propounded an agenda for a truly united Sri Lanka; instead, the rhetoric in the public space was shaped by the Sinhala-Buddhist narrative, the narrative of the majority. The domination by one single ethnic group in government paved the way for separation and division that found expression in the legislation of the country, from the first postcolonial constitution, the Soulbury Constitution, over to the first republican constitution to, finally, the second republican constitution.
Sri Lanka’s post-colonial history never addressed the byproducts of political alienation and discrimination that metamorphosed from a general sense of collective grievance into frustration, anger, and ultimately, mass violence. For Sri Lankans, the effects of this sense of collective grievance and alienation are particularly significant. The ingrained sense of discrimination that persists among various communities directly affects their sense of identity, colors their perceptions of their place in the nation’s social structure, and weakens their faith in the possibility of long-term reconciliation and peaceful coexistence after two decades of civil war.
Eminent Sri Lankan historian K.M. de Silva once pointed out that the Sinhala Buddhists had no time for such norms such as multiculturalism or multiethnicity. He stated: “In the Sinhala language, the words for nation, race, and people are practically synonymous, and a multiethnic or multicommunal nation or state is incomprehensible to the popular mind. The emphasis on Sri Lanka as the land of the Sinhala Buddhists carried an emotional popular appeal, compared with which the concept of a multi-ethnic polity was a meaningless abstraction.”
Professor Nira Wickramasinghe of Leiden University has argued that “the three constitutions of post-independence Sri Lanka helped demarcate and define a majority from within the citizens, pitting them against non-Buddhists and non-Sinhala speaking minority communities.” The Sinhala community, eventually, became a “majority with a minority complex,” encircled and threatened by Dravidians and in particular Tamils around them, as Sinhala Theravada-Buddhism was their only reference point for identity in the country and region.
K.M. de Silva correctly ascertains that “an intimate connection between land, race, and (Buddhist) faith foreshadowed the intermingling of religion and national identity, which has always had the most profound influence on the Sinhalese.” According to one view, Buddha has foreseen the island’s destiny to the Sinhalese people, bestowing upon them the role as guardians of his teaching. Given this historical background, Sinhala argue that the practices of all Sri Lankans come from Buddhist and Sinhala traditions; they further their arguments by demanding an institutionalization of those practices in the current political system.
The United Nations, a Trojan Horse?
Given the emphasis on a besieged majority, united by ethnicity, nationality, and religion, it’s easy to see what the efforts of the UN in Sri Lanka are not appreciated. To fully understand the backlash, however, requires a basic knowledge of the theoretical critiques as well, criticisms from scholars like James Thuo Gathii, who argues that “imperialism is in ingrained in international law as we know today.”
Another vocal scholar, Professor Anthony Anghie, holds that the distinction between the civilized and the uncivilized is a common feature of imperialism, crucial to the formation of sovereignty doctrine. Colonialism is central to the formation of the idea of state sovereignty and it is only due to colonialism that international law became universal; Anghie argues that the dynamic of difference, the civilizing mission, that produced this result continues into the present. Anghie’s argument is that colonialism not only shaped the outlines of international law, but was explicitly devised for the very purpose of suppressing the Third World — and thus very precisely corrupted and distorted the originally neutral doctrine of sovereignty. Colonialism ended in name only, he argues; in practice, it was replaced by neocolonialism, characterized by the ongoing systematic subordination between powerful and powerless, rich and poor.
Anghie elaborates further that after obtaining sovereignty, Third World states faced backlashes: many of the leaders of these postcolonial states were elites themselves with close ties with the West. The postcolonial state, then, engaged in its own brutalities: women, minorities, peasants, indigenous peoples, and the poorest were the victims. Anghie underscores that the international human rights law, the revolutionary centerpiece of the United Nations period, offered a mechanism of correction and remedy. However, human rights law was controversial as it allowed the intrusion of international law in the internal affairs of a state and provided the basis for justifying Western intervention in the Third World.
