| by Dr. Ruwantissa Abeyratne
( March 23, 2012, Montreal, Sri Lanka Guardian) Now that the Resolution against Sri Lanka has been adopted in Geneva with 24 for, 15 against and 8 abstentions, one might wonder, now what? Is the Resolution binding on Sri Lanka? What if Sri Lanka just ignores it?
The resolution urged Sri Lanka to investigate alleged war crimes during the last stage of its military action against the Liberation Tigers of Tamil Eelam (LTTE). The United States, the European Union and India said that an impartial investigation into alleged crimes committed by both the Sri Lankan military and the LTTE would make it clear that Colombo stood for justice and equality.
Generally under Article 38 of the statute of the International Court of Justice (ICJ), there are four sources of international law: treaties; customary international law; general principles of law accepted by civilized nations; and opinions of experts. Prima facie, a Resolution does not come within any of these categories. However, some lawyers have argued that UN Resolutions and other declarations are authoritative evidence of binding international law because they are authentic interpretations of the United Nations Charter, while others have argued that they are affirmations of customary international law. Some others have even said that Resolutions are general principles of law accepted by States. The ICJ in 1975 in its opinion on Western Sahara recognized the UN Declaration on the subject as it did earlier in 1970 on Namibia. Oscar Schachter, a leading expert on UN law has stated that negative votes by a few concerned States (as in the case of the UNHCR Resolution on Sri Lanka) can cast doubt on the authority of a Resolution as presumptive evidence of existing law.
Schachter goes on to say that an absolute rule cannot be applied in this instance, although Resolutions on such subjects as aggression, genocide, torture or systematic racial discrimination do not lose their thrust merely because of non-observance by States. Declaratory rules of a less peremptory character may lose effect if they were not generally observed by States that are affected by them. In 1988, in a work entitled United Nations Action in the Field of Human Rights, it was stated that Resolutions, however non-binding they might be, might have an impact on the creation of international law. This follows a note of the United Nations Office of Legal Affairs in 1962 which said: “in view of the solemnity and significance of a “Declaration” it may be considered to impart, on behalf of the organ adopting it, a strong expectation that members of the international community will abide by it. Consequently, insofar as the expectation is gradually justified by State practice, a Declaration may by custom become recognized as laying down rules binding upon States”.
United Nations Resolutions in the field of human rights fall into three categories. The first category is adopted by consensus and has strong support, such as the Universal Declaration of Human Rights and Declaration on the Rights of the Child. The second category of Resolution lays down non binding guidelines on specific subjects. The Resolution just adopted on Sri Lanka may fall into this category. Such Resolutions do not immediately become universally binding, particularly in view of the diverse practices that might exist in member States on the subject concerned.
However, as Malcolm Shaw states in his book International Law (fifth edition), Cambridge:2003, the role of the State in the modern world is a complex one and, although according to legal theory each State is sovereign and equal, in reality, with the phenomenal growth in communications and consciousness, and with the constant reminder of global rivalries, not even the most powerful States can be entirely sovereign. This trend is a follow up to the basic premise that the role of international law in international human conduct was perceived to be primary and above the authority of States. In its Report to the General Assembly of 1949, the International Law Commission recommended a draft provision which required: “Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law”.
This principle, which forms the cornerstone of international conduct by States, provides the basis for strengthening international comity and regulating the conduct of States both internally – within their territories – and externally, towards other States. States are effectively precluded by this principle of pursuing their own interests untrammelled and with disregard to principles established by international law.
Having said the above, the author hastens to add that States ascribe to United Nations Resolutions a force that they do not seemingly have. UNHCR is an agency of the United Nations and therefore the law applicable to the United Nations in general applies to UNHCR and to its resolutions. The record of the United Nations over its six decades of history is that member States have on occasion, but in a consistent manner, refused to automatically comply with the corporate will of the Organization. Ian Brownlie in his Principles of Public International Law (Fourth Edition, Clarendon Pres: Oxford, 1990) has expressed the view that decisions by international conferences and organizations can in principle only bind those States accepting them. Shaw, referring to the binding force of United Nations General Assembly Resolutions states: “…one must be alive to the dangers in ascribing legal value to everything that emanates from the Assembly. Resolutions are often the results of political compromises and arrangements and, comprehended in that sense, never intended to constitute binding norms. Great care must be taken in moving from a plethora of practice to the identification of legal norms”. Non binding instruments form a special category that is sometimes referred to as “soft law” which is definitely not law in the sense of enforceability.
Of course States can always take diplomatic action against a non complying State. As I stated in an earlier article in this Journal, diplomatic practice has consistently veered from the theoretical abstraction of sovereignty towards the rights of the citizen which are now considered to have global application. Through many measures, States express their displeasure and impose hurtful measures on a delinquent State when they feel that the State is being unfair to its citizens. From an extreme measure such as the adoption by the Security Council of Resolution 1973 against Libya which brought in the military might of the NATO forces, to other covert or surrogate measures such as the interruption of diplomatic and economic relations either wholly or in part, and the withholding of aid, courtesies and other amenities to verbal expressions which are calculated to cause States embarrassment, and political isolation which in turn cause shame and loss of status in the international community, diplomatic measures transcend the vexed issue of State sovereignty.