i

The Involvement of the United Nations on Human

Rights in Sri Lanka

by

T.S Wickramathunga
2020/MHR/81

Master’s in Human Rights

Faculty of Graduate Studies

University of Colombo
Sri Lanka

October 2021
 ii

The Involvement of the United Nations on Human

Rights in Sri Lanka

by

T.S Wickramathunga
2020/MHR/81

A Study Submitted in partial fulfillment of the requirements for the award of the
Degree of master’s in human Rights
Faculty of Graduate Studies
University of Colombo
Sri Lanka

Date of Submission – 15-10-2021

 iii

ABSTRACT

This independent study examines Sri Lanka’s contemporary human rights infrastructure and how
United Nations’ valiant efforts have gone unanswered. Communal rift and melodramatic issues of
sovereignty exaggerated as threat to self-governance have been recognized as reasons in this
chapter. The past and present political leaders in Sri Lanka have not viewed beyond their personal
agendas to resolve the dissonance between communities, where the endeavors by the United
Nations would not have gone unanswered. Further the study analyses how these communal
conflicts have paved the way to recede the quality of human rights in Sri Lanka. This study dwells
deeper into the constitutional reforms in Sri Lanka to locate where the state started to part ways
from Human Rights and how citizens see third party interference in human rights issues as a
menace to state’s sovereignty. Study concludes that Sri Lanka should make remarkable policy and
attitude changes that welcome all the support is provided by the United Nations.
 iv

AUTHOR'S DECLARATION

I hereby certify that this Study does not incorporate without acknowledgement
any material previously submitted for a Degree or a Diploma in any
University, and to the best my knowledge and belief, it does not contain any
material previously published or written by another person except where due
reference is made in the text.

T.S Wickramathunga
15/10/2021
 v

Contents

Chapter 1. - Introduction .............................................................................................................................. vi

Background of the Study ......................................................................................................................... vi
The United Nations and Human Rights ............................................................................................... vi
United Nations Human Rights Committee (UNHRC) ......................................................................... vi
United Nations Human Rights Council .............................................................................................. vii
The UN in Sri Lanka ........................................................................................................................... vii
Research Problem .................................................................................................................................. viii
Research Objectives ............................................................................................................................... viii
Research Questions ................................................................................................................................ viii
Scope of the study .................................................................................................................................... ix
Limitations ............................................................................................................................................... ix
Chapter 2. - Literature Review...................................................................................................................... x
Chapter 3. - Theory and Methodology ........................................................................................................ xii
Chapter 4. - Discussion & Findings ........................................................................................................... xiv
The United Nations and Sri Lanka ......................................................................................................... xiv
Sri Lanka and the United Nations Human Rights Commission ............................................................. xiv
United Nations Human Rights Council .................................................................................................. xv
Sri Lanka and the United Nations Human Rights Council ..................................................................... xv
The Sri Lankan Human Rights Infrastructure and International Human Rights Engagement ............... xvi
Did the prioritization of international human rights law by the United Nations harm the furtherance of
human rights protection and promotion in the country? ......................................................................... xx
Sri Lanka’s Independence and the Introduction of Human Rights Law ................................................ xxi
The Majority / Minority Complex ........................................................................................................ xxv
The United Nations, a Trojan Horse? .................................................................................................. xxvi
Sri Lanka’s Insular Policy Toward the United Nations ...................................................................... xxvii
The Argument for an Open Constitutional Liberal Democracy......................................................... xxviii
Chapter 5. – Conclusion ........................................................................................................................... xxix
List of References .................................................................................................................................... xxxi
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Chapter 1. - Introduction

Background of the Study

The United Nations and Human Rights

With the creation of the United Nations in 1945, the prevalent Cold War narrative at the United
Nations and changes after 1966, there has been a substantial increase in the number of UN bodies
responsible for the security and promotion of human rights. (Oxford: Clarendon Press, 1995), p.
2. Since then, a significant body of jurisprudence of human rights treaty bodies and other
authoritative sources has set out the human rights obligations of Member States. Every individual
State has the primary responsibility of being the guardian of its human rights within its
jurisdiction. The State has the primary duty to protect and uphold human rights within its
jurisdiction.

United Nations Human Rights Committee (UNHRC)

The United Nations Human Rights Committee is a treaty body that oversees the implementation
of the International Covenant on Civil and Political Rights. The Human Rights Committee states
that every State Party has a legal interest in the fulfillment of its obligations by every other State
Party and the Charter of the United Nations is obliged to uphold mutual respect for and respect
for human rights and fundamental freedoms. In addition, the contractual dimension of the Treaty
means that every State Party to the Treaty is bound by any other State Party to comply with its
obligations under the Treaty. (Ramcharan, supra note 30, p. 54)

The core mandate of the United Nations Human Rights Commission was to promote universal
respect for the protection of all human rights and fundamental freedoms for all without distinction
of any sort, to resolve human rights violations, to make recommendations on initiatives and
bestpractices.

