| by Dr. Ruwantissa Abeyratne
( February 23, 2013, Montreal, Sri Lanka Guardian) I refer to my article entitled “The Resolution is adopted, Now What?” published in the Sri Lanka Guardian of March 23, 2012, wherein I addressed several issues of legal validity and enforceability of the Resolution adopted against Sri Lanka at the United Nations Human Rights Council Session in the Spring of 2012. Again, after a lapse of a year, Sri Lanka will be the subject of another similar Resolution sponsored by the United States.
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Of relevance is the tradition of Tao-te-Ching,: “a skilled attack is one against which opponents do not know how to defend; a skilled defense is one which opponents do not know how to attack. Therefore, those skilled in defense are not so because of fortress walls”
I said in my earlier article: “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”.
Resolutions are coercive tools used by the United Nations. However, their enforceability is seriously threatened by Sovereignty, which is a fundamental principle recognized by the Charter of the United Nations. For maximum effect, any resolution needs unanimity, which is usually not a practical reality, as States have their proponents as well as their detractors.
The basic underlying principle of international law is State sovereignty. Simply put, this means that the will of a State prevails over any external influence. Sovereignty has provided a certain immunity for rulers of States in exercising their authority and served them well as a mechanism for preventing foreign invasion
The Daily News of 6 February reported Minister Dinesh Gunewardena as saying that Sri Lanka will not welcome the second resolution. At the same time he said that at the session of the Council Sri Lanka will “…explain our human right standards and progress achieved in the sphere of national reconciliation in terms of the previous UN resolution."
Recently, there was an encouraging report on rehabilitation in Sri Lanka from a team of visiting Australian politicians led by the Deputy Leader of the Shadow Opposition, Julie Bishop. Their Report, released in December 2012 said inter alia: “In the aftermath of the conflict, the Government was prioritising efforts on rehabilitation, resettlement, and reconstruction. The delegation was briefed on a rehabilitation program for ex-combatants in detention, many of whom were children. The program gave ex-combatants skills to develop a successful life, and minimised the risk of re-offending. Release was determined according to categories, based on levels of risk. Around 200 ex-combatants remained under investigation, but had not been charged. The delegation also heard concerns about the legal basis for the rehabilitation program, equity of release, and missing persons.
Action had commenced with a humanitarian effort, including resettlement of Internally Displaced Persons (IDPs), demining, and infrastructure projects. As at December 2011, 11,600 IDPs had been resettled. Government representatives outlined the reconstruction efforts being undertaken, which included road, rail and irrigation. Much of this work in the North was being supported by the military”.
Following this Report, in a recent television interview given by the Deputy Shadow Opposition Leader of Australia, Ms.. Bishop unequivocally stated that, in view of the positive efforts being made by the Government of Sri Lanka towards reconstruction and rehabilitation, she would have no hesitation in recommending to the Government of Australia that Australia support and participates in the Commonwealth Heads of State Conference in Colombo and that it prevail upon other member States of the Commonwealth to attend the Conference in Colombo.
Therefore, the most practical approach that Sri Lanka can take in the face of the second resolution against it is to garner support from the international community based on such statements and convince the international community of its genuine efforts at bringing the north of Sri Lanka into a state of political stability and development. Statistics would help. Debunking unsubstantiated claims and unfounded stories would help even more. Having its position presented by skilled negotiators would serve Sri Lanka the most.
Skilled negotiators are those who approach their negotiation by demonstrating a cooperative attitude from the beginning of the negotiations. This spirit of cooperation must be demonstrated both by words and actions to bring out an initial affability of the other party. One way of ensuring this environment is to start with issues which lend themselves easier and better to problem solving. The more difficult problems should be kept for later. More importantly, it is advisable to build firmly on the foundation of common ground before moving on to address differences. Common ground is established for instance, by reminding the other party that both parties must not forget what brought them to the table in the first place.
Of relevance is the tradition of Tao-te-Ching,: “a skilled attack is one against which opponents do not know how to defend; a skilled defense is one which opponents do not know how to attack. Therefore, those skilled in defense are not so because of fortress walls”
I believe Dinesh Gunewardene spoke a lot of sense when he said Sri Lanka will : “…explain our human rights standards and progress achieved in the sphere of national reconciliation in terms of the previous UN resolution”. But for next time, it would be wise to heed the words of Sun Tzu, who in his classic The Art of War, offers one of his most compelling strategies: “appear where they cannot go, head for where they least expect you”
The element of surprise throws even the most skillful negotiator off balance and is a tried and tested strategy. The ultimate strategy is however, to win a war without actually going to battle, which, translated into civilian terms means one must avoid confrontation if at all possible.
 I refer to my article entitled “The Resolution is ...){kind=link}