| by Dr. Ruwantissa Abeyratne
( February 5, 2013, Montreal, Sri Lanka Guardian) The Daily News of 5 February 2013 recounts the Independence Day Celebrations of Sri Lanka by quoting the speech of the President: “President Mahinda Rajapaksa reminded the world of the provisions in the United Nations Charter of calling on all nations to refrain from the threat or use of force against the territorial integrity or political independence of any state in their international relations. He said that nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter”.
The President is also reported to have quoted Article 2 of the Charter which says inter alia that the UN is based on the principle of the sovereign equality of all its Members and that all Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
The President also quoted the Article on the subject of the obligations arising from the Charter - that all Members are required to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.
The President’s comments, based on fact and an accurate citation of the UN Charter, are seemingly a clear admonition to the member States as well as the UN not to interfere in the internal affairs of Sri Lanka.
However, there is Article 99 of the Charter which states: “The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”. One of the ways in which a domestic crisis could lead to a breach of international peace is when such a crisis would result in refugees fleeing borders, threatening the peace of neighbouring nations. Yet another would be if any of the parties involved in a domestic conflict were to spread its tentacles to other parts of the globe, thus threatening domestic or international peace in areas other than the one in which the crisis is taking place.
Could one argue on the basis of this provision that the Secretary General, in preparation of his duty under Article 99, could validly request a member State to cooperate with a committee or commission appointed by him? Could a member State blankly refuse such a request on the ground that the United Nations is interfering in the domestic affairs of a State? To counter this argument, could the Secretary General not invoke Article 5 which provides inter alia that all Members are required to give the United Nations every assistance in any action it takes in accordance with the Charter? And in this case couldn’t one argue that Article 2 is subservient to the provisions of Chapter Vll (which Article 2 itself explicitly recognizes)? Article 39 (in Chapter VII) provides that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken to maintain or restore international peace and security . Article 40 provides that in order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
One could argue that Article 39, which does not speak of international peace could therefore give the Security Council a mandate to delve into the internal situation of a country with a view to ensuring internal peace? Could that same person invoke a portion of the Preamble to the Charter - which says that the people of the world are determined to save succeeding generations from the scourge of war, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small- which is once again a statement that does not restrict itself to international peace?
There have been many instances where UN help has been sought in the area of peacekeeping as well as other forms of intervention calculated to rectify serious breaches of peace. The glaring example of Darfur was one of the most significant, where in the Darfur region of Western Sudan, a killing spree went on mainly between the Janjaweed, a militia group recruited from local Arab tribes, and the non-Arab peoples of the region. The UN estimated at that time that 180,000 had died within eighteen months of the conflict. More than 1.8 million people were displaced from their homes. Two hundred thousand fled to neighboring Chad. Although the leaders of African countries showed strong resistance to non-African forces intervening in the crisis in Darfur, a Globe Scan poll revealed that in eight African countries surveyed, a majority (7 countries) or a plurality (1 country) believed the UN should have the right to intervene to stop human rights abuses such as genocide, and that the UN is the most popular force to intervene in situations like Darfur.
Another instance pertains to Libya, where UN Security Council Resolution 1973 authorized States in March 2011 to inter alia “…take all necessary measures…to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya, including Benghazi…” The most recent is in Syria, where the United Nations Special Representative Lakhdar Brahimi has said that if the United Nations does not intervene one way or another, there would be absolute ruination and chaos in the country.
It is widely believed that there should be UN intervention only if there were grave human rights violations and that matters not concerned with human rights but are concerned with the internal politics of a nation, particularly involving its sovereignty, would be best left to the country concerned to address. Former Foreign Minister Lakshman Kadirgamar, addressing the United Nations stated : " The human rights situation is dramatically so different where an intervention is required. But there are so many other problems which are of a political nature, which have no human rights dimensions at all or very minimal, where intervention by the UN will be catastrophic from many points of view. Because firstly, sovereignty is a precious entitlement to all countries big or small. And I do not see the sovereign state disappearing overnight. I do not see it disappearing in a century. It will need a totally new world order to visualise a state of affairs where there will be no sovereign states".
One interesting feature of the provisions of the Charter is that nowhere is it stated that United Nations intervention would be directed only at a member State or group of States as aggressor. By this, Member States of the United Nations have given themselves, through the Security Council, wide powers to intervene in a domestic situation that they believe or have reason to believe, might threaten or adversely affect international peace and security, irrespective of the parties involved. Article 40 of the Charter mentions that prior to measures of intervention, the United Nations Security Council may call upon the “parties concerned” to comply with any provisional measures that might have been adopted. These provisions do not affect the validity of Article 2.7 of the Charter which provides that nothing contained in the Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require members to submit such matters to settlement under the Charter. However, this rule is subject to enforcement measures which admit of self-defence.
The questions pertaining to Sri Lanka currently are: is there a threat to life limb of people or to internal peace that requires UN intervention? would the provisions of the UN Charter on intervention apply on an ex post facto basis?
Irrespective of what the community of nations could do to settle a domestic dispute in a State, there is one measure that any State concerned could take as a long term measure and that is to educate generations of its citizens on the ideals of the United Nations and the need to eschew all forms of hatred. The educational curricula in the school system should pay particular attention to the scourge of war referred to in the UN Charter and educate the youth of the principles of the Universal Declaration of Human Rights. It is real, in depth education and sensitizing that is needed and not just lip service to a passing concept.
On this basis, whatever be the arguments for or against UN intervention in a member State, President Rajapaksa may have got it right when he said in his address: “Today in Colombo and the South the Sinhalese, Tamils and Muslim people live together. In the East the Sinhalese, Tamil and Muslim people live together. The best example of this is Trincomalee…When the people live together in unity there are no racial or religious differences…. The solution is to live together in this country with equal rights for all communities….We are a nation that has suffered immensely for freedom. All political parties in this country should understand this. It is not only the Government, but the Opposition too has the responsibility to safeguard this freedom we have won. Protecting the country and building reconciliation is not support extended to the Government or the Opposition. It is support given to the country.”
The trick is for legislators to ensure an environment that perpetuates this theory.
 The Daily News of 5 February 2013 recounts the Inde...){kind=link}