It also provided an appropriate forum for international collaboration, open dialogue, information
sharing and human rights capacity building to tackle domestic malpractice. It was the first human
rights body to be charged with the defense and promotion of human rights within the United
 vii

Nations, as its Member States have drawn up several human rights treaties, established new
structures for the protection of human rights and established special procedures. (Oxford
University Press, 2009, p.2)

United Nations Human Rights Council

Several functions of the Commission have been taken over by the United Nations Human Rights
Council, which succeeded. The goal was however, to work more closely with other components
of the international human rights framework and to develop the role of non-governmental
organizations and national human rights institutions.

The importance of UN activities in the field of human rights lies in the long-term process of
socialization, and universal recognition and implementation of international human rights
principles must be achieved by diligent advocacy and enforcement by a global authority which
is approved by the nation states that are members of that authority. Human rights principles must
be interpreted as authoritative group objectives, while the moral authority is centralized in the
United Nations, the protector of human rights. (Leiden: Brill Publishers, 2006, p.387)

The UN in Sri Lanka

The United Nations started work in Sri Lanka in 1952. Three years later, on 14 December 1955,
Sri Lanka was admitted to the United Nations as a member state. For more than 60 years the UN
is in cooperation with the Government and citizens of Sri Lanka, and it has been working to
ensure that all Sri Lankans enjoy better living conditions. The UN has built wide and broad
alliances with the Government, civil society, the wider NGO community, bilateral donors, and
international financial institutions to resolve a multitude of challenges, both in the long term and
in times of emergency.

Going forward the UN aims to assist the Government of Sri Lanka in achieving sustainable and
inclusive economic development, with equal access to high-quality social services, enhanced
human capacities and a reconciliation of long-term peace.
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Research Problem

This research will analyze how the contribution of the United Nations strengthened the domestic
human rights infrastructure, supported the process of national socialization of internationally
recognized human rights, and supported rights holders and other beneficiaries. The author will
investigate the role of the international human rights system in addressing violations that may
have created an environment of denial of human rights in Sri Lanka. It also seeks to achieve why
there has been such a limitation in the development and limited domestication of the human rights
system in Sri Lanka.

The author will aim to help the research question by considering colonial policy papers as well
as documents relating to Sri Lanka before the United Nations Human Rights System from 1946.

Research Objectives

The Objective of this research is to analyze Sri Lanka's involvement with the United Nations
Human Rights Machinery and assesses whether there has been any effect on the human rights
infrastructure and the situation in Sri Lanka as a result of this involvement.

In this research the history of colonial and post-colonial Sri Lanka will be explained. Later it
considers the development of a national human rights system in Sri Lanka, and it discusses and
analyzes the country's participation with the human rights treaty and charter bodies of the United
Nations and one of the objectives of this research is to provides some findings on the effects of
Sri Lanka's human rights engagement with the United Nations

Research Questions

This dissertation explores the effect of Sri Lanka's involvement with the United Nations Human
Rights Mechanism and attempts to address a range of main questions.

 What are the UN involvements with Sri Lanka that lead to improvements in the domestic
Human Rights system?
 ix

 Does all this intervention of the United Nations offer more benefits to people than
before?
 How did the international human rights machinery contribute to the domestication of
laws and strengthening of institutions?

Scope of the study

The study focuses on one of the principal purposes of the United Nations, as elaborated in the
charter "achieve international cooperation ... in promoting and encouraging respect for human
rights and fundamental freedoms for all without discrimination as to race, sex, language, or
religion" and United Nations efforts to assist Sri Lankan citizens. In doing so it is appropriate
that the study investigates the constitutional development in the island nation and relate it to the
modern Sri Lankan human rights mechanism. As this is a case study , the study confines itself to
Sri Lankan atmosphere of human rights.

Limitations

The researcher has identified three limitations to his research. They are constraints with regard
to time, finances and word count. Since this research will be conducting during a period of less
than a year the researcher is limited to analyze the research problem primarily through secondary
sources. Although the author will address the research problems, he will not be able to provide a
detailed analysis of them due to the limitation of the word count. Finally, the researcher is a
student of master’s in human Rights and therefore does not possess many years of experience in
conducting research of this nature.
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Chapter 2. - Literature Review

This study focuses on the development of Sri Lanka's human rights infrastructure in the light of
the country's human rights interaction with the United Nations Human Rights Machinery after
its independence in 1948. (London: Pall Mall Press, 1962, p. 128)

Civil society organizations, aware of the increasing importance of human rights to defuse
tensions in a bilingual and multi-religious country, have sought to raise awareness of international
human rights in the creation of domestic infrastructure. (Nottingham: Bertrand Russell House,
1988, p.114)

Human rights have been subject to compromise and have been steadily decreased in periods of
growing tension and dispute. Although the literature on the ongoing ethnic conflict is extensive,
not enough academic attention has been paid to the creation of the domestic system for human
rights in the light of international human rights engagement. This thesis aims to fill this void by
identifying the gains achieved by the United Nations in Sri Lanka.

Sri Lanka is a unique example of a country that has ratified almost all major human rights treaties,
engaged with almost all international human rights organizations, and yet has a domestic human
rights system that has been influenced by ethnic division, state, and non-state violence in its post-
colonial past.

The examination of human rights in Sri Lanka is academically challenging as little scholarly
attention has been given to the United Nations human rights engagement with Sri Lanka. This is a
gap in light of the country’s colonial history, its post-colonial development, economic decline,
ethnic tensions and eruption of the civil war.