Sri Lanak’s Insular Policy Toward the United Nations
In Sri Lanka, politicians often experienced UN action as postcolonial interference in their own matters, especially when such actions came on behalf of the country’s minorities. Sri Lanka’s official policies became increasingly insular by using the shield of national sovereignty to impede any UN involvement in domestic matters. The majoritarian postcolonial narrative closed down on any foreign or international intervention to further human rights issues in the country. Hence, Sri Lanka — even while signing and ratifying most of the major human rights treaties — fostered and maintained a hostile climate towards the United Nations. Any interference, especially toward the end of the vicious civil war in 2009, was rebuked and met with hostility at best or with a stratagem of intimidation at its worst, as an internal review report of the United Nations revealed.
In the latest international attempt to provide the ground for accountability for the alleged crimes in Sri Lanka toward the end of the civil war in 2009, the United Nations Human Rights Council adopted a resolution, A/HRC/25/1, in March 2014 on “Promoting reconciliation, accountability and human rights in Sri Lanka,” requesting the United Nations High Commissioner for Human Rights to conduct a human rights investigation. The OSIL, the OHCHR Investigation on Sri Lanka, presented its report in September 2015. Its introduction made clear how unwelcome its efforts were in Sri Lanka: “The Government of Sri Lanka rejected the investigation, and accused the Office of being unprofessional and biased. At the same time, the Government mounted a campaign of intimidation, harassment, surveillance, detention and other violations against human rights defenders and others, which was clearly intended — directly or indirectly — at deterring engagement with OISL.””
The Argument for an Open Constitutional Liberal Democracy
It is evident that there are major weaknesses in the national human rights infrastructure, which — in the case of Sri Lanka — was shaped by a postcolonial, majoritarian narrative that excluded minorities from their fair share in nation-building. To right these wrongs, compliance with a broader normative human rights framework at the supranational level becomes necessary, as the global human rights regime indeed relies on national implementation of internationally recognized human rights. Norm creation needs to be internationalized, and past flaws corrected. Today, the enforcement of authoritative international human rights norms is left almost entirely to sovereign states. German scholar Stephan Hobe writes that the development of international human rights protection is the ongoing emancipation of the individual, moving from domestic to international protection.
The international human rights infrastructure has been demonized by Sri Lankan policymakers as an imperial tool to circumvent sovereignty. However, just as the current constitution stipulates, it is the existence and exercise of human rights that effectuates state sovereignty. Sovereignty is the sovereignty of the people, as reflected in the Preamble and in the substantive provisions of the Sri Lankan constitution.
International non-governmental organizations and international organizations, such as the UN, will have to play a direct role in supporting international norms – but this role depends on the perspectives of the participants. International human rights law must translate to the ground and domestic political actors and civil society must play their part.
As Sri Lanka is in the process of writing its third republican constitution, it is a pivotal moment to consider and reflect upon the international human rights engagement undertaken so far. Promoting and protecting human rights transcends time and is “older than the United Nations.” The struggle for human right is not purely domestic, but the realization of human rights is tied to wider global forces. Human rights awareness and mobilization based on the tension between knowledge of one’s rights and their oppression is the starting point in the Asian context, as the traditional Western approach through legalistic and court-centered means is yet too difficult to come by. Only an open constitutional liberal democracy is conducive to the proliferation of human rights, while the international human rights bodies under the UN aegis can support and assist in the elaboration of a human rights infrastructure.
This is a necessary assertion when international human rights bodies become an element in a weak state structure. Supranational bodies shall have the authority to take decisive action on matters of human rights if a state party is either unable or unwilling to promote, protect, incorporate, and disseminate international human rights principles. The current framework in Sri Lanka is sclerotic – only a vivid engagement with the UN will usher in the era of human rights dominance in Sri Lanka.
Thamil Venthan Ananthavinayagan studied law in Germany (University of Bonn and Marburg) and in The Netherlands (University of Maastricht). He holds a LL.M. in Human Rights and is currently a Ph.D. researcher and Fellow at the Irish Center for Human Rights, Galway, Ireland.