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Nihal Jayawickrama should’ve known better about sovereignty

By Rajpal Abeynayake

(April 04, Colombo, Sri Lanka Guardian) Dr. Nihal Jayawickrama’s recent Sunday newspaper article on “sovereignty’’, or the invoking of state sovereignty being outmoded with reference to international interventionism, goes on to suggest essentially that anyresistance to human rights based investigations may only indicate that “we have skeletons rattling in our cupboards.’’

He seems to think that Sri Lanka’s only option therefore is to submit to any call for war crimes investigations etc., in order to convince the world that “we have no skeletons rattling in our cupboards’’, sovereignty being an outmoded legal concept anyway.
I think we do not need Dr Jayawickrama to tell us that in today’s world there are no absolute entitlements to sovereignty.

It’s clear that if we as a country have membership in the UN — that international club of nations functioning under a regime of rules formulated by prior agreement —- we do not have an absolute entitlement to claim that our domestic laws prevail over all else, just because we are a sovereign nation.

But, has Nihal Jayawickrama forgotten that sovereignty being an entitlement still continues to be an ‘entitlement’, even though as far as entitlements go this one is set apart by the fact that it not absolute and is specifically curtailed?

I would think the best parallel would be any regime of civil law itself, where the citizenry though free by definition have their freedoms curtailed due to a need for an ordered society governed by the rule of law i.e. Your freedom ends where my nose begins. (Abe Lincoln.)

Same goes for international law. Our freedom ends where their nose begins, but it does not mean that we have entirely given up our rights to our “freedom’’, or our sovereignty, and are required to spread-eagle ourselves in the face of the suzerainty of the international community at all times.

It’s why when Jayawickrama writes his treatise he must know that even with all the Indian supreme court’s laudable efforts to evolve a jurisprudence that puts India in line with international laws, even to the extent of pronouncing domestic legal judgments based on international law where the domestic law is silent, the Indian supreme court has yet not been lax in prosecuting those who are perceived to be threats to Indian sovereignty and territorial integrity.

We need to ask a social activist such as Nanditha Hakstra about that. Hakstra has berated the Indian courts for infringing on the rights, for instance, of a Pakistani terror suspect who has been charged in the attack on the Indian parliament. In an atmosphere where the war against terror has gained primacy, human rights concerns have taken a backseat, with the Indian government promulgating “undemocratic laws,’’ she states, in a recent article in One World South Asia.

Undemocratic laws

It is true Hakstra has campaigned against such moves to enact these so called undemocratic laws - - that’s her remit as a rights activist - but the fact remains India has done what needs to be done to resist challenges to its sovereignty, without being hauled before international courts and being held to account by the international community by and large.

‘Self-defence’ therefore is seen to be the absolute prerogative of a sovereign state. Though sovereignty is not an absolute entitlement, sovereignty makes for taking certain extraordinary measures when there are threats to territorial integrity or threats to the fundamental existence of the state.

Jayawickrama lays down the gospel of the UN charter and makes several observations to the effect that if we become a member nation of the UN we have to subscribe to a certain global regime which includes respect for human rights in the country even at times of war etc., etc.,

He being a legal egghead is probably not aware that this global regime has been sabotaged and rendered rather irrelevant latterly due to unilateral actions by member nations such as the United Sates, which for example invaded Iraq —- ganging up later with a cobbled-together “coalition of the willing’’, when there was no UN sanction for such intervention whatsoever.

Having done that and invaded on the pretext of looking for WMDs which were never there, this invading force proceeded to commit many egregious human rights violations of the Iraqi people which are well documented by many writers such as Tafiq Ali, John Pilger etc.,

Before anybody goes into apoplexy and says that I’m advocating human rights violations in this country just because the US did so along with the help of some willing others, be cautioned that this is not my rationale in the least.

But it’s a fair argument I think to say as many have done before me, that when the UN charter has been traduced and therefore reduced in value so glaringly by member nations, its legitimacy and its global credibility as a pan-global legal regime is no longer tenable in the way it used to be.

Therefore, there is ample room for member states to maintain that as long as member nations are invading countries for no reason at all, we other member nations can put down terrorist insurgencies in our own countries with our own devices, because the UN has dangerously compromised its right to be a supervising authority on these matters in the first place.

At the very least, it would be perfectly legitimate for Sri Lanka to invoke sovereignty as an argument to defend herself against a terrorist onslaught, than it is for some other member UN states to claim as legitimate, walking into other countries on the pretext of looking for WMDs and creating mayhem in these for no reason whatsoever.

So Jayawickrama will no doubt realise that there is no international jurisprudence in these matters without connecting the dots and looking at concepts of sovereignty and “international law’’ in the evolving context.

International law

I am reminded of Hans Kelsen who held that international law is supremely valid and then also held the view that each national or state legal order is -- for itself, in a kind of ‘solipsism’ -- supremely valid.

Kelsen was the author of the concept of the Grundnorm - and in recent times, in the context of what was said above, its clear that the “grundnorm’’ with regard to international law has itself gone through a transformative process and substantially morphed. In this context, to argue as Jayawickrama does that we Sri Lankans are deviant in relying on the concept of sovereignty to stave off international interference in matters of safeguarding or defending the state, is meaningless.

What’s even more astounding is that Jayawickrama does not suggest any extenuating circumstances at all which would qualify a state to invoke the concept of sovereignty against international intervention based on various constructions, such as ‘rights violations’’ etc.,. Such an absolutist position is not only untenable but in the light of the foregoing, wrong in the context of the evolving law and international law per se. Imagine if somebody said a married couple had no option but to solve all domestic disputes in the glare of the public spotlight? Jayawickrama’s article, albiet with regard to international law Sri Lanka and sovereignty, is something along these lines.

(The writer is an Attorney at Law.)

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