The United Nations engagement enhanced the domestic human rights infrastructure, assisted a
domestic socialization process of internationally acknowledged human rights, and aided rights-
holders and other beneficiaries. It will also consider and remain mindful of any rigid determinants
in governmental behavior and the Sri Lankan zeitgeist that may have obstructed a human rights
infrastructure to penetrate beyond the Sri Lankan legal code.
 xi

While Sri Lankan politicians have accepted the theoretical legitimacy of international human rights
law, certain ideological alliances in the country seem to be hostile towards the concept of human
rights. It is perceived as a Western brainchild with globalization as the driving force for the
dissemination and infiltration of this ideology. To this end, the role of the United Nations human
rights machinery is critical, also considering the lack of a regional mechanism for the protection
and promotion of human rights, but more importantly in its role to give impetus to socialization
and legalization processes.

The UN has a mandate to create, promote and protect human rights. This multiparty mandate
exists throughout the UN, but the Organization primarily uses specialized human rights bodies
to meet its obligations. The UN Human Rights Machinery comprises government agencies,
independent experts, and the Secretariat's employees. The tasks, duties and activities of the bodies
differ, but they all share one key aspect in common: the absence of legislative powers. (Cicero
Foundation Great Debate, Paper No. 14/06, p.4.)

The United Nations intended to support and strengthens national efforts to enforce human rights
standards. (UNGA, A/RES/60/1, 2005 paras, 123-124) And States Parties to multilateral treaties
tend to have the least amount of compliance to ensure that they have the largest potential scope
for intervention and have the least exposure to mutual criticism or embarrassment. (Cambridge:
Intersentia, 2011), p. 1.

There can be no doubt that the inclusion of human rights as fundamental rights into a national
constitution is largely a product of the international commitments of countries today as members
of the United Nations. However, the implementation of fundamental rights under foreign control
cannot succeed unless adequate national mechanisms are in place. (Colombo: Centre for Policy
Alternatives, 2015, p. 344) However, such a national mechanism was possibly absent at the
beginning of Sri Lanka's journey to statehood. The lack of a thorough legislative formalization
of domestic human rights in the immediate aftermath of the country's independence did not
benefit the appropriate national process.
 xii

Chapter 3. - Theory and Methodology

This study will clarify the need for a human rights infrastructure and analyze the position of the
United Nations’ Human Rights System. The approach of this study is to examine the history of
Sri Lanka and its early impact on contemporary domestic human rights infrastructure and
governance, and to highlight the evolution of human rights institutions and the national human
rights system.

Most significantly, the study will analyze the role of the United Nations Human Rights
Mechanism and its engagement with the country in conducting a human rights dialog and
enhancing domestic human rights infrastructure, while evaluating the direct and indirect impact
of that engagement on Sri Lanka.

The study will include an account of Sri Lanka's history, starting with the arrival of the colonial
powers in Sri Lanka and the implementation of legal regimes regulating the population. Three
colonial commissions have had a profound influence on the region. The Colebrooke- Cameron,
Donoughmore and Soulbury Commissions defined the legal requirements, established the local
constitutions under which Sri Lanka would operate.

The study will explore the past of Sri Lanka in the light of this and other problems and the
growth of the human rights infrastructure in Sri Lanka and will examine institutions that have
been and are built to protect human rights.

Study will be part of the analysis of the United Nations human rights involvement, beginning
with the treaty bodies. With major international human rights treaties and treaty bodies
designated for compliance by the State Parties, how and to what degree Sri Lanka has engaged
with treaty bodies. Research will also look at selected treaty bodies to explain and examine the
effect, if any of this human rights engagement.

Study will be carried out by the Chartered Bodies, i.e., the United Nations Commission on
Human Rights and the United Nations Human Rights Council, and by Resolution
A/RES/60/25171 the United Nations Commission on Human Rights has been replaced by the
United Nations Human Rights Council, adopting new organs and processes to resolve the
shortcomings of the past.
 xiii

The study will draw conclusions on the basis of this analysis and, keeping in mind the lack of a
regional human rights system; will aim to shed light on how the United Nations human rights
machinery has progressed from standard setting to implementation of international human
rights principles in the domestic setting. The goal of this research is to enrich existing literature
by analyzing the contribution of the United Nations Human Rights Machinery to the internal
human rights infrastructure of former colonies in regions without adequate security and
promotion of human rights.
 xiv

Chapter 4. - Discussion & Findings

The United Nations and Sri Lanka

Sri Lanka joined the United Nations in 1955 and so began the long fruitful journey with the most
influential nongovernmental organization in the world. Although it took ten long years for this
island nation to became part of the UN. Behind the curtain Sri Lanka and the United Nations were
working towards becoming partners from 1952. Nevertheless, the delay in becoming a member,
Sri Lanka has been one of the forerunning signatories pertaining to human right treaties in the
region.

United Nations in working towards its ultimate goal, for more than sixty years through it’s23
specialized agencies has funded various programs, addressed divergent issues throughout the
island nation and created opportunities for the poor, the most vulnerable and the young. United
Nations in partnership with the government and people of Sri Lanka, continues to work to ensure
that all Sri Lankan people enjoy better living conditions, to achieve sustainable and inclusive
economic growth, to facilitate equitable access to quality social services, strengthen human
capabilities and reconciliation for long-lasting peace.

