Sri Lanka can seek advisory opinion from International Court of Justice about legality of UN panel
by Dr. Lakshman Marasinghe
I have been back at home to witness and read the media coverage regarding the appointment of an International panel by the Secretary General of the UN to advise himself on matters pertaining to the ending of a 30 year internecine armed conflict in a member State- Sri Lanka. These are some random thoughts that I do wish to express through your columns
At the very outset I am reminded of the fact that the panel appointed was not an internal panel drawn from within the Secretariat but is a panel where its members so appointed were drawn from outside it. Therefore this is not a part of any internal enquiry but an international enquiry which the Secretary – General had himself launched without any reference to the Security Council. In my understanding of the Charter Chapter VI and in particular Articles 33, 34 and other relevant Articles of that chapter require the authorization of the Security Council for the Secretary-General to cause an investigation into the internal affairs of a member State.
However, The Secretary-General states that the charter does not apply to the empanelling of a panel merely to advise him. That is quite obviously a matter that could be disputed as the panel was not appointed to advise on something outside the concerns mentioned in Articles 33 and 34 of the Charter, such as the prevailing weather patterns over Sri Lanka.
However, as the mandate of the panel so appointed was to render advice of a particular fact which is a concern of Article VI of the Charter, it somehow befuddles my own mind when I begin to imagine this International Panel rendering its advise without making any kind of investigation into internal affairs of a member state.
This is not to say, that His Excellency has no such power to have an international panel to make an investigative determination of affairs of a member State. But such power under the Charter, in both Chapters VI and VII, have been given to the holder of that high diplomatic office to exercise subject to obtaining prior authorization , by resolution, adopted by the Security Council.
This has indeed been the custom and tradition that the Secretaries- General have in the past followed. Professor Rosalyn Higgins who holds the chair in International Law at the University of London and a judge of the World Court with reference to international bodies remarked that “- - - to remain ‘Legal’ is not to ignore everything that are not ‘Rules’. .. I am not for one moment suggesting that His Excellency was unaware of these facts.
There has been a tradition built around the Secretaries –General that when there is a need to interfere with the internal affairs of a member State he would first seek the assent of the Security Council. As I do not wish to cause a metamorphosis of this writing into an Article for a Law school Review, I shall only refer to some of the very learned writings by such eminent jurists in this area as Eli. Lauterpacht , R.Y. Jennings and Roslyn Higgins for reference.
To support my point that the Secretaries – General have no power to investigate into the internal affairs of a member State without first obtaining the authorization of the Security Council, those authorities would perhaps suffice. In any event it seems to me to be far too basic and do not require further citations.
At this point in this writing all I intend to establish was that if the panel must necessarily engage in investigating into the internal affairs of a member State so as to formulate their Advise, then there must be a prior authorization obtained from the Security Council prior to mandating it. The issue is of course a matter of mixed law and fact which is suitable for a judicial determination.
At the same time, I have a difficulty in conceiving, that, according to the nature of the mandate given to the International Panel, how it could fulfill its task, without investigating into the internal affairs of a member State. Anything short of that step in my view might produce an advise based on very thin ice which I am almost certain that His Excellency might not wish to receive. That raises a conundrum calling for an answer.
This therefore leads to the solution that might properly be sought. In my view there is an urgent need to obtain an Advisory opinion from the International Court of Justice ( ICJ ) , seeking a determination as to whether it was within the power of the Secretary-General to appoint an advisory panel mandated as he has when appointing it.
There are a number of authorities that permit a member State to seek an Advisory opinion from the ICJ where matters arising out of the Charter are in question. The Secretary-General in law, is the Alter Ego of the United Nations. His Executive acts are the acts which are imputable to the United Nations considered as a Body corporate with a distinct legal personality under International Law.
However, there are a number of authorities that support the right of a member State to seek an advisory opinion from the I.C.J regarding the exercise of powers that arise out of the Charter. Those decisions of the I.C.J . primarily deals with establishing the aforementioned legal personality of the U.N.
The three landmark decisions of the ICJ are: (1) Obtaining of an Advisory opinion on the Convention on the Privileges and immunities of the U.N in 1946; (2) Obtaining an Advisory opinion On Reparation for Injuries suffered in the service of the United Nations, [1949 I.C.J.Rep. at page 185]. and (3) the United Nations Head Quarters Agreement Case [ 1988 I.C.J. Rep. 3 ] are some of the landmark decisions that support my aforementioned view that member States in matters such as the ones mentioned here have a right to seek an Advisory opinion from the I.C. J. These decisions have received copious comments in the books on International Law.
It might therefore be suggested that an Advisory Opinion be sought from the ICJ seeking a ruling as to whether His Excellency, the Secretary –General was acting within his powers when he appointed, without prior authorization from the Security Council, an International panel to advise him on matters which may impinge upon the internal affairs of a member State.
Additionally, may I also add that upon making such an application to the I.C.J. seeking an advisory opinion the ICJ may be moved to order a halt to the work of the international panel in question, pending the opinion of that court. That may be a most effective way for determining the legality of the appointment of the panel in question.
May I add that these are my random thoughts. I do know that there are wiser counsel who may or may not support my approach to seeking a purely legal solution. I am unable to suggest a political solution to what I conceive as a matter raising an interesting point of International Law.
(Dr.Marasinghe is Emeritus Professor of Law, University of Windsor, Ontario, Canada)
13 Comments
With all due respects to the Professor of Law, it has to be pointed out that the first port of reference on the matter should be the UN Council itself where the UN Members must deliberate on the matter. The jurisdiction on whether the Secretary General has superceded the decision of the UN members on the subject of Sri Lanka and its alleged violations of Human Rights and alleged war crimes, must be through internal inquiry prior to reference to the ICJ.