Furthermore, the United Nations has cultivated broad and wide-ranging partnerships with the
government, civil society, the broad NGO community, bilateral donors, and international financial
institutions to address a multitude of challenges, both in long term development, and during times
of emergency.

Sri Lanka and the United Nations Human Rights Commission

Sri Lanka suffered from a three decade of war which saw millions of its citizens perish. After a
valiant effort of its armed forces Sri Landa declared that it had decimated the L.T.T.E or Liberation
Tigers of Tamil Eelam in 2009. Unfortunately, there were many allegations of human rights
violation pertaining to Sri Lanka’s armed forces, which ironically failed to capture the thirty years
of gross human rights violations carried out by the terrorists. However, after coming to know about
these allegations, Sri Lanka signaled to the world its commitment to the international human rights
values by becoming a member to the United Nations Human Rights Commission not only in 1957,
 xv

but also on three other terms, namely 1985-1990, 1992-2000, 2003-05. Not only Sri Lanka became
a member, proactively made substantive contribution to the development of international human
rights law ("Evolution of Sri Lanka’s Engagement with the United Nations Human Rights
Commission", 2018)
.

United Nations Human Rights Council

The 2006 policy reform in the United Nation resulted in the establishment of a new human rights
body, the United Nations Human Rights Council (UNHRC). The UNHRC replaced the much-
discredited UN Commission of Human Rights (UNCHR) and “to preserve and build on its
achievements and to redress its shortcomings”.

It has been noted that the UNHRC prefers to adopt country-specific resolutions by consensus rather
than by a recorded vote. This has been regarded as major improvement as conciliatory and
consensus-based decision making over non-consensual is unrivaled ("Evolution of Sri Lanka’s
Engagement with the United Nations Human Rights Commission", 2018).

This is mainly because certain voting patterns are difficult to give enough reflection on the
differences in nations’ importance. Therefore, a more democratic way of consensus facilitates a
procedure which, once applied, assures in multilateral negotiations real geopolitical power of the
countries that are participating. After the initiation of UNHRC, between 2006 and 2015 this pattern
seems to be popular when resolutions were adopted by consensus, indicating that member states
tend to prefer less controversial resolutions. As a result of UNHRC, it is seen as a positive outcome
that member states are moving to consider more controversial cases and the overall number of
resolutions adopted by a vote has grown exponentially.

Sri Lanka and the United Nations Human Rights Council

Sri Lanka became a member to the Human Rights Council in 2008. As Sri Lanka sought election
to the Human Rights Council, the state delegation of Sri Lanka submitted a voluntary pledge.

As mentioned earlier after the civil war ended, allegations of human rights violations were thrown
by the international community. Thus, Sri Lanka opened itself to scrutiny of multiple international
 xvi

mechanisms on the belief that openness and accountability, through international means, can
strengthen national efforts at promoting and protecting all human rights. Undoubtably being a
follower and a supporter of the United Nations human rights system Sri Lanka has been active in
deliberations on human rights in international fora including the negotiations that led to the
establishment of the Human Rights Council as well as the adoption of the institution building
package of the Council ("Evolution of Sri Lanka’s Engagement with the United Nations Human
Rights Commission", 2018)
.

The Sri Lankan Human Rights Infrastructure and International Human Rights
Engagement

Human Rights law emerged because of atrocities that were carried out in the World War II. Initially
only the basic rights that were recognized by the international community. However, with the ever-
changing world human rights have evolved exponentially. Nevertheless, the reception of
international human rights law is vastly different in states. While some states are willingly
advocating for the betterment of its citizens, some states take a different perspective. Because of
Human rights laws ability to interfere with states sovereignty, states are reluctant to adhere to all
human treaties. This is mainly because the UN’s charter and treaty-based bodies’ scope. However,
it should be commended that the rapid development of international human rights law world has
witnessed was mainly due to contribution of the UN.

Sri Lanka’s political system has been shaped by its history as a British colonial possession, dating
from 1801. The British attempted to develop a representative government on the island through an
1833 constitution that created a legislative council. From the said legislative council to the
independence in 1948, Sri Lanka saw several constitutional reforms. The Soulbury Commission
was in effect from 1948 to 1972, until the first autochthonous constitution was coming into life.
The chairman of the Soulbury Commission, Lord Soulburry has indicated his dismay for not being
able to entrenchment of rights protection in the Sri Lankan Constitution.

“Nevertheless - in the light of later happenings - I now think it is a pity that the Commission did
not also recommend the entrenchment in the constitution of guarantees of fundamental rights, on
 xvii

the lines enacted in the constitutions of India, Pakistan, Malaya, Nigeria and elsewhere.”

Lord Soulbury referred to the increased ethnic tensions in 1950s, a period that witnessed inter-
ethnic riots in 1956 and 1958 as a reaction to several discriminatory laws under the administration
of S. W. R. D. Bandaranaike, later prime minister of the country ("New Constitution: Need to
Address Post-War Challenges Effectively", 2021).

Furthermore, Lord Soulbury stated that Sri Lanka lacked the presence of laws that can deliver
tangible human rights benefits. It should be noted that, contemporary human rights infrastructure
is composed of four elements: laws, institutions, policy instruments and policy strategies. To attain
the necessary goal of these elements these, have to be interacted and interlinked. Laws provide the
basis for claims, establish institutions, and set the framework for policy instruments and strategies.
Institutions, meanwhile, seek to ensure effective implementation of laws and their enforcement.
Policy instruments and strategies bring human rights objectives into new programs, laws and
allocate resources, achieving positive action.

Meanwhile all four elements are present in the modern Sri Lankan human rights infrastructure.
Initially as any states would have acted, Sri Lanka ratified UN treaty-based bodies which created
a base for human rights law in Sri Lanka. Thereafter as a dualist country in order to confirm the
accession to certain treaties and/or conventions Sri Lankan legislature passed legislative
enactments to ensure the creation and protection of human rights in International Covenant on
Civil and Political Rights Act 2007 and in the Convention against Torture Act 1994. Thereafter
the island nation went on to establish institutions including the National Human Rights
Commission and National Police Commission for monitoring the protection of human rights
(Rajapaksha, 1998).

The question is if, given all the legislation and institutions in Sri Lanka, the different elements
were interlinked. How did the international human rights machinery contribute to the
domestication of laws and strengthening of institutions, and to what extent did the United Nations
human rights machinery furnish support to the resilience of the infrastructure to the challenges
posed by ethnic-religious divisions, violence, and war?
 xviii

It is evident that Sri Lanka has taken a courageous effort to institute the National Human Rights
Commission, in order to highlight the human rights situation in the country and to contribute to
the development of a human rights infrastructure while taking in complaints by individuals whose
rights have been violated (Rajapaksha, 1998). Furthermore Sri Lanka, appointed a Special
Rapporteur on conflict-related human rights violations in 2006. The report of this Special
Rapporteur emphasized the detrimental effects of emergency regulations on the domestic human
rights infrastructure and also the unproductive human rights institutions and disapproved the
officials who were in charge to uphold and preserve good governance and human rights.

Civil society organizations in Sri Lanka also play a major role in the human rights infrastructure,
in order to defuse the tension between its citizens these organizations often raise awareness of
international human rights in the development of the domestic infrastructure and encourage
citizens to make proper use of the same. Additionally among the many human rights civil society
organizations, the Human Rights Centre of the Sri Lanka Foundation, issued a commentary on the
text of the Universal Declaration of Human Rights which claimed that the social harmony which
is fostered by human rights does not demand the suppression of differences; what it does demand
is the acceptance and observance of certain norms, so that differences do not lead to hostility and
ultimately to a social behavior which seeks to suppress differences (Satgunarajah, 2016).

All these communications and statements grew in a time when the early history of independent Sri
Lanka became intertwined with the nearly three-decade long civil war, which profoundly shaped
post-colonial Sri Lanka.

The conflict was embedded in relations between Sinhala and Tamils which were intentionally
worsened by the British as strategy to divert the focus of both sects. During the civil conflict both
the Sri Lankan government and the Liberation Tigers of Tamil Eelam recognized that international
legitimacy was rooted in the respect for human rights. Human rights discourse was the point of
referral in the parties’ own understandings of the conflict’s origins and conduct.

Mockingly, in the era where human rights could have thrived, post-independence years have been
 xix

described as years of decline and crisis in democratic values, institutions, power-sharing

mechanisms. The rift that has been created by early rulers in Sri Lanka, worsened with time and
where all diverse communities could have called this island nation home were left out and none of
them have been integrated into one single nation. Human rights, against this background, were
subject to compromises and diminished gradually in times of increasing tensions and conflict
(Chattopadhyaya, 1994).

This study attempts to fill this gap by identifying the progress made by the United Nations in Sri
Lanka. The Permanent Representative of Sri Lanka to the United Nations at an event in 2015 to
mark the 60th Anniversary of Sri Lanka’s admission to the United Nations, remarked that , with
the change of the political situation at that time , that it’s positive outlook on protecting human
rights and that the Sri Lanka should be an exemplar to other states as well ("Celebrations in New
York to mark the 60th Anniversary of Sri Lanka-UN Relations | Sri Lanka", 2015).

“We are committed to the ideal of decency and mutual respect in dealings among nations, to the
protection and promotion of human rights and preserving the dignity of all people, irrespective of
race, gender, color or creed.”

However , there is a vast difference between the aforementioned comment and the observations
and comments made in the report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment on his mission to Sri Lanka in 2016, in which Special
Rapporteur states that the current legal framework and the lack of reform within the structures of
the armed forces, the police, the Office of the Attorney-General and the judiciary continue the risk
of torture. The said Special Rapporteur instructs that unless urgent and comprehensive measures
to ensure structural reform in key institutions as aforementioned are taken, eliminating torture, and
making officials accountable if a herculean task.

The Sri Lankan case study provides the unique example of a country that ratified almost all the
main human rights treaties, engaged with almost all international human rights bodies, and yet had
a domestic human rights infrastructure that was affected by ethnic division, state, and non-state
violence in its post-colonial history (Ananthavinayagan, 2016).
 xx

Did the prioritization of international human rights law by the United Nations harm the
furtherance of human rights protection and promotion in the country?