The problem of being Sri Lankan whether you are a minor employee or a senior academic of Law is that they all want to appeal for jurisdiction for any matters straight to the highest court in the land thereby ignoring the many lower sources of jurisdiction and relief. Hence the joke about Sri Lanka and its disproportionate FR and HR petitions to the Supreme Courts!
The UN SG will argue that his panel is not an intrusion into the affairs of a member state, but that it is to assist and advise on the way forward, as he has very clearly stated that the panel appointed by him is not investigating war crimes and that the SL could call on the experts to assist its own inquiry.
Dr Lakshman Marasinghe has not explained the predicament of the SL state if such a referral as advocated by him to the ICJ backfires and the court holds in favour of the SG. It will be an own goal, especially if as a part of such a case the SG places before court evidence of war crimes committed in SL.
Is Dr Marasinghe not providing the SG with a legal opening which may lead to more complications?
A good peice of interlectual work, I agree 100& and I cant undestand why this decicion was taken by SG.
Would it not mater the point that Secretary General had discussions with the head of a country and agreed upon having a panel?
"Look before you leap".
If possible let the Sri Lankan government to go to ICJ.
Have you read the UN charter carefully.
Good idea / good luck
Dear Dr you have been out of the country while it was burning now your are back to exploit what ever you can in a country it is trying to overcome The tamils and trying to establish our rule over them. What are you going to contribute before we alowe you to be in?
The Professor has given very good advice. But it is up to the UNGS to check with the ICC to ensure that his panel comply with the rules of his jurisdiction.
Srilanka to take the UNSG to the ICC is not only a expensive excercise but also an unnecessary involvement of the ICC in internal affairs of the country.
If the UNSG is stupid enough to continue an investigation by a panel which not legal then it his problem.
Let the Security Council check with the UNSG whether he has done the right thing.
Perhaps Prof Boyle might want to reply to Dr M
Why so much hullaballoo about the UN investigation and that for that matter mostly by the Sinhala "Sri Lankans". Does this not prove to us that we have a country becoming almost Fascistic--with the war victory fanning the flames of fascism.
Now I am no Tiger supporter! But the sad fact is the majority of the Sinhalese thanks to their elites and monks who look just like the Tamils for the most part think they own the country and that that they are superior to the minorities especially the Tamils. I am sure the fact that they are just as dark as the Tamils seems to give even greater momentum to this attempt to distance themselves from the "lowly" Tamils and claim superior status.
I am sure a Psychoanalyst would have a field day with this kind of Pathological racism.
Rajapakse who should have got the part in the film "Ravana" does not seem to see how he is enacting this fiasco in the name of the nation which only a fool would think includes the so called minorities. Tamils can never be seen as a "minority in Sri Lanka given their long history and claim to indigenous status in Sri Lanka. Now they are being treated almost as guests who appear to have overstayed. The case of registration in Wellawatha is the latest example.
So this hullaboloo by so called law professor is the latest to try and cover up all in the name of law.
Yours sincerely
If the UNSG was going to refer each and every issue to the Security Council he will be thrown out with the comment "don't expect us to do your work" As SG he certainly is vested with a series of wide powers such as appointing experts to advise him if there is cause for action. Supposing it were the case of the UN sending troops under its flag it certainly is a significant matter that requires SC consultation. This particular issue itself cannot be a knee-jerk reaction of UNSG BKM. He has within his vicinity a whole team of legal and other experts to advise him on if the course of action he has taken on a high profile issue like that of potential action for HR violations against a Head of State and his army - is tenable.
Other readers here have commented Dr Marasinghe could well be trying to catch the eye of the ruline elite here - for his own purposes. His continued reference to "His Excellency" more than once when the regular "President" would have been proper and adequate certainly creates a dent in his perceived armour of neutrality. Doubtless, the powers-be will ask him "for a chat" after seeing his article that makes his intentions clear. If that does take place he might as well remember the 2nd notice issued by the ICC to Sudan's Al-Bashir last week is done irrespective of whether or not Sudan is signatory to the Rome Treaty. Al Bashir knows the noose around him is tightening. The UN and its resolutions will not be worth the paper they are written if mass violators of HR and War Crimes like Al Bashir are allowed to go about their day to day business as if nothing happened. The lives of hundreds of thousands of his own people snuffed out in the desert of Darfur in the name of "good and proper governance" will have to be answered and accounted for - if the human raise in the 21st century is to claim it was a more just, righteous and liberal world.
ISS
Dear Dr!
Since you have already admitted that you are a confused man by your own reading of the UN charters, i do not want to go and read the UN charters and confuse you more. But, you can do us a big favor by asking your Sinhala president to take this matter to the ICJ, as you say, instead of tasking, one of his co-thugs Vimal Veerawansa to go and demolish the UN buildings. Further, since i know where your loyalty is, i want to add that, if you professor think, by taking this matter to the ICJ, you people can delay the panel or make the SG to abolish it, His Excellency, the Secretary-General, who worked at the UN for years before he became the SG, must have also consulted with his advisers, about all this eventualities, before he formed this panel, isn't it sir? Also, if the SG had not taken this panel matter to the Security-council, does not his move explain you, that he is serious in his intention of, making Srilankan countable, in its human rights matters? Doesn't he know, that you have your two criminal friends sitting there in the security council with their veto powers?
An interesting proposition. But Would the GOSL ever want to go near an international tribunal including the ICJ on this issue?
MISA Kaleel
Because UNSG is conscious that this issue is not an intra state issue but an inter states issue
An Eelam citizen