Considering serious allegations of human rights violations which coupled with the politized Sri
Lankan government it is evident that without a thorough assessment ascertaining the degree of
human rights domestication in Sri Lanka is difficult. In doing so, it is necessary to examine the
role of the United Nations human rights machinery. The United Nations is mandated to develop,
promote, and protect human rights (Satgunarajah, 2016). That tripartite mandate exists across the
UN, but the Organization largely utilizes specialist human rights bodies to fulfil its duties. The UN
human rights machinery includes political bodies, independent experts, and staff from the
Secretariat. The roles, functions and activities of the bodies vary but they all have one crucial factor
in common – a lack of enforcement powers.

The United Nations intended to strengthen and reinforce national efforts to implement human
rights law standards. As aforementioned states sometimes reluctant to adhere to human rights
mechanism fearing that such treaties and conventions would make a dent in state’s sovereignty.
States are aware that United Nations like the League of Nations is a global nongovernmental
organization with an agenda to protect human rights. Thus, the states fear the enforcement
mechanisms carved into certain treaties and conventions would undermine the domestic laws.

To ensure the observance of the human rights mechanisms adopted by each state, human rights
bodies at the United Nations, treaty, and charter-based bodies alike, are entrusted to inspect
continuously, and in so doing, enhance domestic human rights infrastructures. It is opportune to
consider the influence of the international human rights machinery, United Nations treaty and
charter-based bodies alike on post-colonial administrations and examine further the domestication
of international human rights standards in Sri Lanka.

When perusing the historical and contemporary human rights adherence and mechanisms in Sri
Lanka there can be two extreme views. Whereas Sri Lanka has acceded to every major human
right treaty and convention on the other hand Sri Lanka maintenance a very poor record of human
 xxi

right protection (Satgunarajah, 2016). Thus, there is a significant gap between commitment and
compliance, as the country’s human rights record itself raises serious questions.

There cannot be much doubt that incorporation of human rights as fundamental rights in a national
constitution emerges primarily from international obligations of countries today as members of the
United Nations. The incorporation of fundamental rights under international influence, however,
cannot succeed unless there are commensurate national processes.

Such a national process, however, was probably missing at the beginning of Sri Lanka’s statehood
journey. The absence of comprehensive legal codification of domestic human rights in the
immediate period after the country’s independence, as indicated by Lord Soulbury, did not benefit
a commensurate national process. Moreover, considering the civil war in the country, the
examination invites the question as to whether the human rights machinery was effective at
exerting any influence on the behavior of the parties to the conflict in particular, and on the
infrastructure in general (Catling, 2012).

Sri Lanka’s Independence and the Introduction of Human Rights Law

Sri Lanka became an independent and sovereign country on the 4th of February 1948, marking the
end of colonial rule. The new concept of sovereignty served as a tool for emerging countries to
regain control over own economic and political affairs from former colonizers. Colonies, by
definition, lacked this very sovereignty (Satgunarajah, 2016).

The concept of sovereignty stipulated that all states are equal and have prerogative over the
territory they govern, emerged out of the Treaty of Westphalia of 1648. While non-European states
lacked this sovereignty, the evolution and elaboration of international law can be seen as the
penetrating force to include non-European states within this Westphalian concept of sovereignty.
The concept of sovereignty by Western states, a creation in the colonial encounter for the purpose
to reveal and remedy the past, was perceived differently between non-European states and
European states. Non-European states were not considered sovereign through the law, whereas
 xxii

European states—i.e., colonial powers—were not hindered in their legal actions that inflicted
massive harm on their respective colonies (Gunaratna, 1988).

In Sri Lanka, British rule was facilitated by the introduction of political identities, as this
construction helped to provide the basis for entitlements and rights, such as places in the
administration or representation (Fernando, 2020). The colonies, however, rebelled, and anti-
colonialism involved the quest and respect for rights. For the attainment of this goal, the realization
of human rights was seen to necessitate decolonization. Scholars debate if attaining independence
and the sovereignty attached to this status, was timely or probably too early for the island. Sri
Lankan sovereignty, however, was carefully guided: The Soulbury Constitution that was diligently
drafted with British involvement provided only sparse human rights protection and promotion,
namely in the legalized form of art. 29.2. of the Constitution, which provided a minority protection
clause. One commentator is critical of the extent of the protection provided under the Constitution,
stating that, the independence gained in 1948 was a step forward, but the Soulbury Constitution
on which it was based clearly restricted our freedom and sovereignty (Ceylon (Constitution) Order
in Council, 1947).

The two republican constitutions which followed in 1972 and 1978 provided for certain
fundamental rights, but these particular human rights were subject to limitation. Under the
international human rights covenants, states must protect, respect, and fulfil international human
rights laws by implementing them in the domestic setting. With the ratification of the human rights
treaties States Parties have also accepted their role as duty-bearer (Fernando, 2020).

Following decolonization, States Parties acted in conflict with human rights norms, while they
justified their actions on the grounds of exercising state sovereignty. Sri Lanka’s policies became
increasingly insular with a greater reliance on the shield of state sovereignty, as countries consider
human rights as affairs of the domestic sphere (Satgunarajah, 2016).

The concept of non-interference in domestic affairs underpins, for example, one of the most
important documents of the Association of Southeast Asian Nations, the Declaration on Southeast
Asia as a Zone of Peace, Freedom and Neutrality. It refers to respect for the sovereignty and
 xxiii

territorial integrity of all states, abstention from threat or use of force, peaceful settlement of
international disputes, equal rights and self-determination and non-interference in affairs of States.
A national human rights infrastructure should be rooted in international human rights law, while
the national protection system should be consistent with and reflect international human rights
standards (Fernando, 2020).

To this end, attention will be devoted to the United Nations human rights agenda, and how this
accompanied the national process of the inclusion of human rights.

The discontents regarding the protection of human rights have become of cardinal analytical
concern in critical international law scholarship, especially in the light of the rise of human rights
violations in the global. Human rights development in Sri Lanka is at a critical juncture, even a
decade since the end in 2009 of the civil war. The political apathy and the majoritarian chauvinism
of the society have undermined the reconciliation process in post-war Sri Lanka.

The human rights infrastructure following Sri Lanka’s accession to independence from Great
Britain in 1948 as a Dominion state. provides an insightful account of Sri Lanka’s ambiguous
constitutional setting in 1947. Lacking tangible domestic human rights mechanisms, it paved the
way for many discriminatory legislative acts under majoritarian governments in the post-colonial
context (Fernando, 2020).

However, any academic discussion of UN engagement with the country’s human rights mechanism
often receives a hostile reaction in Sri Lanka because such engagement is perceived as a western
concept intended to violate the state’s integrity. This paranoia with UN engagement has been
buttressed by the nationalist ideology that dominates Sri Lankan society. In discussing the human
rights infrastructure and the anomalies around it, Sri Lanka’s history, which is crucially important
for understanding the seeds of ethnic strife and human rights failures in the country.

Colonialism, Independence and Conflict’, is informative for readers who are not well aware of Sri
Lankan history beyond the orthodox historiography that perpetuates the majoritarian narratives.
The chapter offers new insights from alternative historical viewpoints, which shed light on the
 xxiv

human rights failures in post-independent Sri Lanka (Satgunarajah, 2016).

The human rights infrastructure in post-independent Sri Lanka seems to be a critical one, as he
offers a broad analysis of the drawbacks of the human rights protection mechanisms adopted by
the autochthonous constitutional building process.

The first homegrown Constitution of Sri Lanka in 1972, known as the ‘First Republican
Constitution’, is regarded largely as a reaction that arose against the 1947 Constitution, which was
imposed on Sri Lanka by the British colonial administration. Contrary to this general describes the
1972 Constitution as a product of pervasive Sinhalese nationalism, ‘reflected in the political
rhetoric, which heralded the era of new home-grown and indigenous constitutions. The parochial
nature of fundamental rights interpretation in the Republican Constitution as nothing more than a
debilitated tool functioned under the authority of the legislature, the National State Assembly. The
fundamental rights guaranteed under Article 18(1) of the First Republican Constitution were
subject to certain restrictions prescribed by the law in the interests of national unity, national
security, and the national economy (Satgunarajah, 2016).

Thus, the fundamental rights provided by the First Republican Constitution could not fulfil the
aspirations of all citizens of Sri Lanka. The architects of the 1972 First Republican Constitution
made a further blunder by abolishing section 29(2) of the 1947 Constitution, which stood as the
last resort for minority rights in Sri Lanka. Section 29(2) affirmed a sense of constitutional
protection for the minorities in Sri Lanka as it prevented the legislature from enacting laws that
would restrict the free exercise of any religion or any community. Abolishing that provision from
the Constitution clearly indicated Sinhalese reluctance to admit multi-ethnic, multi-linguistic
concerns under the new Constitution of 1972 (Gunaratna, 1988).

The Second Republican Constitution of 1978, still in force today, is more optimistic as it elucidates
the more formidable human rights codification enshrined in the Constitution.

As previously stated in several paragraphs in this study, Sri Lanka is recognized between two
extremes in the arena of Human Rights. In one end Sri Lankan signatures on most of the major
 xxv

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. It should be also noted that Sri Lanka has a rather complicated engagement
with one of the UN’s bodies, the Human Rights Council. Its often seen as the relationship between
the Human Rights council and the state 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?

The Majority / Minority Complex

As mentioned previously, since independence in 1948, ethnic tensions have undermined the
peaceful, multi religious, multiethnic community in Sri Lanka. Sadly, the politics in Sri Lanka has
contributed to this issue rather than looking for answers. After the independence all most all
politicians utilized the rift that they created between these communities to capitalize on their voting
base and eventually coming to power (Kersten, 2021). All politicians failed to come up with an
agenda to make this island nation whole again, without exploiting this communal rift. 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. (DeVotta, 2007)

Failure of the Sri Lankan leaders in addressing these rifts and exclusion of minor ethnicities and
religions formed into collective grievance and then into frustration, anger, and ultimately, mass
violence (Chattopadhyaya, 1994).

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.”

As ascertained by K.M. de Silva.

 xxvi

“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.”

The view among Buddhists in Sri Lanka is that Lord 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 (Ananthavinayagan, 2016).

The United Nations, a Trojan Horse?

Given the emphasis on an overwhelmed 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 (Catling, 2012). 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 (Ananthavinayagan,
2016).

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,
 xxvii

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 (Catling, 2012). 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 Lanka’s Insular Policy Toward the United Nations

In any instance where united Nations steps into assist citizens in Sri Lanka, state leaders often
utilize such an opportunity to exaggerate such actions as interference to state sovereignty. Thus,
Sri Lanka’s official policies became increasingly insular by using the shield of national sovereignty
to impede any UN involvement in domestic matters. Even though Sri Lanka has ratified most of
the major human rights treaties at the same time this island nation has fostered and maintained a
hostile climate towards the United Nations and Human Rights mechanisms. 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 (Ananthavinayagan, 2016).

As an 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 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 report
of such investigation was presented in 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.” (Ananthavinayagan, 2016)
 xxviii

The Argument for an Open Constitutional Liberal Democracy

It is evident that there are major weaknesses in the national human rights infrastructure, in Sri
Lanka. In order overcome these downfalls, it is necessary to adhere to an international human
rights framework which ensures the protection of every citizen equally. However, these
internationally recognized human rights have to be incorporated into the domestic legislature.

The international human rights infrastructure has been demonized by Sri Lankan leaders as an
imperial tool to threaten the state sovereignty. As stated in the preamble and in the substantive
provisions of the Sri Lankan constitution, sovereignty is the sovereignty of the people. However,
just as the current constitution stipulates, it is the existence and exercise of human rights that
effectuates state sovereignty.

Although nongovernmental organizations have a vital role to lay in human rights sphere. All
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 are 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.
 xxix

Chapter 5. – Conclusion

As mentioned, Sri Lanka is at a crucial juncture, where there are speculations of new constitution
being drafted Thus now it’s the time to consider and reflect upon the international human rights
engagement that could be incorporated in the new constitution. Nonetheless, Sri Lanka in terms of
accountability and not lifting the cloak of impunity is going backwards. Even though the United
Nations, has changed its procedures and policies to adjust with the country, those changes have
not helped to rectify the ills of colonialism and the violent post-colonial transgressions of its
leaders.

Although the UN has failed in numerus instances to rise up to its objectives, there is no argument
that it’s the prime human rights institution in the world. One of its institutions, the Human Rights
Council, would change, foster, and achieve accountability for the human rights violations but so
far this is not going to happen.

This will be eventually the rallying point for the stakeholders , decades of extrajudicial killings,
enforced disappearances, recruitment of child soldiers and much more was committed to the
conflict and left scars on all communities. Sinhala, Tamils, and Muslims have been targeted and
suffered the consequences of the conflict and still do. The uprising against an elitist regime which
has manipulated differences based upon identity to sustain and expand their privileges and wealth
must end: the unity in shared suffering is the rallying point for justice. The citizens need to build
a cross-communal front, push for a regional accountability mechanism that is the eventual
outcome for an accountability mechanism, taking into account the dynamics and narratives in the
Asian region. The time is ripe for cross-communal solidarity in the pursuit for accountability.
Shared suffering is the currency that needs to translate into communal action.

Sri Lanka’s community of activists, remain heavily invested in the human rights discourse and
international human rights instruments, and are committed to international processes that are
designed to hold governments accountable to their UN treaty commitments. It’s clear that UN has
been victorious in certain short-term goals. This was evident when the international community
put pressure then government, the Rajapaksa regime in the aftermath of the anti-Muslim violence
 xxx

in the town of Aluthgama. The international condemnation of that event resulted in a statement by
the then UN High Commissioner for Human Rights, Navaneetham Pillai. This resulted in the
unprecedented move by the regime of reconstructing the damaged and destroyed buildings via
labour from the armed forces and a promise of further compensation for the victims.

Regardless of these successes, however, it is also worth asking if there is too much activist energy
being expended on these processes, to the detriment of other possible strategies. On 1st October
2015, during the 40th session of the UN Human Rights Council (UNHRC), the UNHRC adopted
its Resolution 30(1),which was co-sponsored by the Governments of the United States and Sri
Lanka. In that Resolution, the Government of Sri Lanka committed to establishing four
reconciliation mechanisms. These mechanisms include “a commission for truth, justice,
reconciliation and non-recurrence, an office of missing persons and an office for reparations,” and
“a judicial mechanism with a special counsel to investigate allegations of violations and abuses of
human rights and violations of international humanitarian law.” (General Assembly resolution
30/1)

The state’s attempt to consult the public, in both the UNHRC-mediated transitional justice process
and the constitutional reform processes, have been acknowledged as steps in the right direction of
greater democracy, which was what the government promised. These consultation processes were
part of what was agreed in Resolution 30/1. Both processes were meticulously conducted by civil
society advocates recruited for the purpose. At the grassroots level, the participating public
recognized and appreciated the government’s unprecedented engagement in a consultation process
(Haniffa, 2018).

Thus, it’s clear that UN constantly attempts to safeguard human rights of its subjects. In this
research Sri Lanka was considered as a case study. Although United Nations involvement in Sri
Lanka has made some positive outcomes, there is a long way to go for both the island state and
UN. The Sri Lankan political leaders must not cringe when international community step up to
assist and provide guidance in protecting and establishing human rights mechanisms. Although it
may seem like a menace to state’s sovereignty, the sovereignty is on the people and ultimately own
citizens will be aided (Haniffa, 2018).
 xxxi

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